People v. Collison

• Decision Date: 27 February 1891
• Court: Michigan Supreme Court
• Parties: PEOPLE v. COLLISON et al.

48 N.W. 292

85 Mich. 105

PEOPLE v. COLLISON et al.

Supreme Court of Michigan

February 27, 1891

Appeal from circuit court, Barry county; FRANK A. HOOKER, Judge.

Clement Smith, for the People. C. G Holbrook and Walter Powers, for appellees.

MCGRATH J.

Defendants were convicted in the Barry circuit of a violation of Act No 329 of the Laws of 1885, which is as follows: "Section 1. The people of the state of Michigan enact, that it shall not be lawful for any person to take or catch any fish in the waters of Gun lake, in the counties of Barry and Allegan, by means of spear, fire-arm, net, trap-net, snare, or by the use of 'jacks,' or artificial light of any kind, or by the use of dynamite, giant-powder, or any other explosive substance or combination of substances. Sec. 2. Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not to exceed fifty dollars and costs of suit, or imprisonment in the county jail not to exceed sixty days, or both such fine or imprisonment, in the discretion of the court. Sec. 3. In all prosecutions under this act it shall be prima facie sufficient, on the part of the people to show that the defendant was found upon the waters of said lake with spear, net, trap-net, 'jack,' or artificial light of any kind, or with dynamite, giant-powder, or any other explosive substance or combination of substances." Pan lake empties into Gun lake, and Gun lake covers several sections of land, and is about three miles in length and width. Its outlet is Gun river, which empties into the Kalamazoo river, and that into Lake Michigan. James Collison, one of the defendants, owned about three-quarters of an acre of land on Gun lake, described by metes and bounds, and "bordering on the lake." The place of fishing was opposite this piece of land, and the parties went upon the lake from said land. The offense alleged was the catching of fish by means of spears and the use of "jacks." The commission of the act was conceded and the only defense made was that the defendant James Collison was fishing "upon his land, over his own soil and in his own water," and the other defendants were there by his permission; that defendants and other shore-owners of land bordering on Gun lake had from time immemorial exercised the right of fishing on said lake, and had by long-continued custom acquired the right to take fish in said lake by any means, spears or nets, prior to the passage of the act in question; and that this statute, in so far as it interfered with such right, was invalid and repugnant to the constitution of this state by depriving defendants of property without compensation. After the close of the testimony, counsel for defendants said: "I shall request your honor to direct a verdict of acquittal of these defendants. That is all we can do. I will put it in writing. By the Court. Yes, you may do so. I think, under the proof in the case, the court should direct a verdict. There is nothing to go to the jury. You admit the act, as I understand it. Counsel for Defendant. Yes, sir; we don't deny the taking of these fish. By the Court. I think a verdict...