Parker v. People (111 Ill. 581, 1884)

Mr. Justice Walker

delivered the opinion of the Court:

This case involves the question whether an act of the General Assembly is, or not, unconstitutional. We are fully impressed with the gravity of the question involved, and the important, if not vast, results that must flow from its determination. There are few questions that more vitally concern the future interests and welfare of the people than does this question. Again, it is always a delicate matter to review the action of the other coordinate branches of government, who act under the same obligations to observe and support the constitution that are imposed upon us. We have therefore, in viéw of these considerations, bestowed an unusual amount of labor, thought and pains in the investigation of the question, and shall proceed to state our conclusions.

The act under which this proceeding was instituted was adopted on the 31st of May, 1879, (Sess. Laws, page 171,) which is declared to be an amendment to a prior act. It provides: “That it shall be the duty of any person or persons who now owns, or may hereafter erect, any dam or other obstruction across any of the rivers, creeks, streams, ponds, lakes, sloughs, bayous, or other water-courses within this State, to place therein suitable fishways, in order that the free passage of fish up or down or through such waters may not be obstructed, ” And it imposes a fine not exceeding $200 a year for not complying with the requirements of the statute, to be recovered before any justice of the peace of the county where such dam or obstruction may be situated. Defendant being the owner of a dam across Fox river, and refusing to comply with the law, was prosecuted before a justice of the peace, and on a trial a judgment was rendered against him. He appealed to the circuit court of the county, where a trial was had with the same result, and he brings the case to this court on error, and urges a reversal.

All the facts are conceded by stipulation of the parties. It is agreed that the dam was erected across Fox river, where it now stands, in the .year 1836, and was raised to its present height in July, 1853, and has been so maintained ever since ; that in 1842 Michael O. Parker, a remote grantor of plaintiff in error, purchased the land on which the mills and dam are situated, from the general government; that M. G. Parker, in 1857, procured the passage of an act of the General Assembly authorizing him, his heirs or assigns, to raise this dam higher, or to erect a new one at that place; that the dam always has obstructed, and now obstructs, the passage of fish in the river, and to construct a fishway in conformity to the act would cost about $600; that plaintiff in error has owned and used the mills and dam since in 1871, and maintained' the dam at its present height since that time; that he has succeeded to and is possessed of all the rights with which Michael C. Parker was invested. These are the material facts of the case.

Plaintiff in error insists that he has a prescriptive right to maintain his dam as now constructed, as it has been used in its present condition, by himself and grantors, for more than twenty years; that the law requiring him to construct a fishway connected with his dam would be to deprive him of his rights without due process of law, — if intended for public use, without due compensation, or if for private use, then not only without compensation but without the. semblance of constitutional warrant. He also contends that the act of 1857 was a charter, and as such is or contains a contract, and this law violates its obligation, and is repugnant to the contract clause of the Federal and State constitutions, and is therefore void. When the dam was erected it was without right, and by a trespass on the lands of the government, and before Michael C. Parker purchased the land of the general government, the legislature had by enactment, in 1840, (Sess. Laws, 93,) declared Fox river a navigable stream and public highway. It then follows that he purchased subject to the power of the legislature to control the use of the stream to the same extent it had to regulate the use of other streams in the State which were navigable in fact. After the passage of that act Parker maintained his dam as an obstruction to a navigatfie river, and in violation of that law, because by the passage of that act it became public in its use, and its use was under the control of the legislature. He, in all probability, to obtain a license to maintain his dam, procured the passage of the act of 1857, authorizing him to raise the height of the dam or to erect a new one; but did that act withdraw or surrender permanently the power of the General Assembly to protect the passage of fish in the stream ? There is no rule of construction more familiar or more firmly established, than that all grants of powers must be taken most strongly in favor of the State and against the grantee. In such cases nothing passes that is not in the letter or by clear and unmistakable implication, and when the State makes a grant, the thing or right is subject to legislative control, precisely as other rights' not derived from government; and inasmuch as this was a license to maintain a dam in a navigable river, we have no 3'ight to hold that the legislature intended to repeal the act of 1840, so far as it related to the river above this dam. Such would be the effect if it should be held that Parker, his heirs or assigns, may maintain a complete obstruction at that place. It is not a reasonable inference that the General Assembly contemplated such a result. The act contains no la3ignage that in terms, or by implication, declares such a purpose. We must therefore hold that the license was made subject to legislative control. There is nothing in the act that warrants the conclusion that the General Assembly designed to permanently surrender any portion of its power of control over this river for the protection of fish. That the legislative branch of government has the power .to prevent the erection and maintenance of obstructions in navigable streams can not be successfully controverted, and all must know that any obstruction to the passage of fish necessarily must obstruct the passage of boats and other water craft. We, therefore, have no hesitation in saying that the legislature, if it had the power, never intended by that -act to permanently abandon the control for the free passage of fish in this river. Had it intended to repeal or amend the act of 1840, it is but reasonable to suppose it would have been done in terms.

There are some things, and they are the most essential of all to man, that are incapable of individual ownership. Such are air and water. All may and do participate, without restraint, in their enjoyment. They are the common inheritance of mankind. There are other things to a large extent incapable of individual ownership, and of these are game and fish, and they belong to the entire community, collectively; and belonging to all equally, for their protection from extinction, and to preserve the common ownership in all, they are, and of necessity have ever been, subject to legislative control. If they were not, the few would, by their destruction or appropriation, deprive the balance of the community of their rights in this common inheritance. Belonging to all, common justice requires their preservation for the use and enjoyment of all. From the wild and wandering nature of fish they are not, nor can they be, the subject of ownership in running streams, like animals and fowls which have been domesticated. The nature of fish impels them periodically to pass up and down streams for breeding purposes, and in such streams no one, not even the owner of the soil over which the stream runs, owns the fish therein, or has the legal right to obstruct their passage up or down, for to do so would be to appropriate what belongs to all to his own individual use, which would be contrary to common right, and all having a common and equal ownership, nothing short of legislative power can regulate and control the enjoyment of this common ownership. This must be so from absolute necessity. There is not, nor can there be, any other means of protecting each individual in the enjoyment of the rights his joint ownership confers, hence the necessity of legislative action to preserve and protect the rights of each and all in their common inheritance. Therefore the power of the legislature to act must be admitted.

