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 private rights is a matter as much within the domain of legislative power as is the protection of public rights. The legislature, under its mere police powers, has undoubtedly the constitutional authority to require any citizen maintaining a nuisance, whether public or private, to abate the same at his own expense, and to prescribe the manner in which that duty shall be .performed, and also to enforce the performance of such duty by the imposition of penalties for its non-performance,— and all this because no man can hold as property a right to maintain that which is a nuisance, either private or public.
Again, it is suggested that game, and fish in our rivers, stand upon the same footing, to the fact that this court, in Magner v. The People, 97 Ill. 320, speaking of game, said, that whilst it remains at large, the ownership (by which was meant the lawful right to take or kill) is in the sovereign authority, and hence no individual having any property rights to be affected, the legislature may withhold or grant to individuals the right to hunt and kill game. And from this it is insisted we must now hold that the ownership in relation to fish in our rivers is in the sovereign authority, — that is, in the State,— and hence any invasion of that ownership must be held to be a public nuisance. The error which is the foundation of this suggestion consists in the idea that game, and fish in fresh rivers, at common law, stood upon the same footing. At the common law, the doctrine of title in the sovereign, applies to game, wild fowl and royal fish, as a royal prerogative, (or as what may be called the private property of the king,) and applies to fish (not royal) in the sea and tide waters, and as to such fish the title was said to be in the king for the use of the public; but this doctrine never had any application to fish in streams in which the tide did not ebb and flow. Blaekstone, in his Commentaries, says, the beasts of chase or venary replenish the forests, and are under the king’s protection, for the sake of his royal recreation and delight. (Book 1, p. 289.) And again, enumerating franchises which may be derived by the subject from the crown, the author mentions as such, “to have a forest, chase, park, warren or fishery, endowed with the privileges of royalty.” (Book 2, p. 28.) It elsewhere appears that the fishery here mentioned relates to taking fish at sea or in tide waters. The author says a chase is “a liberty of keeping beasts of chase or royal game, protected even from the owner of the land, with power of hunting them thereon.” And again : “Nor is every inclosure with deer in it, a legal park, for the king’s grant is necessary to make it so;” and the author adds, “it is unlawful, at common law, for any person to kill any beasts of parks or chase, except as they possess these franchises. ” And on the next page (39) we are told: “No man, not even the lord of the manor, could, by common law, justify sporting upon another’s soil, or even on his own, unless he had the liberty of free warren, which was a franchise granted by the king. ” And so of a free fishery, (which is an exclusive right of fishing in some part of the sea bordering upon the realm, or in a river where there is tide,) he says, “it exists only by grant from the king.” (Book 2, p. 411.) It is quite otherwise as to a several fishery, which the author declares “is in or derived from the owner of the soil, ” a several fishery being the “exclusive right of the owner of the soil, ” or some one claiming under him, to take and kill fish in a private river on the land of such owner. (Book 1, p. 39.) And so the same author, in book 2, page 409, speaking of chattels vested in the crown, and not derived from any former proprietor, mentions “the acquisition of property in waifs, in royal fish, in swans, and the like.” And on page 415 it is seen this royal right to all ggme has been recognized since the Norman conquest, and in pursuance of the same principle the rule was soon after extended to winged as well as four-footed creatures. (Page 416.) And on page 417 we are told, “as to all inferior species of game, the liberty of killing them is a franchise of royalty, ” — and so was a free fishery, which was the exclusive right to take fish in certain parts of the sea or tide waters; but by Magna Gharta no new franchises “of the latter class could be granted, ” and the author says: “In thorough strictness of the common law, no man, without a franchise from the king, could justify hunting or sporting at all.” Plainly, the law relating to game can have no relation to the questions under discussion.
