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, § 5.

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.

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 navi. gable, 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 he 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.

[Reported 3 T. R. 253.]

TRESPASS for breaking and entering the plaintiff's 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 joinder.

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 authori ties, 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

before an eminent judge, was only a nisi prius decision. It is a short note, vid. 1 Burr. 36, taken by Lord Raymond when he was very young; not even the name of the case is given; and it does not appear what the Case was, or how the question arose: I rather think the principal question there was whether, when a right of passage was ascertained, and hat was founderous, the party entitled might not go on the adjoining I and. However, at most it is only an opinion delivered at nisi prius; Opposed to which is that of Lord Ch. J. Willes in the case cited. And Lord Hardwicke's opinion was against the right, as is evident from the manner in which he sent the case of Peirse v. Ld. Fauconberg into this court, which was very fully considered. Therefore, on these authorities, on the silence in the books respecting this common law right, and on account of the extreme inconvenience to which individuals having lands adjoining the public rivers would be subject, I cannot bring my mind to say that the defendant's justification can be supported. Perhaps small evidence of usage before a jury would establish a right by custom on the ground of public convenience; but the right here daimed extends to every bank of every navigable river throughout the kingdom.

ASHHURST, J. I am of opinion, first, that no such general right exists as that claimed; and, secondly, if any qualified right could be supро rted, the defendant's plea is not adapted to it. As to the first, it seems extraordinary (if there be any such right) that it is not defined with greater certainty in any of our law books. For it is a right that

in its nature must, if it existed, be subject to some restrictions; as that it should be exercised only on one, and that the most convenient, side of the river; for it would in many instances be a very oppressive right if it could be claimed on both sides. The state of property on the Thames is strong evidence to show that no such general right exists; for there is no instance in any part of the banks of that river where the right is claimed on both sides; and yet the defendant's claim would go to establish a right on both sides. The instances which have been mentioned where the right of towing has been given by several Acts of Parliament, also negative the idea of general right; for we are not to suppose that rights should from time to time have been given by the Legislature which existed before; and it is no answer to say that such provisions were inserted ex abundanti cautela. And the reason assigned by the defendant's counsel why such a right was given by the 24 Geo. 2, c. 8, namely, because that part of the river was not navigable before, is not satisfactory; for when once a river becomes navigable, or, in other words, when it is made a common highway for all the king's subjects, that right would immediately attach. On the general ground therefore I think no general right of towing exists. But then it was contended that a right might be supported on making a reasonable compensation to the owner of the land. Lord Hale touches this right very tenderly; for he says that it does not exist without making a reasonable satisfaction. But it is not necessary to enter into that question here; because,

if it were a right sub modo, it ought to have been so claimed in pleading. And even if such a right existed, the party should either pay or tender a reasonable satisfaction in order to give them that right. For it would be to no purpose to give the owner merely a right of action to recover that compensation, when it is to be enforced against strangers passing by, whom the owner cannot know, and who perhaps may be foreigners.

note.

BULLER, J. The defendant's plea on this record rests wholly on a general common law right; in deciding which it is not necessary to go into the question, which has been made respecting the mode of pleading. This being claimed as a common law right, it can only be proved to exist by one of the ways mentioned by my Lord. As to the general usage throughout the kingdom of which the court is obliged to take notice, that clearly does not exist. Then the question is whether in our books, or on records, that right is established for which the defendant contends. The case in Lord Raymond is a very loose and inaccurate Another authority cited is the passage in Bracton, and quoted by Callis; that plainly appears to have been taken from Justinian, and is only part of the civil law; and whether or not that has been adopted by the common law is to be seen by looking into our books; and there it is not to be found. Callis compares a navigable river to an highway; but no two cases can be more distinct. In the latter case, if the way be founderous and out of repair, the public have a right to go on the adjoining land but if a river should happen to be choked up with mud, that would not give the public a right to cut another passage through the adjoining lands. Therefore I am of opinion that no common law right of towing exists. But I wish not to be precluded by this determination. from giving an opinion on the question, which has been made on the pleadings, whenever it shall arise in future. At present I cannot agree with what has been said on that head. This is not like the case of toll thorough. The distinction, which has been made between toll thorough and toll traverse, is not where the question arises on a defence merely, but where the right itself of taking toll has come in question. And the distinction taken is, that the party, who claims toll thorough must show a consideration for it, because it is against common right; but in the case of toll traverse, no consideration need be shown, because that is not against common right. Then if the defendant is right in saying that by the common law he has a right to go on the banks of navigable rivers, he need not show any consideration, and the owner of the land would not be entitled to any satisfaction till after the defendant had used the towing-path. Customs, which are consistent, may be pleaded against each other. And the party pleading a general custom need not show the modification of it, which is not inconsistent with the right claimed by him. The case of Kenchin v. Knight, 1 Wils. 253, is strong to this point: there the defendant pleaded a custom to put swine upon a common; to which the plaintiff replied that he could only put in such swine as were rung, without traversing the custom set up in the