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2. United States and the Dominion of Canada.-The convention of 1818 between the United States and Great Britain now defines the relations of these two powers. In that treaty the United States renounced forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts. . . belonging to Canada. The American fishermen are admitted to the harbors for the purpose of shelter and of repairing damages, of purchasing wood and obtaining water, and for no other purpose whatever.1

ages for injuries over and above the penalties. By of the act, all of fences against this law committed by British subjects are to be settled by justices of the peace, who are also declared to have power of awarding compensation for injuries. Under this act it was held that no action could be maintained for an injury caused by a breach of any of the regulations, as exclusive jurisdiction in such matters was given to the tribunal specified in the act. Marshall v. Nicholls, 21 L. J. Q. B. 343; 18 Q. B. 882. 1. Convention of 1818, Art. 1. The general law of nations, as interpreted by international jurisprudence, provides no agreement that harbors, estuaries, and bays landlocked belong to the territory of the nation which possesses the shores round them, and no agreement as to what is the rule to deter mine what is a bay for this purpose. "It does not appear to their lordships that jurists and text-writers are agreed what are the rules as to dimensions and configurations which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the State possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination." U. S. Cable Co. v. Anglo-Am. Tel. Co., L. R. 2 App. Cas. 394.

The language of the convention of 1818 applies to all bays, whether large or small, on that coast. U. S. Cable Co. v. Anglo-Am. Tel. Co.,L. R. 2 App. Cas. 420, 421.

This case was followed in the Alabama claims by the Court of Commissioners, when the question arose as to the Chesapeake Bay, whose headlands are about twelve miles apart, and the bay at the widest part twenty miles across, and length two hundred miles. The court say that the fact is the headlands are well marked and twelve miles apart, that it and its tributaries are wholly within the territory of the United States, and that the boundary lines of adjacent States en

compass it; that from the earliest days of this government it has claimed it as territorial waters, which right has never been questioned; so it cannot become the highway of nations from one to another; that from the doctrine of international law, this bay was held to be wholly within the territorial jurisdiction and authority of the United States. Stetson v. U. S., 32 Alb. L. J. 483.

A bay," says Daniel Webster, "as is usually understood, is an arm or recess of the sea, entering from the ocean between capes and headlands, and the term is applied usually to small and large tracts of water thus situated; . . . the British authorities insist that England has a right to draw a line from headland to headland and to capture all American fishermen who may follow their pursuits inside of that line. It was undoubtedly an oversight in the convention of 1818 to make so large concession to England since the United States had usually considered that those vast inlets or recesses of the ocean ought to be open to American fishermen as freely as the sea itself, to within three marine miles of the shore." Speech of 1855.

The marine territory of every nation extends to the ports, harbors, bays, mouths of rivers, and adjacent ports of the sea, closed by headlands which belong to the same State; and also jurisdiction from these points a distance at sea of a marine league, or a cannon-shot. Over these boundaries the nation has territorial jurisdiction, and its authority to this territory is absolute. It can exclude the ships of every other nation. Gould on Waters, SS 1-16; 1 Phillimore's Int. Law (3d Ed.), 274; Boyd's Wheat. Int. L. §. 177; 1 Halleck Int L. 134; Queen v. Keyn, 2 Ex. D. 63; Direct Cable Co. v. Anglo-Am. Tel. Co., L. R. 2 App. Cas. 394.

The treaty of 1818 in regard to Canadian waters was distinctively a fishery treaty, by which the United States renounced the right to fish within a certain three-mile limit from the shore, but our

3. Whale Fisheries.-The sea is open to all alike, and no one can appropriate it so as to deprive others of its use.1 No private

fishermen are allowed to enter bays and harbors for shelter and repairs. The usage of nations permits fishing vessels to seek the ports of a friendly nation to buy provisions, stores, or bait that they may need.

But an act of the Canadian Parliament allows the American vessels to be confiscated whenever they are found in Canadian waters for any cause resulting from the exigencies of navigation except that announced in the treaty of 1818. Act approved Nov. 1886.

Under the treaties of 1783 and 1812, the territorial jurisdiction over the northeast Atlantic is limited to three miles, following the sinuosities and indentations of the coast. But this question in this regard is now pending, and is the subject of diplomatic correspondence between Great Britain and the United States government. 3 Whart. Int. Law Dig., § 305. For further information on the fishery treaties, see 3 Whart. Int. L. Dig. Secs. 299 et seq.