As showing that this dam was, at common law, a public nuisance, great reliance is placed upon the provisions of Magna Gharta, wherein it is said, “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. ” And again, when it is declared, among other thing, that “all water banks and their keepers shall be immediately inquired into, * * * and within forty days after inquisition is made they shall be altogether destroyed, never to be restored, ” and upon the early British statutes (adopted here with the common law) in relation to weirs and embankments. These provisions of Magna Gharta and the early statutes plainly related to streams navigable at common law, and had no reference whatever to private rivers, Magna Gharta contains only concessions from the crown to the subjects. Although the king held the title to the sea, and to all estuaries and tide rivers, which were regarded as arms of the sea or parts of the sea, it had always been regarded, at common law, that he held such title in trust for the use of his subjects, and that they enjoyed, as of common right, the right to take fish (except royal fish) on the sea shore and in such rivers. Before the time of Magna Gharta, the kings of England had encroached upon the rights of their subjects in this regard, by granting to their favorites the exclusive right of fishing on certain parts of the coast and also in certain parts of tide waters, and had also authorized certain of their favorites to encroach upon the sea coast and on the. shores of tide waters, by what were called embankments. Now, it was against these usurpations of the crown, — these encroachments upon the rights of the subjects, enjoyed by them in common, — that these provisions of Magna Charta and of these early statutes were aimed. We are not aware that the king had ever assumed the right or power to grant to any of his favorites the right to take fish in rivers not navigable, or the right to encroach upon such rivers by embankments. These rights were always, in England, exclusively the property of the owners of the land abutting against such rivers. In fact, the provisions of Magna Charta may be read from beginning to end, and nothing can be found therein in the nature of a limitation upon the rights of the riparian proprietors on fresh rivers. Thomson, in his Essay on Magna Charta, (page 214,) says of this provision as to the destruction of kydells or weirs, found in Magna Charta: “The intent of this brief fragment of the old common law was to prevent any persons from appropriating to themselves a fishery in any part of the river Thames, which was common property, and thereby committing a purpresture. ” This shows that Thomson understood this provision as applying only to rivers navigable at common law, for there was no “common right” in the people of Great Britain to fish in fresh rivers, and a purpresture is confined entirely in its application to encroachments upon the sea and upon tide rivers. A purpresture is a violation of a private right “of the crown,” (Wood on Nuisances, sec. 604, p. 637.) Wood teaches that Magna Charta, in this regard, relates only to tide rivers, and says: “The purpose of Magna Charta was to prevent the king, because of his ownership of the bed of the sea within certain limits, and of the branches of the sea, from imposing unreasonable restrictions upon its use by the people. In fresh water streams the king was not the owner of the alveus of the stream, and could not impose restrictions which, the court could not control, therefore no necessity existed for any'provision thereto. ” (Sec. 577, p. 609.) “All such streams were regarded as private property for vall purposes, except as highways for commerce. ” (Sec. 578.) Callis, in his work on Sewers, prepared in 1622, after a careful discussion of the provisions of Magna Charta and these early British statutes, expressly declares that they extended only to streams deemed navigable at the common law. (Page 259.) And he quotes a decision made by Chief Justices Fleming and Coke, and Chief Baron Taneield, (found in the 10th report of Sir Edward Coke,) in which these three distinguished jurists concur in holding that the general words of Magna Charta in this regard, were restrained by the statutes of 25th Edward III and 45th Edward III, and limited to streams deemed navigable at common law. (Page 260.)
Great reliance is also placed upon what Lord Ellenborough said in Weld v. Hornby,—found in 7 East, 195, and also in 3 Smith’s Bep. 244, — and it is assumed that he intended there to be understood as speaking of an obstruction located in a fresh river. This is plainly a misapprehension. In Smith’s Beports the syllabus of the case is: “A prescription or grant of a fishery can not authorize the erecting of a weir entirely across a public river, whereby the passage of all fish shall be prevented, for that is prima facie a public nuisance. ” Lord Ellenborough, in Smith’s Beports, is said to have referred to Hargrave’s notes to Lord Coke’s 1st Institute, 122, (A. N. 7.) That authority has no reference to .an obstruction in a fresh river. It is therefore unreasonable and unwarrantable to assume that so great a jurist as Lord Ellenborough could have intended to say that every man, as of common right, had in England the right to fish in a fresh river, or that a dam in a fresh river, by impairing a mere private right, constituted a public nuisance. It is not exactly accurate, either, to say that the views of Lord Ellenborough, expressed in that case have been overruled in more recent cases in England. In the cases referred to, the language of Lord Ellen-borough is explained upon the ground that it was used by him in regard to what he must have regarded a tide river. It is only the inference sought to be drawn from his language which is condemned. In fact, the language is that of the reporters, and not that of the jurist.
