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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.2 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 ?'. Graham, as a part of their prerogative, and hence L. R. 4 Exch. 361 ; Tinicum Fishing Co. conferred on their followers royal franv. Carier. 61 Pa. St. 21.
chises to take game and fish, to the ex2. Smith v. Kemp, 2 Salk. 637 ; Car. clusion of other people. This being in ter v. Mureat, 4 Burr. 2162.
contravention of the common law, the 3. Angell's Water-courses (2d Ed.), people struggled to compel the monarchs 6-10, and cases cited. Decisions are in to restore their ancient righis. The first conflict whether the soil is included with move that proved successful was in 1215, this franchise of a several fishery. Angell, when King John was compelled to restore after citing cases for and against the doc- these rights by Magna Charta. Succeedtrine, concludes that this franchise can be ing kings disregarded these provisions, granted without the ownership of the soil. but were compelled to affirm them. Lord
Kent says that these distinctions be- Coke says that no owner of river banks tween common of piscary, free fishery, and should in the future so appropriate or several fishery seem to be quite unsettled keep the river separate to himself so as in the books; and that the authorities to prevent others from fishing or having cited by Hargrave (Harg. Co. Litt. lib. passage to them. Sir Edward Coke says 2, No. 181) throw embarrassment in that Magna Charta and the Charta Fo. the way of the attempt to mark with resta have been confirmed by thirty-two precision the line of discrimination. several acts of Parliament. In England 3 Keni's Com. 410. Blackstone as- the preservation and regulation of the serts that a free fishery is an exclusive mode and time of taking fish were of right. 2 Bl. Com. 39. Lord Mansfield public concern. They are distinguished says that it was essential to a free fishery from a mere privale right not within the that more than one person should have a domain of legislation. Parker v. People, coextensive right in the same subject. 111 III. 581. Seymour v. Courtenay, 5 Burr. 2814. 4. Bagott v. Orr. 2 B. & P. 472. But it has been held in Massachusetts chat 5. Carter v. Thurcat, 4 Burr. 2163. a free fishery was not an exclusive fish- The erection of weirs across rivers ery. Melvin v. Whiting, 7 Pick. (Mass.) was denounced in the earliest periods of 79
the common law. These weirs were conUnder the common law the regulation sidered public nuisances. By the Magna of the right to take fish, and for their in- Charta all weirs were ordered to be pulled crease and preservation, is a legislative down, and subsequent acts of Parliament function, and obstructions to the passage forbid the erection of new ones. However, of fish were held to be public nuisances, twenty years' acquiescence may bind and subject to legislative control. The parties whose private rights only are af. arbitrary kings after the Conquest fected, yet the public have an interest in claimed the game and fish in the kingdom the suppression of public nuisances,
though of long standing. Weld v. Horn- Corp. v. Goodman, 7 Q. B. D. 106; by, 7 East, 195.
McCarty v. Holman, 22 Hun (N. Y.), 53. A prescriptive right may exist to a To an action for trespass to a several several fishery in an arın of the sea. Ox- fishery the defendant pleaded that the ford v. Richardson, 4 T. R. 439.
locus in quo was an arm of the sea, whereThe public cannot acquiesce by imme. in all had a right to fish. The plaintiff morial usage in any right of fishing in a joined issue. Held, that the defendant river in which, though navigable, the tide was entitled to a verdict if it appeared does not ebb and flow. Murphy v. Ryan, that the locus in quo was in fact an 2 Ir. R. C. L. 143.
