delivered the opinion of the court, May 3d 1880.
This was an indictment under the 20th section of the Act of 5th May 1876, Pamph. L. 104, brought into the Quarter Sessions under the 27th section of the act.
*461The 20th section declares “ any person trespassing on any lands for the purpose of taking fish from any private pond, stream or spring, after public notice on the part of the owner or occupant thereof, such notice being posted adjacent to such pond, stream or spring, shall be deemed guilty of trespass, and in addition to damages recoverable by law, shall be liable to the owner, lessee or occupant, in a penalty of one hundred dollars for every such offence: Provided, however, this section shall apply only to such ponds, streams or springs a3 shall be used or improved by the owners or lessees for the propagation of fish or game fish.” The 27th section declares “ that any person violating any of the provisions of this act, and who shall be summarily convicted thereof before a justice of the peace or alderman, shall be sentenced to pay the fine or penalty attached to such violation, with costs, one-half of the penalty to go to the informer, and the other half to be paid to the county treasurer, and by him distributed to the various school districts of the county. Providing, however, that the defendant may, on refusing to pay his penalty, and on entering into recognisance with securities to answer the complaint, on a charge of misdemeanor before the Court of Quarter Sessions of the county, transfer the case to said court, which shall then proceed with the trial thereof.” It is thus shown that the plaintiff in error, by his own election, brought the case into the Quarter Sessions.
Recurring then to the statute, in order to constitute the offence, not only must a trespass be committed on the land, but it must be with the purpose of taking fish from a “ private pond, stream or spring.” The important question then is, in what manner must the water be owned and occupied to give it the private character contemplated by the act? The three bodies of water to which “the purpose” must apply, are stated disjunctively. Whatever else be its character or condition, whether it be stream, spring or pond, the body of water must be “private.” In case a running stream flows over a man’s land, and he stocks the stream with fish, he does not thereby make it a private stream within the meaning of this act. The manifest intention is to protect to the owner those fish which were private property, and without the action of the trespasser would have remained such property. The title of a riparian owner of land extends to the middle of a stream, not a public highway. In case the lands of opposite riparian owners thus join, and one of them stocks the stream with fish, he does not thereby make it a “ private stream.”
So if the waters of a pond cover a large surface of land, and one whose lands are covered by a part only of the water, places fish therein for the purpose of propagation, it does not thereby become a “private pond.” The question is not whether he has rights which may be trespassed on, but is the whole body of water private within the meaning of the statute? We think it is *462not. To bring the case within the statute, the whole pond, stream or spring must be so far private property as to confine therein the fish with which it is stocked. The ownership of a part only of the land covered by the water is not sufficient to give to the whole water the distinctive character of private. It is not both public and private. The pond must be treated in its entirety. Either the whole or none is private. The owner of a part cannot make it private without an actual and visible separation from the other parts. Without such separation, the owner of a part cannot change its character against the wishes of persons owning the other parts thereof. The first, second, third and fifth assignments are sustained. We see no error in the fourth and sixth.
Judgment reversed.