This view does not, however, rest upon the mere strength of the reasons and authorities above. Cases very like in principle with the case at bar, and in which the very questions were involved, have been decided in England, — one in 1S68, and the other in 1870. In the case of Rolle v. Whyte, 3 L. R. Q. B. 286, the complaint was against the owner of a dam in the river Taw, by which the passage of fish was prevented at a point where there was no tide. The defence, as in the case at bar, was that of an easement acquired by prescription. It was answered, the obstruction was a public nuisance, for which a man may not claim by prescription. The court sustained the defence, and held that the act of 12th Edward IV, as well as Magna Charta and the statutes which preceded this statute on the subject of weirs, had relation solely to rivers navigable at common law, saying: “It is true Magna Charta speaks generally of weirs, but the key to the meaning is in the statute of 25th Edward III, St. 4, C. 4, and it means the great navigable rivers.” And in support of this view all the statutes of England bearing upon the subject are quoted and examined, and reference is also made to Callis on Sewers, page 259. In regard to fish, the court said: “Inasmuch as the public generally have a right to fish in navigable rivers, the destruction of the fry by means of weirs in such rivers was matter of public concern, and became a fit subject for imperial legislation; but as to other rivers, the riparian owners alone were entitled to take fish,— and as appears in Weld v. Hornby, could prevent any interference with the general rights of the riparian proprietors by action. There was no necessity, in the case of such rivers, for statutory protection. t The idea of prohibiting easements which might otherwise be lawfully acquired, and thus to interfere with the private rights in order to secure to the public a large supply of an article of food, does not appear to have occurred to our earlier legislators. * * * It seems to us clear, such an easement may be acquired in private rivers by grant from other riparian owners, or by enjoyment, or, in short, by any means by which such rights may be constituted. ”
In 1870 the same question came before the Court of Common Pleas in England, in the case of Leconfield v. Lonsdale, 5 L. R. C. P. 657, in which it was again held that the provisions of Magna Charta, and all the earlier statutes which prohibited weirs, applied only to navigable rivers. The case of Rolle v. Whyte, supra, is reviewed, and the decision there approved, and it was therein declared that a fishing mill dam in a river not navigable at common law, was not a public nuisance; and it was further held that the grant of an easement to maintain a dam, by evidence of enjoyment, consistent only with the existence of such a grant, and where the owner of the dam upon such stream had maintained it for more than twenty years, the law inferred a grant “from all proprietors whose interests could be affected by the dam, ” and hence such a dam was lawfully in use. That court was urged to disregard the ruling in Rolle v. Whyte, and rule otherwise. The language of Lord Ellehborough, in Weld v. Hornby, was pressed upon the attention of the court, as authority showing that such a dam in a fresh stream was a public nuisance. The whole subject was fully argued and considered with great care, and the ruling in Rolle v. Whyte fully approved and affirmed. That case, like this, W'as a proceeding under a statute wherein fish commissioners were endowed with statutory powers to require fishways in all dams where such burden could lawfully be imposed, and the question was, whether this dam was one which was an unlawful dam, and came within these powers. In delivering the opinion of the court, (in which all the judges concur,) Bovill, Ch. J., says: “The first question which arises is, whether the provisions of Magna Charta, and the other early statutes which were relied upon as prohibiting weirs, were confined to navigable rivers, and that point was elaborately argued before us, and.is discussed at large by the fishery commissioners in their judgment. We have carefully considered this point, and concur in the opinion expressed by the Court of Queen’s Bench, that these statutes relate to navigable rivers only, and for the reasons which are fully stated in the judgment in the Court of Queen’s Bench, and which it is therefore unnecessary to repeat. In addition to the passage cited from Callis on Sewers, 259, which the Court of Queen’s Bench considered of great weight, there is the higher and weightier authority of Lord Coke citing a passage from Grlanville, in the 2d Institute, to show that the enactment of Magna Charta applied only to public rivers. If it were otherwise, there would have been a prohibition against erecting weirs in all private rivers, even where a person was the owner of the entire river and of the land on both banks, which, >ve think, could not have been