Author: Pennsylvania Dept. of Fisheries

Title: Report of the Department of Fisheries of the
Commonwealth of Pennsylvania

Place of Publication: Harrisburg

Copyright Date: 1910/1911

Master Negative Storage Number: MNS# PSt SNPaAg239.5

Commontpealtti ot l^enngpllania

Report of the

Department of Fisheries

From December 1 : 1910
To November 30 : 1911

HARRISBURG:
C. E. AUGHINBAUGH, PRINTER TO THE STATE OP PENNSYLVANIA

1912

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I

OFFICIAL DOCUMENT.

No. 21.

DEPARTMENT OF FISHERIES OF THE COMMON-
WEALTH OF PENNSYLVANIA.

Commissioner of Fisheries.
NATHAN R. BULLER, Office, Harrisburg.

Board of Fishery Commissioners.

JOHN BAMBERGER, Erie.
HENRY C. COX, Wellsboro.
W. A. LEISENRING, Mauch Chunk.
JOHN C. OGDEN, Johnstown.

I

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1_21— 1911.

(1)

OFFICIAL DOCU.M EXT.

No. 21.

LETTER OF TRANSMITTAL.

Hon. John K. Tener. Governor of Pennsylvania, Harrisburg, Pa.

Sir: T have the honor to transmit the report of the Department of
Fisheries for the year ending November 30, 1911.

Very respertfiiUy,

NATHAN K. DULLER,

Commissioner.

(2)

(3)

OFFICIAL DOCUMENT.

No. 21.

REPORT

OF THE

MARD (IF FISIlEiy COMMISSION.

(4)

ir<m. Jolin K. Tenor, (lovornor of Pennsylvania, Ilarrisbnrg, Pa.

Sir: The l^oard of Fishery Commission has the lionor to here-
with i>resent its report of tlie operations of the Department for the
year endin*? November liO, 1911.

As tlie members of tlie present Board received their appointment
at yonr hands with commissions t<) ran from September 1, 1911,
when they came into oltice they found that the greater part of the
operations of the Department for the year had been concluded, and
for the work of the Department for the year preceding September Isr
it was necessary to depend upon the reports of the Superintendents
of the various haicheiies. These reports will be found embodied in
the report of the Commissioner. The Hoard met for organization
September 12, when all the members were present with the exception
of Mr. Cox.

In accoi'dance with the suggestion from yourself, it was decided
that no further temporary work should be done at the hatcheries,
l)ut all work should be of a permjment character so as to be lasting,
and if necessary the work should be concentrated up(m a few of the
hatcheries so as to complete them rather than distribute the work
over them all. leaving each (>ne incomplete. It was also decidetl in
the interest of economy and success that the work of each hatchery
be directed es])ecially to the pro])agation of those fish for which
its facilities weie specially fitted, and that in the future, with the
excei)tion of the fish taken from the commercial catches, that the
young fish be distributed of a larger size. The white fish, wall-eyed
])ike, blue pike, lake herring and shad nvo hatched from eggs that
would go to waste but for the action of the State and Nati<mal
(Tovernments in obtaining them from the fishermen and hatching
them in the hatcheries. These fish are obtained in such large quan-
tities that it would be impossible to hold them and they are there-
fore distributed and ])lanted as soon as hatched.

The condition of the hatchery at Conneaut Lake was considered,
and in view of the facts ])resented by the Commissioner, the Com-
mission decided that no more money should be s})ent U])on that
hatchery as the drawbacks far outweighed any facilities that the
hatchery might have. The shallowness of the ponds unfit it for bass

(5)

6

REPORT OF THE

Off. Doc.

work, and while this shallowness might be overcome in a small degree
there still would remain the ditTicnlty of draining tlie ponds whenever
there was high water. This was shown in the present year when an
effort was made to drain the ponds in order to take an account of
the stock fish.

September 10, the hatchery at Spruce Creek was visited by a cloud
burst which completely flooded it, carrying away the hatching house
and doing much damage to the ponds, washing out many of the fish.
The destruction of the hatcliing house was so complete that it had
to be taken down entirely. This flood is the most disastrous that
has as yet visited this hatcliery.

In the matter of pollution, it was decided that the best plan was
to take up various sections seriatum, notifying all the manufactories
on a certain stream that i)ollution must cease at a certain time. This
promises to work much better in securing results than taking up
si)oradic cases whore complaints are received. The problem of
pollution is a very large one, but the Department finds that the
majority of manufacturers are anxious to co-operate with the Dei)art-
ment in bringing about the jjurification of the streams.

The work of the Department in controlling the pollution and en
forcing the fish laws is greatly hampeied by the fact that under the
appropriation made by tlie Legislature it is only i)ossible to appoint
10 wardens to cover the States. This gives each one of the wardens
a very large territory, and of course the work cannot be as eHiciently
done as if it were ijossible to emi)loy the whole :iO wardens authorized

by law.

\'ery respectfully,

J. C. OGDEN,
W. A. LEISENKING,
IIKNHV C. COX,
JOHN IIAMBEROER.

No. 21.

DEl'ARTMENT OF FISHERIES.

REPORT OF COMMISSIONER.

Hon. John K. Tener, Governor of Pennsylvania, Harrisburg, Pa.

Sir: I have the honor to herewith submit my first report of ^he
Department.

By your appointment I assumed charge of the Department of
Fisheries September 1, 1911. As this was almost at the close of liie
Departmental year the work of distributing fish was about over, and
the only thing on hand at the hatcheries was preparation for the
taking of the trout eggs, the gathering of lake fish spawn in Lake
Erie, and preparing the various ponds for winter.

A few days after taking my plate, the hatchery at Spruce Creek
was visited by a flood which left much damage in its trail. The large
hatching house was undermined by the water so that it was necessary
to take it down, while a large number of the fish wore washed out
from the ponds. The situation of this hatchery makes it liable to
similar Hoods owing to the fact that the stream above is confined in a
narrow valley for several miles so that any kind of a severe rain-
fall causes an exceedingly rapid rise in the stream which breaks out
over the hatchery grounds as the first outlet.

Acting upon a suggestion from yourselj' that the plans in future
should be so designed that nothing but work of a permanent character
should be installed and an eft'ort made to complete at least some of
the hatcheries to their fullest capacity, after consultation with the
Board of Fishery Commission, it was decided that only such work
should be done at each hatchery as its facilities best fitted it for,
and nothing of a temporary character, except in case of unexpected
necessity.

