and has remained absolute in the States. Pollard v. Hagan, 3 How. 212; Gough v. Bell, 1 Zab. 156.

If, then, the right of fishing on the shores of the sea, including the right to take shell-fish from the soil, was a common law right, extending to the English colonies generally, and especially to Massachusetts, the question is, whether anything has been done by the colonial or provincial government, or by the government of the Commonwealth, to impair or abridge that right.

66

Though the laws of the colony of Plymouth have been published within a few years, we believe that they contain no provision bearing on this subject. But the colony ordinance of 1641 is relied on, and we believe, mainly relied on, as giving to owners of land, bounding on tide waters, propriety," or right to the soil, so far as the tide ebbs and flows, where it does not ebb more than one hundred rods. The premises, in which the trespass in this case is assigned, lie in the town of Duxbury, within the limits of the old colony of Plymouth, and were not within the territorial jurisdiction of the colony of Massachusetts, when the ordinance in question was passed; and therefore that ordinance, as positive law, did not, proprio vigore, extend to this territory. But the great principle established by the colony ordinance, extending the right of soil of the upland owner to low-water mark, has been held to extend by long usage to Maine: Storer v. Freeman, 6 Mass. 435; Codman v. Winslow, 10 Mass. 146; Lapish v. Bangor Bank, 8 Greenl. 85; to Plymouth Barker v. Bates, 13 Pick. 255; and to Martha's Vineyard: Mayhew v. Norton, 17 Pick. 357; though all of these were under other territorial governments at the time the colony ordinance was passed. We have no doubt, therefore, that the plaintiff, as riparian owner, has the same proprietary interest in the soil as if it were within the old territory of Massachusetts.

But although the riparian proprietor has an interest in the soil, it is not an absolute and unqualified ownership; but so long as flats so situated are left open, unoccupied by any wharf, dock, or other enclosure, so long as the tide ebbs and flows over them, they so far retain their original character and remain public. This double rule, to which the territory lying between high and low water mark may be subject, is not a novelty in the law, but an old and recognized principle. In Sir Henry Constable's Case, 5 Co. 107, it was held that when the tide was up, the place, and acts done upon it, were within the jurisdiction of the admiralty; when bare, being within the body of the county, the common law had jurisdiction. It is quite certain, we think, that the mere fact, that the jus privatum, or right of soil, was vested in an individual owner, does not necessarily exclude the existence of a jus publicum, or right to the fishery in the public. The rule, established by usage and judicial decision, has been, that although the ordinance transfers the fee to the riparian owner, yet, until it is so used, built upon, or occupied, by the owner, as to exclude boats and vessels, the right of the public to use it is not taken away; but that whilst open to the natural ebb and flow of

the tide, the public may use it, may sail over it, anchor upon it, fish upon it, and by so doing commit no trespass, and do not disseise the owner. Austin v. Carter, 1 Mass. 231.

This court are therefore of opinion that where flats are left wholly open to the natural ebb and flow of the tide, unoccupied and uninclosed by the upland proprietor, the right of fishing on the part of the public is not excluded; and that the law, in this respect, makes no difference between shell-fish, and swimming or floating fish. See Parker v. Cutler Milldam Co., 7 Shepl. 357.

The only remaining question is, whether there is any other Statute provision in force, which may take away or change the right, claimed by the defendants, to take clams in Duxbury. By Rev. Sts. c. 55, §§ 11, 12, all persons are prohibited from taking oysters from their beds, unless by permits there specified, with an exception that every inhabitant may take oysters, without a permit, for the use of his family. The shell-fish taken in this case were not oysters, nor does it appear that they were not taken by the defendants for the use of their families. Section thirteen prohibits the taking of other shell-fish, but it is limited to certain towns, of which Duxbury is not one. It was a revision of former particular Acts. All these also contain a proviso that they shall not prevent any fisherman from taking any quantity of shell-fish he may want for bait, not exceeding seven bushels at one time.

With these views of the law, the court are of opinion, upon the facts stated, that the action cannot be maintained.

Plaintiff's noneuit.