intended. * * * We think it may also be collected from the observations of Lord Hale in his treatise De Jure Maris, that his view of the early statutes was the same as Lord Coke and Callis took of them. * * * The weir in this case was in a part of the river above the flow of the tide, and where it was not navigable; and we are of opinion that the use of the weir is not shown to have been unlawful by force of any statute at the time of the passing of the Salmon Fishery act, in 1861. It was contended, that independently of any statute, the erecting of a coop of the present description, without any gap or opening in the dam to allow fish to pass, was a public nuisance; but we see no ground for saying that a coop which" is not in a public navigable river can be treated as a nuisance. The supposed authorities which were cited do not appear to us to make out any such proposition, and the passage in the 2d Institute involves the contrary. The case of Weld v. Hornby, which was relied upon on this point, did not raise any such question. It was an action for a private nuisance, and unquestionably maintainable in respect of the plaintiff’s private right of property, which was injured by the act of the defendant in making his weir more impervious to fish, and so preventing them from arriving at the plaintiff’s fishery, — a grievance long recognized as giving a right of action, independent of any question of public nuisance. The dictum of Ellenborough must be read as assuming that the river was public, and the marginal note to the report of the case in 3 Smith, 244, expressly refers to it as a public river. * * * The dictum was unnecessary to the decision of the case, and is outweighed by the authority of Coke and Gflanville. At the same time, it is proper to observe that the opinion thus extra-judicially thrown out has led to much misapprehension, which even the judgment of the Cóurt of Queen’s Bench in Rolle v. Whyte does not appear to have quite corrected. The passage cited from Viner’s Abridgment, title ‘Nuisance,’ 3, was clearly also a case of injury to a private right. * * * A grant may be proved either by production of the grant itself, or by evidence of enjoyment, consistent only with the existence of such a grant, and from which it may be presumed. ”
That the provisions of Magna Charta, and the statutes of Edward III, relate solely to weirs in tide waters, is therefore established, not only by the logic of the matter, but by the authority of Callis, Coke and Fleming, Tanfield, Thomson and Wood. When we add to these authorities these two decisions, (one in the Queen’s Bench and one in the Common Pleas,) in which the words of Lord Ellenborough are explained, it seems to me the position is well sustained.
Eeliance is also placed upon the language of Parsons, Ch. J., in the case of Stoughton v. Baker, 4 Mass. 522. This authority clearly can have no application here. The law of Illinois on this subject is the common law of England. In Massachusetts, at a very early day, and before the rights of private property had accrued, this common law was so modified as to give the public rights in fisheries in fresh waters, which did not exist at common law. Some of these modifications were made by ancient ordinances, still extant. Others are evidenced by usages from time out of mind, recognized by the decisions of their courts. The principle upon which Stoughton v. Baker was decided, is founded expressly on early local law, and is at variance with the common law. By the law of Massachusetts, on tide waters the land of the adjoining proprietor extends to low tide, instead of being limited to high tide, as at common law, and the public not only had right to fish in such waters as at common law were navigable, but had right to pass over the land of the riparian owner for that purpose, not treading down his corn. So the right to take fish in fresh rivers and ponds in that State, is held to be a common right in the public, so long as the fishing right of the owner was not injuriously affected. This latter is very distinctly shown in that very case, where Parsons, Ch. J., speaks of such fishing “as free fishery, ” and as common to “all the people. ” It is declared that by these ancient usages the rights of the owners of even ancient mills are subject to an implied limitation that a reasonably sufficient fishway shall be provided for the passage of fish, and that such limitation may be waived by a grant from the government. Now, it is plain that in Massachusetts the right of the riparian owner to take fish was, as in this State, absolutely exclusive. He might demand of the owner of the offending dam a reasonable fishway, and the State would have no power to waive this right for him. It logically follows, in that State, from the position that the public have these rights unknown to the common law, that an obstruction to the passage of fish in a fresh river in that State, in so far as it affected this common right, was a public nuisance.