The common law has always recognized the right of the riparian owner to take fish in the waters running over his own soil, and appropriate them to his own use; but the fish being the common property of the people, such owner has never had the right to obstruct their passage from that portion of the river which flows' over his land, nor has he the- right to wantonly destroy the fish passing over it, and thus deprive the community of their right to and ownership in the fish,— hence the manner in which, the time when, and the amount such riparian owner shall take, for the preservation of the common property, is a legislative and governmental function. Government was organized to protect the general and collecttive rights of the governed as fully as the individual rights of each member of the body politic, — and this power, as we shall see, has been exercised as a legislative function by the British parliament almost from the time of its organization, as well as by our State governments since their organization.

At an early period, before and immediately after our State government was organized, the legislature adopted what is now' chapter 28 of the Revised Statutes of 1871, and that provision has ever since remained in force in this State. It provides : “The common law of England, so far as the same is applicable and of a general nature, and all acts of the British parliament made in aid of and to supply the defects of the common law, prior to the fourth year of James I,” (excepting several statutes specified,) “and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.” We shall refer to Magna Charta and some of the early British statutes on this subject in aid of the common law, to. show that under that law the regulation of the right to take fish, and for their increase and preservation, was always considered a legislative function. Under the common law, obstructions to the passage of fish were held to be public nuisances, and subject to legislative control.

That these rights were always, from the earliest times, considered of great public interest and of vast importance, is manifest from Magna Charta and the early British statutes. The arbitrary kings after the conquest claimed the game and fish in the kingdom as a part of their prerogative, and conferred on their favorites and dependents royal franchises to take game and fish, to the exclusion of the people. This being in derogation of common right, there were many struggles to compel their monarehs to restore their ancient rights. The first that proved successful was in 1215, when King John was compelled to restore them by Magna Charta. The restoration of the rights it confirmed had been petitioned for during several previous reigns, but although promised, were never restored. Succeeding monarehs disregarded its provisions, hut they were compelled to reaffirm the great charter. The 39th chapter of that instrument declares: “All kydells (weirs) for the future shall be quite removed out of the Thames and the Medway, and through all England, except on the sea coast.” (Thom. Es. Mag. Ch. 81.) This charter or declaration of rights was confirmed by Henry III, in 1216, (id. 112,) and again by the same monarch in 1217, (id. 125,) and a third time in 1224-25. (Id. 138.) It was also confirmed by Edward I, in 1297, — and in each of these confirmations the provision in regard to weirs is in precisely the same language. As'illustrating the grea.t importance attached to the right of fishery, the 48th chapter of the same charter provided: “All evil customs of forests and warrens, and foresters and warreners, * * * water banks and their keepers, shall immediately be inquired into by twelve knights of the same county, by oath, * * * and within forty days after inquisition is made they shall be altogether destroyed by them, never to be restored.” (Id. 85.) This author, in his notes, (page 203,) says, speaking of this last provision of the charter: “It ordains that river banks shall not be defended excepting at their ancient places and boundaries; and its intent was, says Lord Coke, that no owner of such banks should in the future so appropriate or keep the rivers separate to himself as to prevent others from fishing or having passage at them. ” Sir Edward Coke says that Magna Charta and the Charta Foresta have “been confirmed, established and commanded to be put into execution by thirty-two several acts of parliament in all; ” and inasmuch as. this provision in regard to weirs seems to have been embraced in all of them, it establishes beyond all question that the power to control the exercise of the right of fishery was then, as it has been ever since, regarded as of national concern, and of such public importance as to form one of the chapters of the constitution or bill of rights of the British people, maintained only by long and bitter struggles.

The first statute we shall refer to is the 2d Westminster, 13th Edw. I. It provides: “The waters of Humber, Owse, Trent, Dove, Arre, Derewent, Wlierfe, (Nid, Tore,) Swale, Tese, (Tine, Eden,) and all other waters, (wherein salmons be taken,) shall be in defence for taking salmons, from the Nativity of our Lady unto St. Martin’s day; and likewise, that young salmons shall not be taken nor destroyed by nets, nor by other engines, at mill pools, from the midst of April unto the Nativity of St. John the Baptist; and in places (where as fresh waters be) there shall be assigned conservators of this statute, which, being sworn, shall oftentimes see and inquire of the offenders; and for the first trespass they shall be punished by burning of their nets and engines, and if they offend a second time they shall be punished by imprisonment for a quarter of a year, and if they offend a third time they shall be punished by imprisonment for a whole year, and as their trespass increaseth so shall their punishment.” (1 Eng. Stat. at Large, 211.) The 13th Richard, 2 C. 19, contains similar provisions. The 1st Eliz. 17, prevents the taking of young fry or spawn of fish, and it also prohibits the taking of various kinds enumerated, under specified lengths. The 3d Jac. 1 G. 12, prohibits the erection of weirs at specified places, or using nets to destroy the fry or spawn of sea fish. And there are a number of ancient statutes that are local to counties or particular streams. There are other statutes of the same character adopted by parliament, on the same subject, that might be referred to. It thus appears that the preservation and the regulation of the mode and time of taking fish was of public concern, and a proper subject of legislation. It is thus distinguished from a mere private right not within the domain of legislation.

