Page images


trea ted of in connection with the king's interest in arms of the sea. The re seems strong ground, from the whole of the passage, for thinking that the public right of fishing was considered by the author as coextensive with the right of the Crown over the river for public purposes. Lor < Hale, C J., there says: “ Herein there will be these things

minable : 1st. What shall be said the shore or littus maris ; 2d. WE

at shall be said an arm or creek of the sea. . . . For the first of thee, it is certain that that which the sea overflows either at high spring tide

es or at extraordinary tides comes not as to this purpose under the den omination littus maris, and consequently the king's title is not of that large extent, but to land that is usually overflowed at ordinary tides. ... For the second, that is called an arm of the sea where the sea flows and reflows; so that the river of Thames above Kingston, and the river of Severn above Tewkesbury, though they are public rivers, are not arms of the sea. But it seems that although the water be fresh at high water, yet the denomination of an arm of the sea continues if it flow and reflow as in Thames above the bridge.”

In the present case there is no regular flow and reflow of the tide at the spot in question, but only an occasional damming back of the water. The law on the subject of the right of the public to fish in rivers is laid down in the case of Mussett v. Burch, 35 L. T. N. S. 486, by Cleasby, B. He says: “ The case in the Irish Reports, Murphy v. Ryan, Ir. Rep. 2 C. L. 143, is decisive on the point before us. It expressly decides that the public cannot acquire by immemorial usage any right of fishing in a river in which, though it be navigable, the tide does not ebb and flow.”

For this purpose, as I have already said, it seems to me that “ tidal navigable river" means that part of the river which under ordinary circumstances is tidal and navigable as such, and it is not enough to show that sometimes, under unusual circumstances, the river at the place in question is affected by the tide. For the purposes of the right claimed, the place must be one which may be fairly said to be within the influence of the ebb and flow of the tides in the ordinary course of things. It does not seem to me reasonable that, in every part of a river which may be affected by exceptionally high tides, and in which the water may be occasionally to some extent backed up in consequence, there should be a public right of fishing. For these reasons I do not think that in the present case any reasonable claim to a public right of fishing was made out. That being so, Hargreaves v. Diddams, Law Rep. 10 Q. B. 582, and Hudson v. Macrue, 4 B. & S. 585, are authorities to show that the jurisdiction of the justices was not ousted. It may be observed that the evidence of a private right of fishing was very strong, though, if the appellant had made out a good prima facie title to fish as one of the public, it might not perhaps be competent to us to consider that. It does, however, seem material as negativing any

exercise by the public of the supposed right set up by the appellant. For these reasons I am of opinion that the conviction was right.

STEPHEN, J. I am of the same opinion. The whole question comes ultimately into a very narrow compass. The only claim set up is one of a right on the part of the public to fish in a navigable tidal river. The fact that the flow of water is affected as described under peculiar and exceptional circumstances, is not, in my opinion, sufficient to make this a tidal river within the meaning of the authorities on this subject. The case of Horne v. McKenzie, 6 Cl. & F. 628, bas been relied on by the appellant; but the question there was quite different from that in the present case. The question there was not what constitutes a tide, but what for the purposes of Salmon Fishery Acts was to be considered river, and what sea. The case of Reg. v. Burrow, 34 J. P. 53, which has been cited, was also quite different from the present, inasmuch as it related to a lake, and the claim was made by the occupier of a certain cottage who claimed in respect of such occupation, and not as one of the public. I think the conviction should be affirmed.

Conviction affirmed.



[Reported 2 Binn. 475.] Trespass quare clausum fregit. The declaration stated that the de. fendants, on the 10th day of April, 1803, with force and arms, &c., broke and entered the close of the plaintiff in the River Susquehanna, in the township of lower Paxton, in the county of Dauphin, and trod down his grass to the value of ten dollars there growing, and broke and entered into the several fishery of the plaintiff in the said river, in the township and county aforesaid, and then and there took 1000 shad of the value of two hundred dollars, and other wrongs did, &c., to the plaintiff's damage three hundred dollars.” Plea, Not guilty, with leave to justify.

On the trial before the Chief Justice at Harrisburg in April, 1807, the plaintiff deduced a title to himself from the late proprietaries, hy warrant of 24th September, 1736, for 228 acres of land adjoining the Susquehanna, and immediately opposite to the fishery in question. The patent under which he held, stated the tract to begin at a birch tree by the river, thence by certain courses and distances to a red oak by the same river, and thence by the same the several courses thereof, to the place of beginning; no part of the land in the bed of the Susquehanna being expressly covered by the patent. The brother of the plaintiff, who was the former proprietor of the land, first cleared out a pool for a shad fishery between his own shore and a sand bank in the river about 200 yards distant, in the year 1773; and afterwards fished there.

1 See Pearce v. Scotcher, 9 Q. B. D. 162.

Blazer, one of the defendants, made some further clearing in the pool near the sand-bank in 1796, and he and his sons fished in it from the sand-bank, at first without any opposition by the plaintiff; but he afterwards told them to desist, and brought the present action for drawing their seine in the pool, in the spring of 1803. There was but one pool or fishing place between the plaintiff's shore and the sand-bank. A net of the usual length would sweep the whole of it; and one of the witnesses swore that the defendants, in drawing their seine, came within fifteen or twenty yards of the plaintiff's shore.

Upon these facts the material question was, whether the plaintiff had an exclusive fishery in the Susquehanna opposite to his land, and on this point the Chief Justice charged the jury in substance as follows:

TILGHMAN, C. J. If the plaintiff has an exclusive right, it must be founded, either 1, on a grant from the late proprietaries ; or 2, on prescription; or 3, on the principles of the common law adopted in this country.