An examination of the hatchery at Conueaut Lake in Crawford
county disclosed the fact that it is seemingly unfitted for the purpose
for which it was designed. The outlet of Conneaut Lake, which is
dammed to furnish the water for the hatchery, cannot be raised any
higher without flooding the properties above, causing claims for
damages, and the result is that the ponds can only be flooded to a
dei)th of two feet or a little over. While this is too shallow a condi-
tion to permit of good fish propagating conditions, there is another
trouble due to the fact that in any raise in the water it is impossible
to drain the ponds and drainage of the ponds is an essential part in
fish culture. Experience has shown that such shallow water as
there is at Conneaut Lake is not suitable for the culture of bass and
the fishes the Crawford hatchery was designed for.

It had been suggested that a pipe line from the lake would enable
the depth of water in the ponds to be increased, but an examination
shows that this wtmld not be more than two feet and there would

8

REPORT OF THE

Off. Doc.

still remain the same trouble with the drainage. The water supply
for the battery on several occasions has proven itself utterly un-
reliable, necessitating the reshipnient of the eggs which entailed
expense and a heavy loss of tlie eggs. IJie eggs lor the battery were
all shipped in from other places and coukl have been readily handled
at the hatcheries from which they were shipped, so that there was
nothmg gained by maintaining tlie battery at Conneaut Lake, while
there was a constant rislv of ilie water sui)i)lv giving out, and as re-
marked above, the eggs would have to be reshipped to another
hatchery which always means a very heavy loss. In view of these
conditions it was decided tliat tlie best policy would be to stop the
expenditure of any more money at the Crawford hatchery and devote
that money to other hatcheries where actual rcvsults can'be obtained.
In accordance with this view the hatchery at Conneaut Lake has
been left in the care of a caretaker until the meeting of the next
Legislature.

The announcement of the abandonment of the Crawford hatchery
caused various protests to be filed by persons living in that section of
the State. Affidavits were even furnished to the effect that since
the establishment of the Crawford hatchery the muscallonge fishing
had greatly improved in the Conneaut Lake.

^ Such affidavits show how largely imagination can enter into aff'airs.
The records show that no muscallonge were ever i)lanted in the State
of Pennsylvania. One year there was a shipment received of 2,000
eggs at the Corry hatchery where they were hatched. The vouthful
cannibals devoured each other until there was only one left and he
was taken by a Kingfisher.

The Department in its desire to meet the wishes of the fishermen
has made arrangements with the New York Conservation Commissicm
to procure some muscallonge eggs this season, which will be hatched
and planted iu Conneaut Lake and one or two other lakes where these
fish inhabit. So fiercely cannibalistic are these fish that Dr. Tarleton
H. Bean, the fish culturist of Now York, when writing to the Depart-
ment about the shipment of the muscallonge eggs, savs he does not
believe it is possible to raise them to a fingerling stage, unless each
fish is kept in a separate compartment. The Department also hopes
to supplement the supply of muscalhmge for Conneaut Lake bv
obtaining the eggs of that fish next year from Canadian waters.

The Superintendent of the Crawford hatcherv resigned shortly
after my assumption of this office and turned over the proi)erty to
the caretaker. From his record books for 1010 I am nnable to 'find
that he made any shipments of fish whatever from the hatcherv during
the year.

By an arrangement with the Michigan Fish Conmiission and the
Wisconsin Fish Commission, the Department will receive lake trout
eggs for stocking the inland lakes, the Dei»artment being unable
to collect any eggs from Lake Erie or to obtain anv as heretofore
from the T'nited States Authorities, with the excepticm of one hun-
dred thousand.

Owing to the stormy weather which prevailed on Lake Vlvlo
during the spawn taking time for white fish and herring there was
quite a falling oft" in the number of eggs taken, but fortunately the
Department had made arrangements with the Canadian authori-
ties for a supply of white fish eggs and the number received from

No. 21.

rt

DEPARTMENT OF FISHERIES.

9

the Canadian ports was quite gratifying when compared with the
number of eggs that the United States and other States were able to
get from Lake Erie during the past season.

From the reports of the Sui)erintendents of the various hatcheries,
except the Crawford hatchery, which is spoken of above, f find the
number of fish distributed during the year to be as follows:

DISTRIBUTION OF FISH.

White fish

Lake herring,

Wall-eyed pike,

Yellow perch, fry,

Yellow perch, fingerlings,

Yellow perch, adults,

Rock bass, yearlings,

Rock bass, adults

Calico bass, yearlings,

Calico bass, adults,

Sunfish, yearlings

Tadpoles,

Blue pike

Brook trout, fingerlings

Brook trout, adults

Brown trout, fingerlings

Rainbow trout, fingerlings

Rainbow trout, adults

Blue gill sunfish, adults

Catfish, adults

Small mouth black bass, adults

Small mouth black bass, advanced frv

Shad fry '

Large mouth black bass, adults

Sturgeons, adults

Silver side salmon, one year old

Silver side salmon, advanced fry

^'ariety of adult and fingerling fish for Philadelphia
Acquarium

Total

73,481,900

16,070,000

52,672,500

324,720,000

13,350

3,150

300

200

100

395

53,500

41,000

76,300.000

12.619,600

1,500

225.600

231,000

1,500

350

53.672

103

37,500

7,520,000

173

4

12,000

60.000

4.029

564,120,426

10

REPORT OF THE

Off. Doc.

FINANCIAL STATEMENT.

The following is a statement of the receipts and expenditures of
the Department of Fisheries for the year ending November 30, 1911 :

HATCHERIES. '

Received from State lYeasurer, $38,672 12

Balance an hand December 1, 1910 594 73

Paid for hatcheries, _

Balance on hand November 30, IDII,

$39,206 90

$38,672 12

WARDENS.

Received from State Treasurer, $13,603 77

Balance on hand December 1, 1910, j 4923

Paid wardens, 1

1

Balance on hand November 30, 1911,

$594 78

CONTINGENT FUND.

Received from State Treasurer, i*l,000 00

Balance on hand December 1, 1910 72 63

$13,653 00

$13,603 77

Paid for contingent expenses

Balance on hand November SO, ion, ..

EXPENSES OF FISHERIES COMMISSION
Received from State Treasurer

$1,026 93

Paid for expenses.

$1,072 63

$897 m

49 23

$174 9^

$1,026 93

COUNSEL PEES AND COURT EXPENSES.
Received from State Treasurer, _ $842 91

Paid for fees and expenses, j $842 91

OPERATION OF COMMODORE PERRY, I ==» = =«

Received from State Treasurer, $.*?,407 24

Paid for operation $3,407 24

COMPLETING HATCHERIES.
Received from State Treasurer, $4,443 29

Paid for work.

$4,443 29

FIELD WORK.
Received from State Treasurer $1,920 66

Paid for work. _ , $1,920 66

.-- -$28 00

PURCHASE OF GROUND AT ERIE.
Received from State Treasurer,

Pa'd.

