have the exclusive right of fishing opposite to their land, to the II. middle of the river: 20 Johns. R. Hooker v. Cummings; and Merrit v. Brinkerhoff, 306; 15 Johns. R. 213, Platt v. Johnson. 4. So granting an undivided share of a stream to A, does not empower him to use the stream to the injury of others jointly concerned in it; Vandenburgh v. Van Bergen, 13 Johns. R. 212. The public fishery does not give fishermen a right to draw their nets on the flats; 14 Johns. R. 255, Brink v. Richtmyer. CH. 68. Art. 1. Con. 5. No person has a right to divert a water course on his 4 Rand. 58–67. own land, so as to turn it from the land of his neighbour lower down the stream. 6 6. 5 Barn. & Cres. 875-886, Held, where a subject is owner of river or fishery in a navigable river, where the tide. flows and reflows, granted to him, as must be presumed before magna charta, by the description of separalis piscaria,' that is, an incorporate, and not a territorial hereditament, and a term for years in it, must be by deed: 2. It seems that the owner of a several fishery, in ordinary cases, and where the terms of the grant are unknown, may be presumed to be owner of the soil. § 7. In New York, Gould v. James, 6 Cowen, 369-376, error; Gould, the plt., brought trespass against James, for entering his close at Lloyd's Neck, in the town of Oyster Bay, (Long Island) and catching, taking, and carrying away oysters. Plea, that the locus in quo, was at the time when, &c., a navigable river or arm of the sea, and a free fishery for any of the citizens of this State: the replication took issue on the facts; the plt. claimed the locus in quo, as belonging, in fee simple, to the inhabitants of Lloyd's Neck, and proved the plt. held exclusive possession of a farm under a lease from a tenant, by the curtesy, situated on said neck, and adjoining Lloyd's Harbour: so defined his possession on the flats. Three points decided: 1. Said inhabitants claiming by prescription an exclusive right of fishing for oysters opposite their respective farms, in said arm of the sea, and one of them being plt., as above, held, another of them interested as a remainder-man in a farm adjoining the locus in quo, was a witness for the plt. His proving the plt's. prescriptive right did not prove his own: 2. The inhabitants of Huntington claimed that the locus in quo was a free fishery for them. The deft., one of them, justified as above, held, the others were witnesses, though liable to actions for fishing there if he failed: 3. As to the right, the true principles are found in Carter v. Murcot; cited a. 2, s. 7. The law is the same in New York and England. 3 con. These exceptions: 1. Tide waters, flats, fish, &c., ART. 2. therein remain, as at common law in New Hampshire, &c. See Con. a. 9, the several States. II. CH. 68. Art. 2. If a town grant to A the privilege of fishing, condition the town shall grant no further privilege, but it grants a privilege to B, the town can have no action against A for the purchase money, though the sale to B be void, and though A join B in the use of his privilege. 4 Pick. 275-277. § 5 con. But it has been decided that bathing in the sea, &c. is not a common law right. Blundell v. Catterall, 5 Barn. &. Ald. 91. Nor will the court presume a grant of soil to a town under navigable waters. It must be proved. 6 Johns. 133. New Jersey. Rights in rivers, &c., have been much contested, and finally settled: Post v. Munn, 1 South. 61: held, in a navigable river, in which the tide ebbs and flows, the right of navigation is paramount to the right of fishing. Hence, the master of a vessel is not bound to change his course or slacken his sail for the convenience of a fishing net. Arnold v. Mundy, 1 Hals. 1-94; in this important and late case, reported in 94 pages, several important matters are decided. 1. Navigable rivers, where the tides ebb and flow, the ports, bays, coasts of the sea, including land and water thereon, for passing and repassing, navigation, fishing, sustenance, and all other uses of the water and its products, are common to all the people of New Jersey. 2. By the grant of Charles II., to the Duke of York, those royalties, of which the rivers, ports, bays, and coasts were part, passed to the duke, as governor of the province, exercising the royal authority, and not as the proprietor of the soil, and for his own use: 3. Upon the revolution all those royal rights vested in the people of New Jersey, that is, the rights of government: 4. The proprietors of New Jersey did not under his grant, take such a property in the soil of navigable rivers in the State of New Jersey, that they could grant several fisheries therein: 5. A person who plants oysters in the bed of a navigable river below low water mark, has not such a property therein as to enable him to maintain trespass against a person taking them away, though the oyster bed is adjacent to his own shore. [Note, his bed was on the channel of a tide river.] 