The Minister of Marine and Fisheries, on March 5, 1876, issued a warning declaring that by the treaty provisions and act of Canadian Parliament all foreign vessels or boats are forbidden from fishing or taking fish, by any means what ever, within three marine miles of any of the coasts, creeks, or bays of Canada, or to enter such bays, harbors, and creeks except for the purpose of shelter and of repairing damages therein, of purchasing wood and obtaining water, and for no other purpose whatever. In 1871 a new treaty was entered into by Great Britain and the United States, which is known as the Treaty of Washington." The 18th article says: "It is agreed by the high contracting parties that, in addition to the liberty secured to the United States fishermen by the convention between the United States and Great Britain signed at London on the twentieth day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in article 33 of this treaty, to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbors, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward's Island, and of the several islands thereunto adjacent, without

being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided, that, in so doing, they do not interfere with the rights of private property or with British fishermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea-fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen." United States government brought this treaty to an end in 1885, as provided for in the 33d article. The treaty of 1783 merged in the convention of 1818. The 18th article of the "Treaty of Washington" (1871) recognizes the continued existence and force of the convention of 1818. So now the fishery rights and liberties are regulated by the convention of 1818.

The

One American writer says that the convention of 1818 became merged in the Reciprocity Treaty of 1854, and that when the latter was abrogated the former came to an end along with it, and that the treaty of 1783 thereupon revived. 5 Am. Law

Rev. 389. Another American writer says the proper course of the United States government is to abrogate the convention of 1818 upon the ground that Great Britain has, on her part, violated the provisions thereof. Pamphlet on Fishery Dispute by Hon. John Jay, 1887.

The treaty of 1783 gave no authority to trade with the shore, but that the United States could lawfully send their own vessels to the British North American waters to supply our own fishermen there, or purchase their cargoes, and that vessels might lawfully anchor in British harbors on their route to their destination.

Note. The fishery treaty drawn by representatives of the English and Canadian governments and the United States, and recommended to the Senate for ratification by the President during the winter of 1887-8, having been rejected by the Senate, until a new treaty is made and accepted that of 1818 is supposed to continue in force.

1. 3 Whar. Int. L. Dig. § 299; Inst. 2, 1, I; Dom. Lois Civ. liv. prèl. t. 3, S. 1, $$ 5, 6.

property can be had in the sea, which belongs equally to all nations, which is indispensable to the existence of man. All men have the right to navigate the sea and to fish there, to capture all kinds of fishes which it contains.1

III. Private Fisheries. By the common law, a right to fish belongs so essentially to the right of the soil in streams or bodies of water, where the tide does not ebb and flow, that if a riparian proprietor owned both sides of the stream, no party but himself can lawfully go upon the limits of his land to take fish from such stream. When he owns upon one side of the stream only, then his right extends to the thread of the stream. Within the limits

the proprietor's right to fish is sole and exclusive by the common law, unless restricted by some local law or well-established usage of the State where the land is situate.2 The right to fish within the limits of one's land boundary, upon and including a stream not navigable, is so far a subject of distinct property or ownership that it may be granted, and will pass by a general grant of the land itself, unless expressly reserved. It can be granted also as a separate and direct property from the freehold of the land, or the land may be granted, while the grantor reserves the right to fish to himself 3 While the owners of land on the banks of freshwater rivers, above the ebb and flow of the tides, have the exclusive right of fishing, as well as the right of property, yet such right is always subject to the public convenience; and all erections or impediments made by the owners, so as to obstruct the free use of the river, as a highway for boats or rafts, are deemed nuisances.4

1. Dom. Lois Civ. Droit Pub. liv. 1, t. 8, S. 2; Revue des Deux-Mondes, Nov. 1874, t. xvi.

By general custom and usage, certain rules have been adopted in capturing whales. By the general

Custom of Greenland whale-fisheries, a whale does not become the property of a party who merely harpoons it; it is necessary that the line shall remain attached to the boat. It is then called a fast fish. If the line becomes detached, then it is a loose fish, and becomes the property of any one who captures and secures it. Aberdeen Arctic Co. v. Sutter, 4 Macq. H. L. Cas. 355.

By General Usages of whale-fishery a fish is fast when attached by any means, such as the entanglement of the line around it, to the boat of the first striker, even if the harpoon does not continue in the body of the fish. Hogarth v. Jackson, 2 C. & P. 595.

Among the Gallipagos Islands, the party who strikes the whale even with a loose harpoon is entitled to receive half the produce from him who finally captures and kills it. Littledale v. Smith, I Taunt. 243, n.

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If, while a fish is fast to the harpoon of the first striker, any other party unsolicited so disturbs it that it breaks from the first harpoon, and then he strikes it himself with a harpoon and kills it, the fish belongs to the first striker. Skinner v. Chapman, M. & M. 59, n.

The time for ships engaged in southern whale-fishery to be out on their voyage, so as to secure the premiums under 28 Geo. III. c. 20, was fourteen lunar months from the time of their clearing out, without regard to the time of their actual sailing. Lacon v. Hooper, 6 T. R. 224; I Esp. 246.