ERECTION OF FISHWAYS.
Received from State Treasurer, $2,050 00

$28 00

Paid for Fishway, $2,050 00

BUILDING WALI.S AT CRAWFORD
HATCHERY.
Received from State Treasurer,

Paid for work $1,383 61

i

t

No. 21. DEPARTMENT OF B^ISHERIES. 11

During the year Ihere were receipts from various sources as follows,
the same being paid into the State Treasury daily in accordance with
the statute.

License fees for commercial hatcheries, $140 00

License fees for eel baskets 381 90

License fees for shad seines. ..." 74 60

Lake P2rie licenses 1,050 00

Confiscated fish and devices sold 10 00

Fines for violation of the fish laws 2,321 30

Property sold 48 25

14,926 U

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No. 21,

DEPARTMENT OF FISHERIES.

SHAD SEINE LICENSES.

13

During the year 22 licenses were granted for seines for taking shad
herring or alewife between March 1st and June 10th, the latter date
being extended by the last Legislature to the 2()th. Under the law
other food lish taken in these seines can be kept. The following is
the table showing the take:

County.

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3

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Catfish.

3

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Delaware. _| 1

Lancaster, ' 6

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3

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Perry,
York, .

8
12,701
6

1 i

i 9,816

Total, 22

$4 00
l,2(j6 yu

2,381 93

325
352
200
820
100
340

22,525 $3,652 83 2,137

$29 89

161
150

$13 83
10 50

28 16

15 00

61 42

5 00

175

$10 iX)

16 50

$156 97

211

$24 33

175

$10 M

COMMERCIAL FISH HATCHERIES.

The number of licenses issued for commercial fish hatcheries dur-
ing the year was 14. The following is a statement of the business
done by the concerns:

Name.

Pounds .

Number.

Value.

Dead trout for market, ..

Trout, live, mature,

Brook trout, flngcrlings.
Brook trout, advanced fry.
Brook trout, eyed eggs.
Brook trout, green eggs, ..

Black bass fry

Blue gill sunflsh

Gold fish

Black bass, yearlings,

S8,75« ....

62,951

63,420

178,500

15,063, 4."}9

1,300,000

10,000

3.600

11,370

2S0

$24,331 88

5,601 19

1,608 ;i7

525 50

7,147 64

325 00

141 00

157 50

334 24

60 00

Total.

.'«*,756 16,693,560 $30,222 S2

14

REPORT OF THE

VIOLATION OF FISH LAW.

Ofif. Doc.

The number of arrests made from December 1, 1010, to November
30, 1911, 248.

Amount of fines collected for violations of the fish laws, |2,:}21..'^r).
The following was the nature of violations:

Dynamiting fish, 12

Fishing with gill net, 1

Fishing with seine net, 2

Fishing illegal dip nets, 5

Fishing illegal fyke nets, 1

Fishing with nets in trout streams, 10

Fishing with spears in trout streams, 5

Spearing fish out of season, 8

Selling trout, 2

Taking short trout, fi

Taking short bass, 12

Taking short pickerel, 3

Taking game fish out of season, 12

Fishing with trammel nets, 3

Fishing with lay-out lines, 15

Snaring fish, 12

Taking fish with the hands, 3

Fishing nets within 400 feet of dams, 68

Shooting fish, 2

Taking shad out of season, 2

Drawing ofl" waters for fishing j)urposes, 3

Fishing on Sunday, 7

Illegal fish baskets, 5

Pollution of streams, 29

Kobbing fish nets, 2

Interfering with officers, 2

Using illegal devices not specified, 21

Total, 248

EEL INDUSTRY'.

No. 21.

DEPARTMENT OF FISHERIES.

15

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a pound, while in a number of other counties the average was verv
much less, and in numerous instances the reports show that it look
ten or twelve eels to weigh a pound.

The total weight of eels taken was 99,711 pounds, valued at |9,-
164.18. There were 458 licenses issued, of which 133 caught nothing.

The past season was rather a non-successful one for the licensees
of eel baskets, owing to the fact that the water was high in the
streams most of the time, and numerous complaints are made by the
holders of licenses that their baskets were washed out by high water
before they succeeded in getting any eels.

It will be noticed that the largest catches, and tlie largest eels,
were taken in the northern counties, near to the headwaters of the
river. In Bradford county the average weight of the eels was over

16

REPORT OF THE

Off. Doc.

No. 21.

DEPARTMENT OF FISHERIES.

17

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I

PHILADELPHIA AQUARIUM.

The Legislature, by an Act approved April 22, 1905, authorized the
loaning of a number of tanks used by the Department of Fisheries \n
its exhibit at the Louisiana Purchase Exhibition in St. Louis to the
city of Philadelphia for Aquarium purposes. During the past sum-
mer the city of Philadelphia authorized the establishment of an
A(iuarium at the Fairmount Water Works and the tanks have beeii
installed there. The above Act also authorizes the Commissioner of
Fisheries to supply the Aquarium from time to time with specimens
of Pennsylvania tish. There seems to be nothing more interestini,' to
the public than the studying of fi.sh life in an Acjuarium, and wiiere-
ever one has been established it has been the attractor of crowds.
The Department desires most heartily to co-operate with the city of
Philadelphia in making this Aciuarium a success and has alreadv
d(me much to aid it. From the Torresdale hatchery alone it has
furnished 4,02!) si)ecimens of adult and lingerling fish for exhibit pur-
poses, and a number of trout and other fish were sent from the Spruce
Creek hatchery for the same end.

\'ery respectfully,

N. R. BULLER,

Commisioner.

2—21—1911

18

REPORT OF THE

Off. Doc.

COURT DECISIONS.

The following are the opinions delivered through the year on rt.^h
cases :

NETTING IN TKOUT STKEAMS.

Five men were arrested in Sehii.ylkill coiintv for fishing in a troni
stream with a net. Tliey were found guilty by the Justice of the
Peace and sentenced to pay fines of |liO and costs. From this deci-
sion the defendants api)ealed to the Court of Quarter Sessions of
Schuylkill County. The court on hearing the api)eal decided that
two of the men should be discharged, but sustained the verdict of the
Justice in the case of the other three men, who not paying the tines
were sent to jail for 20 days each. The following is the opinion of
the court:

IN THE COUKT OF QUAKTEK SESSIONS OF TUF PEACE IN
ANT) FOR THE COUNTY OF SCHUYLKILL.

Commonwealth

V.

Charles Yeich, Kobert Ney, John
Yeich, Samuel Y^eich, and Henry
Emerich.

"^ulnularv conviction before
I'rancis S. Freiler, J. P.

OPINION OF THE COURT.

Shay, P. J.

