State v. Welch

• Citation: 66 N.H. 178,28 A. 21
• Parties: STATE v. WELCH.
• Decision Date: 15 March 1890
• Court: Supreme Court of New Hampshire

28 A. 21

66 N.H. 178

STATE

v. WELCH.

Supreme Court of New Hampshire. Coos.

March 15, 1890.

Exceptions from Coos county; before Justice A. P. Carpenter.

Jacob W. Welch was indicted for catching and killing trout, in violation of Gen. Laws, c. 179, § 1, and excepts to a verdict for the state. Verdict set aside.

Indictment under Gen. Laws, c. 179, § 1, for catching and killing 10 trout from North pond, in Stark, May 1, 1884. The pond is a natural body of water, about a mile and a third long, of irregular shape, averaging about one-third of a mile in width. The defendant offered to show that its area is from 300 to 500 acres. The prosecution claimed that North pond lies wholly within the limits of lots 133, 143, 144, and lot 2, range 19, as drawn to the rights of the original proprietors; that lot 2, range 19, was formerly a part of Stratford; that the other three lots have always been a part of Stark, formerly Percy; that in the original survey of the townships some of the boundary lines of those four contiguous lots passed through the pond; that in 1775, when the townships were granted to the original proprietors of Stratford and Percy, the pond was not reserved for public use, but was conveyed as land included in the bounds of the granted premises; that, when the lots were divided among the proprietors, the bed of the pond was assigned as part of the four lots in which it was located; and that by the original grants of the townships the pond became private property, and it could not be taken for public use without due process of law and compensation.

Ladd & Fletcher and Aldrich & Remick, for defendant.

J. H. Dudley, Co. Sol., and O. Ray, for the State.

DOE, C. J. The statute is expressly made applicable "only to such ponds, streams, or springs as are wholly within the control of some person owning the land around the same, who has made some improvement or expended money or labor in stocking the same with fish for his own use." It is alleged in the indictment that North pond was "owned by, and wholly within the control of, the Percy Summer Club;" that the club owned the land around the pond, and had made improvements, and expended money and labor in stocking the pond with trout for their own use. One of the reserved questions was raised by the objection (presented by the defendant at the trial) that the club had no such private right as was necessary to bring the case within the statute. Whatever view is taken of the evidence tending to show, as...