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an exclusive right, and applied to all navigable rivers, without any right in the soil. This was called a Free Fishery. But this right of free fishery in a public river was so unjust and unreasonable that it was prohibited by Magna Charta.1

Several Fishery is a private exclusive right in a navigable river or arm of the sea, accompanied with the ownership of the soil. It is a grant along with the soil, though the soil may be granted without this several fishery. It has been held that a several fishery may exist without the ownership of the soil. A several fishery may exist without the property in the soil. Property in watercourses may be subjected to every kind of restriction by positive agreement.3


1. Fisheries in the Sea and in Navigable Rivers.—Prima facie, every subject has a right to take fish found upon the sea-shore between high and low water mark. But such general right, under English law, may be abridged by the exclusive right in an individual.4 In navigable rivers or arms of the sea the right to fish is common and public.5

1. C. 16, 20, 47; Mayor v. Graham, L. R. 4 Exch. 361; Tinicum Fishing Co. v. Carter. 61 Pa. St. 21.

2. Smith v. Kemp, 2 Salk. 637; Carter v. Mureat, 4 Burr. 2162.

3. Angell's Water-courses (2d Ed.), 6-10, and cases cited. Decisions are in conflict whether the soil is included with this franchise of a several fishery. Angell, after citing cases for and against the doctrine, concludes that this franchise can be granted without the ownership of the soil. Kent says that these distinctions between common of piscary, free fishery, and several fishery seem to be quite unsettled in the books; and that the authorities cited by Hargrave (Harg. Co. Litt. lib. 2, No. 181) throw embarrassment in the way of the attempt to mark with precision the line of discrimination.

Kent's Com. 410. Blackstone asserts that a free fishery is an exclusive right. 2 Bl. Com. 39. Lord Mansfield says that it was essential to a free fishery that more than one person should have a coextensive right in the same subject. Seymour v. Courtenay, 5 Burr. 2814. But it has been held in Massachusetts that a free fishery was not an exclusive fishery. Melvin v. Whiting, 7 Pick. (Mass.) 79

Under the common law the regulation of the right to take fish, and for their increase and preservation, is a legislative function, and obstructions to the passage of fish were held to be public nuisances, and subject to legislative control. The arbitrary kings after the Conquest claimed the game and fish in the kingdom

as a part of their prerogative, and hence conferred on their followers royal franchises to take game and fish, to the exclusion of other people. This being in contravention of the common law, the people struggled to compel the monarchs to restore their ancient rights. The first move that proved successful was in 1215, when King John was compelled to restore these rights by Magna Charta. Succeeding kings disregarded these provisions, but were compelled to affirm them. Lord Coke says that no owner of river banks should in the future so appropriate or keep the river separate to himself so as to prevent others from fishing or having passage to them. Sir Edward Coke says that Magna Charta and the Charta Foresta have been confirmed by thirty-two several acts of Parliament. In England the preservation and regulation of the mode and time of taking fish were of public concern. They are distinguished from a mere private right not within the domain of legislation. Parker v. People, III Ill. 581.

4. Bagott v. Orr. 2 B. & P. 472. 5. Carter v. Thurcat, 4 Burr. 2163. The erection of weirs across rivers was denounced in the earliest periods of the common law. These weirs were considered public nuisances. By the Magna Charta all weirs were ordered to be pulled down, and subsequent acts of Parliament forbid the erection of new ones. However, twenty years' acquiescence may bind parties whose private rights only are af fected, yet the public have an interest in the suppression of public nuisances,

though of long standing. Weld v. Hornby, 7 East, 195.

A prescriptive right may exist to a several fishery in an arm of the sea. Oxford v. Richardson, 4 T. R. 439.

The public cannot acquiesce by immemorial usage in any right of fishing in a river in which, though navigable, the tide does not ebb and flow. Murphy v. Ryan, 2 Ir. R. C. L. 143.

In Pennsylvania the English doctrine that no rivers are deemed navigable, so as to give the common right of fishing, except those where the tide ebbs and flows, has been held not to be applicable to the great rivers in that State. Hence the owners of the land on the banks of such rivers as the Susquehanna and Delaware, for example, so far up as they have a capacity for public use as commercial highways, have no exclusive right of fishing in the rivers opposite their respective lands. This right is vested in the State and open to all the world. Carson v. Blazer, 2 Binn. (Pa.) 475; Shrunk v. President, etc., 14 S. & R. (Pa.) 71; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21. A similar doctrine is accepted in South Carolina. Cates v. Wadington, I McCord (S. Car.), 580.

