State v. Franklin Falls Company. the first-named dam in 1863-1864. This dam is repaired and main tained under the general law of the State, as such dams usually are. Since the Franklin Falls Company built their mills in 1863 and 1864, the power at this dam, at the lowest water, is not more than sufficient to carry the machinery, but, prior to that time, there was a large surplus of water in the river at all times which was not used. The defendants claim that the construction of the fish-ways would be a great damage to their water power. No fish-ways of any kind have been provided at either dam. It is further agreed that these facts may be regarded, for the purposes of this case, as if found by the court upon the plea of not guilty, and such judgment rendered or disposition made in each case as the court deem proper. Attorney-General and Pike & Blodgett, for the State. Barnard & Sanborn, for respondents, argued that, as this was not a navigable river, the exclusive right of fishing was in the riparian owners. Palmer v. Mulligan, 3 Caines, 319; Scott et al. v. Willson, 3 N. H. 324; The People v. Platt, 17 Johns. 195, and authorities cited; Vinton et al. v. Welsh, 9 Pick. 87; Commonwealth v. Knowl ton, 2 Mass. 535; Commonwealth v. Chapin, 5 Pick. 199; Hooker v. Cummings, 20 Johns. 99; Lord Fitzwalter's Case, 1 Mod. 106. An indictment cannot be found upon an injury to private rights, such as obstructing the passage of fish in streams not navigable. 3 Black. Com. 217, 218; Commonwealth v. Knowlton, 2 Mass. 530; Commonwealth v. Ruggles, 10 id. 391; Commonwealth v. Essex Co., 13 Gray, 247. Whatever right the legislature has to limit the usefulness of such dams must be derived from its own enactments. Commonwealth v. Chapin, 5 Pick. 199; Vinton v. Welch, 9 id. 87; Commonwealth v. Essex Co., 13 Gray, 248; People v. Platt, 17 Johns. 195. The legislature, by the acts of 1823 and 1831, repealed and swept away all the fish-way laws; and with all restrictions thus removed the present owners of the dams purchased the property. The State thereby yielded to the proprietors of the dams whatever right it then had. The water power at these dams is private power and it cannot be taken against the consent of the owners without compensation. Gardner v. Newburgh, 2 Johns. Ch. 162; Wish ington Bridge Co. v. State, 18 Conn. 54; 6 Ran. 245; Angell on Water Courses, 1601; Wadsworth, Adm'r, v. Smith, 2 Fairfield, 278; Schenley v. The City of Alleghany, 1 Casey, 128. The owners have State v. Franklin Falls Company. title to the exclusive use of the water by prescription. Webber v. Chapman, 42 N. H. 326. SMITH, J. Some facts, material to a decision of this case, though omitted in the agreed statement, are not understood to be in controversy. The Winnipiseogee river is the outlet of Lake Winnipiseogee. About sixteen miles from the lake it joins the Pemigewasset river, and the two, united, form the Merrimac river, which flows in a southerly course, through New Hampshire, to Massachusetts, and in a winding course through Massachusetts to the sea. The Winnipiseogee river is above the ebb and flow of the tide, and is not used for purposes of navigation. The Merrimac, within New Hampshire, is not a tidal river. Lake Winnipiseogee is of such an irregular shape that it is not easy to calculate its area. Its greatest length is about twenty-five miles; the width varies from one to ten. The lake is considerably used for purposes of navigation. Before the establishment, in the Winnipiseogee and Merrimac rivers, of dams without fish-ways, shad were accustomed to pass to and fro between the sea and the lake, ascending to their breeding grounds, and descending thence to the sea. These migratory fish are not now found in the lake. It is extremely difficult, if not impossible, for them to ascend the river while obstructed by dams without fishways. Was the maintenance of the dams, thus obstructing the passage of the fish, a criminal offense at common law? If it be admitted that the right of fishing in the Winnipiseogee river belongs exclusively to the riparian proprietors, and that the wrong done to one of these riparian proprietors, by the act of another in obstructing the passage of fish, is not of the nature which the law will redress by a criminal prosecution, it does not follow that the obstructions now complained of are not criminal. The riparian proprietors are not the only persons injured. The right of fishing in the lake is not limited to the proprietors of the shores, but is common to all citizens of the State, just as much as the fishery in the tide waters of the Piscataqua. "In this country our great navigable lakes are properly regarded as public property, and not susceptible of private property more than the sea." 3 Kent's Com. 429, note b; West Poxbury v. Stoddard, 7 Allen, 158; State v. Gilmanton, 9 N. H. 461. The obstruction of this public right of fishing is a public nuisance, punishable at common law by indictment. State v. Franklin Falls Company. If the tide-waters of the Merrimac were within the limits of this State it might be necessary to consider whether the dams do not obstruct another public right, the fishery in the tidal part of the river. If the effect of a barrier at a point between the tidal imits and the upper breeding grounds is to diminish and gradually annihilate the stock of migratory fish in the tidal part of the river, it might be urged that the effects of the barrier "extend into the area of the water used by and in the hands of the public.” This subject is discussed in the judgment of the English fishery commissioners, reported in Leconfield v. Lonsdale, L. R., 5 Com. Pleas, 657, pp. 663-666; but no opinion need be given on it here. If the fish-way statutes in force some sixty years ago superseded, for the time being, the common law, the repeal of those statutes in 1823 and 1831 revived the common law. See 1 Kent's Com. 465, 466. Section 28 of chapter 1, Revised Statutes, not having been enacted till after the repeal in 1831, does not affect the question. The repealing acts of 1823 and 1831 have not "the force of a positive grant," as contended by respondents, but merely leave the rights and liabilities of all parties where they were before the statutes thus repealed were first enacted. Whether, in any event, the repeal of a prohibitory law ipso facto confers a license irrevoca ble by the State