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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 pen- compass it; that from the earliest days of alties. By gul of the act, all of- this government it has claimed it as territofences against this law committed by rial waters, which right has never been British subjects are to be settled by jus- questioned; so it cannot become the tices of the peace, who are also declared highway of nations from one to another; to have power of awarding compensation that from the doctrine of international for injuries. Under this act it was held law, this bay was held to be wholly withthat no action could be maintained for an in the territorial jurisdiction and auinjury caused by a breach of any of the thority of the United States. Stetson v. regulations, as exclusive jurisdiction in U.S., 32 Alb. L. J. 483. such matters was given to the tribunal A bay," says Daniel Webster, “as is specified in the act. Marshall v. Nich- usually understood, is an arm or recess olls, 21 L. J. Q. B. 343; 18 Q. B. 882. of the sea, entering from the ocean be1. Convention of 1818, Art, I.
tween capes and headlands, and the term The general law of nations, as inter- is applied usually to small and large preted by international jurisprudence, tracts of water thus situated;
the provides no agreement that harbors, es- British authorities insist that England has tuaries, and bays landlocked belong to a right to draw a line from headland lo the territory of the nation which pos- headland and to capture all American sesses the shores round them, and no fishermen who may follow their pursuits agreement as to what is the rule to deter. inside of that line. It was undoubtedly mine what is a bay for this purpose. “It an oversight in the convention of 1818 10 does not appear to their lordships that make so large concession toEngland since jurists and text-writers are agreed what the United States had usually considered are the rules as to dimensions and con- that those vast inlets or recesses of the figurations which, apart from other con- ocean ought to be open to American siderations, would lead to the conclusion fishermen as freely as the sea itself, to that a bay is or is not a part of the terris within three marine miles of the shore." tory of the State possessing the adjoining Speech of 1855. coasts; and it has never, that they can find. The marine territory of every nation been made the ground of any judicial extends to the ports, harbors, bays, determination." U. S. Cable Co. v. An- mouths of rivers, and adjacent ports of glo-Am. Tel. Co., L. R. 2 App. Cas. the sea, enclosed by headlands which 394.
belong to the same State; and also jurisThe language of the convention of 1818 diction from these points a distance at applies to all bays, whether large or sea of a marine league, or a cannon-shot. small, on that coast. U. S. Cable Co. Over these boundaries the nation has V. Anglo-Am. Tel. Co.,L. R. 2 App. Cas. territorial jurisdiction, and its authority 420, 421.
to this territory is absolute. It can This case was followed in the Alaba- clude the ships of every other nation, ma claims by the Court of Commission. Gould on Waters, SS 1-16; I Philliers, when the question arose as to the more's Int. Law (3d Ed.), 274; Boyd's Chesapeake Bay, whose headlands are Wheat. Int. L. S. 177; i Halleck Int about twelve miles apart, and the bay at L. 134; Queen v. Keyn, 2 Ex. D. 63; the widest part twenty miles across, Direct Cable Co. v. Anglo-Am. Tel. Co., and length two hundred miles. The L. R. 2 App. Cas. 394. court say that the fact is the headlands The treaty of 1818 in regard to Cana: are well marked and twelve miles apart, dian waters was distinctively a fishery that it and its tributaries are wholly within treaty, by which the United States rethe territory of the United States, and that nounced the right to fish within a certain the boundary lines of adjacent States en- three-mile limit from the shore, but our
3. Whale Fisheries. The sea is open to all alike, and no one can
No private appropriate it so as to deprive others of its use.
fishermen are allowed to enter bays and being restricted to any distance from the harbors for shelter and repairs. The shore, with permission to land upon the usage of nations permits fishing vessels said coasts and shores and islands, and to seek the ports of a friendly nation to also upon the Magdalen Islands, for the buy provisions, stores, or bait that they purpose of drying their nets and curing
But an act of the Canadian iheir fish; provided, that in so doing, they Parliament allows the American vessels do not interfere with the rights of private to be confiscated whenever they are found property or with British fishermen in the in Canadian waters for any cause result- peaceable use of any part of the said coasts ing from the exigencies of navigation in their occupancy for the same purpose. except that announced in the treaty of It is understood that the above-mentioned 1818. Act approved Nov. 1886.