of the sea; and that if the plaintiff, adIn Pennsylvania the English doctrine mitting that the locus in quo was an arm that no rivers are deemed navigable, so of the sea, still claimed a several fishery, as to give the common right of fishing, then he was bound to set up the claim in except those where the tide ebbs and
a replication. Crichton v. Callery, 19 W. flows, has been held not to be applicable R. 107. to the great rivers in that State. Hence To an action for fishing in the plainthe owners of the land on the banks of tiff's fishery the defendant pleaded that such rivers as the Susquehanna and Del- the locus in quo was an arm of the sea, aware, for example, so far up as they in which everybody had the right to fish. have a capacity for public use as com- He replied a prescription for the sole and mercial highways, have no exclusive several right of fishing, and traversed right of fishing in the rivers opposite their that every subject had the right and privirespective lands. This right is vested in lege of free fishing in the locus in quo. the State and open to all the world. Car- Hild, that this was a bad traverse, and son w. Blazer, 2 Binn. (Pa.) 475; Shrunk the defendant therefore might well pass v. President, etc., 14 S. & R. (Pa.) 71; it by in the rejoinder, and traverse the Tinicum Fishing Co. v. Carter. 61 Pa. St. prescription right of the plaintiff stated
A similar doctrine is accepted in in the replication. Richardson V. OrSouth Carolina. Cates v. Wadington, I ford, 2 H. Bl. 182. McCord (S. Car.), 580.
A prescriptive right had been exercised In North Carolina no general or ex- from time immemorial by a borough corclusive right of fishery exists in the navi- poration and its lessees, without any gable waters of the State, and a navigable qualification except that the free inhabitstream exists when the waters are suf- ants of ancient tenements in the borough ficient in fact to afford a common passage had from time immemorial without for people in sea vessels. Collins v. Ben- interruption, and claiming as of right, bury, 3 Ired. (N. Car.) 277.
exercised the privilege of dredging for Right of Fishery.-It is settled that a oysters in the locus in quo from the ad right of fishery in navigable or tide waters of February to Easter eve in each year, below high-water mark is a common and of catching and carrying away the right; and if one or more individuals set same without stint for sale or otherwise. up an exclusive right to a free or several This usage of the inhabitants tended to fishery, it must be clearly established by the destruction of the fishery, and if conprescription or positive grant. Palmer tinued would destroy it. Held, that the v. Hicks, 6 Johns. (N. Y.) 133; Rogers claim of the inhabitants was not a profit à v. Jones, 1 Wend. (N. Y.) 237; Delaware prendre in alieno solo; that a lawful origin & M. R. Co. v. Stump, 8 Gill. & J. for the usage ought to be presumed, if (Md.) 479.
reasonably possible, and that the preBut if an individual plants a bed of sumption which ought to be drawn, as oysters in a bay or an arm of the sea, and reasonable in law and probable in fact, clearly designates the bed by suitable was that the original grant to the corpostakes, it is noi an interference with the ration was subject to a trust or condition common right of fishing in the bay, but in favor of the free inhabitants of anthe person who planted the oyster-bed so cient tenements in the borough in accord. designated acquires a qualified property ance with the usage. Goodman v Saltin the oysters sufficient to maintain tres- ash. 7 L. R. _App. Cas. 633. H. L.; pass against any person who invades that reversing 7 L. R. Q. B. Div. 106. property. Fleet v. Hegeman, 14 Wend. In England no public right exists of (N. Y.) 42; Decker v. Fisher, 4 Barb. fishing in non-tidal waters, even where (N. Y.) 592; Lowndes 1. Dickinson, 34 they are to some extent navigable rivers. Barb. (N. Y.) 586; Whittaker v. Bur- Pearce v. Scotcher, 9 L. R. Q. B. Div. hans, 62 Barb. (N. Y.) 237. Compare 162. Robins v. Ackerly, 91 N. Y. 98; Brink- Aninformation was laid against a party erhoff v. Starkins, 11 Barb (N. Y.). 248; for unlawfully fishing in a river wherein the prosecutor had a private right of fish- principles of natural law that many jur. ing. The river was wavigable, and the ists consider this right as part of the law place where the party fished the water of nations. The civil law held that the was not salt, and in ordinary tides it was right of fishing in rivers, as well as in not affected by any tidal movement, ex- the sea and ports, was common to all. cept that upon the occasion of very high It, unlike the common law, held that all lides the rising of the salt water in the rivers where the flow of water was pelower part of the river dammed back the rennial belonged wholly to the public, fresh water, and caused it upon those and carried with it the right of fishery, as occasions to rise and fall with the flow well as the public use of the banks. Inst. and ebb of the tide. The defence was 2. I, 2. that, the river being navigable and tidal The exclusive right of the riparian at the place in question, there was a pre- owner in English fresh waters, and the sumption that the public had a right to public right of fishing in tidal waters, de. fish there, and that the jurisdiction of the pend upon the existence of the ownerjustices was therefore ousted by a rea- ship of the soil of the fresh-water stream sonable claim of right. Held, that the by the private owner, and by the soverriver at the place in question could not be eigo in the public river. Murphy 1. considered as tidal within the meaning Ryan, 2 Ir. Rep. C. L. 143; Mayor v. of the rule of law which gives the public Graham, L. R. 4 Ex. 361. a right to fish in navigable tidal rivers, The ownership of the sovereign does and therefore there was no claim of title not extend beyond the ebb and flow of set up sufficient to oust the justices' ju- the tide, although the river may be navirisdiction. Reece v. Miller, L. R. 8 Q. gable beyond that point. On this ground, B. Div, 626.