But as bearing on this question, as on the question of prescription, we will refer to some cases that shed much light on it. In Weld v. Hornby, 7 East, 195, Lord Ellenbobough said: “The erection of weirs across rivers was reprobated in the earliest periods of our law. They were considered as public nuisances. The words of Magna Charta are, that 1 all weirs from henceforth shall be utterly pulled down by Thames and Medway, and through all England,’ etc. And this was followed up by subsequent acts treating them as public nuisances, forbidding the erection of new ones, and the enhancing, straitening or enlarging of those U’hich had aforetime existed. I remember that the stells erected in the river Eden by the late Lord Lonsdale and-the corporation of Car-lisle, whereby all the fish were stopped in their passage up the river, w’ere pronounced, in this court, upon a motion for a new trial, to be illegal, and a public nuisance. Now, here it appears that previous to the erection of this complete stone weir there had always been an escape for the fish through and over the old brush-wood weir, in which those in the stream above had a right, and it was not competent for defendant to debar them of it by making an impervious wall of stone, through which the fish could not insinuate themselves as it is well known they will through a brush-wood weir, and over which it is in evidence that the fish could not pass, except in extraordinary times of flood; and however twenty years’ acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisances, though of longer standing. ” In the same case,.Lawrence, J., said: “There is no bar to the action from any length of .possession in the defendant. ” That case was by an upper riparian proprietor, and it appeared by ancient deeds that for two centuries before that time the owners of the mill and weir had the right to maintain them, as expressed in the deeds;. nor did they limit it as to its height, nor the materials of which it should be constructed. It is true, in that case the cause of action. accrued within twenty years, but Lord Ellenborough referred to a case decided in the King’s Bench, where it was held that such obstructions were illegal, and a public nuisance, and he so announced the doctrine in.the case he was then deciding. We are aware that in comparatively recent cases in the courts of that kingdom the doctrine of Weld v. Hornby has been disregarded, but we prefer the exposition of the common law in that case to the more recent decisions of their courts, and are inclined to follow it as the better doctrine.

In the case of Eubank v. Pence, 5 Litt. (Ky.) 338, which was a condemnation proceeding for the erection of a mill and dam, the court said: “The inquest of the jury, taken under the writ of ad quod damnum which issued in this case, not having ascertained whether or not fish of passage will in any degree be obstructed, the court erred in ordering the mill seat to be condemned, and in giving permission to Pence to erect a mill. The order, therefore, must be reversed, with costs, the cause remanded to the court below, and the inquest of the jury quashed, ” etc. The legislature of Kentucky at an early period adopted the common law of England, and all statutes of the British parliament in aid thereof, and of a general nature and applicable to the condition of the people, passed prior to the American revolution, with exceptions similar to our statute. But concede this was under a statute of the State, still it shows' the preservation of fish was regarded as of such public concern as to fall within the domain of legislative power. If not under such an enactment, it must have been under ancient British statutes.

In the case of Stoughton v. Baker, 4 Mass. 522, (two years subsequent to the décision of Weld v. Hornby, supra,) Chief Justice Pabsons, in delivering the opinion of the court, said: “But the right to build a dam for the use of a mill was under several implied limitations. One was, to protect private rights by compelling him to make compensation to the owners of land above, for, and damages occasioned by, overflowing their lands. Another was, to protect the rights of the public to the fishery, so that the dam must be so constructed that the fish should not be interrupted in their passage up the river to cast their spawn. Therefore, every owner of a water mill or dam holds it on the condition, or perhaps under the limitation, that a sufficient and reasonable passageway shall be allowed for the fish. This limitation, being for the benefit of the public, is not extinguished by any inattention or neglect in compelling the owner to comply with it, for no laches can be imputed to the government, and against it no time.runs so as to bar its rights. ” Another objection, he says, was urged, that if the resolution was constitutional, the legislature might authorize strangers to enter without right on the freehold or lawful possession of another. To this he answered: “This objection, supposing strangers enter without right, is begging the question;' for if the owner of the dam holds it under the limitation mentioned, that limitation must extend to give a right to the government to enter and remove obstructions, which, if not removed, would defeat the limitation.” This case was followed by a number of cases, among others the cases of Commonwealth v. Chapin, 5 Pick. 199, and Vinton v. Welsh, 9 id. 87, which recognize the exclusive right of riparian owners to take fish on their own lands, but expressly hold, as against the public they have no right to obstruct their passage, and it is expressly held that the right is under legislative control.

In the case of Carson v. Blazer, 2 Binn. 475, it was held that the common law never prevailed in the State of Pennsylvania, which recognizes the exclusive right of the riparian owner to take fish in a stream flowing in front of or bounding his land, and such has been the recognized doctrine of that tribunal ever since. It has been followed by subsequent cases in that court.

