Page images
PDF
EPUB

either by a forcible expulsion or exclusion, or by an exclusive receipt of the rents and profits, accompanied by a denial of all right in his co-tenant.' The ouster, however, must be by some decisive, unequivocal act or conduct, for, as the tenant in possession is rightfully there, the presumption must always be that he holds only as he rightfully may-in the interest of bothand not wrongfully to the other's exclusion. Where [*328] there is an *actual ouster, the disseizee is put to his ejectment, and his right may be barred by a continuous adverse possession of his co-tenant for the period prescribed by the statute of limitations. When the ousted tenant recovers, he for the mesne profits. For a dis

may then maintain trespass

Van Bibber v. Frazier, 17 Md. 436; McClung v. Ross, 5 Wheat. 116; Bishop v. Blair, 36 Ala. 80. See Terrell v. Martin, 64 Tex. 121.

1 Bracket v. Norcross, 1 Me. 89; Abercrombie v. Baldwin, 15 Ala. 363; Larman v. Huey's Heirs, 13 B. Mon. 436. Disseizin is not to be presumed from the long continued possession of one, even though it be continued for twenty years. Northurp v. Wright, 24 Wend. 221; Van Bibber v. Frazier, 17 Md. 436. Compare Purcell v. Wilson, 4 Gratt. 16, and Dubois . Campau, 28 Mich. 304, and numerous cases cited. The possession to constitute disseizin must be public and totally irreconcilable with that of a co-tenant. Long o. McDow, 87 Mo. 197. Presumption that the entry is not hostile ceases when the possession has been exclusive for nearly forty years. Campau v. Dubois, 39 Mich. 274.

2 Forward v. Deetz, 32 Penn. St. 69; Bennett v. Bullock, 35 Penn. St. 364; Anders v. Anders, 9 Ired. 214; Newell v. Woodruff, 30 Conn. 492; Colburn v. Mason, 25 Me. 434; Hannon v. Hannah, 9 Grat. 146. Giving a deed of the whole does not alone make out an ouster. Roberts v. Morgan, 30 Vt. 319; Wilson v. Collishaw, 13 Penn. St. 276. It does, if followed by pos

Kinney t. Giving by

session of the grantee. Slattery, 51 Ia. 353. a co-tenant a quitclaim of his interest and a warranty deed of a part of the tract, does not. Hume v. Long, 53 Ia. 299.

Russell's Heirs v. Mark's Heirs, 3 Met. (Ky.) 37; Gill. Fauntleroy's Heirs, 8 B. Mon. 177, 186; Dubois v. Campau, 28 Mich. 304; Hampton . Wheeler, 6 S. E. Rep. 236 (N. C.) See, further, as to ejectment. Elliott v. Frakes, 71 Ind. 412; Frakes . Elliott, 102 Ind. 47; Norris v. Sullivan, 47 Conn. 474. For ouster in case of a partition wall, see Stedman v. Smith, 8 El. & Bl. 1. Tenants in common by agreement may appor tion the land between them, and in that case each has the land he occupies and may sue the other in trespass for a disturbance of his possession. Keay v. Goodwin, 16 Mass. 1.

4 Goodtitle v. Tombs, 3 Wils. 118; Allen v. Carter, 8 Pick. 175; Critchfield v. Humbert, 39 Penn. St. 427; Tongue v. Nutwell, 31 Md. 302. It was held in McGill v. Ash, 7 Penn. St. 397, and Erwin v. Olmsted, 7 Cow. 229, that the ousted tenant in common might at once maintain trespass against his co-tenant, but the first case is overruled by Bennett v. Bullock, 35 Penn. St. 364. And, see,

tinct injury by one co-tenant to the joint estate, during the joint possession, the other may have the appropriate remedy against him, as where by negligence he burns down a house, or by means of a dam on his several estate floods the common property.1 But in the use of the premises he has large liberty of judgment and is only responsible for a clear abuse.