PACKARD v. RYDER.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1887.

[Reported 144 Mass. 440.]

TORT, for breaking and entering the plaintiff's close, in Bourne, and catching and carrying away from the waters within the plaintiff's premises ten trout. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance, as follows:

It was agreed that on April 8, 1886, the defendant landed upon the plaintiff's flats, having come thereto by water, and landing from his his boat. Thereupon, the tide being out, the defendant walked along the narrow strip of land or soil between high-water mark and low-water mark, in part consisting of shingle and gravel, and also in part covered with sedge grass, for the purpose of fishing; and he did, while so standing or walking, fish; that he was forbidden by the plaintiff, but con

1 See Porter v. Shehan, 7 Gray, 435; Proctor v. Wells, 103 Mass. 216.

tinued so to stand, walk, and fish, claiming the right to do so; that the waters facing said shore are the open, navigable, tidal waters of Buzzard's Bay; that the damage done to the plaintiff's close was small; and that the defendant walked at times, in fishing as aforesaid, within one hundred rods of high-water mark, but he at no time went above high-water mark.

On these facts the judge found for the plaintiff; and the defendant alleged exceptions.

C. F. Chamberlayne, for the defendant.

H. P. Harriman, for the plaintiff.

HOLMES, J. It is now well settled that there is a public right to take shell-fish on the shore and flats below high-water mark and within one hundred rods of the upland, until the flats are enclosed by the proprietors. Weston v. Sampson, 8 Cush. 347; Dunham v. Lamphere, 3 Gray, 268, 271; Lakeman v. Burnham, 7 Gray, 437; 9 Gray, 526, 527; Commonwealth v. Bailey, 13 Allen, 541, 542; Proctor v. Wells, 103 Mass. 216; Commonwealth v. Manimon, 136 Mass. 456, 458. But the right to take shell-fish is asserted on the single ground that the general right of fishing extends to and includes it. Weston v. Sampson, and Lakeman v. Burnham, ubi supra. The cases cited show too plainly for further discussion, that, if there is a right to go upon flats and to disturb the soil for clams, a fortiori there is a right to pass over them for fishing, in the stricter sense of the word. The defendant did not set nets, or create any permanent obstruction, as in Duncan v. Sylvester, 24 Me. 482.

Exceptions sustained.

NOTE. In some States the owner of the upland has the fee of the shore, Maine: Lapish v. Bangor Bank, 8 Greenl. 85; New Hampshire: Clement v. Burns, 43 N. H. 609, 621; Massachusetts: Anc. Chart. 148; Comm v. Roxbury, 9 Gray, 451, 514 note, et seqq.; Lichfield v. Scituate, 136 Mass. 39; Virginia: Code, c. 101, § . In other States the owner of the upland has the right to fill up front-lying flats, and the land filled in becomes his fee,- Rhode Island: Providence Steam Engine Co. v. Providence Steamship Co., 12 R. I. 348, 363; Connecticut: Chapman v. Kimball, 9 Conn. 38, 41; Mather v. Chapman, 40 Conn. 382; New Jersey: Revision, Wharves, §§ 1, 2, 8.

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See as to New York: Gould, Waters, § 175; Pennsylvania: Tinicum Fishing Co. v. Carter, 61 Pa. 21; Maryland: Gould, Waters, § 176; Florida: Digest of Laws (1881), c. 134; California Civil Code, § 830; Oregon: Misc. Laws, c. 29, § 69 et seqq.

B. Rivers and Lakes.

NOTE. In the Case of the Royal Fishery of the Banne (1610), Davies, 149, it was resolved by the Irish judges "that the River Banne, so far as the sea flows and ebbs in it, is a royal river; and the fishery of salmon there is a royal fishery, which belongs to the king, as a several fishery, and not to those who have the soil on each side of the water. But on the other part it was agreed that every inland river not navigable, appertains to the owners of the soil, where it hath its course, 28 Ass. p. 93, and if such river runneth between two manors, and is the mear and boundary between them, the one moiety of the river and fishery belongeth to one lord, and the other moiety to the other."

