injuries to the lower dam, as the damages would be too remote. This was held error. Judge Grover, after discussing the Ryan Case, said: "Assuming this rule was correctly applied in the case of Ryan v. New York Cent. R. Co... it comes far short of sustaining the proposition under consideration." north; thence in a westerly direction, across | the stream, then plaintiff could not recover for Read Street, to a barn of the plaintiff, which was destroyed. The next building to burn, situated northerly from the E. D. Read house, was Mallory's saloon. From that building the fire spread to and destroyed the buildings in question. After the E. D. Read house commenced to burn, and before either of the buildings of plaintiff on Main Street took fire, the wind died down, and changed to a slight breeze from the south. Unless, then, a party can be held liable for all buildings which may be burned, so long as the first cause can be traced to his negligent act in setting fire to his own or a neighbor's building, without reference to a change of wind, absence of fire apparatus, or other intervening and contributing causes, then the court did not err in holding that the burning of such of plaintiff's buildings as were situated on Main Street was not the proximate result of the alleged negligent act of the defendants in permitting sparks to escape so as to set on fire the E. D. Read house. In Lowery v. Manhattan R. Co., supra, a coal of fire dropped from an engine of the defendant upon the back of a horse, causing him to run away. The driver attempted to rein him against the curb stone, for the purpose of arresting his progress. The wagon passed over the curb-stone, and thence over the plaintiff, injuring him. A recovery by the plaintiff was sustained. Judge Miller, in his opinion, said "that the Ryan Case is clearly distinguishable from the case at bar." If it may be said that the rule laid down in the Ryan Case has been broadened somewhat by the decisions referred to, it cannot be contended that it has been so far modified as to permit a holding that the burning of the Main Street buildings was the ordinary and natural result of the act complained of. If it could be so held, then, however many buildings might be burned, if the fire but spread from one building to another, the negligent party would be liable to respond in damages to every owner, even if, as in this case, the course of the wind had so changed as to drive the flames and sparks of burning buildings in a direction other than was possible at the moment of the percourt did not err in holding that the damages sustained by the burning of the Main Street buildings were not the proximate, but the remote, result of the acts complained of. Certainly, the facts here presented are much more favorable to the defendants than they were in Ryan v. New York Cent. R. Co. 35 N. Y. 210. That case has been distinguished by this court in Webb v. Rome, W. & O. R. Co. 49 N. Y. 420; Pollett v. Long, 56 N. Y. 200, aud Lowery v. Manhattan R. Co. 99 N. Y. 158,but it has never been overruled; and the rule still obtains in this State that when the facts are undisputed the court may, under some circumstances, determine, as a matter of law, whether the act complained of is the immedi-formance of the wrongful act. We think the te or remote cause of the injury. In the Webb Case the property of the plaintiff destroyed was continguous to that of the defendant, and the evidence tended to show that from the place where the live coals dropped to the lands of the plaintiff there was an accumulation of combustible matter, and that it was a time of drought. Judge Folger, in delivering the opinion of the court, said: "Nor am I able to confine the act of negligence to the dropping of the coal from the engine, and thus, separating it from all the other concurring acts and omissions of the defendant, make that the solitary, prime cause of a series of causes." In Pollett v. Long, supra, defendant's dam was defective, and in consequence gave way. The volume of water thus suddenly precipitated upon a dam below tore it out and a little further down the stream a third dam was washed away. In an action to recover for damages sustained by the tearing out of the third dam, the trial court charged the jury that. If there was sufficient water in the middle pond to materially increase the volume and force of At the The third relates to the disposition of plaintiff's requests to find, and especially to the qualified manner in which the court charged the thirteenth request. At the close of the evidence the counsel for the plaintiff presented to the court thirteen separate requests to charge. Some were charged as requested, some charged in a modified form, and others refused. close of the charge counsel stated that be excepted "to the refusals to charge as requested by plaintiff's counsel, in so far as the court did refuse, and to each of the refusals to charge as requested." An exception thus taken is not sufficiently definite and specific to present a question for review. Smedis v. Brooklyn & R. B. R. Co. 88 N. Y. 13; Newall v. Bartlett, 114 N. Y. 399. The judgment should be affirmed. All concur, except Follett, Ch. J., and Potter, J., not sitting. abatement, and the remedy is appropriate to the object to be accomplished. 