In the case of Hooker v. Cummings, 20 Johns. 90, the doctrine of the common law was fully recognized and applied, and it was said: “The legislature have, confessedly, the right of regulating the taking of fish in private rivers, and do every year pass laws for that purpose as to rivers not navigable in any sense, and which are unquestionably private property. ”

The cases here referred to fully establish the doctrine that whatever the private right of taking fish in streams flowing over a man’s land, it is under the limitation that its exercise may be regulated and controlled, as public necessity may require; and they clearly announce the rule that their free passage may be secured by enactment, or it is secured by the common law.,

As early as in 1807 the territorial legislature of Indiana adopted an act for the purpose of preserving fish in our waters, this State then being a portion of that territory. The act provided for the condemnation of mill seats by a writ of ad quod damnum. It required the jury impaneled, to assess damages by reason of constructing the mill dam; also, to inquire whether, and to what extent, fish of passage or migration would be obstructed, dnd by what means such obstruction could be prevented. This law was in force when our territorial government was organized. The provision in relation to fish was dropped out when the laws were revised, after the State government was organized, and only restored by the act to which this is an amendment. In 1817 the territorial legislature passed an act authorizing Ezra Owen to erect a dam in the Kaskaskia river, for the purpose of taking fish. It contained a provision that the dam should not obstruct the passage of fish 'or ordinary navigation. (Sess. Laws 1817-18, p. 26.) This act was retained in the revision of 1819. (Laws, p. 351.) It is thus seen that in that early period of our history the legislative branch of our government claimed and exercised the power of preserving the fish in our waters. At that time it appears the exercise of the power was regarded as an inherent and unquestioned function of legislation.

But if any doubt existed, it is removed by the 22d section of article 4 of our present constitution. It provides that the General Assembly shall not pass local or special laws in a number of enumerated eases, and among the cases enumerated is “the protection of game and fish. ” This unmistakably recognizes the power as then existing, and undeniably authorizes its exercise. This must end all dispute as to the power. This limitation of the power of the legislature in all of the cases enumerated refers to matters óf a public nature, and among them is the protection of fish, which was regarded so important to the public that the legislature was restricted and prevented from granting, by special or local law, any privileges or exemption from a general law. It was esteemed too important a public interest to permit any person, even with the consent of the legislature, to escape from conforming to any general law which should be passed on the subject.

All must admit that from the remotest times game has been the subject of protection by legislation in Great Britain, and in this country since its settlement; nor has any one, until recently, questioned the constitutional power to adopt such laws, and our constitution places both the preservation of game and fish On the same basis and equality. There is no question that more concerns the public than an abundant supply of cheap and healthy food. In a densely populated country it is the all absorbing question that engages the attention of its people and the government. It is the basis of the happiness, prosperity and contentment of all peoples. And with our unparalleled increase of population, vast as is our domain, in a generation more it will become the all absorbing economical question for the government to solve. Even now, in some portions of the Union, it is. taxing the energy of the people and the wisdom of statesmen, to a high degree, to provide against pinching want; and it must be obvious to all that the question of the increase of the supply of food, and the preservation of the sources of its supply, are matters of the highest public concern. There are few, if any, questions that should attract the attention of the lawmakers to a greater extent, because of its public importance. All will concede the vast importance of the commercial and manufacturing interests of the country, and in recognition of their importance these interests have received aid and protection from the government; but no one can say they are of paramount importance more than an abundant supply of cheap food for the people, nor should the sources of such a supply be sacrificed to either or both of the other great interests. Commerce, manufactures and trade concern the opulent or persons in easy circumstances, but the supply of food vitally concerns the struggling masses, upon whose labor the other interests are wholly dependent. Their labor is indispensable to the very existence of commerce, manufactures and trade, and their interests and wants are of as essential importance, and are as worthy of the protection of government, as the others. The interests of an owner of a mill or factory do not require the sacrifice of this great public interest by strained construction or refined distinctions. Its regulation is manifestly as public in its character as many others that have always been under legislative control, and never challenged or even questioned.

We now come to the consideration of the effects and consequences of holding that private individuals may acquire prescriptive rights against the public. If such a doctrine were to obtain, it would amount to a repeal of this law. All the riparian owners on every stream in the State, and many others, could prove that they and their ancestors had, for more than twenty years, maintained weirs, and used seines, nets and other prohibited devices for the destruction of fish. If the claim of such prescriptive rights should be sustained, then all the fish in our streams would soon be destroyed, and the production of food decreased perhaps millions of dollars annually, and other food enhanced in price, so as to become oppressive to the poor and struggling masses, — and the question, for these reasons, will annually grow in importance with our unparalleled increase of population. No one has questioned the power of government' to protect cattle, sheep and hogs from disease, or the power to pass and enforce restrictions for their preservation for food for the great mass of the people. This may not be so important an interest as either of the others, but there is no doubt it is of great public concern. The legislature has the power, and is charged with the duty, of passing all laws for the preservation of the people and their morals, and to adopt all measures for the general welfare, and this law is eminently adapted to produce such results. At the ancient common law it was regarded as within legislative power to prevent the forestalling, regra-ting and engrossing of food, and they were prohibited by statute, for the protection of the people against unjust exactions in the price of food. If such were objects of legislation, then the preservation and increase of this article of food must necessarily be of great public, as contradistinguished from private, interest.

The act of 1857 does not possess a single ingredient of a charter for a corporation. It does not, in the remotest degree, refer to a corporation, or confer the slightest corporate powers or franchises, or anything which can be tortured into a grant of such franchises. If the courts may torture that act into a charter, or hold that plaintiff in error is a corporation, then it might be held that almost any law on the statute book is a charter, and creates a corporation. To so hold in this case would be to disregard all definitions, distinctions and relations of things. It surely is not expected that this or any other court could so hold. It is so palpable that the act is not a charter, it is useless to search for authorities, as no one before, we presume, ever conceived such an idea.

On thorough examination and earnest reflection, we are impelled to the conclusion that the General Assembly exercised legitimate and constitutional power in the adoption of the act of 1879, and did not thereby deprive plaintiff in error of any right of property or privilege. Nor did or could he acquire a prescriptive right against the public. We, for these reasons, conclude that this is one of the great purposes for which the State government was brought into existence, and the legislature has no competent authority to permanently grant- or barter it away. That it may suspend the right, and license persons to create such nuisances,"none can deny; but the license may be revoked at will, as the licensee acquires no vested rights under the license. This power can only be destroyed or withheld by the people when framing and adopting a constitution.