This was a summary conviction under the Act of May 1, 1909, P. L.
35.*^, in an acti(m brought by C. R. Holland, special officer of the State
Fishery Dei)artuient, against the above-named defendants for fishing
in a trout stream with a net. The Justice adjudged all the defendants
guilty and fined each one twenty dollars and costs, under the provi-
sions of the said act. An ai>])eal was thereupon taken out to the
Court of Quarter Sessions, and the court heard the evidence pro and
con.

The practice on an ap])eal from a summary conviction is well estab-
lished. There is no trial by jury, as is conclusively and clearly de-
cided in Van Swartow vs. Commonwealth. 24 Pa. 131. Byers vs. Com-
monwealth, 42, 89, Commonwealth vs. Waldman, 140 Pa., 89, and
Commonwealth vs. Hippy, 20 Dist. Rep., page 390, May 8, 1911. The

No. 21.

DEPARTMENT OF FISHERIES.

19

Court, on an appeal, is to hear the evidence and decide whether the
justice was justified in his findings and his action. We have heard
the evidence in this case, and find from the justice's return that the
evidence before him was as follows:

Holland, the State ollicer, testified that he was ordered to investi-
gate the above case; that he visited tho place, and that Anthony
Yeich and Mrs. Anthony Yeich informed hiui that Robert Ney and
Henry Emerich were her sous, and tliat her sons were not the only
ones that did the fishing.

Anthony Yeich and Mrs. Anthony Yeich, the father and mother
of the three defendants of the same name, testified, the father say-
ing that he was in bed and knew nothiug of the fishing. Mrs. Yeich
testified that she was in bed, and kn(iw nothing of the fishing, and
that it made no difference what she said to the officer at the farm, as
she was not under oath.

David Metz, a witness, testified that he saw the fish on the porch
of the Yeichs, and there were some trout, but he could not remember
how long ago it was.

S. Ilogan^ the C(mstable who made the arrest, testified that one of
the Yeich boys showed him the creek they fished in, and called it Bear
Creek, situated in South Manheim township, Schuylkill county,
Pennsylvania, iind produced and showed him the net and explained
how tiiey fished with it, and put the net in evidence.

Upon the hearing before the Court all five defendants denied any
knowledge of having fished in the stream, having caught any fish or
having fished with a net — in fact, denied the whole accusation.

The prosecutor's testimony was simply, as to Ney and Emerich,
that he had been told that they were present. Ney and Emerich em-
phatically denied this, and as to them we do not think the testimony
sufficient to hold them.

The evidence as to the three Y'eichs c(mvinces us that the justice
made no mistake in finding them guilty, and we are satisfied from
the evidence, from the net produced, which the Y'eichs testified was
used to catch pigeons, and from all the testimony in the case, that
thev were righty adjudged guilty.

And now. May mth, 1911, the appeal as to Robert Ney and Henry
Emerich is sustained, and the appeal is dismissed as to Charles Yeich,
John Y^eich, and Samuel, and the jjroceedings of tho Justice, Francis
S. Freiler, as to Charles Yeich, and Samuel Y'eich, are directed to
appear before the justice for executicm of the sentence.

(Signed) ' By the Court,

Same day, tiie defendants, Charles Yeich, John Y'eich and Samuel
Y'eich, except to the above order and decree of the Court, and bill
sealed for the defendants.

(Signed) ARTHUR L. SHAY. P. J. (Seal)

20

REPORT OF THE

FISllINCJ IN DKAWX OFF NVATI':KS.

OIT. Doc.

Two persons were arrested in Chester county for taking fish from
water left in a mill race, which had been drawn oil' for the winter.
The fish, it was claiined hy the defendants, were left in puddles and
would have perished if not laken. A siniilai- caso was tried some
years ago in Lehigh county and the Judge I here in sustaining the
conviction remarked that if fish could be taken from drawn otf dams
etc., the fashion of cleaning dams would become much more preva-
lent. The men were convicted by the Justice of the Feaco, and ap-
pealed to the Court of Quarter Sessions of Chester county. This
Court, after hearing the case discharged tjje defendants upon the
ground that the waters from which the fish had been taken, could
not be considered as waters under the fish ju-otective act. From this
decisicm, the Department took an appeal to the Superior Court. The
following is the oi>inioii of the Chester Count v Court:

Commonwealth
vs.
Edward Janower
and Isidore Janower

Court of Quarter Sessions of Chester

countv.
Appeal by defendants from .summary

conviction.

OPINION.

The Justice's transcript shows that the complaint, trial and judg-
ment related exclusively to the taking of fish in an unlawful man-
ner.

While the investigation here is de novo, it must be confined to the
charge presented to and disposed of by the Justice. An essential
ingredient of the oftence charged is that the fish were taken by the
defendants from "the waters of the Commonwealth."

The fish were taken, as we find from the evidence, from a large
puddle of water, barely sulficient at the time to keep them alive, being
the slight remnant of water left in the mill race of defendants' father
after its ccmnecticm with Hartman's run had been cut off, which
puddle was a mere l(Mnporary evanescent harbor for the fish, which
could not have sustained them for any substantial length of time.

The race was cut otf from the stream because freezing weather
had set in, and in accordance with the uniform practice of defendants'
father to keep the race fre« of water during the winter. In our
ojunicm the puddle in the race did not c(mstitute within the meaning
of the Act, ''waters within the Commonwealth." The i»u<ldle and the
fish in it were permanently separated, \\ithout fault or cimtrivance
of the defendants, from what could justly be termed "waters."'

The situation was the same as would be presented, if after a heavy
freshet in a stream a few fish would be imprisoned in a bucket-full
of water in some little depression, in a bordering meadow. Such
casual, temporary, fugitive puddles may not proi)erly be viewed as
"waters," in any fair interpretation of a fish protective act.

Judgment is directed for the defendants.

W. BUTLEK, Jr., ^l. L. J.

Xm. 21.

♦

DErARTMEXT OF FISHERIES.

EESIST1X(J AN OFFICIOK.

21

One of the strong ])rovisions in the fish law is that which makes
it a serious olfense for any person to interfere with a fish warden
who is arresting a viidator of the law. Tijc penalty is very severe,
the fine being $100 or a hundred days in jail. This severe sentence
is deemed necessary from the fact in the past a number of wardens
have bc<?n seriously maltreated by persons who interfered with them
while in the course of their duties. Several of the wardens have been
shot and others badly jjounded up.

Last year while Warden Marcy was taking a prisoner in Lycoming
county before a Justice from whom the warden had secured a war-
rant, a brother of the defendant made his ai)pearance and in the exer-
cise of his authority the warden arrested the man for interference.
He was fined by the Justice of the Peace .flOO, when he appealed to
Court. The Court aftei- hearing the testimony decided that the de-
fendant was technically guilty, but thought that the fine was too
severe for the olfense. lie therefore ordered that if the defendant
would pay all the costs within ten days he would allow the ai>peal.
The case was settled on this basis.