Injuries to the possession of tenants in common are injuries to all, and, therefore, all should join in suits for trespasses, nuisances, etc.'

Trespasses in Hunting. The very general acquiescence of owners of lands in the pursuit by others of wild beasts and game upon them establishes no law, and is to be looked upon rather as a waiver of a right to complain of a trespass [*329] than as a license to make use of their lands for this purpose. And whenever one goes upon the premises of another with dogs, and the dogs worry the domestic animals of the land owner, or do him other damage, the trespasser is responsible without evidence of his knowledge of vicious propensities in his dogs, for it is his own trespass, and the mischief done by the dogs is only matter of aggravation."

1

Jones v. Chiles, 8 Dana, 163. If that which is the subject of the tenancy is actually destroyed by one co-tenant, no doubt the other may sue in trespass. Wilkinson v. Haygarth, 12 Q. B. 845; Maddox v. Goddard, 15 Me. 218; Dubois v. Beaver, 25 N. Y. 128. Chesley v. Thompson, 3 N. H. 9; Blanchard. Boher, 8 Me. 253; Odiorne v. Lyford, 9 N. H. 502; Jones v. Weatherbee, 4 Strob. 50. See Hutchinson v. Chase, 39 Me. 508; Guyther v. Pettijohn, 6 Ired. 388; McClellan v. Jenness, 43 Vt. 183. If one co-tenant erects a structure, which excludes another from the possession of a part of the common property, without the latter's assent, the latter may take it down, doing no needless damage, without being liable in trespass. Byam . Bickford, 140 Mass. 31.

2 Phillips. Sherman, 61 Me. 518; Parke v. Kilham, 8 Cal. 77; Merrill v.

Berkshire, 11 Pick. 269; Austin v. Hall, 13 Johns. 286. In Vermont, it seems one may recover in trespass for all. Hibbard v. Foster, 24 Vt. 542; Bigelow v. Rising, 42 Vt. 678. See Allen v. Gibson, 4 Rand. 468; Wooley o. Campbell, 37 N. J. 163.

Beckwith v. Shordike, 4 Burr. 2092; Van Leuven v. Lyke, 1 N. Y. 515. One has no legal right, when he starts game, to follow it upon another man's land. Deane v. Clayton, 7 Taunt. 489. Fox hunting with dogs and horses is a trespass. Paul v. Summerhayes, L. R. 4 Q. B. D. 9. When parties go together hunting, and commit a trespass in so doing, each is responsible for the whole damage. Hume . Oldacre, 1 Stark. 351. Under a statute unauthorized shooting on land where a certain notice was posted was a misdemeanor. A man's boundary was the center of a naviga

Trespasses in Fishing. The right to take fish in the freshwater streams of the country, belongs to the owners of the soil under them, to the exclusion of the public. As, however, the exercise of the right by one riparian proprietor might unduly encroach upon the rights of others, the case is one that properly calls for regulating legislation; and the authority to regulate has been very freely exercised, not only by forbidding the employment of seines and other means of taking fish otherwise than singly in certain waters, but also by prohibiting their being taken at all at certain seasons, and requiring a free passage to be kept open for the passage of fish in all streams in which rights of fishery are important.' In some States the power of regulation is conferred, either generally or in particular instances,

ble river. He had the notice posted on his land. Defendant shot from a boat on the river flying birds while they were over that part of the river whose bed belonged to the man. Defendant, while not a trespasser, because the river was a highway, was held guilty under the act. State v. Shannon, 36 Ohio St. 423. One who

owns the fee of soil covered by navigable fresh water, over which the public has the right to pass, has the exclusive right to shoot wild fowl over the water. Shooting is not a public right appurtenant to the right to navigate. Sterling v. Jackson, 37 N. W. Rep. 845 (Mich.)