1. King Charles the Second granted to William Penn the soil of Pennsylvania and the rivers within its limits, together with the fishing of all sorts of fish within the premises, and the fish therein taken. William Penn has not granted the plaintiff any right of fishery, nor has he granted him anything beyond the margin of the river. The proprietary asked no higher price for river lands than others. No doubt he retained the entire right of the river and of everything in the river, in order that he might make such use of it as would be most conducive to the public benefit; and he afterwards, at least as far back as the 9th of May, 1771, gave his assent to an Act of Assembly, declaring the River Susquehanna a highway, and regulating its fisheries in such a manner as to be inconsistent with an exclusive right in any person whatever. The fourth and sixth articles of William Penn's concessions are urged as a grant. But it appears to me that these concessions are confined to the first purchasers; for there are several things therein agreed to be done by those first purchasers, which cannot be said to be binding on any subsequent purchasers. There are also other grants, as, for instance, to servants in the seventh article, which must be confined to the original emigrants; and there are stipulations and agreements in a great number of the articles, as in the 3d, 4th, 7th, 8th, 10th, 11th, 12th, 14th, 17th, 18th, and 20th, which must be limited in the same way. Now I give no opinion as to the rights of those first purchasers, and persons claiming under them. The plaintiff is not of that description.

1 Article 4th. That where any number of purchasers more or less, whose number of acres amounts to five or ten thousand acres, desire to set together in a lot or township, they shall have their lot or township cast together in such places as have convenient harbors or navigable rivers attending it, if such can be found.

Article 6th. That notwithstanding there be no mention made in the several deeds made to the purchasers, yet the said William Penn does accord and declare that all rivers, rivulets, woods, and underwoods, waters, watercourses, quarries, mines, and minerals (except mines royal), shall be freely and fully enjoyed, and wholly, by the purchasers into whose lot they may fall.

[ocr errors]

2. No proof whatever has been given of anything like prescription, either in the plaintiff in particular, or in general in those persons who hold lands adjoining the Susquehanna. The first time the plaintiff used this fishery was in 1773, when he cleared away the stones which impeded his seine,

3. The plaintiff relies principally on that rule of the common law by which rivers, wherein the tide does not ebb and flow (which are not navigable), belong to the owners of the adjoining lands on each side. This common law right, if even it was properly applicable to the Susquehanna and Delaware, and other large waters, was not deemed proper for this country, nor was it adopted, up to the period of our Revolution ; because, the several Acts of Assembly before that time, declaring these rivers to be highways, and regulating the fisheries in them, are incom. patible with the common law right; and since the Revolution, no part of the common law has been adopted except that which was proper for our country. But the common law principle concerning rivers, even if extended to America, would not apply to such a river as the Susquehanna, which is a mile wide and runs several hundred miles through a rich country, and which is navigable and is actually navigated by large boats. If such a river had existed in England, no such law would ever have been applied to it. Their streams, in which the tide does not ebb and flow, are small.

But there is another objection to the adoption of this principle. The common law gives to each proprietor one half of the river adjoining his shore; and if this doctrine is applied to the Susquehanna, every owner of the bank must own all the islands nearest to that bank, never contended for.

The common law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by narigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation which has not a flow of the tide ; but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.

The inconvenience of common fisheries is urged. The only question is whether the plaintiff has an exclusive right; if he has not, he cannot recover. But in point of inconvenience, we are upon the same footing with the navigable waters of England: the public may make what regulations they please by law.

Upon the whole matter, I am of opinion that the owner of land on the banks of the Susquehanna has no exclusive right to fish in the river immediately in front of his lands, but that the right to fisheries in that river is vested in the State, and open to all ; of course, that the plaintiff cannot recover.

a right

[ocr errors]

The jury found a verdict for the defendants, and a new trial, which was asked for upon the ground of misdirection, being refused, the plaintiff appealed to the Supreme Court.

That court (YEATES, J., dissenting) refused a new trial, and ordered judgment for the defendants.

C. Smith and Duncan, for the appellant.
Hopkins, for the defendants.



(Reported 31 Me. 9.] WELLS, J.? This is an action on the case for erecting and maintaining a dam across a stream, called Little River, and obstructing the passage of the water, and the plaintiff's logs.

The river is about three miles in length, and runs from Boyden's Lake to the tide waters. It varies in its width from seven or eight feet to three or four rods, and it has been used many years for floating logs and rafts, and sometimes boats. Within twenty years, several dams and mills have been erected upon it.

The plaintiff disclaimed the right to recover upon the ground of prescription or user, but claimed it because the stream was a public one in its natural state.

The jury were instructed that, it being a fresh-water stream, the presumption is, that it is private property, and the burden is on the plaintiff to establish the contrary by satisfactory proof that it is a navigable or floatable river, and in its natural condition capable of being used for running logs.

The rule of the common law, that riparian proprietors own to the thread of fresh-water rivers, has been adopted in this and many other States of the Union. Berry v. Carle, 3 Greenl. 269 ; Spring v. Russell et al., 7 Greenl. 273.

The first question that arises is, it being conceded that the bed of the river belongs to the owners of the land on either side, Can a right to the use of its waters be obtained, unless that use has been continued twenty years, the ordinary length of time for the acquisition of an easement?

In Berry v. Carle ; Shaw v. Crawford, 10 Johns. R. 236; Scott v. Wilson, 3 N. H. 321, the right is considered as dependent on long usage.

Lord Hale, in his celebrated treatise De Jure Maris, chap. 2, says:

[blocks in formation]
« PreviousContinue »