inasmuch as a custom that the public The owner of land through which a should have profit à prendre in private stream passes, in which the tides ebb and soil could not legally exist. Allgood v. flow, cannot maintain trespass against a Gibson, 34 L. T. 883. The public cannot party who fishes in said stream and fast- acquire by immemorial usage any right ens his boat to a public bridge on a pub- of fishing in a navigable river above the lic highway. Parsons v. Clark, 76 Me. ebb and flow of the tide. Austin v. Am476.
herst, 7 Ch. D. 689. A several fishery Fishing in the great lakes in water re- in a tidal river which has permanently mote from the land is a business open to changed its channel cannot be followed all, and may be carried on even with from the old into the new channel. Cobb stakes, if not interfering with navigation 2'. Davenport, 33 N. J. 223. or forbidden by law. Lincoln v. Davis, The right of the public to fish does not 53 Mich. 575.
extend to a large inland navigable but not Where the law gives a general or pub- tidal lake. Bloomfield v. Johnston, S lic right for all parties to fish in a public Ir. R. C. L. 68. Marsh v. Colby, 39 Mich. navigable river, it is unnecessary espe. 626; Bristow v. Cormican, 3 App. Cas. cially to state such public right. It will 641. suffice to show with brevity that there is The public has no right to fish in pria public right; that the defendant pre. vate rivers made navigable by acts of vented the plaintiff from fishing. Ward Parliament. Hargreaves 7'. Diddams, v. Cresswell, Willes, 268; Tenant v. Gold- L. R. 10 Q. B. 552; Musselt v. Burch, win, 2 Ld. Raym. 1091.
35 L. T. 486. Individuals may, by prescription or Where the course of the river gradugrant, have a several fishery in tide-wa- ally changes, the right of the riparian ters. Mayor v. Richardson, 4 T. R. 437; owner to fish changes so as to follow the Chalker v. Dickinson, i Conn. 382; State thread of the stream. Miller 1. Litue. V. Sutton, 2 R. I. 434; State v. Medbury, L. R. Ir. 302; Foster v. Wright, 4 C. P. 3 R. I. 138; Gould 2. James, 6 Conn. 365; D. 438. Paul v. Hazleton, 37 N. J. 106.
If any party will appropriate an exclu. A public river is a public highway. and sive privilege in navigable waters and this is the distinguishing characteristic. arms of the sea, he must show it strictly All rights of fisheries in it must be sub- by grant or prescription. Parker v. Cutservient to the right of passage, and must ler M. Co., 20 Me. 353. be so exercised as not to prejudice such Some decisions deny the existence of right when used in a reasonable manner. any peculiar privilege as appurtenant to Mayor 7. Brooke, 7 Q. B. 339; Young v. the bank of navigable water where the Hichens, 6 Q. B. 609.
tide ebbs and flows, with the exception The common right of fishing in navi- of alluvion and dereliction. Stevens v'. gable waters is founded on such plain Paterson, etc., R. Co., 34 N. J. 532;
Gould v. Hudson R. R.Co., 6 N. Y. 522. verts to the sovereign, merge in the preThe courts have followed the same rule rogative of the crown, but may be rein the case of the owners on the banks granted by the crown to a subject. of the Mississippi River, in States where Northumberland v. Houghton, 39 L. R. the fee of the river bed, below high- Ex, 66. water mark, is in the State for the use of The several fishery of a subject in a the public. Tomlin v. Dubuque, etc., R.