1 Browne . Kennedy, 5 H. & J. 195; Waters v. Lilly, 4 Pick, 145; Cottrill v. Myrick, 12 Me. 222; Adams

. Pease, 2 Conn. 481; People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 Johns. 90; Trustees, &c., v. Strong, 60 N. Y. 56; Ingram . Threadgill, 3 Dev. 59; Williams . Buchanan, 1 Ired. 535; Beckman v. Kreamer, 43 Ill. 447; Cobb v. Davenport, 32 N. J. 369; Same v. Same 33 N. J. 223. But, see Burroughs v. Whitwam, 59 Mich. 279. The right is, of course, not inseparable from ownership, but may be acquired distinct therefrom by a grant of the owner, or by pre

scription. Cobb v. Davenport, 32 N. J. 369; 34 N. J. 223. But prima facie ownership in the bed of a stream determines the right to fish in it. Mayor, &c., v. Graham, L. R. 4 Exch. 361; Trustees, &c., v. Strong, 60 N. Y. 56. That the right to fish follows the stream where the latter gradually shifts its bed, see Foster v. Wright, L. R. 4 C. P. D. 438.

2

Randolph . Braintree, 4 Mass. 315; Burnham . Webster, 5 Mass. 266; Nickerson v. Brackett, 10 Mass. 212; Commonwealth v. Chapin, 5 Pick. 199; Vinton . Welsh, 9 Pick. 87; Commonwealth v. Tiffany, 119 Mass. 300; Lunt v. Holland, 14 Mass. 149; Peables v. Hannaford, 18 Me. 106; State v. Skolfield, 63 Me. 266; Budd v. Sip, 13 N. J. 348; Haney . Compton, 36 N. J. 507; Hart v. Hill, 1 Whart. 124; People v. Reed, 47 Barb. 235; State v. Hockett, 29 Ind. 302; State v. Boone, 30 Ind. 225; Stuttsman v. State, 57 Ind. 119; Drew v. Hilliker, 56 Vt. 641; Doughty . Conover, 42 N. J. L. 193; Weller . Snover, 42 N. J. L. 341; Maney . State, 6 Lea, 218. State may forbid non-residents catching fish in navigable water for making oil and the making of oil from fish so caught. Chambers v. Church, 14 R. I. 398.

upon the county or township authorities,' and in Massa- [*330] chusetts and Maine the towns have been allowed to exer

cise this power for the common benefit of the people of the towns in their aggregate capacity, and to sell or lease rights of fishery in waters where, at the common law, the rights of the owners of the banks would have been exclusive.' Such regulations must, of course, take notice of and respect all other rights of the riparian owner, including his right to the exclusive possession of his land not covered with water; and if he has a milldam he cannot, under pretence of regulation, be compelled to remove it without compensation made therefor; though unquestionably, as regards any future constructions, it would be competent to require that they be made, leaving free passage for fish, according to established regulations.

3

The rule regarding fresh-water streams applies to the small lakes or ponds of the country. That it applies to the larger lakes is more than doubtful. In one well-considered case it has been declared that the right of fishery in Lake Winnipiseogee is a public and general right, and that incident to this was the right to protect the passage of the fish up and down the rivers which form its outlets to the sea. "If it be admitted," says the court, "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 ripa

1 See Vinton . Welsh, 9 Pick. 87; Cottrill v. Myrick, 12 Me. 222.

Nickerson . Brackett, 10 Mass. 212; Randolph v. Braintree, 4 Mass. 315; Cottrill v. Myrick, 12 Me. 222; Peables . Hannaford, 18 Me. 106. Since the first settlement of Massachusetts the riparian owners upon non-navigable streams have held their rights of fishing subject to legislative control and the paramount claims of the public are implied in all grants abutting on such streams. Cole v. Eastham, 133 Mass. 65. See Cottrill v. Myrick, 12 Me. 222.

