missioner appointed by

governor.

SEC. 6. It shall be unlawful to catch and kill any bass or walleyed pike between the first day of April and the first day of June, salmon or trout between the first day of November and the first day of February, of any year, in any manner whatever.

or any

SEC. 7. Any person found guilty of a violation of section six of this act, shall, on conviction before a justice of the peace, be fined not less than five dollars nor more than twenty-five dollars for each offense, and shall stand committed until such fine be paid.

SEC. 10. Provided, that nothing herein contained shall be held to apply to fishing in the Mississippi and Missouri rivers, nor in so much of the Des Moines river as forms the boundary between the states of Iowa and Missouri.

[The last preceding section is as amended by 18th G. A., ch. 92, adding the proviso as to the Des Moines river. The other sections of this chapter are omitted as temporary or superseded by later enactments.]

*

[Seventeenth General Assembly, Chapter 80, being "an act to promote fish culture * and to amend and consolidate the enactments heretofore passed for that purpose, amending chapter 70, acts of the Sixteenth General Assembly."]

SEC. 1. The governor of the state is hereby authorized and One fish com- required to appoint, after the expiration of the term of the present incumbent, and biennially thereafter, one competent person, who shall be known as the state fish commissioner, who shall hold his position for the term of two years; and any vacancy that may occur, for the unexpired term, or by reason of the expiration of the term of said office, shall be filled by the appointment and commission of the governor.

Vacancy.

Duties.

Salary.

Report of commissioner.

The general duties of said commissioner, including the present incumbent, shall be to have general charge and superintendence of the state hatching house, now located at Anamosa, to forward the restoration of fish to the rivers and waters of the state, and to stock the same with fish from said hatching house, and elsewhere, to the extent that means therefor may be furnished by the state, and to the extent that means for that purpose may be furnished by the United States fish commissioner, and by societies and individuals interested in the propagation of fish in the waters of this state.

SEC. 2. The fish commissioner, including the present incumbent, shall receive, in full compensation for his services, twelve hundred dollars per year, to be paid out of any money in the state treasury not otherwise appropriated.

[Sec. 3, makes a temporary appropriation.]

SEC. 4. It shall be the duty of said fish commissioner to make a detailed, itemized and sworn statement, on or before two years after the 15th day of November, 1877, and every two years thereafter, showing the amount of money expended, for what purpose or purposes expended, the number and kinds of fish distributed, together with such general information on the subject of fish culture as such commissioner may think proper; and upon the submission of such report, and each subsequent, the same shall be caused to be printed and distributed, to the same extent and in the same manner as now provided by law for the

printing and distribution of the reports of public officers of the

state.

Obstructions to

SEC. 5. No person shall place, erect, or cause to be placed or erected, across any of the rivers, creeks, ponds or lakes of this free passage of fish prohibstate, any trot line, dam, seine, weir, fish dam, or other obstruc- ited. tion, in such manner as to prevent the free passage of fish up, down or through such water-courses, unless the same be done by the instruction or under the direction of the fish commissioner, and that when the same is so done by or through the instruction, or under the direction of the fish commissioner, it shall be unlawful for any person or persons to remove, or in any way interfere with the same. This section shall not be construed to prohibit the erection of dams for manufacturing purposes as provided by law. SEC. 6. Any person found guilty of a violation of the provis- Penalty for ions of section five of this act, shall, upon conviction before a provisions of justice of the peace, be fined not less than twenty-five, nor more this act. than one hundred dollars, or imprisoned in the county jail not less than ten days, nor more than thirty days, in the discretion of the

court.

violating the

SEC. 7. All acts or parts of acts in conflict herewith are hereby Repealing repealed.

[Eighteenth General Assembly, Chapter 156.]

clause

SEC. 1. The governor of the state is hereby authorized and re- Assistant fish quired to appoint an assistant fish commissioner, who shall act under commissioner. the direction and supervision of the present fish commissioner, who during his term of office, shall make his residence in Dickenson county. The duties of said fish commissioner shall be to establish and maintain an establishment for hatching fish at some suitable place in said Dickenson county, and to distribute the various products of said establishment in the waters of Iowa generally, and under the direction of the present fish commission. It shall be his duty to attend to the enforcement of the protective fish laws, and supervise the fish interests of that section of the state. Said assistant fish commissioner shall hold his office for the term of two years and until his successor is elected and qualified, and Term of office: shall receive as full compensation for his services, the sum of six compensation. hundred dollars per year, which salary shall be paid out of the state treasury out of any moneys not otherwise appropriated; and said salary shall be paid only upon the order of the executive council, after it is made to appear to said council that the work of hatching and rearing fish is being successfully carried on at said establishment, and the work of hatching and rearing fish at said. establishment shall be without further expense to the state other than the salary of said assistant fish commissioner.