8. Where a public nuisance consists in the location or use of tangible personal property so as to interfere with or obstruct a public right or regulation, the Legislature may authorize its summary abatement by executive agencies, without resort to judicial proceedings, and any injury or destruction of the property necessarily incident to the exercise of the sum mary jurisdiction interferes with no legal right of the owner. abatement of the nuisance, and when done sum The right and duty to regulate, control and protect the fisheries in navigable waters along the shores of the ocean and of the Great Lakes has always been within the province of the States owning the adjacent territory. Smith v. Maryland, 59 U. S. 18 Iow. 71 (15 L. ed. 269); Smith v. Levinus, 8 N. Y. 472. One owning all around a lake may not take fish contrary to statute if the lake connects with public waters. State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199. The State possesses ample authority to rid the fisheries of such devices as are destructive of them without negotiations with or judicial proceedings against the offending owners who bave constructed or placed such devices in the 4. The destruction by a public officer of nets for catching fish, set in violation of law, is proper, reasonable and necessary for the marily under authority of a statute it neither constitutes a taking of property without due process of law nor renders the officer liable to dam-fisheries in violation of the law protecting the ages therefor. 6. Where the void provisions of a statute are separable from the valid ones, the court will sustain the valid ones while rejecting the others. (February 25, 1890.) same. Phelps v. Racey, 60 N. Y. 10, approved in State v. Snover, 42 N. J. L. 345; and Magner v. People, 97 Ill. 332; Williams v. Blackwall, 2 Hurlst. & C. 33; Smith v. Levinus, 8 N. Y. 472. The Legislature may, by virtue of its police powers in the exercise of a reasonable discre APPEAL by plaintiffs from a judgment of tion, declare that a nuisance which was not be the General Term of the Supreme Court, Fourth Department, reversing a judgment of the Jefferson Circuit in their favor in an action to recover damages for the conversion of their fishing nets by defendant. Affirmed. The case sufficiently appears in the opinion. Mr. E. C. Emerson for appellant. Mr. Elon R. Brown, for respondent: For the protection of the fish, and for the maintenance of equality in respect to the right to fish, the State may regulate fisheries, if the regulations are reasonable, and do not extend beyond the prevention of threatened injuries. See Holyoke Water Power Co. v. Lyman, 82 U. S. 15 Wall. 500 (21 L. ed. 133); Com. v. Chapiu, 5 Pick. 199; Com. v. Essex Co. 13 Gray, 247: State v. Snover, 42 N. J. L. 341; Doughty v. Conover, Id. 193. In the last case the statute under consideration prohibited the use of fish nets at certain times of the year in particular counties. See also Inland Fishing Comrs. v. Holyoke Water Power Co. 104 Mass. 446, 6 Am. Rep. 247. Fisheries, even in waters not navigable, are so far public rights that the Legislature of the State may ordain and establish regulations to prevent obstructions to the passage of the fish, and to permit the usual and uninterrupted enjoyment of the right of the riparian owners. Holyoke Water Power Co. v. Lyman, supra. On the grant from Charles II., Duke of York, of what is now New Jersey, the soil under the navi gable waters, with the right of fishing, both for shell fish and floating fish, passed, as an incident of sovereignty, in trust for the public. Martin v. Waddell, 41 U. S. 16 Pet. 367 (10 L. ed. 99); Russell v. Jersey Co. 56 U. S. 15 How. 426 (14 L. ed. 757). Such soil and rights of fishing passed to the twenty-four proprietors from the Duke of York, and from them back to the Crown, upon their surrender in 1702. By revolution they passed from the Crown to the State of New Jersey. Martin v. Waddell and Russell v. Jersey Co. supra. Whatever soil below high-water mark is within the exclusive ownership of a State is held by it subJect to and in trust for the enjoyment of the public rights of fishery, and is under the control of the State to regulate the modes of that enjoyment, so as to prevent acts which would render the public right less valuable or destroy it altogether. fore a nuisance, or legalize a nuisance so that no one will have the right to abate it. Coe v. Schultz, 47 Barb. 65. See Re Jacobs, 98 N. Y. 98; Reg. v. Crawshaw, Bell, C. C. 303, 30 L. J. N. S. M. C. 58; McLaughlin v. State, 45 Ind. 338; Monroe v. Gerspach, 33 La. Ann. 1011; State v. Towler, 13 R. I. 661; Davis v. Sawyer, 133 Mass. 289; Sawyer v. Davis, 136 Smith v. Maryland, 59 U. S. 18 How. 71 (15 L. ed. 269). Each State owns the beds of tide-waters within its jurisdiction, subject to the paramount right of navigation. Fisheries belong to the State. Ibid.; McCready v. Virginia, 94 U. S. 391 (24 L. d 248). The rights of navigation and commerce are always paramount to those of public fisheries. Stockton v. Baltimore & N. Y. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. Rep. 9. Me. Rev. Stat., chap. 40, § 70, prohibiting the use of a net, other than a dip-net, in fresh water, applies to the Grand Pond in Kennebec County, Maine. State v. Towle, 6 New Fug. Rep. 044, 80 Me. 349. The spreading of nets by vessels from the lake, three miles up the Grand River from its mouth, is a violation of Mich. Laws 1885, Act No. 10. People v. Kirsch, 12 West. Rep. 62, 67 Mich. 539. A law forbidding the catching of fish by seines, nets or traps, in the waters of the State, interferes with no constitutional right. State v. Blount, 85* Mo. 543. North Carolina Acts 1875, chap. 115, § 183, does not preclude one engaged in a seine-fishery from removing stakes put to operate a pond-net. Hettrick v. Page, 82 N. C. 65. Under the proviso to Tenn. Acts 1879, chap. 198, making the penalties prescribed inapplicable "to persons owning private ponds, and to those owning the land on both sides of a running stream, the same being closed by a substantial fence," one who catches fish with a net in such a stream by verbal permission from the owner of the land, although in his absence, commits no violation of the law. Maney v. State, 6 Lea, 218. Vt. Act 1882, No. 117, § 2, prohibiting all net fishing in Lake Champlain, or in rivers emptying into the lake within ten miles from the mouth, is held constitutional as a regulation, and not prohibiting the fishing. Drew v. Hilliker, 56 Vt, 641. Mass. 239; Miller v. New York, 109 U. S. 385 | or usage, in England or in this country, to the (27 L. ed. 971); Leigh v. Westervelt, 2 Duer, 618; Harris v. Thompson, 9 Barb. 350. legislative department, except in so far as such powers have been withheld or limited by the Constitution itself, and subject also to such re The means of abatement must likewise be within the reasonable discretion of the law-strictions upon its exercise as may be found in making power. Kellogg v. Thompson, 66 N. Y. 88; Rockwell v. Nearing, 35 N. Y. 302. Fish nets are within the definition of a nui sance. Wood, Nuis. 1; State v. Snover, 42 N. J. L. 341; Williams v. Blackwall, 2 Hurlst. & C. 33; Penal Code, § 385. The legislative discretion is properly exercised in providing that in the abatement of a nuisance deliberately caused, property of trivial value, used as a means to create it, should be destroyed summarily. Penal Code, Gambling Kits, §§ 338, 345, 346. Andrews, J., delivered the opinion of the court: The conclusions of the trial judge that Black River Bay is a part of Lake Ontario, within the meaning of chap. 141 of the Laws of 1886, and that the nets set therein were set in viola tion of the Act, chap. 591 of the Laws of 1880, as amended by chap. 317 of the Laws of 1883, were affirmed by the general term. The trial judge in his careful opinion demonstrated the correctness of these conclusions, and nothing can be added to reinforce the argument by which they were sustained. The point of difference between the trial court and the general term relates to the constitutionality of the section of the Act of 1880, as amended in 1883. That section is as follows: "Sec. 2. Any net found, or other means or device for taking or capturing fish, or whereby they may be taken or captured, set, put, floated, had, found or maintained in or upon any of the waters of this State, or upon the shores or islands in any waters in this State, in violation of any existing or hereafter enacted statutes or laws for the protection of fish, is hereby declared to be, and is, a public nuisance, and may be abated and summarily destroyed by any person; and it shall be the duty of each and every (game and fish) protector aforesaid and of every game constable, to seize and remove and forthwith destroy the same, . . . and no action for damages shall be maintained against any person for or on account of any such seizure and destruction." the Constitution of the United States. From this grant of legislative power springs the right of the Legislature to enact a Criminal Code, to define what acts shall consti u e a criminal offense, what penalty shall be inflic ed upon offenders, and generally to enact all laws which the Legisla ure shall deem expedien for he protec ion of public and priva e righ s, and he prevention and punishment of public wrongs. The Legislature may not declare that to be a crime which in is nature is and mus under all circumstances be innocent, nor can it in defining crimes, or in declaring their punishment, transgress any fundamental right se cured by the Constitution. But it may, acting within these limits, make acts criminal which before were innocent, and ordain punishment in future cases where before none could have been inflicted. This in its nature is a legislative power which by the Constitution of the State is committed to the discretion of the legislative body. Barker v. People, 3 Cow. 686; People v. West, 8 Cent. Rep. 758, 106 N. Y. 293. The Act in question declares that