Perceiving no error in the record, the judgment of the court below is affirmed.

Judgment affirmed.

Mr. Justice Dickey,

dissenting:

I can not concur in this judgment. It seems to me not only unjust, hut an invasion of the rights of private property without warrant of law. The sanctity of the rights of private property is zealously guarded in all civilized communities, and these rights are shielded in this State by the provisions of our own constitution. This protection is one of the proudest features of our free institutions. I feel bound to protest that the constitutional barriers erected for their protection shall not be frittered away under any undefined idea of the omnipotence of the police power, or under any other guise.

I concede that this dam, when first erected, was a private nuisance, in so far as it did injury to the rights of riparian proprietors upon Fox river, above and below the dam, by obstructing the free passage of fish up and down the stream, and continued to be a private nuisance in this regard until, by the lapse of time, such use of the property by the owner of the dam, without question or objection by those whose rights alone were thereby injured, ripened into an adverse right, as against such riparian proprietors, to continue such use of his property, I think, that Fox river being in fact a strictly private river, the public never had any rights whatever as to the free passage of fish in that river, and hence this dam never was a public nuisance. The pivotal question of the case is, whether the obstruction of the passage of fish in Fox river was by law a public nuisance or merely a private nuisance, for it is clear, if it were a public nuisance no length of time could ripen the use into a right in the possessor; and it is equally clear that if this dam were originally merely a private nuisance, twenty years’ uninterrupted use and occupation did ripen into a right as against ■ all upper or lower riparian owners.

Our constitution declares private property shall not be taken or damaged for public use without just compensation. If, then, at the passage of the act of 1879, Parker, the plaintiff in error, had a lawful right to maintain his dam in its then condition, although it did obstruct the passage of fish, such right was property, and being property, could not, without violation of the constitution, be taken or damaged without just compensation; and to deny him this right, except on condition that he should expend $600 of his own money in constructing a fishway for the benefit of- the public or that of riparian proprietors above and below, would be to damage this right which is property. If, however, at the time of the act of 1879 the dam in question was a nuisance, either public or private, then Parker had not the lawful right to maintain the same in its then condition; and to provide that he should maintain it no longer, except upon the condition stated, would be a fit exercise of legislative power. This, in that case, would not deprive him of any lawful right of property, and would be no innovation upon any constitutional right. As already suggested, if originally this dam was a mere private nuisance, and not a public nuisance, by lapse of time the use and occupation of this dam has ripened into a lawful right in the owner to continue its maintenance, and it had thereby ceased to be a private nuisance. The right to maintain it, if not a public nuisance, had thus been added to his other rights as owner. See Wood on Nuisances, sec. 420; Yard v. Ford, 2 Saunders, 175, note 6; Parker v. Foote, 19 Wend. 309.

The right to maintain what originally was a private nuisance may be acquired by prescription or by grant. Hence, I say, the pivotal question in this case is, whether, by law, this dam was, or was not, a public nuisance, by reason of its obstruction of the passage of fish- in the stream at that point. What, then, in a legal sense, is a nuisance ? What is the difference between a private nuisance and a public nuisance ? A nuisance is something done, or omitted to be done, which has the effect of injuriously and unwarrantably affecting the rights of another person or persons. All rights are personal. Some rights are public rights, and some are private rights. Those rights which belong to a person as one of the public, are public rights. That, only, is a public nuisance which injuriously affects such right or rights of another as belong to him as one of the public. Those rights which belong specially and exclusively to a particular person are private rights. That is a private nuisance which injuriously affects such right or rights of another as especially belong to him exclusively, and do not belong to him as one of the public. All men have, as members of the public, a right to have the public highways free from obstruction to travel, and have the right to travel thereon. This is a public right. Every man who owns property abutting upon a highway has a right of access to and egress from his property from and to the highway. This is a private right. That is a private nuisance which injuriously and unwarrantably affects such rights of another as belong to him specially and exclusively. The right to take fish in the sea or in tide waters is a right which belongs to every man as one of the public,— hence that is a public nuisance which injuriously and unwarrantably affects that right. The right to take fish in the waters of rivers and streams where the tide does not ebb and flow, is exclusively in the riparian proprietor over whose land the waters are flowing, — hence that which injuriously and unwarrantably affects that right is a private nuisance. One committing a private nuisance is liable to the person whose private rights are injured, in a private action. A public nuisance subjects the offender to indictment. The same thing unlawfully done may sometimes be a public nuisance and also a private nuisance. Should one construct a house in a street in a city, large enough to occupy the whole breadth of the street, and so situated as to obstruct access and egress between the street and the property of another abutting upon the street at that place, the offender would no doubt be liable to indictment for a public nuisance in obstructing the travel along the street, and thereby violating the rights of those who, as members of the public, have the right to travel the highways; and for the same act such offender would be liable to a private action by the owner of the abutting property, for the violation of his private right of access and egress as owner or tenant of the abutting property.