CONSTRUCTION OF FISH-WAYS.

[Seventeenth General Assembly, Chapter 188.]

structed

SEC. 1. The owner of owners of any dam or obstruction across Shall be conany river or stream, creek, pond, lake, or water-course, in this within reasstate, shall, within a reasonable time, erect, construct and main- onable time. tain, over or across said dam or obstruction, a suitable fish-way of suitable capacity and facility to afford a free passage for fish up

Dam or obstruction a nuisance.

Penalty for

violation of this act.

Clerk of board

of supervisors

to report as to

construction of dams, &c.

struction of fish ways.

and down through such water-course when the water of said stream is running over the said dam.

SEC. 2. Any dam or obstruction mentioned in section one of this act, not provided with such fish-way within a reasonable time after the taking effect of this act, is hereby declared a nuisance, and may be abated accordingly.

SEC. 3. Any person guilty of the violation of the provisions of this act, shall, upon conviction before a justice of the peace, be fined not less than five nor more than fifty dollars for the first offense, and not less than twenty dollars for each subsequent offense, and shall stand committed until such fine is paid.

[Eighteenth General Assembly, Chapter 123.]

SEC. 1. Within thirty days after the passage and publication of this act, each clerk of the board of supervisors in any county in this state, in which there is any dam constructed across any stream therein, shall notify the state fish commissioner of the heighth of each dam in this county, the width of the stream where the dam is constructed, the character of the foundation upon which each dam rests, and shall give to him all other information necessary to convey to said commissioner an intelligent understanding of the situation and location of each dam in said. county.

SEC. 2. Within thirty days after the receipt of said notice, the Model for con- said state commissioner shall acknowledge the same by mail, and within thirty days from that date the said commissioner shall send, through the United States mail, or by express, to the clerk of the said board of supervisors, plans and specifications, also one model for each county, to be retained by the auditor for reference, also one model suitable for the construction of a fish-way for each dam reported as aforesaid, and the expenses connected therewith to be paid by the county receiving the same; and the said clerk shall immediately, on the receipt of said plans and specifications, cause a notice to be served in the same manner as required for the service of original notices, and returned to the auditor for tion, which notice shall be directed to the owner, agent, or party in charge of the dam, and which shall inform said owner, agent, or party that model, plans, and specifications are in his office, subject to his inspection, for the construction of a fish-way to said dam; and that, unless he consult the same and comply therewith within sixty days the county will proceed to construct the same, and the costs and penalties therefor will be made a tax or lien on the entire premises on which such dam is situated.

Notice to

owner of dam to construct

way.

preserva

SEC. 3. If, within sixty days after the service of said notice, Board of super- the owner, agent or party in charge shall fail to construct and attach a fish-way to such dam, as required by the commissioners, way upon fail- then the county board of supervisors shall immediately proceed to

visors may

construct fish

ure of owner

to do so.

Costs and penalty to be

entered on tax

books and

become a lien.

construct and attach the same; and when so constructed and attached, the original cost and twenty per cent. thereon, as a penalty, shall be entered upon the tax books of the county, and shall be a lien on said property, to be collected in the same manner as provided by law for the collection of other taxes.

SEC. 4. To carry out any of the provisions of this act the county board of supervisors may issue county warrants for the payment of such expenditures and expenses, and when the said

may be issued

taxes are paid, the said warrants and all accrued interest thereon Warrants to shall be refunded to the county, and the balance, after paying the cover expense clerk and state commissioner and board of supervisors for their by county. services, and for the service of said notice, shall be paid over Penalty to go to the county treasurer to become a part of the school fund of the to school fund. county.

board of su

see that fish

SEC. 5. Some one of the county board of supervisors in the first Member of week in April and September of each year, shall visit each dam in pervisors to his county to which fish-ways are attached and require the party visit dams and in charge to keep the same in good repair, and if he fails or for ways are kept in repair. any reason shall neglect to repair the same within ten days after notice so to do, the said supervisors shall immediately cause the Repairs made needed repairs to be made at the expense of the county, and the costs and pencosts thereof, with a penalty of twenty-five per cent. added, shall alty for made become a lien on the premises and shall be collected as other taxes collected as are collected against the property.

