Virginia Argus

An opinion being asked by Mr. IV. Tucker's surveyor of James River, on the true construction of the act of Assembly, passed 23d January, 1809, entitled " An act preventing obstructions to the passage of fish down James River." with a view to ascertain what power, persons at present possess under the various laws on this subject, of putting traps, or erecting dams in James River. I have considered the various acts on the subject and will proceed as concisely as possible, to state my opinion resulting from their examination.

An Act passed on the 24th January 1804, entitled " A act for more effectually preventing the passage of fish up James River and its navigable branches. This act imposed penalties on any person who should erect, or continue any dam, hedge, trap, weir, seine, drag, or other stoppage in James River, and its navigable branches, declares such obstructions to be nuisances, and authorises the surveyor whose appointment is provided for, by that act, to abate the same. The great object of this act appears to have been to endeavor to prevent practices, which the legislature seem to have supposed calculated to hinder shad from passing up the river. The eighth section of this law, however, expressly authorises persons to erect dams and traps, between the month of June and March, in each year, but every person continuing any dam or trap after the first of March, was subject to the penalties of that act for such continuance.

On the 15th Jan. 1808 an act passed entitled " An act preventing obstruction of fish down James River. " The preamble to this act declares that " whereas it is represented that the destruction of fish in their passages down James River, during the summer and fall seasons, by means of weirs, traps, hedges, dams, drags, and other stoppages placed therein, is an evil of growing magnitude." The act then proceeds to declare, that if any person shall thereafter place, or cause to be placed any of the before described obstructions to the passage of fish down James River during the summer and fall seasons of the year, the person or persons, offending, shall be liable to the same penalties, and forfeitures as are prescribed by the law, preventing the obstructions of fish up James River. The act also makes it the duty of the surveyor, to abate such obstructions, as are in his opinion calculated, to prevent, the passage of fish down the River.

Under the law first referred to (the act of 1804) there appeared to be no limitation on an individual's right, to put dams or traps to the river, except that of time, between the 1st of March and the 1st of June within which periods, the practice was prohibited. Between the 1st of June, and the 1st of March, the law authorises, the erection of traps and dams to catch fish. This act of January 1808, prohibits the erection of any such dam, or other obstruction which should be calculated to impede fish, from coming down. the river, of which the surveyor is made the judge. This act does not enlarge or diminish the rights given under the act of 1804. By the latter act traps or dams might be erected, or continued between the 1st of June and the 1st of March, without restriction, the act of January, 1808 prohibits even within those periods, such as were thought by the surveyor, calculated to prevent the passage of fish down James River.

A act passed on this subject January, 1809, the preamble to this act, mentions that application had been made to the legislature, to amend the act. of the preceding session, so as to impose some limit to arbitrary discretion given the surveyor by that act. The assembly then go on to say "that if the owner of any dam, or trap placed in James River, or the navigable waters thereof, for the purpose of catching fish, shall on or before the first day of September, remove so much of his respective dam, or dams, as shall leave a space of 40 feet, free from obstructions, either to the navigation, or the passage of fish, or shall so construct his or her trap or traps, as to leave the space of one inch and a half, between the laths which form the bottom thereof, then and in that case, it shall not be lawful for the said surveyor to pull down & remove the same, otherwise they shall be liable to the same penalties and forfeitures as if this act had not been made." This act controls the exercise of the discretion of the surveyor, and provided the trap is left open or the dam constructed as this act prescribes, on or before the 1st of September, the surveyor cannot pull down such trap,or dam, nor does the party incur any penalty The act of 1808 is not at all repealed by the act of January, 1809, no more than it was by the act of January, 1808. The act of 1804 is still in force and at present no person has a right to erect, or continue any dam or trap in James River, or any of its navigable branches, which will obstruct the passage of fish, between the 1st of March and the 1st of June in each year, and if a person does erect or continue it within those periods, he is liable to the penalties prescribed by the said act of 1808. Between the 1st of June and the 1st of March, dams or traps, may be erected, but not unless on or before the 1st of September, the dam is left open 40 feet wide, or the trap so constructed before that period, as to leave the laths one inch and a half apart. the party is exposed to the penalties of the act of 1804. No other obstruction or contrivance which does not fall under the description of dams or traps are allowed to be erected at any time. It appears to me that the dam directed to be opened, & the trap to have the laths one inch and a half apart, ought to be left in that state until the commencement of the next fishing season so long continued, say the 1st of March. as the object of the law is to prevent the destruction. of the young fish returning from the upper parts of the river. On or before the 1st of March the dams or traps ought to be pulled down.

Philip Norborne Nicholas.

Richmond, March 27, 1810.