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5. The riparian proprietor has the sole right, unless he has granted it, of fishing with nets or seines in connection with his own land. Thus, in Lay v. King, in the supreme court of errors of Connecticut, it was expressly held, that an adjoining proprietor on the river Connecticut, near its mouth, had an exclusive right to draw a seine on his own land; though the right of fishery in that part of the river was free and common to all the citizens of the state. This exclusive right is considered to give all the owners of land on the margin of the river Schuylkill such great advantages, that it has been hardly worth while for any other persons to attempt to fish with seines. The right of property on front of that river is therefore valuable, and is called a fishery, and one which, in some spots, is rented for a considerable sum annually.' Where certain persons had landed, with their nets, on the bank of a navigable river, and had, at various times, dressed and improved the landing place, it was held, that it was properly left to the jury to presume a grant of the right of landing for that purpose, by the owner of the shore. It was remarked in this case, by Burrough, J., that every act done by the plaintiffs for forty-six years, on the locus in quo, would have been a trespass, if they had not a right of landing with their nets there ; but from 1774, to the present time, all these acts had been done openly; and the only question was, whether there were any facts from which a judge could leave it to a jury to presume a grant of the right in question; and undoubtedly, the circumstances were such as could scarcely have occurred without the knowledge of the owner.
1 Hart v. Hill, 1 Whart. (Penn.) R. 138 ; Coolidge v. Williams, 4 Mass. R. 140; Brink v. Richtmyer, 14 Johns. (N. Y.) R. 255.
* Lay v King, 5 Day (Conn.) R. 72.
3 Per Tilghman, C. J., in delivering the opinion of the court in Shrunk v. Schuylkill Nav. Co. 14 S. & Rawle (Penn.) R. 71.
6. The right of landing with, and drawing, seines upon another's land, is undoubtedly an easement, and therefore, as in the case just above referred to, may be acquired by prescription, like a right of way. Such, however, is not the case with the erection of a building on the land of a riparian proprietor, like a fishing hut, for that is an exclusive appropriation of the land. An action of trespass quare clausum fregit was brought for entering and digging up the soil and erecting a hut on the plaintiff's close, in
Gray v. Bond, 2 Brod. & Bing. R. 667, and 6 Eng. Com. Law R. 368. At all the fisheries in the river Tweed, the workmen exercise the right of walking over and along the adjoining shore, while drawing their nets from the river. They also exercise the right of drawing their nets on the adjacent banks, called “a net green.” But this right is considered as a mere easement, which may be presumed by twenty years' enjoyment. 28 Lond. Law Mag. 337; and see 3 Mees. & Welsb. (Exr.) R. 229 ; 4 Ib. 256, 496 ; 5 Ib. 233; 6 Ib. 795. Acts of Parliament have from time to time been passed in England to give parties engaged in the herring fisheries a right to use the adjoining lands in certain cases. 1 Jac. I. 23; 29 Geo. II. c. 23, s. 2 ; 30 Geo. II., c. 30, s. 7; 11 Geo. Ill. c.31, s. 11.
2 Hart v. Hill, 1 Whart. (Penn.) R. 138.
New Utrecht, in King's county, in the state of New York. The defendant offered evidence in support of a custom, in the inhabitants of New Utrecht, and in citizens of the state, to fish in the bay adjoining the close, and to use and occupy the shore for that purpose. The court considered, that if the facts in support of the custom were admitted, they did not amount to a justification in erecting the hut, as the right to fish in any water gave no power over the land. The erection of the hut was a mark of title, and of exclusive enjoyment, and that prescription in no case would give a right of erecting a building on another's land. The principle, the court held, was the same, whether the right claimed be considered as strictly a custom, or prescription, as the only material distinction between them is, that one is local and the other personal in its nature; and prescription only applied to incorporeal hereditaments. Upon this subject the common law is at variance with the civil law, for by the latter any individual had permission to erect a fishing hut on the shore to subserve the purpose of fishing - cuilibet liberum est casam ibi
ponere in quam se recipiat.
Cortelyou v. Van Brundt, 2 Johns. (N. Y.) R. 357. See also Jacobson v. Fountain, Ib. 170, and the opinion of Holroyd, J., in Blundell v. Catterall, App. p. xxi. A colony law of Massachusetts of 1646, reciting, that foreign fishermen had been accustomed to use unsettled harbors and places, and to take wood and timber at their pleasure, forbids fishermen to enter on lands granted to any town or person, without leave, unless employed by an inhabitant. 2 Dane's Abr. 707.
* Inst. L. 2, t. 1, s. 1. And see ante, Chap. I. p. 18.
OF PURPRESTURES, WHARVES, QUAYS, PIERS,
In the preceding chapter we have considered the rights of the public in tide waters, and in the soil and shores thereof, as they affect or not, the rights of riparian proprietors, as such ; and we now proceed to consider the rights of the latter, by virtue of their riparian ownership, as they affect or not, the rights of the public.
From the period of the first settlement of this country, to the present, the necessity of wharves, quays, piers, &c. has existed for the loading and unloading of boats and vessels ; and for such purposes, the appropriation of the soil below the ordinary high-water mark, by extraneous additions to the upland, has been found indispensable. It is well known, that in the respective states, which lie along the margin of the Atlantic, there are many places where the tide ebbs and flows, (and which, therefore, according to the strict rule of the common law, are public,) that are of no navigable use, and in their original condition, without the aid of art and industry, afford to the public not the slightest advantage of any kind. Flats, marshes, and other ground, which are covered with water only at full tide, are
places of this description. The detriment which the community receive from the recovery, private appropriation, and occupation of such soil, is obviously but little, if any. So far from it, the result has proved that the public are thereby, in a very considerable degree, the gainers; as they are thus accommodated with landing places, which are essential to every commercial depot, and are also accommodated with new thoroughfares, streets, avenues, &c. Indeed, among the multitude of improvements and works of art of a public nature, which command observation in the towns and cities of the Atlantic states, are the artificial embankments which have been made by enterprising individuals, or corporate companies, in and upon the soil which, in its natural condition, would, at low water, have exhibited nothing more attractive or valuable, than the offensive spectacle of an extensive waste. It is a practical truth, that the mud-flats in the delta of the river Mississippi, and around the Gulf of Mexico, must be reclaimed for the furtherance of navigation. A part of the city of Mobile stands on land once subject to the flow of the tide ; and at New Orleans, where the tide ebbs and flows, navigation is facilitated by similar means.
By the civil law, to repair and strengthen the banks of public rivers is permitted as being most
See opinion of Catron, J., in Pollard's Lessee v. Hagan et al. App.