In North Carolina no general or exclusive right of fishery exists in the navigable waters of the State, and a navigable stream exists when the waters are sufficient in fact to afford a common passage for people in sea vessels. Collins v. Benbury, 3 Ired. (N. Car.) 277.

Right of Fishery. It is settled that a right of fishery in navigable or tide waters below high-water mark is a common right; and if one or more individuals set up an exclusive right to a free or several fishery, it must be clearly established by prescription or positive grant. Palmer v. Hicks, 6 Johns. (N. Y.) 133; Rogers v. Jones, 1 Wend. (N. Y.) 237; Delaware & M. R. Co. v. Stump, 8 Gill. & J. (Md.) 479.

But if an individual plants a bed of oysters in a bay or an arm of the sea, and clearly designates the bed by suitable stakes, it is not an interference with the common right of fishing in the bay, but the person who planted the oyster-bed so designated acquires a qualified property in the oysters sufficient to maintain trespass against any person who invades that property. Fleet v. Hegeman, 14 Wend. (N. Y.) 42; Decker v. Fisher, 4 Barb. (N. Y.) 592; Lowndes v. Dickinson, 34 Barb. (N. Y.) 586; Whittaker v. Burhans, 62 Barb. (N. Y.) 237. Compare Robins v. Ackerly, 91 N. Y. 98; Brinkerhoff v. Starkins, 11 Barb (N. Y.). 248;

Corp. v. Goodman, Q. B. D. 106; McCarty v. Holman, 22 Hun (N. Y.), 53. To an action for trespass to a several fishery the defendant pleaded that the locus in quo was an arm of the sea, wherein all had a right to fish. The plaintiff joined issue. Held, that the defendant was entitled to a verdict if it appeared that the locus in quo was in fact an arm of the sea; and that if the plaintiff, admitting that the locus in quo was an arm of the sea, still claimed a several fishery, then he was bound to set up the claim in a replication. Crichton v. Callery, 19 W. R. 107.

To an action for fishing in the plaintiff's fishery the defendant pleaded that the locus in quo was an arm of the sea, in which everybody had the right to fish. He replied a prescription for the sole and several right of fishing, and traversed that every subject had the right and privilege of free fishing in the locus in quo. Held, that this was a bad traverse, and the defendant therefore might well pass it by in the rejoinder, and traverse the prescription right of the plaintiff stated in the replication. Richardson v. Orford, 2 H. Bl. 182.

A prescriptive right had been exercised from time immemorial by a borough corporation and its lessees, without any qualification except that the free inhabitants of ancient tenements in the borough had from time immemorial without interruption, and claiming as of right, exercised the privilege of dredging for oysters in the locus in quo from the 2d of February to Easter eve in each year, and of catching and carrying away the same without stint for sale or otherwise. This usage of the inhabitants tended to the destruction of the fishery, and if continued would destroy it. Held, that the claim of the inhabitants was not a profit à prendre in alieno solo; that a lawful origin for the usage ought to be presumed, if reasonably possible, and that the presumption which ought to be drawn, as reasonable in law and probable in fact, was that the original grant to the corporation was subject to a trust or condition in favor of the free inhabitants of ancient tenements in the borough in accordance with the usage. Goodman v Saltash, 7 L. R. App. Cas. 633. H. L.; reversing 7 L. R. Q. B. Div. 106.

In England no public right exists of fishing in non-tidal waters, even where they are to some extent navigable rivers. Pearce v. Scotcher, 9 L. R. Q. B. Div. 162.