Again, in Commonwealth v. Chapin, 5 Pick. 199, (which was an indictment at common law, charging the obstructing the free passage of fish in a fresh river in Massachusetts by means of a dam, and thereby committing a public nuisance,) the indictment did not say “contrary to the statute,” or by any other words rely upon any statute. It was there held that at common law this was not a public nuisance, and that indictment was accordingly quashed. It is said in the opinion that “the common law had been essentially altered” in that State, by early legislative action as to the rights of the citizens of that commonwealth, and as to penalties for violating public rights founded upon the ancient usages of the colony; but these penalties must be enforced under the statute, and not by indictment for a public nuisance at common law. The case of Vinton v. Welsh, 9 Pick. 87, shows the same line of thought. The report shows, that by a statute of Massachusetts the right of fishing in any river of that State, within the bounds of any town, was granted to the inhabitants of the town through which the stream passed. It was insisted that fisheries in fresh rivers belonged to the owners of the adjoining banks, and hence the legislature had no constitutional power to divest them of this right and vest the franchise in .the inhabitants of the town. Parsons, Ch. J., delivering the opinion of the court, said: “ Upon principles of the English common laiv the argument is tvell founded, but the constant course of legislation upon this subject, from the first settlement of the country, has qualified this right so far as to subject the same to the control of the legislature, in the manner and to the extent it has been immemorially exercised. ” The constitution of Massachusetts was not like ours in that regard. It must be plain that the decisions of Massachusetts as to .law which their courts declare to be local, can be no guide to us, who are governed by the common law, and especially as the Massachusetts courts expressly declare that by the English common law the rule is otherwise.
Without following this law of decisions further, it is sufficient to say that in Maine, and some of the later New England States, their laws were derived from Massachusetts, and the common law in this regard was never in force there, and that the Delaware and Susquehanna, and other large rivers, were treated as navigable rivers for all purposes,— hence the law in this regard, of such States, is not the law of Illinois.
I have found no case decided upon common law principles, wherein the view I present is not sustained. The People v. Platt, 17 Johns. 195, sustains my view. Platt had the title to a tract of land on the shore of lake Champlain, through which ran the Saranac river. At a point some seven miles above the mouth of the river, and on the land of Platt, was a natural fall in the river, so high and so abrupt that salmon could not pass, and never had passed, above this fall. In 1786, Platt erected a dam on his land, and across the Saranac river, near its mouth, which prevented salmon from passing into that stream. In 1801 a statute was passed in New York requiring the owners of all dams to alter the same so as to admit the passage of salmon into the waters above. Platt failed to alter his dam, and this was a criminal prosecution against him under that statute. It was there held, that having the title to the land on each side of the river, from its mouth to a point above which salmon never did go, he thereby, on principles of common law, acquired the exclusive right to take and kill salmon in that river, and that neither the public nor any one else had any right in the fishery in that river, and that the act in question, as against Platt, was inoperative and unconstitutional. The case of Stoughton v. Baker was relied upon by the prosecution, but it was properly disregarded, Spencer, Ch. J., saying: “The opinion in that case is founded on the ancient and long continued usage of the general court of Massachusetts, and it is perfectly clear that the court proceeded on local usages and customs, and not upon the general and received doctrines of the common law. ” The case of Woolever v. Stewart, 36 Ohio St. 146, is directly in point, and sustains the view I present. That was an action brought against the owner of a mill dam of fifty years’ standing, for his failure to comply with a statute of 1871, requiring him to pay the expense incurred by certain fish commissioners in constructing a fishway to enable fish to pass his dam. The Supreme Court of Ohio held that by prescription defendant had acquired a vested right, as against other riparian owners, to maintain his dam in its then condition, and that the right thus acquired could neither be destroyed nor impaired by mere legislation, — that whatever was the “obligation” resting upon such owner to keep a way open for the passage of fish to the waters above, it was for the benefit of the upper owners, and for them only, and if they suffered an adverse use to ripen into an adverse right, the right thus acquired was property, and could not be taken without compensation.