liberty applies solely to the sea-fishery, Under the treaties of 1783 and 1812, and that the salmon and shad fisheries, the territorial jurisdiction over the north and all other fisheries in rivers and the east Atlantic is limited to three miles, mouths of rivers, are hereby reserved exfollowing the sinuosities and indentations clusively for British fishermen.' The of the coast. But this question in this United States government brought this regard is now pending, and is the subject treaty to an end in 1885, as provided for of diplomatic correspondence between in the 33d article. The treaty of 1783 Great Britain and the United States merged in the convention of 1818. government. 3 Whart. Int. Law Dig., $ The 18th article of the “Treaty of 305. For further information on the Washington" (1871) recognizes the confishery treaties, see 3 Whart. Int. L. Dig. tinued existence and force of the convenSecs. 299 et seq.
tion of 1818. So now the fishery rights The Minister of Marine and Fisheries, and liberties are regulated by the convenon March 5, 1876, issued a warning de- tion of 1818. claring that by the treaty provisions and One American writer says that the act of Canadian Parliament all foreign convention of 1818 became merged in the vessels or boats are forbidden from Reciprocity Treaty of 1854, and that when fishing or taking fish, by any means what the latter was abrogated the former came ever, within three marine miles of any of to an end along with it, and that the the coasts, creeks, or bays of Canada, or treaty of 1783 thereupon revived. 5 Am. to enter such bays, harbors, and creeks Law Rev. 389. Another American except for the purpose of shelter and of writer says the proper course of the repairing damages therein, of purchasing United States government is to abrogate wood and obtaining water, and for no the convention of 1818 upon the ground other purpose whatever. In 1871 a new that Great Britain has, on her part, violattreaty was entered into by Great Britain ed the provisions thereof. Pamphlet on and the United States, which is known as Fishery Dispute by Hon. John Jay, 1887. the “ Treaty of Washington.” The The treaty of 1783 gave no authority 18th article says: “It is agreed by to trade with the shore, but that the the high contracting parties that, in addi. United States could lawfully send their tion to the liberty secured to the United own vessels to the British North AmeriStates fishermen by the convention be- can waters to supply our own fishermen tween the United States and Great Britain there, or purchase their cargoes, and that signed at London on the twentieth day of vessels might lawfully anchor in British October, 1818, of taking, curing, and dry- harbors on their route to their destinaing fish on certain coasts of the British tion. North American colonies therein defined, Note.—The fishery treaty drawn by rep. the inhabitants of the United States shall resentatives of the English and Canadian have, in common with the subjects of Her governments and the United States, and Britannic Majesty, the liberty, for the term recommended to the Senate for ratificaof years mentioned in article 33 of this tion by the President during the winter treaty, to take fish of every kind, except of 1887-8, having been rejected by the shell-fish, on the sea coasts and shores, Senate, until a new treaty is made and and in the bays, harbors, and creeks of accepted that of 1818 is supposed to conthe Provinces of Quebec, Nova Scotia, tinue in force. and New Brunswick, and the colony of 1. 3 Whar. Int. L. Dig. $ 299; Prince Edward's Island, and of the sever- Inst. 2, 1, 1 ; Dom. Lois Civ. liv. prél. t. al islands thereunto adjacent, without 3, S. 1, 85 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. 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. I, General Rule.--He who first strikes a t. 8, §. 2; Revue des Deux-Mondes, fish must continue his dominion over it Nov. 1874, t. xvi.
until he has reduced it to possession in By general custom and usage, certain order for it to become his property. Any rules have been adopted in capturing other person who kills it acquires the whales. By the general
entire property. Fennings v. Grenville, Custom of Greenland whale-fisheries,
1 Taunt. 241. a whale does not become the prop. If, while a fish is fast to the harpoon of
party who merely har- the first striker, any other party unsolipoons it; it is necessary that the line cited so disturbs it that it breaks from the shall remain attached to the boat. It is first harpoon, and then he strikes it himthen called a fast fish. If the line be. self with a harpoon and kills it, the fish comes detached, then it is a loose fish, and belongs to the first striker. Skinner v. becomes the property of any one who Chapman, M. & M. 59, n. captures and secures it. Aberdeen Arctic The time for ships engaged in southern Co. v. Sutter, 4 Macq. H. L. Cas. 355. whale-fishery to be out on their voyage,
By General Usages of whale-fishery a so as to secure the premiums under 28 fish is fast when attached by any means, Geo. III. c. 20, was fourteen lunar months such as the entanglement of the line from the time of their clearing out, witharound it, to the boat of the first striker, out regard to the time of their actual sail. even if the harpoon does not continue in ing. Lacon v. Hooper, 6 T. R. 224 ; I the body of the fish. Hogarth v. Jack. Esp. 246. son, 2 C. & P. 595.