The following is the opinion of the Court:

Commcm wealth | In the Court of Common Pleas of

vs. ?- Lvconiiuir countv.

GEOKGE B. UPDFGRAFF. ) No. 21)8, Sept. T. 1910.

The defendant. (Jeorge B. U]Mlegr;ilV. was arresti'd on sight with-
out warrant by a duly ap])ointed and commissioned Slate "Fish War-
den.'' and taken before Justice of the Pence Bardo where informaticm
on oath in due form was made by the ^Varden chai'ging the defend-
ant with violating the 2r)th section of the Act of May 1. 1000, P. L.
;^r>3, which jtrovides that: ^'Any person or pers(ms who shall by
threat, menace, or in any manner attemi)t to deter or ])revent any
Fish Warden, or other ])eison authorized lo make an-est for violation
of the fish laws, from enforcing or caii-ying into effect any provisions
of this act shall on conviction thereof as provi<l(Ml in section twenty-
seven of this act be subject to a i)enalty of <me hundred dollars, or in
default of payment of said fine be <ominitted to the county jail for
a period of one hundred days."

The Fish Warden, on July 2S, 1010. had made the arrest of Augus-
tus Tlpdegralf, a brother of the defendant, foi- viola ri<m of the fish
law, upcm a warrant duly issued to him by said Justice of the Peace
Bardo of the Borough of Montgomery in this county, and it was
whilst this pris(mer was in custody and with reference to this arrest
that the alleged "threat, menace or force" charged against George
Uj)degraft the defendant is alleged to have been connnitted.

The defendant was taken before said Justice of the Peace Bardo,
and after a hearing was convicted and sentenced as ])rovided for in
the act above referred to. The case is now before us on an appeal
allowed from this conviction and sentence.

22

REPOItT OF THE

Off. Doc.

Testimony was fully heard before us on behalf of the Common-
wealth and on behalf of the defendant, and all that transpired at the
time and jdace of said arrest fully gone into on both sides, and it
is from this evidence that we must reach our conclusions.

This Act of Assembly, new as it is, has received judicial interpreta-
tion in the case of Commonwtvjilth vs. Souder, 7 Pa. Justices' Law
Keporter, 282, in which .Judge Swartz says: "The twenty-fifth sec-
tion of the Act of May 1, 1<M)9, P. L. a(>8,\(mtemplates that the per-
s(m making threats or using force against the (►t!icer shall do so know-
ing that the otticer is engaged in enforcing the fish laws. The act
l)unishes for interferences with a fish warden or for preventing the
enforcement of the fish laws. The act does not impose a penalty for
interference with every officer of the law."

There is no evidence that either shows or tends to show that the
defendant had knowledge that Augustus T'pdegraff had violated the
fish law or that he was under arrest for such offense for which he is
charged is alleged to have been connnittetl.

The evidence shows that the defendant is a resident of the City
of Williamsport, a member of the firm of Updegraff & liurkhart, en-
gaged at corner of Court and \Ve«t 4th Sts.. in the sporting goods
business, with repair shops for bicycles, &c., in cimnectiim therewith.
That he had been in ill health for' some time prior to July 28, 1910,
and had been advised by his physician to seek out of door exercise.
That he and his wife had on the morning of that day *i(me by train to
Mcmtgomery. He there found his brother Augustus Tpde^^raff and
engaged him to procure for him s(mie live bait wiih which he and his
wife might engage at fishing at the Muncy Dam. That Avhilst he was
engaged at fishing at the Dam with his wife with rod and line, his
wife informed him that some ])ersons had tak<'n his brother Augus-
tus from the Dam. That he then liad his coat oil' jind his sleeves rolled
uj) as wjis his custom when so engaged. The north bank of the river
at that place is so elevated as to shut off the view in the direction
Augustus Updegraff was beini; taken from the Dam or ])lace where
the defendant then was, and u|K»n being informed by his wife that
somebody had taken Augustus, he started in the direction they were
taking him and overtook them about 100 feet or thereabouts north
of the river bank in the field headed towards .Montgomery, when the
following took ]dace according to the testimony of Ira C. Stevenson
of the State Constabulary, who was assisting Kaymond ^farcy, the
fish warden, in making the arrest, who says: "After the warrant was
read to him (Augustus rpdegraft'i. and we were trying to get Gus to
go aloni^ with us, I noticed (Jeorge lipdegratf, the defendant in this
case, coming across the fields from the direction of the Dam and he
hollend to us that we shcmld take our hands off that man. We hadn't
seen him do anything and we hadn't read any warrant to him. At
the same time he had advanced in an excited manner. Mr. Marcy said
to me, 'Can you handle this man while 1 look after this fellow that
is coming?" I said, yes, I will take care of him. So it was only a
second or so—a few seconds— until George R. Updegraff was at the
scene where we were. Mr. Marcy told him to stop back there that he
was a fish warden and that he would ^oA into trouble if he interfered.
He said, you have not seen him do anything, that he is not going with
you until I know where he is going, ife did not cpiit advancing until

No. 21.

DEPARTMENT OF FISHERIES.

23

Marcy grabbed him by the throat. He had his fist closed in a man-
ner as though he was going to strike him (.Marcy). Mr. Marcy had
his jack in his hand and told him if he didn't put his hands down he
would break his arm. Marcy then placed him under arrest."

The defendant testifying in his own behalf says: "I <lid not inter-
fere with the arrest of my brother Gus at all. I just asked where they
were going to take him to. They grabbed me when 1 walked up to
them. I says to them to hold on, where are you going to take my
brother to? I said I want to go his bail. When I walked up to him
he had a billy in his hand. I said hold on put that down, don't hit
me, and kind of threw up my hand so he would not hit me, and he
grabbed me (illustrating, by the throat) I says, who are you? Show
me your badge. He said 1 don't have to— The little fellow (Steven-
son) showed his badge then."

Morrel Kift, a young man who was at the Dam fishing on that day
and saw the defendant come up over the river bank and follow after
his brother Augustus and the men havin;,^ him in charge, and thus
describes what he saw George Updegralf do: "These two men were
going out with Gus and George Updegraff came up to them. He was
going across there (meaning towards them) you wouldn't hardly call
it running, and when he came up to them tiiey grabbed hold of him
and took him along."
He says he saw him walk across the field about VtO yards before he
came to them; did not hear anything said; saw one of the men have
a billy. Did not see Updegraff make a movement indicating an in-
tention to resist or to do bodily harm.

Another young man by the name of I^ardo was present with Kift
and corroborates Kift in ^^hat he saw transpire between the officers
and the defendant at the time the defendant came up to and was aj)-
proaching them.

