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mon law, as they are understood and applied by our courts, a town has no exclusive right of property in a fishery in the tide waters within its jurisdictional limits. Neither has it authority, by virtue of its incorporation, to pass rules and regulations restrictive of the public right; such authority can only be derived by an express act to that effect of the legislature. Towns adjoining, or extending over, a navigable river, may own the soil of the flats, and even of the channel, if a grant has been obtained from the government; but the right to fish still remains a common right in the public; and subject only to such restraints as the government may impose.*
If there are no words in a patent from the government showing an intention to grant an exclusive fishery, it still remains public. A title to the locus in quo was made under a patent to H. P., by which eight islands and two flats of land, lying and being in the Hudson river, were granted to the patentee. The court considered, that as there were no words in the patent showing an intention in the government to grant a fishery, it would be a reasonable interpretation of it to regard it as an ordinary grant
1 Randolph v. Braintree, 4 Mass. R. 315.
2 Palmer v. Hicks, 6 Johns. (N. Y.) R. 133. And see as to authority of towns over tide waters, within their limits, ante, Chap. II. p. 46. Coolidge v. Williams, 4 Mass. R. 140.
* Commonwealth v. Chapin, 5 Pick. (Mass.) R. 199.
of land for agricultural or other purposes, to which land is usually applied; subject, however, to be used both as a common highway and public fishery, until otherwise appropriated by the private owner. A grant from the patentee of an exclusive privilege of fishing for ten years on the flats in question, which were sometimes covered with water, was held therefore not to be a lease of the fishery, but of the right of drawing nets upon the flats, such being the purpose for which they had been used, and this being in the power of the lessor to grant; but the fishery on the flats still continued common.' In Pennsylvania, in which state riparian proprietors have by custom the right of soil in the Susquehanna, Delaware, and other principal rivers to low-water mark, they have not an exclusive liberty to fish in front of their land, the right to fish in these rivers being vested in the state and open to all. Where a legislative act contained a general prohibition of fishing in certain places in a navigable river, and afterwards upon the unfounded representation of an individual, that his own exclusive fishery is included in the act, the legislature by a resolve were induced to suspend the prohibition in respect to his alleged private right, it was held, that such resolve did not amount to a legislative grant of an exclusive right
' Brink v. Richmyer, 14 Johns. (N. Y.) R. 255.
2 Ball v. Slack, 2 Whart. (Penn.) R. 539.
Carson v. Blazer, 2 Binn. (Penn.) R. 475; Shrunk v. Schuylkill Nav. Co. 14 S. & Rawle (Penn.) R. 71.
of fishery; and hence when the act was repealed, the individual had only a common right to fish with others. The legislature unquestionably supposed, that according to the common opinion prevalent at the time of the passage of the resolve, that the memorialist had the sole right to fish in front of his land.' The prima facie right of the public is not rebutted by proof of mere uninterrupted enjoyment of the privilege of fishing for more than twenty years; the mere lawful exercise of a common right for that period never being considered as conferring an exclusive right."
The prima facie public and common right of piscary, is not confined to floating or swimming fish of every description, but extends to shell-fish. And it is not controverted by any authority, that the right of taking shell-fish on the shore, between high and low-water mark, is, in legal presumption, a common right. On the contrary, in England and in this country such a common right is recognized and established. In Bagott v. Orr the court recognize a common right in every subject to take shell-fish on
I Chalker v. Dickinson, 1 Conn. R. 382; Ib. 510.
2 Delaware and Maryland R. Ro. Co. v. Stump, 8 G. & Johns. (Md.)
R. 479; Chalker v. Dickinson, 1 Conn. R. 382; Ib. 510.
* Martin v. Waddell, 16 Peters (U. S.) R. 357, and App. xli; Arnold v. Mundy, 1 Halst. (N. J.) R. 1; Fleet v. Hegeman, 14 Wend. (N Y.) R. 42; Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 376
4 Bagott v. Orr, 2 Bos. & Pull. R. 472.
the shore by digging up the soil. The supreme court of Maine have expressly declared, that the right of piscary is common to all the citizens, and that the right extends to the taking of shell-fish on the shore. In a case in the supreme court of Connecticut, the declaration stated, that the defendant entered upon the plaintiff's land, dug up the soil, and destroyed the sedge, herbage, &c. growing thereon, and took therefrom great quantities of oysters, clams, and other shell-fish. The land described in the declaration, consisted of a tract of upland and about seven acres of sedge flats contiguous, which were overflowed at high water, but which were above lowwater mark, and so as to be entirely overgrown with sedge. It appeared, on trial, that the defendant, at the time mentioned in the declaration, entered upon such flats, and dug up the soil, and carried away a quantity of clams. Notwithstanding the plaintiff established his title to all the soil in question to the satisfaction of the court, yet the court held, that by virtue of the general principle of the presumed common right of fishery, the defendant had the privilege to take shell-fish upon the flats at low water, and in the exercise of it, to dig up the soil.2
1 Parker v. Cutler Mill Dam Corp. 2 App. (Me.) R. 353. Peck v. Lockwood, 5 Day (Conn.) R. 22. By the customary law of Connecticut a riparian has the right of soil between high and lowwater mark so as to entitle him to construct wharves (E. Haven v. Hemingway, 7 Conn. R. 186); but before the soil had been so reclaimed, the right of fishing on the flats, it appears, remains common.
case and that of Bagott v. Orr above referred to, show, that the right of shell-fishery on the shore may be separated from the ownership of the soil therein. It is true, that the ownership of the soil may afford some color or pretext to the claim of the individual to a private or several fishery, yet unless such owner, and the former owners of such soil, have immemorially excluded the public, by means of a several fishery, prescribed and proved, or founded in express ancient grant, the public right, by the common law of England, will prevail.'
As the right of fishing in the sea, and in all inland tide and navigable waters, is primâ facie common to all, it follows that an actual appropriation or mancupation must be made of the fish to complete the right of property; and that when the fish are taken, they become the exclusive property of the taker, unless voluntarily restored to their native element. Bracton and Fleta both lay it down as the common
1 As appears ante, p. 33, and 133. And see Somerset v. Fogwell, 5 B. & Cress. R. 875; Hall on Rights to the Sea, &c. 54. That the modern opinion in England is, that the soil may be in an individual, without giving him an exclusive right of fishery, was the opinion of Chief Justice Tindal, in 1826, when at the bar. "I am of opinion," says he," that the owners of the fishery of O. will not be able, under the circumstances stated in this case, to establish their claim to the soil between high and low-water mark. The wordfishery' does not of itself convey the right to the soil. The soil may be in the crown, or in the lord of the adjoining manor, whilst the fishery is in another person." No action was brought. 28 Lond. Law Mag. 336.