by county;

a lien and

taxes.

snaring fish

SEC. 6. The said clerk and state fish commissioner and board Expenses of clerk, commisof supervisors, shall keep an accurate and itemized account of sioner and sutheir expenditures, and report the same under oath to the county pervisors to be board of supervisors, at any regular meeting, and the said board paid by county. shall thereupon allow such reasonable compensation for their services as they may consider reasonable and just, to be paid out of any money in the county treasury not otherwise appropriated. SEC. 7. Any person who shall kill, trap, ensnare, detain or in Penalty for any manner molest the free and unmolested passage of any fish killing or enwithin one hundred yards of any dam or in their transit through near fish-way. any fish-way attached or belonging thereto, shall be adjudged guilty of a misdemeanor and upor conviction thereof shall pay a fine for each offense of not less than five nor more than fifty dollars and five dollars to the complaining witness, together with costs of prosecution, including an attorney's fee not exceeding ten dollars, and stand committed until the same are fully paid, and when said fine shall be collected, the same shall be paid over to the county treasurer to become part of school fund.

member of

this act.

SEC. 8. If any member of any board of supervisors shall, by Penalty against vote or act, neglect or refuse to enforce the provisions of this act, board neglecthe shall be adjudged guilty of a misdemeanor, and upon the com- ing to enforce plaint of any person before any justice of the peace having jurisdiction thereof, if he be convicted, he shall pay a fine of not less than twenty nor more than one hundred dollars and costs for each offense, and when collected the same shall be paid over to the county treasurer and become part of the school fund of the county.

SEC. 9. Nothing in this act shall be construed to repeal any This act not to part of chapters eighty and one hundred and eighty-eight of the affect previons acts of the seventeenth general assembly of the state of Iowa.

acts.

CHAPTER 4.

tained.

R. 1526.

OF FENCES.

SECTION 1489. The respective owners of lands enclosed with Partition main- fences, shall keep up and maintain partition fences, between their own and the next adjoining enclosure so long as they improve them in equal shares, unless otherwise agreed between them. Applied: Schnare v. Gehman, 9–283.

C. '51, 2 895.

SEC. 1490. If any party neglect to repair or rebuild a partition fence, or a portion thereof, which he ought to maintain, the aggrieved party may complain to the fence viewers, who, after due notice to each party, shall examine the same, and if they determine the fence is insufficient, shall signify it in writing to the delinquent occupant of the land, and direct him to repair or rebuild the same within such time as they judge reasonable.

The duty of maintaining partition fences as provided in this chapter, being one created solely by statute, the method prescribed by the statute for enforcing such duty must be followed. A party cannot proceed by action in court instead of by application to the fence viewers: Lease v. Vance, 28-509.

It is not necessary that the complaint to the fence viewers be in

writing and made matter of record: Tubbs v. Ogden, 46–134.

Unless due notice is given to the adverse party of the meeting of the fence viewers to examine the fence, the subsequent proceedings cannot constitute the basis of a recovery against him: Lookhart v. Wessels, 46-81. As to what is due and sufficient notice, see Tubbs v. Ogden, 46– 134.

SEC. 1491. If such fence be not repaired or rebuilt accordingly, the complainant may repair or rebuild it, and the same being adjudged sufficient by the fence viewers, and the value thereof, with their fees, being ascertained by them and certified under their hands, the complainant may demand of the owner of the land. where the fence was deficient the sum so ascertained, and, in case of neglect to pay the same for one month after demand, may recover it with one per cent. a month interest by action.

The action of the fence viewers is conclusive where they have jurisdiction; but they cannot conclude a party by determining that to be a partition fence, which, in fact, is not: Bills v. Belknap, 38-225.

The adjudication by the trustees as to the sufficiency of the fence should be by them sitting as a board, and as a result of personal inspection, but the inspection need not be made by

| them in a body. A record of the adjudication should be made by the clerk, but it is not necessary that such adjudication be reduced to writing and certified by them. The certificate of the viewers as to the value of the fence should be filed with the clerk and will then be sufficient evidence of complainant's rights and notice to the adverse party: Tubbs v. Ogden, 46-134.

SEC. 1492. When a controversy arises between the respective owners about the obligation to erect or maintain partition fences, either party may apply to the fence viewers, who, after due notice to each party, may inquire into the matter and assign to each his share thereof, and direct the time within which each shall erect or repair his share in the manner provided above.

Neither the notice here provided | share, &c., need be in writing, though nor the finding, assigning to each his it would be the better practice to put