tidal river the waters of which permaCo., 32 Iowa, 106, though dissenting nently recede from a portion of its course opinions were also rendered.
and flow through a new channel to the Riparian rights are incident to the sea, when the soil and land on both ownership of the land on the margin of sides of the new channel belong to annavigable waters. Potomac Steamboat other subject, is not transferred from the Co. v. Upper Pat. S. Co., 109 U. S. 672. old to the new channel. Carlisle v. Gra
A Riparian Owner on a navigable stream ham, 4 L. R. Exch. 361 ; 38 L. J. Exch. where the title is in him, may use the 226; 18 W. R. 318. water in any way not inconsistent with The salmon-fishings in the open sea the full enjoyment by the public of the around the coast of Scotland, unless right of navigation, and which does not parted with by grant, belong exclusively interfere with the rights of other riparian to the crown, and form part of its reMorrill v. St. Anthony Co., 26
Gammell v. Woods and Forest, Minn. 222 ; Thornton v. Grant, 10 R. I. 3 Macq. H. L. Cas. 419. 477 ; Stevens Point Co. v. Reilly, 46 Wis. A party had a license to fish in the up237. See generally, as to riparian rights, per part of a tidal river. Another party, Tinicum Fishing Co. v. Carter, 90 Pa. St. not the owner of a several fishery, unlaw85; Moulton v. Libbey, 37 Me. 472 ; Tin- fully fished in the lower part of the river, icum Fishing Co. v. Carter, 61 Pa. St. within the prohibited limits of the mouth.
Held, that the former was damnified by The right of the public to fish in a the latter. Whelan v. Hewson, 6 Ir. R., non-tidal river which is made gavigable C. L. 283. by locks cannot exist in law. Mussett In France, before the Revolution, in v. Burch, 35 L. T. N. S. 486.
navigable and non-navigable rivers, fishA party had nearly encompassed fish ery was not common to all, but belonged in a net, when the defendant, by rowing to the king and such persons as under a boat to the opening, so disturbed the him possessed jurisdictional rights. fish as to prevent the capture. Held, Inst. Droit Français, by Argon, I. 214; that he was not entitled to recover, in Pothier's Traité du Droit de Propriété, trespass, no special custom of the fishery being proven. Young v. Hitchins, The Code Napoleon declared that D. & M. 592.
rivers and navigable or floatable streams, Oysters deposited artificially, and not shores, and land between high and low attached to the soil, may be a nuisance, water mark were considered as dependand obstruct navigation as well as natu- encies of the public domain, and that the ral oyster-beds. Colchester v. Brooke, 7 right of fishing was under the regulation 2. B. 339.
of law. This doctrine followed closely A prescriptive right to a several fish- the seigneurial and feudal rights. Code ery in a navigable river may pass as ap- Napoleon, No. 538, 715. See further, on purtenant to a manor. Rogers v. Allen, this subject, Toullier's Droit Civil Frani Camp. 309.
çais. III. 144, 145, 146; Questions de The soil of a navigable tidal river, Droit, by Merlin, VI. t. Pecheries, in where the tide ebbs aod flows, is prima which it is laid down that though some facie in the crown, and all the right of communes attempted to appropriate the fishery therein is prima facie in the pub- right of fishing to themselves, the claim lic. But the right to exclude the public was overcome by degrees, and that the therefrom, and to create a several fish- abolition of the fishing with other feudal ery, existed in the crown, and might lawrights was for the sole benefit,'not of the fully have been exercised by the crown commune, but of the feudal vassals, who before Magna Charta, and the several had been given freedom in person and fishery could lawfully be afterwards property, and that there no longer existed inade the subject of grant by the crown any seigneurial rights. Toullier has also to a private individual. Malcolmson v. collected the ancient authorities in supO'Dea, 1o H. L. Cas. 593.