Wood, in his excellent work on Nuisances, says that legally the term “nuisance” is applied to wrongs “which work an obstruction of or injury to a right of another, or of the public,” (sec. 1, pp. 1, 2,) and that “every enjoyment by one of his own property which violates the rights of another, is in an essential degree a nuisance, and the use by the owner of his own property must be such as will not prejudicially affect the rights of others, ” and that such use must be “in recognition of and obedient to the rights of others.” And in a note it is said, “that which is lawful can never be a nuisance, ”— referring, to Lee v. Westerfeldt, 2 Duer, 618, Williams v. Railroad Co. 18 Barb. 222, and Renwick v. Merrick, 7 Hill, 575. The author quotes from Smith’s Manual on the Common Law, as follows: “A nuisance is something done which has the effect of prejudicing and unwarrantably affecting the rights of another person, ” and says: “If Smith had added, ‘or something omitted to be done,’ this definition would have been sufficiently comprehensive to cover the subject and be complete.” (Sec. 4, p. 6.) Again: “A nuisance is an obstruction of or injury to a right, * * * and unless'the act or thing is in violation of a right, the act or thing is not a nuisance, and the party injured is remediless.” (Sec. 9, p. 16.) And again: “The inconsistencies that have sometimes appeared in the judgments of courts when dealing with this branch of the law, have arisen * * * from a failure at all times to keep in view this fact: that there can be no legal injury except from the violation of a legal right.” (Sec. 13, p. 21.) Again: “When no right has been violated, it can not, by any process of reasoning, be established there is a legal injury; ” and “a public nuisance is a violation of a public right. * * * A nuisance is only public when it affects the rights of citizens as apart of the public.” (P. 29.) And again, in stating the distinction between public and private nuisances, he says: “Private nuisances are confined to the injury of individual rights, while public nuisances affect the rights of individuals only as members of the public, ” (p. 77,) — referring to Soltau v. De Held, 2 Sim. (N. S.) 133; 9 Eng. L. & Eq. 104.

■ A dam erected so as to injure the land of another, above or below, is a private nuisance. (Norway Plains Co. v. Bradley, 12 N. H. 86.) A dam which impairs the health of the neighbors is a public nuisance, because each map, as of common right, is endowed with the right of having his health free from injury by the wrong of another. Kownslar v. Ward, Gil. (Va.) 127; Rhodes v. Whitehead, 27 Texas, 304.

Counsel for the People attempt to defend the validity of this act, as against the plaintiff in error, under what are called the police powers of government. It may be observed that the provision of our constitution protecting private property from being taken or damaged without just compensation, is unconditional. This is absolutely forbidden, and can not constitutionally be done under the police power or any other power. The police power, however, in my judgment, never did, when properly exercised, extend to or justify the taking away or damaging any right relating to private property. It extends to the protection of all rights, whether public or private, and to the enforcement of all duties which the citizen or property owner owes to other citizens as respects their private rights, as well as to the enforcement of all duties which the citizen or property owner owes to the public, — that is, owes to any other person, as respects the rights of such person as one of the public: My position is, that where there are no rights of others to be protected, and no duties in respect to the rights of others resting upon the owner of private property to be enforced, to such case the mere police power does not extend. If this limitation be sound, it follows that the police power can never be invoked to justify the taking or damaging of private property, for no man can have a property right to violate the rights of others, or the right to omit the performance of any duty which he owes to others in respect of any of their rights.

Chief Justice Shaw has well said of the police power of government, (7 Cush. 85): “It is easier to perceive and realize the existence and source of this power than to mark its boundaries and prescribe limits to its exercise. ” He concedes, however, that it has limits. Cooley prescribes a limit, and says this power of the State “embraces its whole system of internal regulations made to preserve public ordér and to prevent offences against the State, and to establish those rules of good manners and good neighborhood which tend to prevent conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.” (Cooley’s Const. Lim. 572.) The right to exercise this power, at least in so far as regards the protection of the private rights of others, is usually said to rest upon the fundamental doctrine of all civilized men, that each must so use his own as not to injure others. Chief Justice Shaw places it upon this ground. (Commonwealth v. Alger, 7 Cush. 53.) Eedfield bases this power upon the same doctrine, — sic utere tuo ut alienum non Icedas, — and says: “It is within the range of legislative action to define the mode and manner in which every one may so use his own as not' to injure another. (Thorpe v. Rutland and B. R. R. Co. 27 Vt. 140.) Cooley, speaking of this maxim as the foundation of the police power, says: “The maxim is that which lies at the foundation of the power; and to whatever enactment affecting the management and business of private corporations it can not fairly be applied, the power itself will not extend. ” And so, where a corporation, by its charter, had the right to take toll from passengers over its road, a subsequent statute authorizing a certain class of persons to go toll free, was held void, and the author aptly says: “This was not a regulation of existing rights, but it took from the corporation that which they before possessed, * * * and conferred upon individuals that which before they had not. ” (Id. 578.) And so an amendment of the charter of a bridge company, requiring a fifty-two-foot draw for the passage of vessels instead of one of thirty-two feet required by the charter, was held not within the police power, and to be unconstitutional. (18 Conn. 53.)

