It appears to the court, that the question presented by the bill of exceptions, in this case, must depend upon the first section of the original act of 1788, c. 68. That section provides, that the committees shall have full power and authority to cause the natural course of the Mystic River, and the streams running into it, to be kept open and without obstruction, and to remove all such obstructions as may be found therein, &c.
The plaintiff, in his declaration, after stating that he was duly chosen one of the committee for the town of Medford, that he found in one of the tributary streams of the Mystic River a fence made of boards and stakes, and that this fence narrowed and obstructed the natural course of the stream, and the passage of the fish called alewives up the same, then avers that he was proceeding to remove the obstructions from the stream, and that the defendant forcibly opposed and hindered him, whilst thus engaged, &c.
Without going particularly into the facts of the case, it may be sufficient to state, that there was evidence showing that the brook was small and narrow, about five feet wide, with sloping banks, that stakes and boards were put down, on each bank, towards the centre or thread of the stream, leaving a clear space between, sufficient, as the defendant contended, *257and introduced evidence to prove, for the free passage of the water, and of the fish, both up and down.
The plaintiff insisted, that the narrowing of the open passage was de facto an obstruction of the natural course of the stream, and a violation of the statute, and requested the cour* so to instruct the jury. The court declined so to instruct, but directed the jury, that the defendant, being owner of the soil on both sides, had a right to place any thing there, not in violation of the statute; and left it to the jury upon the evidence to say, whether the fence erected by the defendant did obstruct or hinder the free passage of the fish : and if it did, then to find for the plaintiff, otherwise for the defendant. The jury found for the defendant, and the plaintiff excepted.
It is now argued, that the question should not have been left to the jury, but that if the structure put up by the defendant, which was said to be to enable him the better to take fish with a bow net, on the days when fishing was by law permitted, did diminish the breadth of the natural watercourse, from bank to bank, it was a violation of the statute, whether it in fact impeded the passage of fish or not. But this is a question of construction. The legislature might so enact; the question is whether they have done so.
It is a good rule, in the exposition of a statute, especially a penal one, to consider what was the object and purpose of the legislature, and so to construe the words, where construction is admissible, as to promote and accomplish that object. The first clause of the act of 1788, c. 68, gives the committee power to cause the natural course of the stream to be kept open, and without obstruction. If this stood alone, it would favor the views of the plaintiff. But another clause, later in the same section, authorizes them to remove and carry away, across the land of others, if necessary, such obstructions, implements, or tools, as may in any way impede, obstruct, or hinder any fish from passing freely up and down. This clause tends to qualify the generality of the former, and to limit it to such obstructions as may impede the free passage of the fish. To the same effect, is a clause in the second section *258“ No person shall, at any time, place any kind of obstruction, &.c., which may obstruct or hinder any shad or alewives from passing up and down the same.” The plaintiff seems to have put the same construction on this, part of the statute in his declaration ; he originally alleged, that the defendant did narrow and obstruct the natural course of the stream, but he afterwards obtained leave in the justice’s court to amend by adding to this allegation the words, “ and the passage of the fish called alewives up said stream.”
If it was necessary to aver this fact, it was equally necessary to prove it. It was, therefore, a question of fact for the jury. The law, we think, was rightly laid down by the judge, that it was penal so to obstruct the stream as to impede the passage of fish, and that any thing placed in the stream, which did not impede the passage of fish, was not prohibited and made penal by the statute. The question, whether it did impede the passage of fish, was a question of fact, and rightly left to the jury on the evidence.
Exceptions overruled.