port of the seigneurial exclusive right of A several salmon-fishery in a tidal fishery in all streams non-navigable, and river, granted by the crown to a subject the several decrees of the revolutionary before Magna Charta, does not, if it re- 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.*
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 Pearsall, 22 Wend. (N. Y.) 425 ; Town. the French law that proprietors of the ship Co. v. Bishop, 11 Vt. 198 ; Coolidge lands on rivers not navigable or flottables, v. Learned, 8 Pick. (Mass.) 504; Kent v. have the exclusive right of fishing there. Waite, io Pick. (Mass.) 138; Porter v. in, as well as the exclusive proprietor. Sullivan, 7 Gray (Mass.), 441 : 2 Washb. ship of the soil composing the bed of the R. Prop. (1876) 368 : Hilliard Real Prop. river.
274 ; Vattel, b. 1, $$ 234, 235. Under the Common Law of England, no Though the sea-shore, between high common right can be said to have been and low water mark, be held by grant as more definitely or more jealously guarded private property, the common right still than the public right of fishing in tidal exists to go there and fish, and even to waters. Hare's De Jore Maris, c. 4; dig and take shell-fish ; and if the proCoulson's Water, 343 ; Hall's Sea Shore prietor of the soil claims an exclusive (2d ed.), 42; Fitzwalter's Case, i Mod. 105; right, he must show a prescription for Warren v. Mathews, G Mod. 73; Ox- controlling the general right at common ford 2. Richardson, 4 T. R. 437; Crichton law. Bagott 2. Orr, 2 Bos. & P. 472 ; V. Collery 19 W. R. 107; Blundell v. Peck v. Lockwood, 5 Day (Conn.), 22. Catterall, 5 B. & Ald. 268 ; Malcom- Compare Blundell v. Catterall, 5 B. & Ald. son v. O'Dea, 10 H. L. Cas. 593. So 263; Mculton v. Libby, 37 Me. 472 ; far as the public right is concerned, Preble v. Brown, 47 Me. 284; Weston there is no difference between the shore z'. Sampson, 8 Cush. (Mass.) 347. of tidal waters and the tidal waters them. These cases, while they may not diaselves. Bract. lib. I, C. 12, sect. 6; Coul. metrically conflict with Bagoit v. Orr, 2 son's Water, 14, 36, 344; Warren v. Bos. & P. 472, and Peck v. Lockwood, Mathews, 1 Salk. 357 ; Ward v. Cres. 5 Day (Conn.), 22, do not sustain the well, Willes, 265 ; Bagott 7. Orr, 2 Bos. doctrine of these two cases, but seem to & P. 472 ; Carter v. Moscat, 4 Burr. make it very questionable, 2163 ; Oxford v. Richardson, 4 T. R. 437; clusive rights for controlling the genHall's Sea Shore (2d Ed.) 174, 191. See eral right at common law. Peck v. Lockwood, 5 Day (Conn.), 22 ; 1. The Queen 7. Keyn, 2 Ex. Div. 63. Commonwealth v. Alger, 7 Cush. (Mass.)
2. Hall's Int. Law, ss. 40-42. 63.
3. I Kent's Com. 28. It is not competent for the inhabitants 4. Fennings v. Granville, I Taunt. of a town to claim by custom jura in ali- 241. eno solo, amounting to profits à prendre. 5. 6 & 7 Vict. c. 79, § 1. Such rights must be prescribed for in a These articles provide that all trans
Waters v. Lilley, 4 Pick. gressions of the regulations in both coun. (Mass.) 145.
tries shall be submitted to the exclusive The inhabitants of a town may by cus- jurisdiction of the tribunal or magistrates tom claim jura in alieno solo, which designated by law, who are to settle all amount to easements, Gateward's Case, differences and decide all contentions be6 Coke, 596; Grimstead v. Marlow, 4 T. tween fishermen of the two countries, and R. 718; Rome v. Ward, 4 El. & Bl. 702 ; the trial and judgment shall take place in Goodman v. Mayor, 7 App. Cas. 633 ; summary manner.
These tribunals are Perley v. Langley, 7 N. H. 233; Post v. always to have power to award dam