Parker v. People of State

• Decision Date: 27 September 1884
• Citation: 111 Ill. 581,1884 WL 9990,53 Am.Rep. 643
• Parties: WILLIAM PARKERv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

111 Ill. 581

1884 WL 9990 (Ill.)

53 Am.Rep. 643

WILLIAM PARKER

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1884.

WRIT OF ERROR to the Circuit Court of Kendall county; the Hon. C. W. UPTON, Judge, presiding. Mr. A. J. HOPKINS, and Mr. N. J. ALDRICH, for the plaintiff in error:

Common right of fishery, free fishery, and a several fishery, are defined and distinguished in 3 Kent's Com. 329; 1 Bouvier's Law Dic. 592; People v. Platt, 17 Johns. 204.

All streams below tide water are prima facie public, and all above are prima facie private. King v. Montague,4 B. & C. 598; Wardworth v. Smith, 11 Maine, 278; Angell on Water-courses, p. 596, sec. 535.

This court will take judicial notice that Fox river is above tide water, and not navigable in fact. Cummings v. Stone, 13 Mich. 70; Tewksberry v. Schulenberg, 1 Wis. 584; Harding v. Strong, 42 Ill. 148.

As to what is a navigable stream, see Munson v. Hungerford, 6 Barb. 370; Curtis v. Keesler, 14 Id. 511; Rhodes v. Otis, 33 Ala. 534.

In fresh water streams the right of the public is merely the right to use the water within the channel for purposes of navigation. Walker v. Board of Public Works, 16 Ohio, 544.

The riparian owner has the exclusive right to take fish from any part of a stream, great or small, over his soil. Angell on Water-courses, (7th ed.) 68, 70, 65; Adams v. Pease, 2 Conn. 481; Jackson v. Keeling, 1 Jones' L. (N. C.) 299.

The uninterrupted use, possession and control of the dam for nearly fifty years gives a vested right by prescription, which can not be divested without compensation. ( Bealey v. Shaw, 6 East, 208; Woolever v. Stewart, 36 Ohio St. 146.) But plaintiff in error is not limited to the rights acquired from long usage. The charter from the State of Illinois, set forth in our statement of facts, is a contract between him and the State, which can not be invalidated or impaired by any legislative enactment subsequent to the grant of such charter. One of the leading cases in this country on that subject is the case of Fletcher v. Peck, 6 Cranch, 132. The statute relating to fishways is a subsequent act of the legislature, which alters and impairs that charter or franchise, and, as held in the Dartmouth College case, 4 Wheat. 518, such subsequent legislation impairing the obligation of the charter is unconstitutional and void. When no power is reserved by the legislature to alter the charter, it can not be done, nor can additional burdens be thrown upon it without the consent of the corporator. Commonwealth v. Monongahela Navigation Co. 6 Barr, 379; Harrington's Rep. 389; Farrington v. Tennessee, 95 U. S. 681; People v. Platt, 17 Johns. 195; State v. Glenn, 7 Jones' L. 322; Crenshaw v. Slate River Co. 6 Rand. 255; Commonwealth v. Pennsylvania Coal Co.66 Pa. St. 47; Lake View v. Rose Hill Cemetery Co. 70 Ill. 195; Cooley's Const. Lim. 719.

Mr. EUGENE CANFIELD, and Mr. R. P. GOODWIN, for the People:

No one can prescribe for a public nuisance. Washburn on Easements, 481.

The appropriation to one's self of public property which should be common to all, is a purpresture, and a public nuisance. Wood on Nuisances, sec. 14; Dunning v. City of Aurora, 40 Ill. 481.

The fouling of a stream with waste from a mill, like sawdust and the like, is of the same character. Veazie v. Divinel, 50 Maine, 495; Davis v. Winslow, 51 Id. 93; Gerrish v. Brown, Id. 256.

Where a slaughter house was built in a place remote from buildings, and the business then carried on for twenty years, it was held this did not authorize the owner to continue it after houses had been built and roads opened in the neighborhood. Commonwealth v. Upton, 6 Gray, 476; People v. Cunningham, 1 Denio, 536.

The private act of 1857 is not a charter, and all then granted could have been granted by a general law. Thomas v. Railroad Co. 101 U. S. 71; Fertilizing Co. v. Hyde Park, 97 Id. 666; Delaware Railroad Tax, 18 Wall. 206; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Providence Bank v. Billings, 4 Id. 548; United States v. Arredondo, 6 Id. 738; Ohio Life Ins. and Trust Co. v. Debolt, 16 How. 416; Railroad Co. v. Briggs, 2 Zabr. 620; Sedgwick on Stat. and Const. Law, 595.

Public grants are to be construed strictly. Nothing passes under them by implication, and all doubts are solved in favor of the State. Harbor Co. v. Monroe City, Walker's Ch. 155.