It seems unnecessary to refer to further authority, for I find none to the contrary which profess to rest on the common law of England.
It seems to be thought, however, that the act of the legislature, passed in 1840, declaring Fox river to be a “navigable stream,” and that the same shall “be deemed and held to be a public highway, ” has some influence upon the question now being considered. I have been unable to find any adjudication, and I have been referred to none, defining the precise legal effect produced by the passage of a statute" declaring a river to be navigable, which, in point of fact, is incapable of advantageous use for any.purpose of navigation. In Braxton v. Bressler, 46 Ill. 490, Justice Thornton, speaking in relation to a river which was in fact capable of advantageous use for some purposes of navigation, and in relation to a statute saying that such rivers “shall be deemed to be and remain public highways, ” said for this court, on page 491: “The intention was that the river, navigable in fact, should be subject to the public easement; that the public should enjoy its free and uninterrupted navigation, unobstructed by dams, bridges or other structures which might materially impede its commerce. * * * This the public could possess without interference with the riparian owner, and the latter could have his right to the bed of the stream without any interference with the jus publicum. ”
When it is considered that our constitution, from the first organization of the State, has provided that private property shall not be taken for public use without compensation, it is difficult to conceive that the passage of such a statute as that of 1840, can, by its mere force as a fiat, deprive any one of any private .right of property which he enjoyed, at the time of its passage, in the bed of a stream which was in fact incapable of any kind of useful navigation. The land on Fox river, at the time of the passage of this act, was the property of the United States. In some sense this land was public land, because it belonged to the United States; but the interest of the United States in this land was that of proprietor, simply. The right of property of the United States in this land was the same, precisely, as the property right of any other land holder. It can hardly be that this statute of the State of Illinois, passed at that time, in view of that provision of our constitution, could have the effect of depriving the United States of any lawful right vested in that corporation as a proprietor of the land; and when, in 1842, the remote grantor of Parker, the plaintiff in error, acquired the fee simple title to this land from the United States, he acquired all the rights which were before that time vested in the United States as a land holder. And so the proprietors of the land on the banks of Fox river, above and below, who purchased the same from the United States, acquired all the property rights of the United States in these lands, — a fee simple title, and all the private rights that that implies, and among them the exclusive right of taking fish in the river, upon the land so purchased. If there were any places in Fox river capable of application in any useful navigation, the public, by the common law, had a right of way over such parts of the river. This statute, in my judgment, merely declared the common law in that regard. Until there shall arise some need of use of this stream for navigation, the act can have no effect. The act seems merely declaratory of this common law doctrine. Viewed in the light of the facts as they existed in 1840, it seems impossible that the object of this act could have been more than here suggested. Its only purpose was to declare that if any part of Fox river should be found capable of useful navigation, the right of way for the public for such purposes should be preserved. At that time the State had erected and was maintaining a stone dam across Fox river, at Dayton, a short distance above the mouth of the river, from which water was to be drawn for a feeder to the canal. That dam completely obstructed the passage of fish, as well as boats, if any had attempted to pass. There was also, besides the dam in question in the case at bar, a dam at Milford, another at Bristol, another at. Montgomery, another at Aurora, another at Batavia, another at Geneva, another at St. Charles, another at Elgin, and, I think, another at Dundee. All and each of these dams obstructed the passage of fish, and would have obstructed navigation if there had been any. It surely was not intended to declare each and all of these mill dams to be public nuisances, and subject the owners thereof to indictment if they continued to maintain the same. Besides all this, it is not shown that this dam ever did obstruct navigation. There never was any navigation at this point to be obstructed, and the mere fact that it has always obstructed the passage, does not show that navigation has not always been provided for. A dam with a lock for boats would be no obstruction to navigation, and yet would prevent the passage of fish. Be this as it may, all that is claimed of this act is, that it placed this river on the same footing, in point of law, as that of a fresh river susceptible of useful navigation. What then? Such a statute does not affect this question. Plaintiff in error is not arraigned for an obstruction to navigation, but for an obstruction to fish. Can he be punished for not building a fishway, for the reason that he obstructed navigation ? It is expressly declared in Hooker v. Cummings, supra, as to a fresh river susceptible of useful navigation, that the private rights of owners were thereby in no other wise affected than by the river being subject to public use as a highway, and that such rivers do “not so far belong to the public as to divest riparian owners of their exclusive right of fishery therein. ” Whether this river is to be regarded as thus navigable, does not affect the question.
