Commonwealth v. Follett , 164 Mass. 477 ( 1895 )

Field, C. J.

The Pub. Sts. c. 91, § 51, prohibit the taking of trout with a net at any season of the year. Sections' 25 and 26 of the same chapter are as follows: “ Sect. 25. A riparian proprietor may, within the limits of his own premises, enclose the waters of a stream not navigable, for the cultivation of useful fishes: provided he furnishes a suitable passage for migratory fishes naturally frequenting such waters. Sect. 26. Fishes artificially propagated or maintained shall be the property of-the person propagating or maintaining them; and a person legally engaged in their culture and maintenance may take them in his own waters at pleasure, and may have them in his possession for purposes properly connected with said culture and maintenance, and may at all times sell them for these purposes, but shall not sell them for food at seasons when their capture is prohibited by law.”

The construction we give to these sections, when applied to fish in the waters of a stream not navigable, is that the fish which are declared to be the property of the person propagating or maintaining them, and which such person may take “in his own waters at pleasure,” are fish in waters which have been enclosed as provided by § 25. In Commonwealth v. Perley, 130 Mass. 469, 471, the court (speaking of St. 1869, c. 384, §§ 16, 18, and 20 of which were incorporated in §§ 25 and 26 of c. 91 of the Public Statutes) say: “ The absolute ownership created by the statute necessarily exists only where and so long as he who propagates or cultivates the fish keeps them within a territory over which he has absolute control; as soon as he permits them to pass into territory where others have rights of fishery, equal to or greater than his, his ownership is gone, because they may then be rightfully taken by others without his consent,” etc.

The contention of the defendant, that the Hoxie trout had become so tame as to become his absolute property wherever they might be found in an open stream, cannot be supported. Such fish are not of the class of animals which, without confining them in private waters, can become the absolute property of anybody. These trout in an open stream are like other trout, and Pub. Sts. c. 91, § 51, were intended to prohibit an owner of land on a stream not navigable from taking trout with a net from the stream on his own land, as well as to prohibit other persons from doing so.

Exceptions overruled.