nets set in prohibited waters are public nuisances, and authorizes their summary destruction. The Statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the Legislature from enlarg ing the category of public nuisances, or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare of the community, public nuisances, although not such at common law. There are, of course, limitations upon the exercise of this power. The Legislature cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or interest is involved, declare property a nuisance for the purpose of devoting to destruction. If the court can judicially see that the Statute is a mere evasion, or was framed for the purpose of individual oppression, it will set it aside as unconstitutional, but not otherwise. Re Jacobs, 98 N. Y. 98; Harlan, J., Mugler v. Kansas, 123 U. S. 661 [31 L. ed. 210]. The defendant justified the seizure and destruction of the nets of the plaintiffs, as a game protector, under this Statute, and established There are numerous examples in recent the justification, if the Legislature had the legislation of the exercise of the legislative constitutional power to authorize the sum- power to declare property held or used in viomary remedy provided by the section in ques-lation of a particular statute a public nuisance, tion. The trial judge held the Act in this respect to be unconstitutional, and ordered judgment in favor of the plaintiffs, for the value of the nets. The general term sustained the constitutionality of the Statu'e and reversed the judgment. We concur with the general term, for reasons which will now be stated. The legisla ive power of the State, which, by the Constitution, is vested in the Senate and Assembly (1, art. 3), covers every subject which, in the distribution of the powers of government between the legislative, executive and judicial departments, belongs by practice although such possession and use before the statute was lawful. The prohibitory legislation relative to the manufacture or sale of intoxicating liquors in various States has in many cases been accompanied by provisions declar ing the place where liquor is unlawfully kept for sale, as well as the liquor itself, a common or public nuisance; and while the validity of probibitory statutes in their operation upon liquors lawfully acquired or held before their passage, and in respect of the procedure authorized thereby, have been the subject of much contention in the courts, the right of the The law-making power is not exhausted by a single exercise, nor limited to subjects covered by the common law. Legislature by a new statute to impose upon | summary destruction. It is insisted that the property held or used in the violation of law destruction of nets by an individual, or by an the character of a public nuisance is generally executive officer so authorized, without any admitted. See Wynehamer v. People, 13 N. Y. judicial proceeding, is a deprivation of the 378; Fisher v. McGirr, 1 Gray, 1; Mugler v. owner of the nets of this property, without due Kansas, supra. process of law, in contravention of the Constitution. The right of summary abatement of nuisances without judicial process or proceeding was an established principle of the common law long before the adoption of our Constitution, and it has never been supposed that this common law principle was abrogated by the provision for the protection of life, liberty and property in our State Constitution, although the exercise of the right might result in the destruction of property. This question was referred to by Sutherland, J., in Hart v. Albany, 9 Wend. 590. He said: "If this is a case in which the corporation or any other person had a right summarily to remove or abate this obstruction, then the objection that the appellants by this course of proceeding may be deprived of their property without due process of law, or trial by jury, has no application. Formal legal proceedings and trial by jury are not appropriate to, and have never been used in, such cases. See also opinion of Edmonds, Senator, in S. C. p. 609. The legislative power to regulate fishing in public waters has been exercised from the earliest period of the common law. The Statute, 2 Hen. VI., chap. 15, prohibited the use of nets in the Thames, if they obstruct navigation or the passage of fish. Lord Hale, in his treatise, De Jure Maris, page 23, says that "the fishing which the subject has in this or any other pub lic or private river or creek, fresh or salt, is subject to the laws for the conservation of fish and fry, which are many." In this State many statutes have been enact ed, commencing at an early period, regulating the right of fishing in the waters of the State, prohibiting the use of nets or the taking of fish at certain seasons, and for the protection of certain kinds of fish. 1 Rev. Stat. Ed's ed. p. 687 et seq.; 4 Rev. Stat. Ed's ed. p. 96 et seq. It has become a settled principle of public In the License Cases, 46 U. S. 5 How. 504 law that power resides in the several States to [12 L. ed. 256], Judge McLean, speaking of regula e and control the