2. Woolrych on Waters, 87; Waters 7. Lilley, 4 Pick. (Mass.) 199; Chalder 7. Dickinson, I Conn. 382; McFarlin v. Essex Co., 10 Cush. (Mass.) 304.

3. Beckman v. Kreamer, 43 Ill. 447. 4. Hooker v. Cummings, 20 Johns. (N. Y.) 90.

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So far as unnavigable rivers are concerned an exclusive right of fishery may be established by proof of grant or prescription, but the party cannot use his privileges to the injury of the rights of others, nor to impede the passage of fish up the river by any obstruction.2 The right of fishing in the sea, or in a bay or arm of the sea, and also in navigable or tide waters, is a right public and common to every one. No one can appropriate to himself an exclusive privilege in navigable waters, or in an arm of the sea, without showing a grant or prescription for the same. But no one has any common-law right to pass over another man's land for the purpose of fishing. In Pennsylvania the doctrine that no river is navigable, so as to confer the common rights of fishery, except those where the tide ebbs and flows, is not applicable to the great rivers of that State, and that the owners of the land on the banks of such rivers as the Delaware and Susquehanna, so far as they are common highways, have no exclusive right of fishing opposite their respective lands. Such right of fishery is vested in the State and open to all the world.

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1. Gould. James, 6 Cow. (N. Y.) 369; Brookehaven v. Strong, I S. Car. 415; Rogers v. Jones, I Wend. (N. Y.) 237.

2. People v. Platt, 17 Johns. (N. Y.) 195; People v Tibbetts, 19 N. Y. 523 1 Berry v. Carle, 3 Greenl. (Me.) 269; Scott v. Wilson, 3 N. H. 321; Commonwealth v. Charlestown, i Pick. (Mass.) 180; Adams v. Pease, 2 Conn. 481 Browne v. Kennedy, Har. & J. (Md.) 195.

3. Arnold v. Mundy, 1 Halst. (N. J.) I Martin v. Wadell, 16 Pet. (U. Š.) 400; Parker v. Cutler Man. Co., 20 Me. 353.

4. Blundell v. Catterall, 5 B. & A. 268; Cortelyou Van Brundt, 2 Johns. (N. Y.), 357

5. Carson v. Blazer, 2 Binn. (Pa.) 475; Shrunk v. Schuylkill Nav. Co., 14 S. & R. (Pa.) 71; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21.

The Pennsylvania Doctrine is accepted by North and South Carolina, and probably in some other States. Executors v. Waddington, 1 McCord (S. Car.), 580; Collins v. Benbury, 3 Ired. (N. Car.) 277.

Planting Oysters in Bay or Arm of the Sea. An individual may plant a bed of oysters, even in a bay or arm of the sea, and mark it by stakes, and it will not be ar y impediment to the common right of fishing in such bay. He thus acquires a qualified property in such oysters, sufficient to enable him to maintain trespass against any party who invades such property. Fleet v. Hegeman, 14 Wend. (N. Y.) 42; Decker v. Fishery, 4 Barb. (N.

Y.) 592; Lowndes v. Dickerson, 34
Barb. (N. Y.) 586.

A patent to the inhabitants of a town, conveying all lands under water within the bounds of the grant, together with the exclusive right of fishing in the waters of the same, confers this right as the common property of the town, and may be regulated by rules adopted at the town meeting. Rogers v. Jones, 1 Wend. (N. Y.) 237.

The property which the law gives, in river fish uncaught, is of that kind which is called special or qualified property, and is derived out of the place or soil where such fish live. A man has a special prop. erty in them so long as they are upon his land, or in the water which flows over it; but he loses such property the moment the fish resort to soil and water of another proprietor. Fleet v. Hegeman, 14 Wend. (N. Y.) 42.

Taking Possession of Oyster-beds.While one who enters into the possession of an oyster-bed has better rights than subsequent trespassers, yet he cannot complain if the grantee from the State dumps earth upon the bed, thereby destroying it. Post v. Kreischer, 32 Hun (N. Y.), 49.

A by-law of a town, under a pretence of regulating the fishing of clams and oysters within its limits, which prohibits all persons, except inhabitants of the town, to take shell-fish in a navigable river, is void, as it contravenes common rights. Hayden 7. Noyes, 3 Conn. 391.

Taking Shell fish along the shores of tide-water, between high and low water mark, is a common right to the people,

except where by colonial ordinance the riparian proprietorship was extended to low-water mark. Evans v. Turnbull, 2 Johns. (N. Y.) 313; Mather v. Chapman, 40 Conn. 382; Peck v. Lockwood, 5 Day (Conn.), 22.

A State can prohibit citizens of another State from planting oysters in a river of the former State, where the tide ebbs and flows. Such a right belongs exclusively to citizens of the State. Mc Cready v. Virginia, 94 U. S. 391. Compare Ex parte McCready, 1 Hughes (C. C.) 597.

