Commonwealth v. Weatherhead

Wells, J. Most of the questions raised by this report have already been decided, in Commonwealth v. Vincent, 108 Mass. 441. The lease embraced the entire pond. The lessees are properly designated as the proprietors, notwithstanding the fact that other persons, associated with them by an independent arrangement among themselves, have an interest in the conduct of the enterprise. If the defendants had a license or authority from any of such associates, it was for them to make out their justification. Stocking the pond with a new species of fish, and closing the outlet with a wire screen, were acts sufficient to show an occupation for the purpose of artificially cultivating or maintaining fishes therein. The limitation to a portion of the pond “ not exceeding one tenth part thereof,” applies to the exclusive occupation by structures, “inclosures and appliances.” These must be “so placed as not to debar ingress to or egress from such pond at proper places.” The intermediate provision, “ but this shall not affect any public rights to such pond other than the right of fisheries,” must have been intended to apply to the whole pond, though not thus inclosed. This inference is required as well by the terms of the St. of 1869, e. 384, § 9, as by the fact that a lease of the whole pond is authorized and made, and is apparently necessary to the full accomplishment of the purpose in view. By necessary intendment, then, the public right of fishing is taken away in the whole pond, by the lease thereof. Section 19 does not limit the offence to the act of fishing within the “ inclosures ” provided for in section 9, in cases where the whole pond is leased; nor is the erection of such “ inclosures and appliances ” necessary in order to exclude the public right of fishing in the pond. We see no ground for the objection of a want of constitutional power in the Legislature to authorize a grant of this public right of fishing. No private right could be acquired by the exercise for fifty-five years of this public right by the defendant Hastings; or for more . than sixty years, by the inhabitants of Mendon. The defendants are properly joined. They were not only ir the same boat, but they must have concurred in act and purpose [179] in entering the boat, moving it into the pond and placing it in the spot selected for the purpose of fishing. Judgment on the verdict.