What is said by Cobley as tb the rights of corporations seems equally applicable to the property rights of private citizens, for surely the rights of corporations are no more sacred than those of the citizens. If so, adopting the apt words of Cooley, we may say, this maxim is that which lies at the bottom of the power, and to whatever enactment affecting the property rights of the private citizen it can not fairly be applied, the power itself will not extend. It seems to me it may be safely laid down as a rule, that all police regulations made by statute affecting injuriously the rights of private property, to be valid must be for the protection of some existing right, public or private, and for the enforcement of some duty in respect to such existing rights, either to the public, as such, or to private individuals; and when no such- rights are involved, and no such duty is found, the mere police power of the State does not extend to the case. On this principle, statutes requiring railroad corporations to fence their existing tracks are sustained. To use their own so as not to injure adjoining proprietors by endangering their cattle by reason of such use, was a duty resting upon the corporation; and to guard their passengers from danger arising from cattle straying upon the track, was a duty resting upon the corporation. The police power aptly prescribes the mode in which these duties shall be performed. Upon this principle, existing railway companies are required' to ring a bell or blow a whistle at highway crossings, and to stop their trains at intersections with other railroads, and to keep a flagman at specified dangerous places. Upon the same ground, statutes regulating or restraining the sale of dangerous drugs are held valid. Under this power, carriers of persons may be made insurers of the safety of their passengers, quarantine and health regulations have been made, and regulations as to harbors, pilots, quiet deportment on Sunday, as to fire limits in cities, as to location of slaughter-houses, as to places of deposit for gunpowder, as to the inspection of provisions, the keeping of dogs, as to markets, and relating to many other subjects. Under this power, laws are passed imposing penalties for cutting trees on another’s land, and for permitting Canada thistles and other noxious weeds to go to seed on the owner’s land. Other illustrations might be named. Some of these are for the enforcement of duties to the public, or to others as members of the public, and some for the enforcement of duties to citizens, and for the protection of strictly private rights; but each of all such regulations, in so far as they prescribe what a man may or may not do as to the use of his own property, is simply for the enforcement of the maxim, “So use your own as not to injure another, ” — or, in the language of Chief Justice Shaw, (7 Cush. 84): “Every holder of property, however absolute and unqualified may be his right, holds it under the implied liability that his use may be so regulated that it shall not be injurious to the equal enjoyment of others having equal right to the enjoyment of their property, nor injurious to the rights of the community.” Observe, he speaks of the rights of others, and the lights of the community. He does not merely speak of the interests of others, or of the interests of the community at large. Nor do we find either any general proposition laid down, or any illustration given, by any of the various authors and jurists, as showing what is a proper subject of the police power, which is not in full harmony with the proposition that it is essential to the validity of every statute resting solely upon what is called the police power, that it must he passed in protection or furtherance of some right, public or private, and to enforce some duty to the public or to private persons. Where such rights and duties are involved, it is competent for the law-making power to prescribe the mode in which the end shall be accomplished. This is within the functions of legitimate legislation, for no man can hold as property a right to maintain a nuisance, public or private. Whether the obstruction of the passage of fish, by this dam, was ever a nuisance, must depend upon whether, under the laws of Illinois, this obstruction violated any rights of any other person or persons, and upon the nature of the rights violated, if any, — whether mere private rights, or rights possessed by others as a part of the public, must depend the question whether such nuisance was private or public. To determine these questions we must examine the law as to the rights of persons in relation to fish in such rivers.

It is conceded the common law of England is the law of .Illinois, except in so far as modified by the early English statutes, or by acts of our own legislature. As to the common law affecting these questions, Lord Hale’s “De Jure Maris” is everywhere recognized as unquestionable authority. It is there said: “There be some streams and rivers that be private, not only in propriety and ownership, but in use, as, the little streams or rivers that are not a common passage for the king’s people. There be other rivers, as well fresh as salt, that are common or public for the carriage of boats and lighters, and these, whether they are fresh or salt, whether they flow or reflow, or not, are prima facie publici juris, — ■ common highways for a man or goods, or both, from one inland town to another. Thus, the rivers of the Wey, of the Severn, of the Thames, and divers others, * * * as well above the flowing of the sea as below, and as well where they are become private property, are public rivers, juris publici, and therefore all nuisances and impediments of passage of boats and vessels, though in the private soil of any person, may be punished by indictment, and removed. ” And again he says: “Fresh rivers, of what kind soever, do, of common right, belong to the owners of the soil adjacent, so that * * * if a man be owner of the land on both sides, in common presumption he is the owner of the whole river, and hath the right of fishing according to the extent of his land in length.” Blackstone, speaking of a “several fishery,” which is the exclusive right to take or kill fish in a fresh stream, says it “is in or derived from the owner of the soil. ” Book 1, page 39.

It has been held by this court, again and again, that the property of the owner of land bounded by a fresh stream extends to the thread of the stream, and if one owns the land on both sides of such stream, he thereby owns the entire bed of the stream at that point. (3 Scam. 510; 11 Ill. 554; 47 id. 384; 49 id. 172; 51 id. 226; 64 id. 488; 75 id. 41; 82 id. 179.) That such ownership in Illinois carries with it the exclusive right of taking fish in all fresh rivers, (and we have none other,) has also been established by the adjudications of this court. In Beckman v. Kreamer, 43 Ill. 447, this court said, speaking by Mr. Justice Bbeese : “By the common law, a right to take fish belongs so essentially to the right of soil in streams where the tide does not ebb and flow, that if the riparian proprietor owns .on both sides of. such stream, no one but himself may come upon the limits of his land and take fish there. * * * Within these limits, by the common law, his right of fishery is sole and exclusive, unless restricted by some local law or well established usage of the State where the premises may be situate. * * * The right to take fish within the limits of one’s own land * * * is so far a subject of distinct property or ownership, that it may be granted as a separate and distinct property from the freehold of the land, or the land may be granted whilst the grantor reserves the fishery to himself. ” Again, in Washington Ice Co. v. Shortall, 101 Ill. 51, where the question was as to the ownership of the ice formed in a fresh stream, this court, by Mr. Justice Sheldon, said: “By the common law, only arms of the sea, and streams where the tide ehbs and flows, are regarded as navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its center, and the only right the public has therein is an easement for the purpose of navigation.” And in another part of the opinion it is said, there is much reason “to allow to the riparian owner the same right to take ice as to take fish, which latter is an exclusive right in such owner.” If this court is prepared to overrule these decisions, and declare that the common law relating to such exclusive right in the riparian proprietor is not the law of Illinois, then I grant that the conclusion reached by the court in this case is logical, and that my reasoning is without foundation. If, however, these decisions are to stand, and the common law in this regard is to be held in force here, it seems to me this decision can not be logically defended. *