A town does not, at common law, unless expressly granted to it, possess any right of property in a fishery within its limits. This right is in the public. Dandolph v. Braintree, 4 Mass. 315.

Where a right of fishing is conferred by statute upon particular individuals, it is not assignable. Munson v. Baldwin, 7 Conn. 168; Brookehaven v. Strong, I S. Car. 415; Rogers v. Jones, I Wend. (N. Y.) 237; People v. Tibbitts, 19 N. Y. 523; Connors v. Kempshall, 26 Wend. (N. Y.) 404; Gould . James, 6 Cow. (N. Y.) 369; Scott v. Wilson, 3 N. H. 321; Beryle v. Carle, 3 Me. 269; Commonwealth v. Charlestown, I Pick. (Mass.) 180.

In Navigable Streams any person may take fish, if he can do so without trespassing on the lands of private owners. Commonwealth v. Chapin, 5 Pick. (Mass.) 199; Coolidge v. Williams, 4 Mass. 140; Freery. Cooke, 14 Mass. 488. He may also take shell-fish on the shores of navigable waters where the tide ebbs and flows, under the same restriction. Parker v. Cutter Mill Dam Co., 20 Me. 353. But a right to take shell-fish does not carry with it a right to take the soil or dead shell-fish imbedded therein, except such as necessarily adhere to the living fish taken. Porter v. Shehan, 7 Gray (Mass.), 435.

In New Jersey it is held that no party can have an exclusive right to take fish from navigable waters. Gard v. Carman, 3 N. J. Law, 936. And the right of fishing is not inseparable from the soil. Cobb v. Davenport, 32 N. J. Law, 369.

In the absence of a prescription, in States recognizing such a right of fishery, there can be no exclusive right except by grant from the sovereign power. State v. Glen, 7 Jones (N. Car.), 321; Collins v. Benbury, 5 Ired. (N. Car) 118; 3 Ired. (N. Car.) 277- The right to regulate private and public fisheries has been assumed by the States and acted upon so long that it is now accepted as the law. Smith v. Levins, 8 N. Y. 472; Com. v.

8 C. of L.-3

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Bailey, 13 Allen (Mass.), 541; Dunham v. Lamphere, 3 Gray (Mass.), 368.

No person acquires an exclusive right to fish by stocking a stream, or merely by cleaning out a fishing place in a river, or by making valuable improvements. Westfall v. Van Arker, 12 Johns. (N. Y.) 424.

A party who plants oysters in a stream and clearly marks the bed has such a right of property that persons navigating the stream are bound to take notice of his rights; and if they wilfully or negligently commit damages to said bed, they are liable therefor. Cobb v. Bennett, 75 Pa. St. 326; Major v. Brooke, 6 Q. B. 339.

A lease of a fishery does not pass an interest in the land, but gives a right only to take fish from the water, according to the terms of the lease. Cortelyou ʊ. Van Brandt, 2 Johns. (N. Y.) 357.

In navigable streams the right of fishing is common, but only the owners of the adjacent lands have the right of drawing seines and taking fish on their own land. Commonwealth v. Shaw. 14 Serg. & R. (Pa.) 9; Lay v. King, 5 Day (Conn.),

72.

What are Navigable Streams.-Most of the States have enlarged the commonlaw rule as to what are navigable streams. It is the rule now that all streams where the tide ebbs and flows, whether they are in fact navigable or not, and all streams capable of serving the purpose in floating the products of the country, are navi gable. Weise v. Smith, 3 Oreg. 445; Morgan 7. King, 35 N. Y. 454; Com. v. Hemphill, 26 Wend. (N. Y.) 404; Tomlin v. Dubuque, etc., R. Co., 32 Iowa, 106; The Daniel Ball. IO Wall. (U. S.) 557; The Montebello, 11 Wall. (U. S.) 411; Veazie v. Dwinel, 50 Me. 496; Valk v. Eldred. 23 Wis. 410: Georgetown v. Alexandria Canal Co., 12 Pet.(U.S.) 91.

The actual navigable capacity of streams seems now to be the test, and not the ebb and flow of the tide. If they are in fact navigable for useful purposes in commercial intercourse, they are subject to that servitude. The Daniel Ball, 10 Wall. (U. S.) 557; The Montebello, II Wall. (U. S.) 411; Chicago v. McGinn, 51 Ill. 269; Wood on Nuisances, 612.

So it must be established as a matter of fact, except in salt-water streams, whether a river is navigable. Rhodes v. Otis, 33 Ala. 573; McManus v. Carmichael, 3 Iowa, I. The stream must be navigable in its natural state, unaided by artificial means. Wadsworth v. Smith, 2 Fair. (Me.) 276; Morgan v. King, 35 N. Y. 454.

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