2. Woolrych on Waters, 87; Waters Among the Gallipagos Islands, the 2'. Lilley, 4 Pick. (Mass.) 199 ; Chalder party who strikes the whale even with a 24. Dickinson, i Conn. 382; McFarlin v. loose harpoon is entitled to receive half Essex Co., 10 Cush. (Mass.) 304. the produce from him who finally cap- 3. Beckman v. Kreamer, 43 Ill. 447. tures and kills it. Littledale v. Smith, 4. Hooker v. Cummings, 20 Johns. i Taunt, 243, n.
(N. Y.) 90.
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. 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.3 But no one has any common-law right to pass over another man's land for the purpose of fishing. 4 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.5
1. Gould v. James, 6 Cow. (N. Y.) Y.) 592; Lowndes v. Dickerson, 34 369 ; Brookehaven v. Strong, I S. Car. Barb. (N. Y.) 586. 415 ; Rogers v. Jones, 1 Wend. (N. Y.) A patent to the inhabitants of a town, 233.
conveying all lands under water within 2. People v. Platt, 17 Johns. (N. Y.) the bounds of the grant, together with the 195 ; People v Tibbetts, 19 N. Y. 523 í exclusive right of fishing in the waters of Berry v. Carle, 3 Greenl. (Me.) 269 ; the same, confers this right as the comScott v. Wilson 3 N. H. 321 ; Common- mon property of the town, and may be wealth v. Charlestown, i Pick. (Mass.) regulated by rules adopted at the town 180; Adams v. Pease, 2 Conn. 481; meeting. Rogers v. Jones, i Wend. (N. Browne v. Kennedy, Har. & J. (Md.) Y.) 237. 195.
The property which the law gives, in 3. Arnold v. Mundy, 1 Halst. (N. J.) river fish uncaught, is of that kind which 1; Martin v. Wadell, 16 Pet. (U. S.) is called special or qualified property, and 400 ; Parker v. Cutler Man. Co., 20 Me. is derived out of the place or soil where 353
such fish live. A man has a special prop. 4. Blundell v. Catterall, 5 B. & A. erty in them so long as they are upon his 268 ; Cortelyou 2 Van Brundt, 2 Johns. land, or in the water which flows over it; (N. Y.), 357
but he loses such property the moment 5. Carson V. Blazer, 2 Binn. (Pa.) the fish resort to soil and water of an475 ; Shrunk v. Schuylkill Nav. Co., 14 other proprietor. Fleet v. Hegeman, 14 S. & R. (Pa.) 71; Tinicum Fishing Co. Wend. (N. Y.) 42. v. Carter, 61 Pa. St. 21.
Taking Possession of Oyster-beds. — The Pennsylvania Doctrine is accepted While one who enters into the possession by North and South Carolina, and prob- of an oyster-bed has better rights than ably in some other States. Executors v. subsequent trespassers, yet he cannot Waddington, i McCord (S. Car.), 580; complain if the grantee from the State Collins v. Benbury, 3 Ired. (N. Car.) dumps earth upon the bed, thereby de277.
stroying it. Post v. Kreischer, 32 Hun Planting Oysters in Bay or Arm of the (N. Y.), 49. Sea. -An individual may plant a bed of A by-law of a town, under a pretence oysters, even in a bay or arm of the sea, of regulating the fishing of clams and and mark it by stakes, and it will not be oysters within its limits, which prohibits ar y impediment to the common right of all persons, except inhabitants of the fis ning in such bay. He thus acquires a town, to take shell-fish in a navigable qualified property in such oysters, suf- river, is void, as it contravenes common ficient to enable him to maintain trespass rights. Hayden v. Noyes, 3 Conn. 391. against any party who invades such prop- Taking Shell fish along the shores of erty. Fleet v. Hegeman, 14 Wend. (N. tide-water, between high and low water Y.) 42 ; Decker v. Fishery, 4 Barb. (N. mark, is a common right to the people, C.) 597.
except where by colonial ordinance the Bailey, 13 Allen (Mass.), 541; Dunham v. riparian proprietorship was extended to Lamphere, 3 Gray (Mass.), 368. low-water mark. Evans v. Turnbull, 2 No person acquires an exclusive right Johns. (N. Y.) 313; Mather v. Chapman, to fish by stocking a stream, or merely 40 Conn. 382; Peck v. Lockwood, 5 Day by cleaning out a fishing place in a river, (Conn.), 22.