is a question which it is not now necessary to decide. If the maintenance of the dams constituted a criminal offense at common law, the recent statutes (G. S. ch. 251, § 20; Laws of 1868, ch. 1, §§ 57, 62) would be clearly constitutional, merely enforcing a common-law liability. If the Merrimac river is obstructed in Massachusetts by dams without fish-ways, that fact does not necessarily confer impunity upon the respondents. New Hampshire has the right to punish acts committed within its limits, which, alone and of themselves, are sufficient to cause a public nuisance, although similar acts are done in Massachusetts which would cause the same result in New Hampshire, if no acts whatever had been done in New Hampshire. Upon any other theory, public rights in rivers extending through two States might be utterly destroyed without remedy in either jurisdiction. We are not, however, to assume the existence of such obstructions in Massachusetts in the face of the statement in section 57 of chapter 1, Laws of 1868, that fish-ways have been erected "over the dams on the Merrimac river, below the boundary of this State." State v. Franklin Falls Company. It appears that three of the dams were maintained in their present condition more than twenty years prior to the enactment of chapter 2622, Laws of 1862; and it is claimed that the owners thereby acquired a prescriptive right against the public. If this claim is well founded, the provisions of the General Statutes and of the Laws of 1868, so far as they relate to these three dams, are unconstitutional. These statutes cannot be supported as an exercise of the right of eminent domain, because no compensation is provided for the property owners, although the value of the property may be materially diminished by the enforcement of the statutes. The only other ground on which they can be plausibly supported is the police power of the State. See 2 Kent's Com. (9th ed.) 420, 421. This power is often properly exercised in a manner very prejudicial to individual property owners, and its limits are not easy to define, but we think it does not extend to a case like the present. If it be admitted that the right of the State to regulate the mode of enjoying or using property may, in some cases, be legally exercised in such a manner as to practically prohibit the use of the property for any purpose beneficial to the owner (see Coates v. Mayor of New York, 7 Cow. 585), still this right of regulation, like the right of eminent domain, is not to be exercised on all occasions. The restoration to the public of the shad fishery in the lake has not such a direct relation to the public health as the prohibition of interments within city limits, nor the same direct relation to the public safety as the prohibition of the erection of wooden buildings in the midst of a populous village. The obstructions in the river do not cause positive annoyance or danger to the public. The injury is negative in its character. The indirect benefits to the public health, or to the means of support, do not seem to warrant the legislature in depriving the respondents of valuable rights without compensation. Any rights which the respondents may have acquired by prescription are as much their property as any other property they possess. This view renders it necessary to decide whether the respondents could, by twenty years' adverse user, acquire a right against the State. The legislature has fixed on twenty years as the proper time of limitations for bringing actions to recover real estate. By analogy to the rule, that twenty years' adverse possession gives a title to real estate, the courts have held that adverse user, for the same length of time, is sufficient to give title to an easement belonging to real Wallace v. Fletcher, 30 N. H. 434, 447. The rule of law estate. State v. Franklin Falls Company. on this subject is evidently based, in part, upon the presumption that the average of mankind will seek to enforce their private rights, if they really have any, before the expiration of twenty years, and that few persons will lose valuable rights by the adoption of this period of limitation. Experience does not justify the presumption that the community at large will assert their public rights with the same promptness with which individuals assert their private rights. The opposite is notoriously true. "Individuals may reasonably be held to a limited period to enforce their right against adverse occupants, because they have interest sufficient to make them vigilant. But, in public rights of property, each individual feels but a slight interest, and rather tolerates even a manifest encroachment than seeks a dispute to set it right." SARGEANT, J., in Com. v. Alburger, 1 Whart. 469, says, "In private nuisances and civil actions, presumptions of grant from length of time may be rebutted by proof that the enjoyment was acquiesced in, not by the owner of the inheritance, but by one who possessed a temporary interest only, such as a tenant for life or years, whose negligence or laches cannot be allowed to prejudice the owner of the inheritance. How much less, then, ought the acquiescence of the neighbors in a public nuisance affect the public right?" DUNCAN, J., in Com. v. McDonald, 16 Serg. & Rawle, 390, 400. * The State is impersonal. "The people do not, and cannot, legally, act in a body." Their power must, of necessity, be exercised only through agents. It cannot be expected that these agents will manifest the same vigilance in detecting and resisting encroachments on public interests that individuals evince in the protection of their private rights. Moreover, the State officials are generally few in number and fully occupied with the regular routine of official duties. They do not generally institute proceedings to punish violations of the laws, except at the instigation of individuals. It may be doubted whether these officers are ever aware of a very large proportion of the infringements on the rights of the State. It has been thought by some that the maxim, "nullum tempus occurrit regi," is an outgrowth of monarchical despotism, and, therefore, inapplicable under our republican form of government. But, whatever may have been its origin, this maxim has now for a long time been maintained as a part of the common law, not for the personal convenience of the sovereign, but "for the security and |