People v. Horling
| Decision Date | 27 July 1904 |
| Citation | 100 N.W. 691,137 Mich. 406 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. HORLING et al. |
Exceptions from Circuit Court, Ottawa County; Philip Padgham, Judge.
John W Horling and others were convicted of taking fish from an inland lake with a device other than a hook and line, and they bring exceptions. Affirmed.
P. H. McBride, Pros. Atty. (Walter I. Lillie, of counsel), for the people.
Smedley & Corwin and J. E. Ball, for defendants.
The respondents were convicted of violating the provisions of page 1822, � 5849, Comp. Laws, which reads: 'That it shall not be lawful for any person to take, catch or kill, or attempt to take, catch or kill, any fish in any of the inland lakes in this state with any kind of spear, grap hook or by the use of jacks or artificial light of any kind, or by the use of set lines or night lines, or any kind of net, or any kind of fire arms or explosive or other device, except the hook and line.' The accompanying plat will help to understand the situation:
(Image Omitted)
The testimony on the part of the people was in part as follows That at the time of the fishing alleged in the complaint witnesses for the people testified that they went up the drain marked on the plat, with a boat, into said lake or bayou, and found the nets respondents were fishing with that night; that said respondents, or some of them, put a wire netting in said drain, reaching from the bottom thereof to above the top thereof, and that the respondents, or some of them, admitted that they put this screen in said drain to keep fish from going up and down said drain and into or out of said lake or bayou; that the length of time water runs in and out of said lake through said drain depends upon the length of time the water is high enough to get in and out but in every year there is always more or less time that fish can go in and out of said lake; that most of the fish planted in said lake or bayon, except carp and bass, have been taken from holes or pools in the lowland surrounding said lake or bayou after the high water receded and left the lowlands comparatively dry; that in the spring freshets when Grand river rises and overflows its banks, then said bayou is connected with Grand river, so that fishes can come and go to and from Grand river; that this connection exists as long as the high water exists; that some four years ago a public drain was laid by the drain commissioner; this drain does not follow any old outlet, but takes a westerly course, and strikes Grand river further down, where the cut in the river bank is located, so that after the river lowers, and there is no connection between the river and the bayou through this cut in the bank, the water still continues to run out of the bayou or lake, through this ditch, into the river; that after the ditch was dug it lowered the lake some two feet, and drained considerable land surrounding the lake; that fishes can come and go through this ditch for part of the year, as it does not become dry as soon as the old inlet or cut in the river bank. That some of the witnesses for the people testified that there were both spring and fall freshets, and that from three to five months of the year, during the spring and fall freshets and natural high water, fish could go in and out of said lake and bayou; that some of the witnesses claimed that there were freshets in July and August, in which water was high enough so that fish could go in and out of said lake or bayou.
On the part of the defendants, they offered evidence tending to show that since 1851 the defendant John W. Horling has been the owner and in possession of the land upon which this bayou or lake is situate; that he owns all the land around said lake or bayou, and that the same is not a meandered lake; that over 15 years ago he put up notices, painted wooden signs, and nailed them on the trees in the vicinity of the lake, telling the public that it was private property, and that no fishing was allowed in said lake or bayou, and that said signs have ever since been kept up to notify the public; that the bank of the river very seldom overflows, but once a year the river would get high enough so that the water would flow into the old inlet, which would last sometimes 15 days; the water would subside in the river, then the river would be entirely shut off, and the bayou or lake would have no connection with any public waters until the next spring freshet came; that there is no water in the ditch to exceed 20 to 25 days in any one year; the rest of the time the bayou or lake is entirely disconnected from any other waters; that there is no inlet to said lake; that the inlet from the river has no defined channel, except where it breaks through the high bank near the river; that this is dry so much of the time that it is overgrown with tame grass, and becomes good pasture land; that during the last 30 years the owner of the land has piped and tiled cold spring water from the adjoining land down to this lake, and during all these years has planted little fishes in said lake, obtained from surrounding pools of water, such as carp, bass, sunfish, and pickerel; that on account of the planting of these fish (not obtained from any public fish hatchery) this bayou or lake has become well stocked with fish, so that the fishing is much better than in Grand river, and people resorted there to fish to such an extent that it became necessary, and the owner of the land put up signs forbidding trespassing, and notifying the public that it was a private lake, and that fishing was not allowed; that on the day alleged in the complaint and warrant the respondents were fishing with a net, which they claimed they had a right to do, as it was private property; they set these nets near the place where the cold water pipes and tile made the water fresh, and where the fishes were in the habit of frequenting to get cool water.
Among other things, the judge charged the jury: ...
To continue reading
Request your trial