T have not referred to all the testinmny foi- the Coimnonweallh or
for the defendant, but to so much of the evidence as shows what oc-
curred as viewed by the respective ])arties.

Whether what the defendant said and done can be construed into
either a threat, menace or force, is the (piestion we must first deter-
mine, and if so, did the defendant know the fish warden had anested
his brother for violating the fish laws.

Tt was ]>erfectly lei^ntimate for the defen<lant to have impiired (»f
the cause of the arrest and to have remonstrated with the warden if
he honc#?tly believed the arrest was without lawful authority, so long
as such incpiiry or remonstrance was not accompanied with either
threat, menace or force.

We are convinced that the defendant acted imprudently and al-
lowed his indignati(m at the arrest of his brother to show itself in
a manner that the fish warden had a right to draw an inference
therefrom that he meant !o interfere with the arrest of his brother for
violating the fish law. We are eipially convinced, however, that im-
I>rudent haste on the part of the fish warden and his combative atti-
tude upcm the apju-oach of the defendant had a great deal to do with
the temper and resentment manifested by the defendant towards him,
and that a less hostile attitude might have avoided tlu^ dilliculty and
lead to more peaceful results.

24

REPORT OF THE

OfiE. Doc.

Neither the conduct of the warden or the defendant can be com-
mended, and whilst the evidence lias convinced us of the technical
guilt of the defendant, we do not feel as though under all the circum-
stances as disclosed by the evidence we should impose upon the de-
fendant so large a penalty of one hundred dollars and costs, yet the
act imposes no other penalty, nor have we any discretion as to the
amount of the penalty. We are inclined, however, to follow the case
of Comra. vs. Souder, above referred to, which was a case very much
like the one in hand. The costs of the case including the costs of the
witnesses will be considerable, and the payment of this alone we are
satisfied will admonish the defendant of being more careful in the
future and to keep better control of his temper in dealing with the
officers of the law.

If, therefore, the defendant pays the costs within ten days, we will
enter a judgment sustaining the appeal. If the costs including the
costs of the witnesses and the costs of subpoening the same are not
paid within that time by the defendant, the ap]>eal will be dismissed
and the sentence of the Justice will then be ordered executed.

By the Court,

WILLIAM W. HART, P. -/.
January 12, 1911.

APPEALS IX SUMMARY CONVICTION.

Several months aq^o Charles A. Spotts was arrested in Perry county
on the charge of maintaining a fish basket in Sherman's Creek in
Perry county which did not conform with the i)rovisions of the Act
of ^\i\y 1, 1000. After a hearing before a Justice of the Peace the
defendant was discharged. From this decision the Commonwealth
appealed alleging that the Justice disregarded the evidence, the pro-
visions of the law. and was under coercion or duress. The motion
for the allowance for appeal was heard by Judge James W. Shull. who
discharged the prisoner in an o]nn'(m in which he claimed that the
Commonwealth did not have the right to appeal in cases of summary
conviction where the defendant was acquitted. The Commonwealth
took an appeal from this decision on the ground that the term, sum-
mary conviction, was intended to refer to cases of summary i)roceed-
ing, and that if it meant otherwise it would be impossible to obtain
justice at the hands of ignorant or corru])t Justices. The Su]»erior
Court sustained the Perrv Countv Court in so far that the matter of

■ f

granting the appeal was one within the discretion of the court, but
says decidedly at the end of the opinion that it does not sustain the
views of the court in regard to the allowance of the ap])eal where the
defendant was discharged by the magistrate. This point the Superior
Court says was not before them and therefore no ruling will be mnde.
The following is the opinion of the court: —

J

No. 21. DEPARTMENT OF FISHERIES.

IN THE SUPERIOR COURT OF PENNSYLVANIA.

25

Commonwealth of Pennsylvania

vs.

Charles A. Spotts.

No. 24 March Term 1910; Ap-
peal from Court of Quarter
Sessions of Perry county.

OPINION BY PORTPJR, J.

The record as printed in the paper book of the appellant is incom-
plete, in that it entirely fails to show the transcript of the proceed-
ings before the magistrate, which resulted in the judgment from
which the Commonwealth sought to appeal. The only parts of the
record which are printed, are information and the petition, to the
court below, for the allowance of an appeal from the judgment of
the magistrate; from which we gather the following facts: The de-
fendant was charged before the magistrate, in a summary proceeding,
with a violation of the Act of May 1, 1909, P. L. 353, entitled "An Act
to classify the fish in the waters within this Commonwealth * ♦ ♦ *
and to regulate the catch and sale and encourage the propagation of
the same, &c." The defendant appeared before the magistrate and
was, after a hearing, discharged. The prosecutor, on behalf of the
Commmonwealth, then presented a j)ctition to the court below i)ray-
ing for the allowance of an appeal to the Court of Qaurter Sessions.
That court made an order refusing to allow the appeal, which order
is here assigned for error.

The nature and limits of our jurisdiction to review the action of
the court below in refusing to allow an appeal from tiie judgment of
a magistrate, in a proceeding for the summary conviction of a defend-
ant, have been well defined by both this and the Supreme Court.
Neither Article V. Sec. 14 of the Constituti<iU nor the Act of April
17, 1870, P. L. 29, which was i)assed to carry it into effect, c<mtem-
plates that an appeal should be allowed merely because the party
praying for it is dissatisfied with the result of' the trial before the
magistrate, as is the case with most defeated litigants. The purpose
of the constitutional provision and of the statute was to vest in the
court to which the petition for the allowance of an ajjpeal from the
judgment of the magistrate must be presented, a discretion to deter-
mine whether the api)eal should or should nut be allowed. The Court
of Quarter Sessions being thus vested with discretion in this matter,
its action should only be reversed where au abuse of discretion clearly
appears. The appeal to this court, in thc«e statutory proceedings, is
in the nature of a certiorari, and in considering; it we cannot go out-
side of the record. An ai)peal fnmi judgment of a magistrate in a
summary convicti(m slnmld not be allowed save for cause shown, and
the cause should be stated in the petition; McCiuire vs. Shenandoah.
109 Pa. 013; Comm. vs. Eichenberg, 140 Pa. l.")8; Conmi. vs. Meujou,
174 Pa. 2.5. Judge Wickham who spoke- for this court in Thomjjson
vs. Preston, 5 Pa. Superior Ct. 154 and Comm. vs. Ilendley, 7 Pa. Su-
])erior Ct. 350, said, referring to the allowance of apjteals by the
Ccmrts of Quarter Sessions, "Ordinarily an ajtpeal should not be jter-
mitted, if the party desiring it has had an opportunity to fully and
fairly present his case before the magistrate, unless a <loubtful legal
questi(m is involved, or there is something to indicate oppression, cor-

2(5

REPORT OF THE

Off. Doc.

ruption or disregard of law on the part of the magistrate, or after
discovered evidence which should justify a new trial, under the well
known rules relating to now trials for that cause."