6. A grant of land bounded on a fresh water stream or river where there is no tide, extends ad filum aque; but a grant bounded on a navigable river, extends to the edge of the water only. Navigable river, here must mean tide river. It is said, the duke did not grant the soil; and for a good reason; the king, the origittal proprietor of it, did not grant it to him hence the duke (2 above) had it not to grant, and his mere right of government, in the resolution, passed, of course, to the State. This grant to the duke, is very different from the charter of W. & M. stated sect 3. above, on which I know of no judicial construction as yet made, as it now respects the different States in the Union. By the reservation in this charter, rights II. CH. 68. vested in English subjects generally, to fish in all the tide waters. See said third section. See much of the learning of this chapter repeated, and the authorities again cited in part, in the case of Jennings, 6 Cowen, 518-554. § 7 con. 17 John. R. 195, the People v. Platt & al. where a fishery belongs to several heirs they divide the profits by each taking his number of fish, and 20 John. 90, New York, adopts the common law doctrine, as to rivers not navigable; same in Connecticut, Adams v. Pease, 2 Conn. R. 481, and 5 Day, 72, a proprietor of land adjoining on Connecticut river, has an exclusive right to fish on his own land; but the right of fishing in that and other navigable rivers, is free to all. Lay v. King. This must mean tide waters, for in Adams v. Pease, cited above, it was held that owners of land adjoining navigable rivers above tide water, have the exclusive right of fishing, and the community have a right of passing them as highways, with every kind of water craft. Art. 2. Con. The right of fishing for shell fish on the land of an individ- Peck v. Lockual, between high and low water mark, is a public right, and wood, 5 Day, does not belong exclusively to the owner of the land. 21. 217. The bed of a navigable river and the water thereof, are Pitkin v. Olmcommon to all the citizens of the State; and where any per- sted, 1 Root. son clears a fish place in the bed of the river and continues to occupy it, he acquires an exclusive right to fish in that place so long as he keeps up his occupation in the proper season for fishing, and 2 Conn. R. 584, a special right to the use of the water of a river, different from the general right, may be acquired by an adjoining proprietor, by grant, or by such length of time as will furnish presumptive evidence of a grant, and such occupancy or enjoyment need not have been adverse to those affected by it. The English and American rule is high water mark, of ordinary tides. Lord Hale, several places. Storer v. Freeman, &c. s. 4; Cortelyou v. Brundt, 2 John. R. 357, before cited; 2 Bl. Com. 14, this seems to be the true rule; 1 Serg. & Lowb. 240, &c., Miles v. Rose; 2 Conn. R. 481. 369-373. When lands are conveyed as bounded on a river, it extends 2 N. H. Rep. to the centre of the stream; islands as in other such cases; nor can the parol declarations of former owners of the premises be admitted to contradict this construction of the deed of conveyance; but it may be shown by parol evidence, that the quantity of water was such on each side of an island in the river, as to be called by the name of the river; and then as a latent ambiguity, it may be explained by other testimony what II. CH. 68. the parties probably intended by the expression used in the Art. 2. deed; Claremont proprietors v. Carlton. Con. v. 10. Trespass for taking and carrying away mill logs. Held, Rivers and streams above the flood of the tide, if they 3 Greenl. 269- have been long used for the passage of boats, rafts, and timber, 275, Berry & al. in error . are public highways, and, like other highways, are to be kept open and free from obstruction: 2. If the property of a person happen accidentally, to lodge on the land of another, or in waters of which he has the control as private property, the latter, in removing it from the premises, is bound to do it with as little injury as possible. Carter. 