Again, the record does not show that plaintiff in error obstructed navigation. There may be a lock in that dam which promotes, and does not obstruct, navigation. I doubt not, the truth is, this very dam makes a part of the river susceptible of some kind of navigation, where before no part was. By the invitation of the owner, (the United States,) through the preemption laws, the builder of this dam had lawfully entered and was in the lawful possession of this river before the legislature of' Illinois declared that Fox river should be deemed a highway and a navigable stream. Had an indictment been found against this remote grantor of the plaintiff in error, in 1841, after the passage of this act, and before he had purchased the land from the United States, charging him as guilty of a public nuisance in obstructing the free passage of fish, it surely would not have been entertained for a moment by any court in this State. After he had purchased the land, in 1842, and after the legislature had, in 1857, passed the statute authorizing him to build that dam higher, or to take it down and build a new one higher, (and this without any provision as to the obstruction of fish,) had such an indictment been presented it would have seemed still more preposterous. No court in this State, high or low, would have hesitated for a moment in adjudging that the dam was lawfully placed there, and lawfully maintained there.
It seems to me there is no ground on which this obstruction can properly be pronounced a public nuisance. If not, was it in any other way unlawful when the act of 1879 came into force ? Every right in land, or incident to the ownership of land, which may be lost by grant from the owner, or acquired by another through such grant, may also be lost or acquired by any facts from which the law will imply such a grant. The right to obstruct the passage of fish up or down a stream, as against the private right of a riparian proprietor, like the right to overflow the land of another by a dam in a stream, may be acquired by continued exercise of that right, unquestioned, for a term of years, which, under our Statute of Limitations, would ripen an adverse possession into a bar to entry by the holder of the paramount title. (Angell on Water-courses, secs. 208, 209; Tracy v. Atherton, 36 Vt. 510; Leconfield v. Lonsdale, 5 L. R. C. P. 657.) By the statute of this State that time is fixed at twenty years. It follows, that plaintiff in error, and those under whom he holds, having maintained the dam in question in its present condition continuously for more than twenty years, without question or objection, plaintiff in-error had thereby acquired, before the act of 1879', as against all riparian proprietors, above and below, the right to obstruct the free passage of fish at that dam, as effectually as if the same had been released to plaintiff in error by grant from each and every one of them. He owes to them no duty in this regard. The case of Leconfield v. Lonsdale, supra, fully sustains this position.
The maintenance of this dam, then, neither violated private right nor public right. The public, as such, never had any right in these fisheries, and the riparian proprietors have parted with theirs,, to the extent of subjecting their property to the easement acquired by plaintiff in error," long before the passage of the statute. There was therefore no subject matter to which the mere police power could extend. Plaintiff in error, in this regard, owed no duty to the public, or to any private citizens. He was not doing any act in violation of any one’s rights, public or private.
Plaintiff in error, then, at the passage of the act of 1879, had the full, absolute and unconditional right to maintain this dam in its then condition. This right was private property. That right could not be lawfully taken from him, or damaged, even to accomplish a public benefit, without compensation. To compel him, as a condition of enjoying this right, to expend $600 of his own money to construct a fish-way, will be to damage that right, — hence, as against plaintiff in error, in this regard that statute was inoperative and unconstitutional. In the words of Cooley, it takes from him that which he had, and gives to the riparian proprietors, above and below, that which they had not.