Lyman v. Comm'rs on Fisheries & Game
| Citation | 97 N.E. 66,211 Mass. 10 |
| Parties | LYMAN v. COMMISSIONERS ON FISHERIES AND GAME. |
| Decision Date | 08 January 1912 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Berkshire County; John A. Aiken, Judge.
Petition to the Superior Court by Charles E. Lyman in the nature of an appeal from an order of the Commissioners on Fish and Game, prohibiting the discharge of sawdust in a stream. The judge of the Superior Court refused petitioner's requests for certain rulings, and he excepted. Exceptions overruled.
Warner & Barker, for petitioner.
Jas. M. Swift, Atty. Gen., and Andrew Marshall, Asst. Atty. Gen., for Commissioners on Fisheries and Game.
This is a petition to the superior court in the nature of an appeal from an order of the commissioners on fish and game prohibiting the petitioner from discharging sawdust from a mill owned by him into the stream on which it is situated in the town of Becket, and from accumulating sawdust on the bank thereof so that it would be liable to fall or be swept into the stream, and requiring him to erect a blower or to take other measures to prevent the discharge of sawdust from the mill into the stream. The case was heard by the Chief Justice of the superior court, who took a view and made a report of his findings, and affirmed the order of the respondents. The petitioner requested certain rulings which were refused, and the case is here on exceptions taken by him to the refusal of the Chief Justice to rule as requested.
[1] The statute provides that: ‘* * * If the commissioners determine that the fish of any brook or stream in this commonwealth are of sufficient value to warrant the prohibition or regulation of the discharge therein of sawdust from sawmills, and that the discharge of sawdust from any particular sawmill materially injures such fish, they may, by an order in writing to the owner or tenant of such sawmill, prohibit or regulate the discharge of sawdust therefrom into such brook or stream.’ St. 1906, c. 356, § 1.
The petitioner contends that by the words ‘of sufficient value’ is meant ‘of sufficient commercial value,’ or of sufficient value to justify devoting the stream to fishing instead of to industry. But we think that there is nothing in the statute which warrants or requires such a construction or which shows that that is what the Legislature meant by the words ‘of sufficient value.’ It rarely, if ever, would happen that ‘the fish’ or ‘the fisheries,’ as the statute as amended by St. 1910, c. 460, now reads, ‘of any brook or stream’ would be of sufficient value commercially to warrant devoting the brook or stream to them to the exclusion of industrial pursuits. It would be unreasonable therefore to suppose that the Legislature used the words ‘of sufficient value’ in the sense contended for. From time immemorial the Legislature has regulated and controlled in the public interest the fisheries in the brooks and streams of the commonwealth. The case has been and is one of conflicting rights, and the Legislature has governed itself accordingly. It has not undertaken to legislate in favor of one set of rights as opposed to another set of rights, but to act with due regard to the rights of all concerned. There is nothing in the statute under consideration to show that the Legislature intended to depart from the policy which it had theretofore pursued, and we think that by the words ‘of sufficient value’ is meant of value sufficient to make the preservation and multiplication of the fish in the brook or stream worth while taking all the circumstances into account, the kind of fish, for instance, their number, the suitableness of the stream for propagating and preserving them, its location and the opportunities afforded by it for enjoyment, the benefit that would result, and the nature of such rules and regulations as would have...
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