right of fishing in the this subject, said: "The acknowledged police public waters within their respective jurisdic-power of a State often extends to the destructions. Smith v. Maryland, 59 U. S. 18 How. 71 tion of property. A nuisance may be abated. [15 L. ed. 269]; Hooker v. Cummings, 20 Johns. Everything prejudicial to the health and morals 101; Smith v. Levinus, 8 N. Y. 472; 3 Kent, of a city may be removed." Com. 415. We think it was competent for the Legislature, in exercising the power of regulation of this common and public right, to prohibit the taking of fish with nets in specified waters, and by its declaration to make the setting of nets for that purpose a public nuisance. The general definition of a nuisance given by Blackstone, vol. 3, p. 215, is "anything that worketh hurt, inconvenience or damage. It is generally true, as stated by a recent writer (Wood, on Nuisances, § 11), that nuisances arise from the violation of the common law, and not from the violation of a public statute. But this, we conceive, is true only where the statute creates a right or imposes an obligation and affixes a penalty for its violation, or gives a specific remedy which by the terms of the statue or by construction is exclusive. See Bulbrook v. Goodere, 3 Burr. 1770. But the principle stated has no application where the statute itself prescribes that a particular act or property used for a noxious purpose shall be deemed a nuisance. The Legislature, in the Act in question, acting upon the theory and upon the fact (for so it must be assumed) that fishing with nets in prohibited waters is a public injury, have applied the doctrine of the common law to a case new in instance but not in principle, and made the doing of the prohibited act a nuisance. This we think it could lawfully do. The more difficuit question arises upon the provision in the second section of the Act of 1883, which authorizes any person, and makes it the duty of the game protector, to abate the nuisance caused by nets set in violation of law, by their In Rockwell v. Nearing, 35 N. Y. 308, Porter, J., speaking of the constitutional provision, said: "There were many examples of summary proceedings which were recognized as due process of law at the date of the Constitution, and to them the prohibition has no application." Quarantine and health laws have been enacted from time to time from the organization of our state government, authorizing the summary destruction of infected cargo, clothing or other articles, by officers designated, and no doubt has been suggested as to their constitutionality. In Hart v. Albany, supra, a question was raised as to the validity of a city ordinance, subjecting a float moored in the Albany Basin to summary seizure and sale upon failure of the owner to remove the same after notice. The court held the ordinance to be void as not within the power conferred upon the city by its charter, but it was held that the commonlaw right of abatement existed, although the removal of the float in question involved its destruction. Van Wormer v. Albany, 15 Wend. 263, sustained the right of the corporation to dig down a lot in the city, to abate a nuisance, although in the process of abatement buildings thereon were pulled down. In Meeker v. Van Rensselaer, 15 Wend. 397, the court justified the act of the defendant, as an individual citizen, in tearing down a filthy tenement house which was a nuisance, to prevent the spread of the Asiatic cholera. These authorities sufficiently establish the proposition that the constitutional guaranty does not take away the common-law right of abatement of nuisances by summary proceedings, without judicial trial or process. But in the process of abating a nuisance there are limitations both in respect of the agencies which may be employed, and as to what may be done in execution of the remedy. The general proposition has been asserted in text books, and repeated ir judicial opinions, that any person may abate a public nuisance. But the best considered authorities in this country and England now hold that a public nuisance can only be abated by an individual where it obstructs his private right, or interferes at the time with his enjoyment of a right common to many, as the right of passage upon the public highway, and be thereby sustains a special injury. Brown v. Perkins, 12 Gray, 89; Colchester v. Brooke, 7 Q. B. 339; Dimes v. Petley, 15 Q. B. 276; Fort Plain Bridge Co. v. Smith, 30 N.Y. 44; Harrower v. Ritson, 37 Barb. 301. The public remedy is ordinarily by indictment for the punishment of the offender, wherein on judgment of conviction the removal or destruction of the thing constituting the nuisance, if physical and tangible, may be adjudged, or by bill in equity filed in behalf of the people. But the remedy by judicial prose | cution in rem or in personam, is not, we conceive, exclusive, where the statute in a particular case gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished. There are nuisances arising from conduct, which can only be abated by the arrest and punishment of the offender, and in such cases