The private act in question is itself unconstitutional and void. Its whole scope is to grant to Michael C. Parker, his heirs and assigns, the power of taking or injuriously affecting private property for a private use upon making compensation, without the consent of the owners. This it was beyond the power of the legislature to grant to him. Ryerson v. Brown, 35 Mich. 333; Loughbridge v. Harris, 42 Ga. 500; Hay v. Cohoes Co. 3 Barb. 47; Sadler v. Langham, 34 Ala. 311; Tyler v. Beecher, 44 Vt. 648; Coster v. Tide Water Co. 3 C. E. Green, (N. J.) 54.

Every owner of a dam holds it on the condition that a sufficient and reasonable passage may be allowed for fish. Holyoke v. Lyman, 15 Wall. 500; Stoughton v. Baker, 4 Mass. 528; Burnham v. Webster, 5 Id. 266; Nickerson v. Brackett, 10 Id. 212; Commonwealth v. McCurdy, 5 Id. 324; Cottrill v. Merrick, 12 Maine, 229; Vinton v. Welsh, 9 Pick. 92; Commonwealth v. Essex Co. 13 Gray, 244; Commonwealth v. Chapin, 5 Pick. 204.

The police powers of the State are inalienable, and its legislature can not bind itself by contract not to exercise them. Stone v. Mississippi, 101 U. S. 814; Beer Co. v. Massachusetts, 97 Id. 25; Boyd v. Alabama, 94 Id. 645; Commonwealth v. Internal Liq. 115 Mass. 153; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. Mr. JUSTICE WALKER delivered the opinion of the Court:

This case involves the question whether an act of the General Assembly is, or not, unconstitutional. We are fully impressed with the gravity of the question involved, and the important, if not vast, results that must flow from its determination. There are few questions that more vitally concern the future interests and welfare of the people than does this question. Again, it is always a delicate matter to review the action of the other coördinate branches of government, who act under the same obligations to observe and support the constitution that are imposed upon us. We have therefore, in view of these considerations, bestowed an unusual amount of labor, thought and pains in the investigation of the question, and shall proceed to state our conclusions.

The act under which this proceeding was instituted was adopted on the 31st of May, 1879, (Sess. Laws, page 171,) which is declared to be an amendment to a prior act. It provides: “That it shall be the duty of any person or persons who now owns, or may hereafter erect, any dam or other obstruction across any of the rivers, creeks, streams, ponds, lakes, sloughs, bayous, or other water-courses within this State, to place therein suitable fishways, in order that the free passage of fish up or down or through such waters may not be obstructed.” And it imposes a fine not exceeding $200 a year for not complying with the requirements of the statute, to be recovered before any justice of the peace of the county where such dam or obstruction may be situated. Defendant being the owner of a dam across Fox river, and refusing to comply with the law, was prosecuted before a justice of the peace, and on a trial a judgment was rendered against him. He appealed to the circuit court of the county, where a trial was had with the same result, and he brings the case to this court on error, and urges a reversal. All the facts are conceded by stipulation of the parties. It is agreed that the dam was erected across Fox river, where it now stands, in the year 1836, and was raised to its present height in July, 1853, and has been so maintained ever since; that in 1842 Michael C. Parker, a remote grantor of plaintiff in error, purchased the land on which the mills and dam are situated, from the general government; that M. C. Parker, in 1857, procured the passage of an act of the General Assembly authorizing him, his heirs or assigns, to raise this dam higher, or to erect a new one at that place; that the dam always has obstructed, and now obstructs, the passage of fish in the river, and to construct a fishway in conformity to the act would cost about $600; that plaintiff in error has owned and used the mills and dam since in 1871, and maintained the dam at its present height since that time; that he has succeeded to and is possessed of all the rights with which Michael C. Parker was invested. These are the material facts of the case.

Plaintiff in error insists that he has a prescriptive right to maintain his dam as now constructed, as it has been used in its present condition, by himself and grantors, for more than twenty years; that the law requiring him to construct a fishway connected with his dam would be to deprive him of his rights without due process of law,--if intended for public use, without due compensation, or if for private use, then not only without compensation but without the semblance of constitutional warrant. He also contends that the act of 1857 was a charter, and as such is or contains a contract, and this law violates its obligation, and is repugnant to the contract clause of the Federal and State constitutions, and is therefore void. When the dam was erected it was without right, and by a trespass on the lands of the government, and before Michael C. Parker purchased the land of the general government, the legislature had by enactment, in 1840, (Sess. Laws, 98,) declared Fox river a navigable stream and public highway. It then follows that he purchased subject to the power of the legislature to control the use of the stream to the same extent it had to regulate the use of other streams in the State which were navigable in fact. After the passage of that act Parker maintained his dam as an obstruction...