State v. Gilmore

• Decision Date: 23 November 1897
• Citation: 42 S.W. 817,141 Mo. 506
• Parties: STATE v. GILMORE.
• Court: Missouri Supreme Court

42 S.W. 817

141 Mo. 506

STATE v. GILMORE.

Supreme Court of Missouri, Division No. 2.

November 23, 1897.

DAMS — FAILURE TO MAINTAIN FISH CHUTES — LAW IMPAIRING OBLIGATION OF CONTRACT — SUFFICIENCY OF INDICTMENT.

1. The fact that, in allowing the establishment of a milldam under Rev. St. 1855, p. 1084, the court made no order for the erection of fish chutes, did not create a grant or contract between the state and the mill owner which could not be impaired by the subsequent act requiring erection of fish chutes (Rev. St. 1889, § 7023; Laws 1881, p. 138), since Rev. St. 1855, p. 1084, § 20, expressly provided that the judgment or order made in proceedings thereunder, and the privileges thereby obtained, should be subject to any restrictions the court might impose as to the passage of fish, and such statutory provision must be read into the judgment rendered.

2. Independently of statute, one who is authorized to build a milldam is by implication required to construct sufficient fish ways.

3. In a prosecution under Rev. St. 1889, § 7023 (Laws 1881, p. 138), for failure to construct fish chutes in a milldam, an answer by the jury to an interrogatory as to whether passage of fish was obstructed, that there was "no injury to fish of passage," is not responsive, and hence not conclusive on the question of obstruction.

4. The right given by Rev. St. 1855, p. 1084, to construct milldams does not create a contract with the state which cannot be impaired by subsequent legislation, since it creates merely a privilege without consideration to the state, which may be revoked at any time.

5. Under Rev. St. 1889, § 7023 (Laws 1881. p. 138), providing for the punishment of any person who maintains a milldam without a fish chute which is "so situated" that the main current of water may pass over the same, an indictment reciting that defendant constructed a dam without a chute, "not so situated that the main

current of water * * * cannot pass over," is insufficient.

Appeal from circuit court, Christian county; James T. Neville, Judge.

H. G. Gilmore was convicted of failing to maintain fish chutes in a dam, and appeals. Reversed.

Jas. R. Vaughan, for appellant. The Attorney General, for the State.

SHERWOOD, J.

This prosecution was instituted against defendant for failure to maintain upon a dam owned by him a chute for the passage of fish. The indictment, so far as necessary to quote, is the following: "That H. G. Gilmore, late of the county and state aforesaid, on the 28th day of February, A. D. 1896, at the county of Christian, and state of Missouri, did then and there unlawfully erect and maintain in and across certain waters of this state, to wit, Finley creek, said waters not being then and there wholly upon the premises of said H. G. Gilmore, a certain dam, without then and there placing and maintaining upon said dam a chute and apron of not less than fifteen feet wide, and sloping from each side to the center, the same so that such center should be at least six inches lower than either edge, and having an inclination of not more than forty-five degrees, and not so situated that the main current of water of said Finley creek cannot pass over said apron and chute; against the peace and dignity of the state. James J. Bruton, Prosecuting Attorney." The proceedings under which permission was granted to the original owner of the mill in question were instituted and completed in the year 1858, and while Rev. St. 1855 was in force. The jury summoned found as follows: "First, that no proprietor will sustain any damage from inundation; second, that no injury will be sustained by any proprietor of a mansion house or outhouse, curtilages, garden, or orchards; third, that no injury to fish of passage; fourth, that the health of the neighborhood will not be materially injured or damaged in consequence of such erection." Thereupon the circuit court caused to be made this entry: "And it appearing from the petition that said petitioners desire to erect a dam across a stream of water called `Finley Creek,' on the following land, viz. southwest quarter, southeast quarter, section 36, township 27, range 22, the said petitioners being the owners of the land on both sides of said stream, it is therefore ordered, adjudged, and decreed by the court that said Alexander Clapp and J. P. Clapp be permitted to erect a dam across said Finley creek at the place aforesaid for the purpose of connecting to said dam a saw and grist mill, and that the costs of the proceeding be paid by said petitioners." The Clapps were the owners of the land on both sides the stream (Finley) on which they sought to obtain permission to build a dam. Defendant, by mesne conveyances, is the owner of said land, and had built no chute for the passage of fish, as required by section...