We must, therefore, turn to the petition, which the appellant pre-
sented to the court below, to ascertain whether the reasons there set
forth for the allowance of an appeal were of such a character as to
make it evident that the refusal of the appeal involved an abuse of
discretion upon the part of the court. The petition alleged three
reasons for the allowance of the appeal. (1) That the magistrate
grossly- and wantonly disregarded the evidence adduced on the part
of the Commonwealth. (2) That the magistrate grossly and wantonly
disregarded the provisions of the said act of assembly. And (3) That
from statements made by said magistrate ''to others before the time
fixed for the hearing and to your petitioner and others after said
hearing, it appeared to your petitioner that the said justice of the
l>eace was under coercion or duress by some person or persons, to
your petitioner unknown and in favor of the said Charles A. Spotts."
We are unable to say that these allegations were of such a character
as to render the refusal of the appeal an abuse of discretion upon
the part of the court below. The first reason amounts to no more
than an assertion that the opinion of the petitioner, as to the facts
established by the evid<'n('e, dilYered from that of the magistrate, the
I)etiti(mer luade no attempt to fortify his opinion by stating what
evidence had been ]»roduced, or whether any evidence had been pro-
jiroduced, which would have warranted the magistrate in con-
victing the defendant. The second reason was no more than
an asserticm that the opinion of the petitioner, as to the law,
differed from that of the magistrate. lie made no attemjit
to aver what the law was or what the magistrate had held
it to be. The third reason was siuiply an averment that, in the opinion
of the petitioner, from what he had heard from others and from what
the mai^^istrate had afterwards said to him, he believed the magis-
trate was under coercion or duress. Here again he utterly failed
to set forth the ground upon which his opinion was based. Reduced
to its legal value, the petiti(m simply asserted that in the opinion of
the petiti(mer the magistrate had made a mistake as to the facts and
as to the law and that he had been under S(>me sort of duress. This
}>etiti(mer was not the person in whom the law bad vested the dis-
<reti(m to determine wliether an appeal should be allowed in this
case, his oi)inion was not that which was to govern. He ought to
have sot forth the facts upon which his o|>ini(m was founded, and the
court would then have been in ])ossession of the information which
would enable it to act in the manner contemplated by law. The sj)eci-
ficati(m of error must be dismissed.

We deem it i)roper to say that this dispositicm of the case is not
to be c(mstrued as an adoj)tion of the views expressed in the opinion
of the learned judge of the court below, which is not a i)art of the
record proper, as to whether the Court of Quarter Sessions has juris-
diction to allow an ajjpeal, upon the petition of the Commcmwealth,
when in a proceeding for summary convict icm the defendant is dis-
charged by the magistrate. Whether the Court of (Quarter Sessions
has jurisdiction, under the constitutional i)rovision and the statute.

No. 21.

DEPARTMENT OF FISHERIES.

27

.4

to allow an appeal by the Commonwealth, can be determined when
a defendant is convicted in the Court of Quarter Sessions after hav-
ing been discharged by a magistrate. It is not in this case necessary
to express an opinion upon tlmt question.

The order apj>ealed froui is aftirmed; the costs to be paid by the
appellant.

Opinion filed March .3, 1011.

THE IHGIIT TO USE SUl»EI{FLrorS WATER.

When the state purchased the proj)er(y at Spruce Creek in Hun ring-
don county for hatchery purposes the seller, Sidney T. I sett, reserved
in the deed the right to the full How of the water of Spruce Creek
through his head-race which runs through the hatchery ground, the
dam on the creek being on the hatchery grounds.

A year or two ago it was contem]>lated to erect a jilant for grind-
ing the meat at the hatchery the power to be taken by a pipe from
the creek. Mr. Isett then asked the court of Huntingdon county to
issue an injunction restraining the Commissioner from using the
water of the creek on the ground that it was a violation of the reser-
vation in the deed. The Court of Huntingdon county granted the in-
junction asked for. but made it still stronger by enjoining the Com-
missioner from taking any water from the creek for any hatchery
purp<>ses even though the water should be returned to the creek above
the <lam. The Commissioner took an appeal from this to the Supreme
Court, \vhi<h in an opinion <lelivered by Justice Brown decided that
the injuncti(m so far as it jirevented taking any water which would
interfere with the tlow of the water in the race was all right, but
declared that the Lower Court was inconsistent when it said no water
could be used froni the creek when the taking of such water could in
no wise interfei'e with the water power of the mill. The Su]»reine
Court therefore modified the decree' of the Huntingdon county jourt
in-so-far that the Connnissiouer can now use all the water of Spru<'e
Creek he desires so long as the How of water through the race is not
interfered with. The following is the oi)inion of the Court:

!>«

REPORT Ol' THE

OIT. Doc.

IN THE SUPREME COUKT OF PENNSYLVANIA EASTERN

DISTRICT.

Sidney T. I sett
vs.
William E. Meehan, Commissioner

of Fislieries, William E. Meehan in- [ No. 32:5 January Torm 1910.
dividually, William Hass, John [Appeal lioiii C." P. Ihinling
Miller, William Miller, Seott Meyer,
Jacob IIar})ster, and Sidney Har-
rick.

ton.

Piled Julv G, 1911.

BROWN, J.

Hy deed dated January 21). 1!M)(;. S'dney 'J\ IsdT, the appellee, nm-
veyed lo the Coinin<m\vealtli, for the use of the DeiiartmenI of
Fisheries, 27 acres an<l 2(1 perclies of hnul neai- the- villa^^e of SiMiice
Creek in llnnlingdtm ronnty, ihe land conveyed including' Ihe stream
of Spruce Creek. On this land the Slate has erected a hsh hatchery
jdant. A jjjrist mill and dam of the apjiellee are located further dowii
Spruce Creek at a i)oint ahout 20(1 feet from the southern line of the
Comniimwealth's }>roi>erty. The race for this mill leaves Si)ruce
Creek at the breast of the ajtpellee's dam and is included within the
boundaries of tli(» hatchery ]U(>perty foi- nearly its entire lenj^th. In
the crmveyance from the ajtiK'Hee to tlio Comuioiiweallh there is the
followinj^ reservaliim: "And reservinji furilicr from this c(mveyance
the ri<»ht to the uninterrujited and jterjxMual How ol" the water of
Spruce Creek into and throu.i;h the said head race fiom the western
course of Spruce Cre<'k to the Isetl pisi mill at Spruce Creek at the
same height, widtli. dejith aud cajjacily as now c(mstructed, used and
maintained, to furnish water and ]K)wer to said ji^rist mill. The a])-
pellee filed his bill in the court below, averrin;;' lliat the Counnissioner
of Fisheries had diiected the dijri^iuu: of trenches or ditches to connect
the mill dam of the appellee- aud Spruce Creek with a proj)osed feed
mill (»n th(^ hatchery ]dant lor tl;e jturpose (d' oi)er;it inuf that mill b\-
water power, and that by so doiuii" the s-iid commissiouer was violat-
ing the reservati(m in the deed aud workiug irrejtaralde injury to
the ai)i)ellee. The workmen uiuh r the commissiouei- were made, de-
fendants with him. The c(mrt below having fouml that what he ]»ro-
j>osed to do would, if carried out, divert a larg<» quantity of watei'
from the mill race which <onveys the water lo the complainant's mill,
and thei'eby seriously impair and work iirejtarable injury to the water
power at the mill, awarded the injunction aj>j»ealed from, whi<h re-
strains Jind enj(dns the apjudlants -ri-om <liverting any water from
the stream of Spruce CrcM'k by jdpes. trendies, drains o?- <dlierwise.
so that the same cannot ]»ass into jind thiough the race leading to the
grist mill of the comjdainant oi- fi-oui doing any other act or acts
whatsoever that would carry from said stream of Spruce Cre(^k anv
water that would otherwise i>;iss down the stream to and througji the
mill race connected with the grist mill, or interfere in any way with
the water jmwer belonging to the complainant or doing any other act