An information was laid against a party for unlawfully fishing in a river wherein

the prosecutor had a private right of fishing. The river was navigable, and the place where the party fished the water was not salt, and in ordinary tides it was not affected by any tidal movement, except that upon the occasion of very high tides the rising of the salt water in the lower part of the river dammed back the fresh water, and caused it upon those occasions to rise and fall with the flow and ebb of the tide. The defence was that, the river being navigable and tidal at the place in question, there was a presumption that the public had a right to fish there, and that the jurisdiction of the justices was therefore ousted by a reasonable claim of right. Held, that the river at the place in question could not be considered as tidal within the meaning of the rule of law which gives the public a right to fish in navigable tidal rivers, and therefore there was no claim of title set up sufficient to oust the justices' jurisdiction. Reece v. Miller, L. R. 8 Q. B. Div. 626.

The owner of land through which a stream passes, in which the tides ebb and flow, cannot maintain trespass against a party who fishes in said stream and fastens his boat to a public bridge on a public highway. Parsons v. Clark, 76 Me. 476.

Fishing in the great lakes in water remote from the land is a business open to all, and may be carried on even with stakes, if not interfering with navigation or forbidden by law. Lincoln v. Davis, 53 Mich. 575.

Where the law gives a general or public right for all parties to fish in a public navigable river, it is unnecessary especially to state such public right. It will suffice to show with brevity that there is a public right; that the defendant prevented the plaintiff from fishing. Ward v. Cresswell, Willes, 268; Tenant v. Goldwin, 2 Ld. Raym. 1091.

Individuals may, by prescription or grant, have a several fishery in tide-waters. Mayor v. Richardson, 4 T. R. 437; Chalker v. Dickinson, I Conn. 382; State v. Sutton, 2 R. I. 434; State v. Medbury, R. I. 138; Gould . James, 6 Conn. 365; Paul v. Hazleton, 37 N. J. 106.

A public river is a public highway, and this is the distinguishing characteristic. All rights of fisheries in it must be subservient to the right of passage, and must be so exercised as not to prejudice such right when used in a reasonable manner. Mayor v. Brooke, 7 Q. B. 339; Young v. Hichens, 6 Q. B. 609.

The common right of fishing in navigable waters is founded on such plain

principles of natural law that many jurists consider this right as part of the law of nations. The civil law held that the right of fishing in rivers, as well as in the sea and ports, was common to all. It, unlike the common law, held that all rivers where the flow of water was perennial belonged wholly to the public, and carried with it the right of fishery, as well as the public use of the banks. Inst.

2. I, 2.

The exclusive right of the riparian owner in English fresh waters, and the public right of fishing in tidal waters, depend upon the existence of the ownership of the soil of the fresh-water stream by the private owner, and by the sover eign in the public river. Murphy 7. Ryan, 2 Ir. Rep. C. L. 143; Mayor v. Graham, L. R. 4 Ex. 361.

The ownership of the sovereign does not extend beyond the ebb and flow of the tide, although the river may be navigable beyond that point. On this ground, inasmuch as a custom that the public should have profit à prendre in private soil could not legally exist. Allgood v. Gibson, 34 L. T. 883. The public cannot acquire by immemorial usage any right of fishing in a navigable river above the ebb and flow of the tide. Austin v. Amherst, 7 Ch. D. 689. A several fishery in a tidal river which has permanently changed its channel cannot be followed from the old into the new channel. Cobb 2. Davenport, 33 N. J. 223.

The right of the public to fish does not extend to a large inland navigable but not tidal lake. Bloomfield v. Johnston, S Ir. R. C. L. 68. Marsh v. Colby, 39 Mich. 626; Bristow v. Cormican, 3 App. Cas. 641.

The public has no right to fish in private rivers made navigable by acts of Parliament. Hargreaves 7. Diddams, L. R. 10 Q. B. 582; Mussett v. Burch, 35 L. T. 486.

Where the course of the river gradually changes, the right of the riparian owner to fish changes so as to follow the thread of the stream. Miller v. Little, 4 L. R. Ir. 302; Foster v. Wright, 4 C. P. D. 438.

If any party will appropriate an exclu sive privilege in navigable waters and arms of the sea, he must show it strictly by grant or prescription. Parker v. Cutler M. Co., 2o Me. 353.

Some decisions deny the existence of any peculiar privilege as appurtenant to the bank of navigable water where the tide ebbs and flows, with the exception of alluvion and dereliction. Stevens 2. Paterson, etc., R. Co., 34 N. J. 532:


Gould . Hudson R. R.Co., 6 N. Y. 522. The courts have followed the same rule in the case of the owners on the banks of the Mississippi River, in States where the fee of the river bed, below highwater mark, is in the State for the use of the public. Tomlin v. Dubuque, etc., R. Co., 32 Iowa, 106, though dissenting opinions were also rendered.

