Commonwealth v. Skatt , 162 Mass. 219 ( 1894 )

Holmes, J.

Artificial ponds are within the words and the reason of Pub. Sts. c. 91, § 27.^* The defendant, without their permission, fished in a part of such a pond which covered land belonging to the Wrights, and was a trespasser in so doing. The words “ without the permission of the proprietors,” in the section referred to, mean without the permission of the proprietors of that part of the pond where the fishing takes place, including, no doubt, under the word “ proprietors ” lessees as well as owners. ' The only other words of the statute constituting the offence are that the fishing must be “in that portion of a pond ... in which fishes are lawfully cultivated or maintained.” The statute contemplates in terms that the fish may be cultivated in a portion only of the pond. The fact that there were other riparian proprietors into whose waters the fish might swim does not prevent the operation of the section. Commonwealth v. Vincent, 108 Mass. 441. In Commonwealth v. Perley, 130 Mass. 469, although the exceptions show that it was “ proved that the defendant fished in the pond without the consent of any of the proprietors or lessees,” it did not appear that he was a trespasser on the property of those who propagated the fish, or, in the words of the statute, “ in that portion of a pond ... in which fishes are lawfully cultivated or maintained,” and it was assumed that he was fishing in waters unprotected by statute (p. 471). If he was fishing over the land of one who was a stranger to those who stocked the pond, he was not fishing in a place where fishes were cultivated or maintained. In the present case the Wrights had stocked the pond. The statute is directed against a trespass, and all the elements of the trespass are here. Exceptions overruled.

* This section is as follows: “ Whoever without the permission of the proprietors fishes in that portion of a pond, stream, or other water in which fishes are lawfully cultivated or maintained, shall forfeit not less than one dollar nor more than twenty dollars for the first offence, and not less than five nor more than fifty dollars for any subsequent offence.”