•

•f

No. 21.

DEPARTMENT OF FISHERIES.

29

or acts whatsoever that would in anv wav injure or interfere with
the water or the said stream of Spruce Creek belonging to the com-
plainant, and which is appurtenant to his said grist mill."

This proceeding is not against the commonwealth, and the Wil-
liamsport and Elmira Railroad Comi)any et al v. The Commonwealth
et al. 33 Pa. 288, is not authority for the contention of the appellant
that the bill ought to have been disnussed for want of jurisdiction in
the court to entertain it. While it is against Meehan in his official
capacity as fish commissioner, it is not to enjoin him for discharging
any ofllcial duty imposed upon him by statute, but is to prevent his
l>erforming what is to be regarded as a mere ministerial duty under
the general powers and discretion c<mferred u])on him, and if in doing
so he defies a covenant between the State and the appellee, he can-
not shield himself under the jdea that the State is being sued.

The manifest and sole purj)ose of the reservation was to preserve
undiminished to the appellee the water jjower at his mill. The land
which he conveyed to the Connnonwealth in(luded so much of Spruce
Creek as runs through it, and on the banks of that stream, within the
boundaries of the Conunonwealth's lau<l, the fish commissioner would
divert the waters of the stT-eam for the purpose of sui)j)lying a need of
one of the State's fish hatcheries. In doing so he did not propose
to divert the water ])ermanent1y from the creek, but, according to
his testimony, intended to return it to the stream above the breast
of the dam. The return of the water, however, to the creek, whether
above or below the dam, is not material in ])assing upon the right of
the appellee to the sweejiing injunction decreed by the court below\

The purpose of the reservation in the deed, as already stated, was
the preservation of the mill's water power as it existed at the time
the conveyance was made. The water was to continue to flow inter-
ruptedly and perpetually through the race as it was then constructed,
"in height, width, depth and ca]>acity,'' to furnish water and power to
the mill. Equity will not permit the purpose of the reservation to
be defeated, and if, as a matter of fact, irreparable injury would re-
sult to the appellee, as he avers in his bill, by ])ermitting the fish com-
missioner to do what he ])urposes to do, a chancellor will protect him
in his rights. On the other hand, if what the commissioner proposes
to do, or what he ought to be permitted to do, will not in any degree
interfere with or impair the water power conveyed to the mill through
the race, the appellee will sustain no injury and the patent purpose
of the reservation will not be interefered with. So long as the water
flows over the dam the power to run the mill passes down the race,
and the purpose of the fish commissioner was to take water from the
stream only when it was running over the top of the dam. This the
court below ought to have found from ^feehan's uncontradicted testi-
mony, and the further finding ought to have been that he did not in-
tend to draw water from the strenm when it was below a mark that
he had ordered his superintendent to place at the head of the race. Tf
the water is taken from the stream (mlv when these conditions exist,
how can it be said that the appellee will suffer any injury? Though
the unimpaired water power passing down the race will continue to
drive the wheels of his mill, he asks that the appellants be enjoined
from doing that which cnu do no harm to him and will do good to
the State, and he asks this because, he insists, it is so nominated in

30

REPORT OF THE

Off. Doc.

the bond. Even tlie cold eye of the law cannot so read it, and equity
surely will not so construe it. The court below properly found, upon
the request of the appellants, that "the commonwealth has the right
to the ordinary use of the water of Spruce Creek for the purpose of
supplying the natural wants of her Spruce Creek hatchery, located on
the lands purchased from the plaintilf, provided she does not violate
the covenant in said deed with reference to the flow of water in the
raceway." but an inconsistent decree followed this finding, sustain-
ing the contention of the appellee that the reservation prevents the
use by the State of the waters of the stream above the breast of the
dam under any condition. That decree must be modified, and we do
now modify it by ordering, adjudging and decreeing that the appel-
lants are enjoined from diverting any water from the stream of Spruce
Creek by pipes, trenches, drains or otherwise only when the waters
of the said creek are not running over the top of the dam ; one-half
of the costs below and on this appeal to be paid by the appellants and
the remaining half by the appellee.

i

OFFICIAL DOCUMENT,

No. 21.

INDEX

Page.

Abandonment of Crawford Hatchery 8

Appeals in Summary Conviction, 24

Commissioner's Report, 7

Crawford Hatcliery, 7

commercial Fish Hatcheries 13

Court Decisions 18

Distribution of Fish, 9

Eel Industry, 14

Fishery Commission, Report of Board 5

Flood at Spruce Creek, 7

Fish Distribution, 9

Financial Statement, 10

Fines for Violations 11

Fishing in Drawn-off Waters 20

Hatchery Expenses, Itemized, 12

Itemized Expenses, Hatcheries 12

Letter of Transmittal, 3

Lake Trout Eggs, S

License Fees 11

Muscallonge Eggs 8

Netting in Trout Streams, 18

Organization of Department, 1

Permanent Character of Work 5-7

Pollution 6

Philadelphia Acquarium, 17

Report of Board of Fishery Commission, 5

iveport of Commisioner 7

Resisting an OflBcer, 21

Right to Use Superfluous Water, 27

Spruce Creek Flood, 7

Shad Seine Licenses, 13

Summary Conviction Appeals, 24

Superfluous Water, Right to Use 27

Tabulated Report of Eel Licenses 14

Violations of Fish Laws 14

White Fish Eggs «

(31)

END OF YEAR

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