Riparian rights are incident to the ownership of the land on the margin of navigable waters. Potomac Steamboat Co. v. Upper Pat. S. Co., 109 U. S. 672.

A Riparian Owner on a navigable stream where the title is in him, may use the water in any way not inconsistent with the full enjoyment by the public of the right of navigation, and which does not interfere with the rights of other riparian owners. Morrill v. St. Anthony Co., 26 Minn. 222; Thornton v. Grant, 10 R. I. 477; Stevens Point Co. v. Reilly, 46 Wis. 237. See generally, as to riparian rights, Tinicum Fishing Co. v. Carter, 90 Pa. St. 85; Moulton v. Libbey, 37 Me. 472; Tinicum Fishing Co. v. Carter, 61 Pa. St.


The right of the public to fish in a non-tidal river which is made navigable by locks cannot exist in law. Mussett v. Burch, 35 L. T. N. S. 486.

A party had nearly encompassed fish in a net, when the defendant, by rowing a boat to the opening, so disturbed the fish as to prevent the capture. Held, that he was not entitled to recover, in trespass, no special custom of the fishery being proven. Young v. Hitchins, D. & M. 592.

Oysters deposited artificially, and not attached to the soil, may be a nuisance, and obstruct navigation as well as natural oyster-beds. Colchester v. Brooke, 7 Q. B. 339.

A prescriptive right to a several fishery in a navigable river may pass as appurtenant to a manor. Rogers v. Allen, I Camp. 309.

The soil of a navigable tidal river, where the tide ebbs and flows, is prima facie in the crown, and all the right of fishery therein is prima facie in the public. But the right to exclude the public therefrom, and to create a several fishery, existed in the crown, and might law fully have been exercised by the crown before Magna Charta, and the several fishery could lawfully be afterwards made the subject of grant by the crown to a private individual. Malcolmson v. O'Dea, 10 H. L. Cas. 593.

A several salmon-fishery in a tidal river, granted by the crown to a subject before Magna Charta, does not, if it re

verts to the sovereign, merge in the prerogative of the crown, but may be regranted by the crown to a subject. Northumberland v. Houghton, 39 L. R. Ex. 66.

The several fishery of a subject in a tidal river the waters of which permanently recede from a portion of its course and flow through a new channel to the sea, when the soil and land on both sides of the new channel belong to another subject, is not transferred from the old to the new channel. Carlisle v. Graham, 4 L. R. Exch. 361; 38 L. J. Exch. 226; 18 W. R. 318.

The salmon fishings in the open sea around the coast of Scotland, unless parted with by grant, belong exclusively to the crown, and form part of its revenues. Gammell v. Woods and Forest, 3 Macq. H. L. Cas. 419.

A party had a license to fish in the upper part of a tidal river. Another party, not the owner of a several fishery, unlawfully fished in the lower part of the river, within the prohibited limits of the mouth. Held, that the former was damnified by the latter. Whelan v. Hewson, 6 Ir. R., C. L. 283.

In France, before the Revolution, in navigable and non-navigable rivers, fishery was not common to all, but belonged to the king and such persons as under him possessed jurisdictional rights. Inst. Droit Français, by Argon, I. 214; Pothier's Traité du Droit de Propriété, No. 52.

The Code Napoleon declared that rivers and navigable or floatable streams, shores, and land between high and low water mark were considered as dependencies of the public domain, and that the right of fishing was under the regulation of law. This doctrine followed closely the seigneurial and feudal rights. Code Napoleon, No. 538, 715. See further, on this subject, Toullier's Droit Civil Français. III. 144, 145, 146; Questions de Droit, by Merlin, VI. t. Pecheries, in which it is laid down that though some communes attempted to appropriate the right of fishing to themselves, the claim was overcome by degrees, and that the abolition of the fishing with other feudal rights was for the sole benefit, not of the commune, but of the feudal vassals, who had been given freedom in person and property, and that there no longer existed any seigneurial rights. Toullier has also collected the ancient authorities in support of the seigneurial exclusive right of

shery in all streams non-navigable, and the several decrees of the revolutionary governments abolishing those feudal and

