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law that fishes are "animalia quæ in mari nascuntur quæ cum capiuntur captoris fiunt." But the possession of the fish must be complete. were the owners of boats employed
Two persons in fishing, and the boat of one of them cast a fishing seine round a shoal of mackerel, with the exception of a comparatively small opening, which the seine did not quite fill but through which, in the opinion of witnesses, the fish could not escape. The boat of the other person then came through the opening and took the mackerel. It was held, that the first person could not maintain trespass for taking his fish, his possession not having been complete. By the custom of the Greenland whale fishery, the first taker is entitled to the fish, though his harpoon be detached from the line when the second striker strikes, if the fish be so entangled in his line, that he might probably have secured the whale without the interference of the second striker; and if, while the fish is fast to the harpoon of the first striker, another comes up unsolicited, and so disturbs the fish that she breaks from the first harpoon, and then he strikes her with a harpoon himself and secures her, the fish continues the property of the first striker.3
1 Bract. L. 1, c. 12, s. 10; Fleta L. 3, c. 2.
2 Young v. Hichens, 1 Dav. & M. R. 592.
3 So decided, in England, in an action of trover for a whale, in Hogarth v. Jackson, 1 Mod. & Malk. R. 56, and 22 Eng. Com. Law R. 247; S. C. 2 Carr. & Payne, R. 595, and 12 Eng. Com. Law R. 271.
But the rule as to the abandonment of fish taken by being restored to their original element, though well settled as it appears in its application to floating fish, does not in all cases apply to shell-fish. Oysters, for instance, may be taken and thus become the property of him who takes them, and if he plants them in a new place flowed by tide water, visibly denoted, and where there are none naturally, and for his own particular benefit, it is not regarded as an abandonment of his property in them. The important question, whether oysters planted by an indi
The following note is appended to this case: - Skinner and Others v. Chapman and Others, (Ex relatione Alderson, one of the judges) tried at York at the Lent assizes, 1827, which also was an action of trover for a whale, the same law was stated with respect to friendly harpoons, but the case turned upon another question. It appeared that while the fish was unquestionably fast, the boat of the defendants came up, and the crew struck the fish with a lance; and afterwards, with a harpoon, and finally secured it. The blow of the lance was of no service towards securing the fish, but it made it struggle violently, and in the struggle the harpoon of the plaintiffs was disengaged; but it did not clearly appear, whether this took place before or after the harpoon was struck by the crew of the defendants. Bayley, J., left it to the jury to say whether the harpoon of the plaintiffs was fast when the harpoon of the defendants was struck; and, if they thought it was not, whether the plaintiffs could have secured the fish if the lance of the defendants had not been struck; saying, that he was clearly of opinion that when one party has struck an animal, if another comes unsolicited, does an act which prevents the first striker from killing it, and then kills it himself, he kills it, not for his own benefit, but for that of the first striker. The jury found that the fish was loose when the harpoon of the defendants was struck; but that she had became so in consequence of the blow given by their crew with the lance; on which the verdict was entered for the plaintiffs.
vidual, clearly designated and marked out in a bay, or arm of the sea, thus became the property of him who planted them, arose in New York, and it was decided affirmatively. In this case, the oyster fishery belonged by virtue of an early grant exclusively to the inhabitants of the town of Oyster Bay, and it was determined, that one individual who was an inhabitant, had, in the manner above mentioned, acquired a sole right against the others. The plaintiff had gathered the oysters when small, some two years before the trial, and planted them in a bed in the bay, about fifteen rods from the shore. None grew there at the time, nor had any grown there outside the bed since. It was admitted, that a qualified property in the oysters was acquired by the plaintiffs; but it was contended, that the planting them in the bay, where a common right of taking them existed, was an abandonment of them. The court were of opinion, that the case fully disclosed, that no such intent of abandonment in point of fact existed; but they, on the contrary, considered, that the oysters were deposited in the place marked out by the owner of them, with reference to an ulterior use. No oysters, the court said, of the natural growth of the bay, had been found there for three years, and the bed interfered with no other sort of fishing, for either profit or pleasure; and they declared the case to be one which presented a deliberate and wanton violation of private property acquired by care and
industry, under the pretext of exercising a right in common.1
Dredging for oysters in the bed of a common navigable river is illegal under 13 Rich. II. stat. 1, ch. 19. Therefore, where the declaration was in trespass quare clausum fregit; plea, that the locus in quo was part of a common navigable river, in which the public had a right to fish for oyster-spat; replication, that oyster-spat was the spawn or young brood of oysters, unfit for the food of men; rejoinder, that the public had the right of fishing for oyster-spat in a public river; it was held ill, on demurrer.2
It is, perhaps, scarcely necessary to observe, that although the right of fishery in tide and navigable waters, is a public and common right, and that hence when fish are taken, an absolute property in them is acquired by him who first takes them, riparian proprietors have the exclusive right to draw seines with fish on their own land. If an island, or a rock in tide water, be private property, no person, but the owner thereof has the right to use it for the purpose of fishing.*
Fleet v. Hegeman, 14 Wend. (N. Y.) R. 42. And see Rogers v. Jones, 1 Ib. 237.
2 Mayor of Malden v. Woolvet, 4 Per. & D. R. 26. The stat. of 13 Rich. 2, and 17 Rich. 2, c. 9, for the preservation of the fry or brood of fish are still in force, and the spawn of oysters, called oyster-spat, is within the provisions of these acts. Mayor, &c. v. Woolvet, 12 Ad. & Ell. R. 13.
3 Lay v. King, 5 Day (Conn.) R. 72; Hart v. Hill, 1 Whart. (Penn.) R. 124; and see post, Ch. VI.
* Commonwealth v. Shaw, 14 S. & Rawle (Penn.) R. 9.
It is said by Lord Hale, in speaking of the tide waters of England, that although the king has "the primary right of fishing, in the sea, or creeks or arms thereof, yet the common people of England have regularly a liberty of fishing in the sea, or creeks or arms thereof, as a public common of piscary, and may not without injury to their right, be restrained of it, unless in such places, creeks or navigable rivers, where the king or some particular subjest, hath gained a propriety exclusive of the common liberty." The principle here stated, as to the "public common of piscary belonging to the people " has not been questioned either in England, or in this country. The point upon which different opinions appear to have been expressed, in both countries, is whether, since Magna Charta, " either the king, or any particular subject, can gain a propriety exclusive of the common liberty." In Warren v. Mathews, Ch. J. Holt says, "Every subject, of common right, may fish with lawful nets in a navigable river, as well as in the sea; and the king's grant cannot bar them thereof." Mr. J. Bayley, in Blundell v. Catterall, says, 3 that many of the king's rights are, to a certain extent, for the benefit of his subjects, and that "such is the case with the sea, in which all his subjects have the right of navigation and of fishing, and the king can make no modern grants in
1 Treatise De Jure Maris, Harg. Tracts, 11.
2 Warren v. Mathews, 6 Mod. R. 73; S. C. 1 Salk. R. 357. Blundell v. Catterall, 5 B. & Ald. R. 91; App. p. i.