Peables v. Hannaford , 18 Me. 106 ( 1841 )

The opinion of the Court was by

Shepley J.

In this State, the legislature may regulate fisheries, which by the common law would be private property. The act of 23d of March, 1839, c. 557 of the private acts, would have fully authorized the defendants to open a passage for the fish, if they had acted in conformity to its provisions. The plaintiff being the owner of the estate, was entitled to the exclusive and uninterrupted enjoyment of it, except so far as his rights were restricted, by that act, for the public good. The committee were required to remove all incumbrances from the brook, and cause it to be kept open and free fqr the passage of fish “ from the fifth day of May to the fifth day of July in each year.” The word from being a word of. exclusion, the plaintiff was entitled to the full use of the water until the sixth of May. Any entry upon his land, or interference with his rights before that time was unauthorized. It is said, that the defendants were obliged to commence as early as the third of May, in order to have a free passage opened by the time required ; but the facts reported do not authorize such a conclusion.

The passage appears to have been opened on the first attempt, without much difficulty, and three days before they were authorized to interpose. For this the act affords them no justification., and there must be

Judgment on the verdict„