YOUNG'S CASE.

NISI PRIUS BEFORE HOLT, C. J. 1698.

[Reported 1 Ld. Raym. 725.]

Ir was ruled at nisi prius at Westminster, the first sitting after Michaelmas Term, 10 Will. 3, that every man of common right may justify the going of his servants or of his horses upon the banks of navigable rivers, for towing barges, &c., to whomsoever the right of the soil belongs, and if the water of the river impairs and decreases the banks, &c., then they shall have reasonable way for that purpose in the nearest part of the field next adjoining to the river. And he compared it to the case, where there is a way through a great open field, which way becomes founderous, the travellers may justify the going over the outlets of the land not inclosed next adjoining.1

BALL v. HERBERT.

KING'S BENCH. 1789.

3 T. R.

Vrumsmass for breaking Reported a 7. 8. 253. istifs close, being part of

an artificial bank adjoining to the River Ouze, at Wiggenhall, in Norfolk, and treading down the grass with men and with horses, and fixing lines, &c., to certain barges, and drawing and towing those barges.

Plea, that the port of King's Lynn in the said county hath been immemorially a common and public port for all the king's subjects; and that the River Ouze hath been immemorially a public king's highway and navigable river, where the tide flows and reflows, leading between the port of King's Lynn and the village of Stow in the same county, to wit at Wiggenhall, for boats, barges, and lighters, &c., at all times of the year, &c. That the close in which, &c., hath been immemorially part of the banks of and adjoining the said highway and navigable river. That the defendant at the time when, &c., was possessed of the several boats, barges, and lighters, in the declaration mentioned, which were

1 See The Queen v. Cluworth, 6 Mod. 163.

laden with goods and merchandises, and passing up and down the said highway and navigable river, and going to and from the said port of King's Lynn; by reason whereof, &c., he entered with his said horses, &c., and drew and towed his said boats, &c., as stated in the declaration. To this there was a general demurrer and jouder.

Graham, for the plaintiff.

Wilson, for the defendant.

LORD KENYON, CH. J. I remember when the case of Pierse v. Lord Fauconberg [1 Burr. 292] was sent here from the Court of Chancery, it was the current opinion of Westminster Hall that the right of towing depended upon usage, without which it could not exist. It has been said that this right now in question is of great importance to the navigation through several counties; now if this navigation has been carried on for a series of years, and this right of towing constantly exercised, there would be abundant usage on which it might be supported. But that is abandoned, and the defendant resorts to the common law right. Now common law rights are either to be found in the opinions of lawyers, delivered as axioms, or to be collected from the universal and immemorial usage throughout the country. That the right now in question is not to be collected from the unanimous current of authorities, is manifest. Very little is to be found in the books upon the subject, the whole of which down to his time Lord Hale has collected; and after commenting upon it, he seems to have formed an opinion against the right; for he says that, where private interests are involved in the question, they shall not be infringed without a satisfaction being made to the parties injured. But on what ground can a common law right stand, if satisfaction is to be made for the enjoyment of it, and that satisfaction not ascertained? It must resolve itself into an agreement between the parties, and cannot be considered as a right to use the banks indefinitely. And some of the passages in Lord Hale, which seem to favor the common law right, are rather applicable to banks of the sea, and to ports; and it is part of the king's prerogative to create ports, which was lately exercised at Liverpool. Then is this bottomed on immemorial usage: the right is not claimed on one side or the other as is most convenient, but on both sides of the river. But that is directly contrary to common experience; for if we look at any of the great public rivers, we shall find that it is not used, although it would be highly convenient to the persons using the navigations. On the contrary, the navigators are obliged at several places to pass from one side of the Thames to the other, with great inconvenience and delay; that is the case by the Duke of Montague's gardens between Richmond and Kew, and in various other parts. Such is the right on that river, the quantum of which is ascertained by the usage. That there is such a custom on most of the navigable rivers, no person doubts, but still the right is founded solely on the custom; but here the claim is set up without any custom at all. The authorities which have been mentioned are very few. The case in Lord Raymond, 1 Ld. Raym. 725, though