or by making valuable improvements. A State can prohibit citizens of an- Westfall v. Van Arker, 12 Johns. (N. Y.) other State from planting oysters in a 424. river of the former State, where the tide A party who plants oysters in a stream ebbs and flows. Such a right belongs ex- and clearly marks the bed has such a clusively to citizens of the State. Mc. right of property that persons navigating Cready v. Virginia, 94 U. S. 391. Com- the stream are bound to take notice of pare Éx parte McCready, i Hughes (C. his rights; and if they wilfully or negli
gently commit damages to said bed, they A town does not, at common law, un- are liable therefor. Cobb v. Bennett, 75 less expressly granted to it, possess any Pa. St. 326; Major V. Brooke, 6 Q. B. right of property in a fishery within its 339. limits. This right is in the public. Dan- A lease of a fishery does not pass an dolph v. Braintree, 4 Mass. 315.
interest in the land, but gives a right only Where a right of fishing is conferred to take fish from the water, according to by statute upon particular individuals, it the terms of the lease. Cortelyou v. Van is not assignable. Munson v. Baldwin, Brandt, 2 Johns. (N. Y.) 357. 7 Conn. 168; Brookehaven v. Strong, I In navigable streams the right of fishS. Car. 415; Rogers v. Jones, i Wend. ing is common, but only the owners of (N. Y.) 237; People v. Tibbitts, 19 N. Y. the adjacent lands have the right of draw523; Connors 2. Kempshall, 26 Wend. ing seines and taking fish on their own (N. Y.) 404; Gould v. James, 6 Cow. (N. land. Commonwealth v. Shaw, 14 Serg. Y.) 369; Scoil v. Wilson, 3 N. H. 321; & R. (Pa.) 9; Lay v. King, 5 Day (Conn.), Beryle v. Carle, 3 Me. 269: Common- 72. wealth v. Charlestown, I Pick. (Mass.) What are Navigable Streams.- Most of 180.
the States have enlarged the commonIn Navigable Streams any person may
law rule as to what are navigable streams. take fish, if he can do so without tres- It is the rule now that all streams where passing on the lands of private owners. the tide ebbs and flows, whether they are Commonwealth v. Chapin, 5 Pick. (Mass.) in fact navigable or not, and all streams 199; Coolidge 2). Williams, 4 Mass. 140; capable of serving the purpose in floating Freery v. Cooke, 14 Mass. 488. He may the products of the country, are navi. also take shell-fish on the shores of nav. gable. Weise v. Smith, 3 Oreg. 445; Morigable waters where the tide ebbs and gan 71. King, 35 N. Y. 454; Com. 7. flows, under the same restriction. Parker Hemphill, 26 Wend. (N. Y.) 404; Tomlin v. Cutter Mill Dam Co., 20 Me. 353. But V. Dubuque, etc., R. Co., 32 Iowa, a right to take shell-fish does not carry 106; The Daniel Ball. 10 Wall. (U. with it a right to take the soil or dead S.) 557; The Montebello, 11 Wall. (U. shell-fish imbedded therein, except such S.) 411; Veazie v. Dwinel, 50 Me. 496; as necessarily adhere to the living fish Valk v. Eldred. 23 Wis. 410; Georgetown taken. Porter v. Shehan, 7 Gray (Mass.), V. Alexandria Canal Co., 12 Pet.(U.S.) 91. 435.
The actual navigable capacity of In New Jersey it is held that no party streams seems now to be the test, and can have an exclusive right to take fish not the ebb and flow of the tide. If they from navigable waters. Gard v. Carman, are in fact navigable for useful purposes 3 N. J. Law,936. And the right of fishing in commercial intercourse, they are subis not inseparable from the soil. Cobb v. ject to that servitude. The Daniel Ball, Davenport, 32 N. J. Law, 369.
10 Wall. (U. S.) 557; The Montebello, In the absence of a prescription, in Wall. (U. S.) 411; Chicago v. McGinn, 51 States recognizing such a right of fishery, Ill. 269; Wood on Nuisances, 612. there can be no exclusive right except by So it must be established as a matter grant from the sovereign power. State of fact, except in salt-water streams, v. Glen, 7 Jones (N. Car.), 321; Collins v. whether a river is navigable. Rhodes v. Benbury, 5 Ired. (N. Car) 118; 3 Ired. Olis, 33 Ala. 573; McManus v. Car(N. Car.) 277. The right to regulate pri- michael, 3 Iowa, 1. The stream must be vate and public fisheries has been as- navigable in its natural state, unaided by sumed by the States and acted upon so artificial means. Wadsworth v. Smith, 2 long that it is now accepted as the law. Fair. (Me.) 276; Morgan v. King, 35 N. Smith v. Levins, 8 N. Y. 472; Com. v. 8 C. of L.-3