The authorities as to what the common law is in this regard are in absolute harmony in England and America. In the case of Commonwealth v. Chapin, 5 Pick. 199, it was expressly decided that in all rivers where the tide does not ebb and flow, by the common law the proprietor of the adjoining soil has the exclusive right of fishing in front of his land to the thread of the stream, and an indictment at common law would not lie for the obstruction of passage of fish in such a river by a dam, and that such an obstruction was not, at common law, a public nuisance. This is also declared to be the common law, by the same court, in Vinton v. Welsh, 9 Pick. 87. To these two cases I will hereafter refer for another purpose. In People v. Platt, 17 Johns. 195, and in Hooker v. Cummings, 20 id. 90, the same doctrine is declared. In fact, it is elementary that by the common law rivers were divided into three classes: First, rivers where the tide ebbs and flows; second, rivers susceptible of useful navigation, where the tide does not ebb and flow; and third, rivers not susceptible of use for navigation, and where there is no tide. The first class are essentially public rivers. They, only, are called navigable, at common law. The title to the bed of such rivers was in the sovereign, and this carried with it, technically, the title or right to take fish therein. This right, so far as concerned royal fish, (whales, porpoises and sturgeon,) was held by the sovereign for his own revenues, and so far as-concerned all fish not royal, and in tide waters, was said to be in the king, in trust for all his subjects. So royal fish, when taken, were the property of the crown, by whomsoever taken; but fish not royal, taken in tide waters, became the property of the takers. Each subject, as one of the public, had a common right to take fish in tide waters. But as to fresh streams, whether susceptible of useful navigation or not, the title to the bed of the stream was, as we have seen, in the respective owners of the adjacent land, and to them, respectively, belonged the exclusive right of taking fish in such streams. (See, also, Angelí on Water-courses, sec. 61.) In fresh rivers susceptible of useful navigation, the public had a right of way for such navigation, as a highway by water; but this in no manner affected the right to take fish in such streams. That right W'as ever a private right, resting in the respective owners of the soil adjacent, or those deriving right from them, respectively. This has ever been the law of Illinois. No man, merely as one of the public, ever had a lawful right to take fish in any river or stream in the State of Illinois. If this be so, it can not, in my judgment, be properly said that the fish in such streams belong to the community collectively, or that in this regard there is a general ownership, or that the fish in our rivers are a common inheritance or1 a common heritage. I know of no warrant in reason or authority for so saying, or for saying that belonging to all, they should be protected for all. If any such common right to take fish in our streams had, under our law, any existence, then, indeed, would I concede that to obstruct the free passage of fish in our rivers does' constitute a public nuisance. It is equally plain that where no one, as a mere member of the public, has right to take fish, and where that right is exclusively in the riparian owner as a private right, whatever impairs such right is not a public nuisance, but a private nuisance.'

It is said fish in streams are incapable of individual ownership. This is true in a strict technical sense, for fish in streams, until taken, are incapable of ownership at all. They are just as incapable of ownership by the king or by the public, so long as they are at large, as they are incapable of individual ownership. It is the lawful right to take such fish, and thus acquire the ownership, that is meant when the ownership of fish is spoken of, although the expression is not strictly accurate. That right is capable of having an individual owner, as we have seen.

It seems to he thought the obstruction of the passage-of fish must be a public nuisance, because parliament and the legislatures of our States have, from time immemorial, passed statutes regulating the manner in which, the time when, and the extent to which .the riparian owner may take fish in fresh streams, even upon his own land, and that the recognized validity of such statutes shows that “the community” have a common ownership in such fish, and that such statutes are jDassed necessarily to preserve “the common property, ” and that the existence of such legislation, and legislation for the preservation of fish, not only show the same to be “a proper subject of legislation and a matter of public concern, ” but distinguishes the rights in question “from a mere private right not within the dominion of legislation. ” This seems to me a radical misconception. It is not the law that private rights are not the fit subjects of legislation. All these statutes are for the protection of the private rights of other riparian proprietors, and properly so. While each riparian proprietor has the exclusive right to take fish in that part of a fresh stream passing over his own land, yet he must exercise that right so as not to impair the like rights of other riparian owners above and below his land; and to this end fishing with seines, or in any mode or time calculated to destroy the supply of fish, or to prevent fish from passing from his land to that of others, may properly be prohibited by statute. This in no sense recognizes any public right, for we have ,seen it is the unquestionable law that no man, as one of the public, has any right, at common law, to take fish in such streams. That right can come only from the owner of the soil. In Hooker v. Cummings, 20 Johns. 101, where a like suggestion was made, Chief Justice Spencer said: “Counsel lay some stress upon statutes regulating fishing. * * * These acts prove nothing, for the legislature confessedly have the right of regulating the right of taking fish in private rivers.”

I do not doubt that it is a legislative function to regulate the taking of fish in the waters of the State, and make provision for their preservation and for their increase, and to prohibit obstructions to the free passage of fish; nor do I question that it is appropriate exercise of the power of legislation by the State to protect the rights of each and .all, in so far as they have rights relating to fish in our rivers, and in so far as they have rights relating to any other subject matter, — and this whether such rights are private rights or public rights; and where there are any rights of any citizen to be protected thereby, I do not deny the power of the legislature to regulate the mode and time of taking fish in our streams,— and this whether the rights to be thus protected be private rights or public rights. The mere fact that the English parliament and our State legislatures have the power, and have ever exercised the same, to legislate against the erection of obstructions to the free passage of fish in streams, does not prove, or tend to prove, that the rights to be protected thereby are necessarily public rights, and that they are thereby distinguished from mere private rights. The protection of