it is obvious that the Legislature could not directly direct the sheriff or other officer to seize and flog or imprison the culprit. The infliction of punishment for crime is the prerogative of the court and cannot be usurped by the Legislature. The Legislature can only define the offense and prescribe the measure of punishment, where guilt shall have been judicially ascertained. But as the Legislature may declare nuisances, it may also, where the Duisance is physical and tangible, direct its summary abatement by executive officers, with out the intervention of judicial proceedings, in cases analogous to those where the remedy by summary abatement existed at common law. Marvin, J., in his able opinion in Griffith v. McCullum, 46 Barb. 561, speaking of the remedy for the abatement of nuisances, says: "That which is exclusively a common-law or public nuisance cannot be abated by the private acts of individuals. The remedy is by indictment or criminal prosecution, unless the statute has provided some other remedy." The cases of Hart v. Albany, Van Wormer . Albany and Mecker ▾ Van Rensselaer, supra, show that the public remedy is not in all cases confined to a judicial prosecution. But the remedy by summary abatement cannot be extended beyond the purpose implied in the words, and must be confined to doing what is necessary to accomplish it. And here lies, we think, the stress of the question now presented. It cannot be denied that in many cases a nuisance can only be abated by the destruction of the property in which it consists. The cases of infected cargo or clothing and of impure and unwholesome food are plainly of this de@cription. They are nuisances per se, and their abatement is their destruction. So also there can be little doubt, as we conceive, that obscene books or pictures, or implements only capable of an illegal use, may be destroyed as a part of the process of abating the nuisance they create, if so directed by statute. The keeping of a bawdy house, or a house for the resort of lewd and dissolute people, is a nuisance at common law. But the tearing down of the building so kept would not be justified as the exercise of the power of summary abatement; and it would add nothing, we think, to the justification, that a statute was produced authorizing the destruction of the building summarily as a part of the remedy. The nuisance consists in the case supposed in the conduct of the owner or occupants of the house, in using or allowing it to be used for the immoral purpose, and the remedy would be to stop the use. This would be the only mode of abatement in such case known to the common law, and the destruction of the building for this purpose would have no sanction in common law or precedent. See Babcock v. Buffalo, 56 N. Y. 268; Barclay v. Com. 25 Pa. 503; Ely v. Niagara Co. 36 N. Y. 297. But where a public nuisance consists in the location or use of tangible personal property, so as to interfere with or obstruct a public right or regulation, as in the case of the float in the Albany Basin (Hart v. Albany, 9 Wend. 571) or the nets in the present case, the Legislature may, we think, authorize its summary abatement by executive agencies, without resort to judicial proceedings, and any injury or destruction of the property necessarily incident to the exercise of the summary jurisdiction interferes with no legal right of the owner. But the Legislature could not go further. It could not decree the destruction or forfeiture of property used so as to constitute a nuisance, as a punishment of the wrong, nor even we think to prevent a future illegal use of the property, it not being a nuisance per se, and appoint oflicers to execute its mandate. The plain reason is that due process of law requires a hearing and trial before punishment or before forfeiture of property can be adjudged for the owner's misconduct. Such legislation would be a plain usurpation by the Legislature of judicial powers, and under guise of exercising the power of summary abatement of nuisances, the Legislature cannot take into its own hands the enforcement of the crimiual or quasi criminal law. See opinion of Shaw, Ch. J., in Fisher v. McGirr, supra, and in Brown v. Perkins, 12 Gray, 89. The inquiry in the present case comes to this: whether the destruction of the nets set in violation of law, authorized and required by the Act of 1883, is simply a proper, reasonable and necessary regulation for the abatement of the nuisance, or transcends that purpose, and is to be regarded as the imposition and infliction of a forfeiture of the owner's right of property in the nets, in the nature of a punishment. We regard the case as very near the border line, but we think the legislation may be fairly sus tained on the ground that the destruction of nets so placed is a reasonable incident of the power of the abatement of the nuisance. The owner of the nets is deprived of his property, but not as the direct object of the law, but as incident to the abatement of the nuisance. Where a private person is authorized to abate a public nuisance, as in case of a house built in |