State v. Glen, 7 Jones, (N. C.) 321, nor to put in chute after use of more than twenty years. Woolever v. Stewart, 36 Ohio St. 146. In the New England States the right of eminent domain is employed for the improvement of fisheries. See Bristol v. Water Co., 42 Conn., 403; Cole v. Eastham, 133 Mass. 65.

4 Cobb v. Davenport, 32 N. J. 369; S. C. 33 N. J. 223. This case examines the general subject very fully and carefully. See State v. Roberts, 59 N. H. 484; Reynolds v. Com., 93 Penn. St. 458.

rian 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 [*331] as the *fishery in the tide-waters of the Piscataqua." It was therefore held that the maintenance of a dam without fishways was a common-law nuisance, punishable by indictment. This doctrine seems to be reasonable, but there may be some practical difficulties in determining what bodies of water do and what do not come within it."

In tide-waters the right to take fish belongs to the public, and presumptively is common to all. In Massachusetts the towns have been allowed to appropriate the right to take fish within their limits; and private grants may be made by the State itself to individuals, and individuals may also obtain exclusive rights by prescription. The right of individuals to plant oyster-beds, and to be protected in the enjoyment of them, has been very generally recognized. But the right of fishery in tide-waters is al

1 SMITH, J., in State v. Franklin Falls Co., 49 N. H. 240; S. C. 6 Am. Rep. 513. State may regulate fishing in a small pond on land wholly owned by one man if it connects with other waters and is a breeding place for fish. State v. Roberts, 59 N. H. 484; see, State v. Blount, 85 Mo. 543. The right to fish in a bay of Lake Erie is in the public. Sloan v. Biemiller, 34 Ohio St. 492; see, Lincoln v. Davis, 53 Mich. 375.

2 See West Roxbury v. Stoddard, 7 Allen, 158.

8 Crosby. Wadsworth, 6 East. 603; Bagott v. Orr, 2 B. & P. 472; Martin v. Waddell, 16 Pet. 367; Lay v. King, 5 Day, 72; Parker v. Cutler Mill Dam Co., 20 Me. 353; Moulton v. Libbey, 37 Me. 472; Preble v. Brown, 47 Me. 284; Cooledge v. Williams, 4 Mass. 140; Weston v. Sampson, 8 Cush. 347; Trustees, &c., v. Strong, 60 N. Y. 56; Proctor v. Wells, 103 Mass. 216. Brown v. DeGroff, 14 Atl. Rep. 219 (N. J.) So in tidal river. Pearce v. Scotcher, L. R. 9 Q. B. D. 162. Or creek wholly within a man's farm.

Parsons v. Clark, 76 Me. 476. But the tide must ebb or flow at the spot ordinarily, not occasionally, in times of high tides below. Reece v. Miller, L. R. 8 Q. B. D. 626. Where upland owner has qualified ownership of the flats, the public may dig shell fish there or fish with the line. Weston v. Sampson, Cush. 347; Packard v. Ryder, 144 Mass. 440; Matthews . Treat, 75 Me. 594.

4 Cooledge v. Williams, 4 Mass. 140. 5 Chalker v. Dickinson, 1 Conn. 882, Gould v. James, 6 Cow. 369: State v. Sutton, 2 R. I. 434; State v. Medbury, 3 R. I. 138; Paul v. Hazleton, 37 N. J. 106; Bennett v. Boggs, Baldw. 60. See Eastham v. Anderson, 119 Mass. 526; Trustees, &c., v. Strong, 60 N. Y. 56; Neill v. Duke of Devonshire, L. R. 8 App. Cas. 158; Malcolmson v. O'Dea, 10 H. L. C. 593.

Fleet v. Hegeman, 14 Wend. 42; Decker D. Fisher 4 Barb. 592; Lowndes . Dickerson, 34 Barb. 586; Hand v. Newton, 92 N. Y. 88; McCarty v. Holman, 22 Hun, 53; Post v. Kreischer, 32 Hun, 49; Power .

« PreviousContinue »