Oliver v. Bailey

Emery, J. The plaintiff for the purpose of capturing bass, set a stationary fish net across the channel of Winnegance. creek in Sagadahoc county, ata place where there was more than two feet depth of water at oi’dinary low water. This act of the plaintiff was in violation of the letter of the last clause of § 23, of c. 40, R. S., (the chapter on Fish and Fisheries) which clause provides that no person " shall set any net crosswise of said waters, but only lengthwise,” &c. The phrase "said waters ” refers to those waters named in the preceding 17th section of the same chapter, which clearly include Winnegance creek. This act of the plaintiff was also in violation of the letter of § 68, of the same chapter, which section provides, that "No weir, hedge, set-net, or any other contrivance for the capture of fish, which is-stationary while in use, shall extend into more than two feet depth of water at ordinary low water.” . . . The plaintiff contends that both the sections cited were intended only for the protection of salt water fish, or fish that migrate between salt and fresh water, and that the waters named in those sections are tidal waters only. Still the fish he intended to capture by his net, were fish of tidal waters, as defined in § 22, of the same chapter, and the tide ebbed and flowed past the place where he set his net for such capture. It appears however that in 1835, the Legislature authorized the construction of a dam wholly across Winnegance creek below the place where the net was set, and that in 1837 such a dam was built and has since been maintained. Mills have been built and operated on this dam, and the mill owners have [165] used the space above for booming their logs. There were and are flood-gates in the dam, which permit the floiv of the tide, and there has been some unfrequent, intermittent, and limited navigation by means of boats and skiffs through and above the dam though general navigation above the dam has ceased. The plaintiff contends that these acts under the authority of the Legislature, have separated Winnegance creek above the dam from the general body of the tidal waters of the State, and taken it out of the above cited statutes for the protection of migratory fish. The legislature in its act authorizing the dam did not express any intent to exempt any part of Winnegance creek from the operation of the general statute relating to Fisheries. No words of exemption can be found in the act of 1835. We do not see how any exemption can be implied. Bass still migrate up and down this creek above the dam. Other migratory fish may do the same. The statutory protection of these fish is as important now as before the erection of the dam. The plaintiff further contends that the special act, chap. 463, laws of 1885, entitled "An act for the protection of bass in Winnegance creek,” impliedly repeals all other prohibitions than those named therein. He must admit there are no words of repeal. The special act simply imposes a few additional restrictions. The inference is that the restrictions imposed by the general statute were found insufficient for the protection of fish in this particular creek, and that the special statute was enacted to supply the deficiency. The restrictions of the general statute are as necessary as ever. We think the special act supplements and strengthens the general statute instead of repealing it. The question submitted being determined against the plaintiff, there must be, according to the stipulation of counsel, Judgment for defendants. Peters, C. J., Walton, Virgin, Haskell and Wiiitehouse, JJ., concurred.