II. International Fisheries. It has generally been admitted that whatever jurisdiction a nation has over the open sea adjacent to its coasts extends to three miles, or at most to the range of a cannon-shot from the shore. But it may be, considering the increased range of modern guns, the doctrine of property to the distance of a marine league would no longer be held. As to narrow seas and waters approaching the shore, European nations do not agree as to jurisdiction.3

The right to take fish in the sea over which a nation has jurisdiction according to the rule of international law, may be restrained or regulated by treaty or custom.4

1. England and France.-The articles between England and France concerning the fisheries in the seas between the British Isles and France have the force of law.5

manorial rights and privileges. It is now the French law that proprietors of the lands on rivers not navigable, or flottables, have the exclusive right of fishing therein, as well as the exclusive proprietor ship of the soil composing the bed of the river.

Under the Common Law of England, no common right can be said to have been more definitely or more jealously guarded than the public right of fishing in tidal waters. Hare's De Jore Maris, c. 4; Coulson's Water, 343; Hall's Sea Shore (2d ed.), 42; Fitzwalter's Case, 1 Mod. 105; Warren v. Mathews, 6 Mod. 73; Oxford v. Richardson, 4 T. R. 437; Crichton v. Collery 19 W. R. 107; Blundell v. Catterall, 5 B. & Ald. 268; Malcomson v. O'Dea, 10 H. L. Cas. 593. So far as the public right is concerned, there is no difference between the shore of tidal waters and the tidal waters them. selves. Bract. lib. 1, c. 12, sect. 6; Coulson's Water, 14, 36, 344: Warren v. Mathews, I Salk. 357; Ward v. Creswell, Willes, 265; Bagott v. Orr, 2 Bos. & P. 472; Carter v. Moscat, 4 Burr. 2163; Oxford v. Richardson, 4 T. R. 437; Hall's Sea Shore (2d Ed.) 174, 191. See Peck v. Lockwood, 5 Day (Conn.), 22; Commonwealth v. Alger, 7 Cush. (Mass.)


It is not competent for the inhabitants of a town to claim by custom jura in alieno solo, amounting to profits à prendre. Such rights must be prescribed for in a que estate. Waters. Lilley, 4 Pick. (Mass.) 145.

The inhabitants of a town may by custom claim jura in alieno solo, which amount to easements. Gateward's Case, 6 Coke, 596; Grimstead v. Marlow, 4 T. R. 718; Rome v. Ward, 4 El. & Bl. 702; Goodman v. Mayor, 7 App. Cas. 633; Perley v. Langley, 7 N. H. 233; Post v.

Pearsall, 22 Wend. (N. Y.) 425; Town'ship Co. v. Bishop, 11 Vt. 198; Coolidge v. Learned, 8 Pick. (Mass.) 504; Kent v. Waite, 10 Pick. (Mass.) 138; Porter v. Sullivan, 7 Gray (Mass.), 441; 2 Washb. R. Prop. (1876) 368; Hilliard Real Prop. 274; Vattel, b. 1, § 234, 235.

Though the sea-shore, between high and low water mark, be held by grant as private property, the common right still exists to go there and fish, and even to dig and take shell-fish; and if the proprietor of the soil claims an exclusive right, he must show a prescription for controlling the general right at common law. Bagott z. Orr, 2 Bos. & P. 472 ; Peck v. Lockwood, 5 Day (Conn.), 22. Compare Blundell v. Catterall,5 B. & Ald. 268; Mculton v. Libby, 37 Me. 472; Preble v. Brown, 47 Me. 284; Weston 7. Sampson, 8 Cush. (Mass.) 347. These cases, while they may not diametrically conflict with Bagott v. Orr, 2 Bos. & P. 472, and Peck v. Lockwood, 5 Day (Conn.), 22, do not sustain the doctrine of these two cases, but seem to make it very questionable, as to exclusive rights for controlling the general right at common law.

1. The Queen v. Keyn, 2 Ex. Div. 63. 2. Hall's Int. Law, S. 40-42.

3. 1 Kent's Com. 28.

4. Fennings v. Granville, I Taunt.

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