2 N. H. Rep. 2 Barn. & Cres. The conveyance of a part of a stream of water running 255, Bullen v. between certain termini, passes a right to use all that part of the Runnels (see ch. 58, a. 2, s. stream between those termini, and so much interest in the soil 17.) under the water, as is necessary to the use of it. Held, flow910-917, Wil- ing water is publici juris, and an individual can only acquire a liams v. Mor- right to it by appropriating so much of it as he requires for a beneficial purpose, and therefore plt. (who complained the deft's. new erected dam disturbed the stream) could not recover damages for the mere erection of his dam, but the plt. was bound to allege and prove that he had sustained an injury from the want of a sufficient quantity of water. land. ART. 3. 360, Lufkin v. See indictment for a nuisance in a river, ch. 208, a. 12. § 14 con. The king holds them in trust for his subjects, especially so in his Colonies, and when by his charters he granted tide waters and soils under the same, to the Colonies, the legislatures thereon acquired his powers, and they, and the Colonists, all the rights of property and legislation over the same, to be exercised as in a. 3. The 4 con. This law of 1641, does not apply to a grant of thatch bank, or land covered by the sea at high water. 3 Pick. 357-plt's. grant was of a thatch lot; he sued the deft. for digging Haskell. clams bedded on his lot and the channel. Held, also, the inhabitants of the town were not witnesses: see vol. 3, p. 415, (ch. 90, a. 4, s. 3.) ART. 4. § 3 con. In this case the true course was taken; it was left to the jury under the direction of the court, as a fact, if the deft's. wharf was an encroachment on the navigation privilege or not, where public and private rights may interfere or not, it is law the private must yield; but in collision, or not, beyond law and usage, it is a question of fact, depending on many circumstances. A wharf that incommodes the public cannot be erected by a corporation, though it is to preserve a navigable river, and owns the soil. The navigation is a superior right, but if incommoded, or not, is a question a jury must so decide. This was the question, and these the points in Rex v. Lord Grosv- II. CH. 68. enor and others, 3 Serg. & Lowb. 453, and 2 Stark. 510, Art. 4. was an indictment, and the defts. were permitted to attempt to prove to the jury their embankment was a benefit to the navigation of the river, (Thames) but the whole evidence proved it was a nuisance, and made the navigation less convenient, &c. and 1 Dal. 150. Con. § 7. Land not appurtenant to land. Trover for 2 barges 8 Barn. & Cres. distrained by the deft. on the river Thames, lying between 141. high and low water mark, and attached by a rope to a wharf as to which the rent was due. Special verdict stated that the exclusive use of the land between high and low water mark, whether dry, or covered with water, was demised as appurtenant to the wharf, but that the land itself between high and low water mark, was not demised. Held, if from this finding it was to be inferred that the exclusive use was appurtenant, it would be a mere easement or privilege, out of which no rent could issue, and if the finding meant the land between high and low water mark was appurtenant to the wharf, it was the same as finding one piece of land was appurtenant to another, which, in point of law, could not be. § 10. Added further authorities: 17 John. 195; 20 id. 90; ART. 6. Hop. Ch. R. 416-421; 3 Greenl. 74-76; Ch. 79, a. 2, s. Con. 9, 10, how far usage gives public rights in rivers. 8. See also acts of Congress as to the fisheries, July 29, ART. 8. 1813; February 9, 1816; April 4, 1818; March 3, 1819. Con. In these long acts important provisions are made. 302, Wait v. Held, the shipping papers founded on the aforesaid several 4 Pick. 298acts of Congress, do not conclusively determine who are the Gibbs & al. owners, nor with whom the contract is made; but a seaman may have his remedy for his share of the fish taken against all the owners, and he may show those he sues to be owners by other evidence than the vessels papers, and by parol and other evidence. By act 13, Congress sess. 1, ch. 2, it is provided, that nothing therein contained, shall prevent any fisherman from having his action at common law, for his share or shares of the fish or the proceeds thereof. Con. 2. On the general principle the king in his charters es- ART. 9. tablished in New England, the citizens of one State have a right to fish, &c. in the tide waters of other States, unless excluded by something special in those charters, or by Colony or State laws. In this respect we may take the States in the usual order. Maine is in the same situation Massachsetts is. |