Majority
p. 90Hooker against Cummings.
Headnote
River's are ed as far as the sea ebbs and flows; and so far the right offishing, as well as of navigation, is common to all; and in rivers not navigable* in that sense, or above the flow and reflow of the tide, the adjoining proprietors of the soil have the exclusive right of fishing opposite their land, to the middle of the river; but the public have an easement, or servitude, in such rivers, as highways, for passing and repassing with-boats, &c. And all rivers which are, in fact, navigable, xvhethei above the flow of the sea, or whether unaffected by the tide, in their whole extent, are, in regard to their use, public rivers, and subservient to the public use and accommodation, and subject to regulation by the legis« lature.The fishery in Salmon river, in the county of Oswego, emptying into lake Ontario, and in which there is no ebb and flow of the tide, is not free or common to all; but belongs, ex-^ dusively, to the owners of the adjacent land.
THIS was an action of trespass. The declaration contained five counts. The first count charged, that the defendant, m et armis, broke the plaintiff’s close, (in the
p. 91
town of Richland, in the county of Oswego,) covered with water, and did, then and there, fish in the said close, and the fish, to wit, 300 salmon, 300 trout, he. of great value, Sic. then and there found, caught, took, and carried away, he. The second count charged, that the defendant broke and entered the plaintiff’s several fishery in the river, called Salmon river, situate in Richland, in the county of Oswego, and then and there fished in the said fishery for; fish $ and the fish, to wit, 300 salmon, he. then and there found and being, of great value, Sic. caught, took, and carried away, Sic. The third count charged, that the defendant fished in the plaintiff’s free fishery in the said town, Sic. and 300 salmon, Sic. then and there being, caught, took, and carried away, Sic. The fourth count was for taking and carrying away the plaintiff’s fish, specifying the time, place, kinds, and value, &c. The fifth count was for breaking the plaintiff’s close, at, &c., and treading down the plaintiif’s grass and herbage there growing, &c.
The defendant pleaded, 1. Not guilty. 2. As to breaking and entering the plaintiff’s close in the first and fifth counts mentioned, the defendant pleaded, that they were one and the same close, and not other or different; and that before and at the said several times when, Sic. there was a common and public highway into, over, through and along the said close, in which, Sic. for all the citizens of this state to pass and repass; wherefore the defendant, being such citizen, at the said times, when, Sic. passed over and along the said close, in, by and along the said highway, then using the same as he lawfully might do, which are the same supposed trespasses in the introductory part of the first plea mentioned, Sic. with a verification, Sic. 3. And for further plea as to the fishing in the plaintiff’s close in the. first count mentioned, and catching, taking, and carrying away the fish, Sic.; and as to the fishing in the several fishery of the plaintiff in the second count mentioned, Sic. Sic.; and as to fishing in the plaintiff’s free fishery in the third count mentioned, Sic. Sic. Sic.; and, also, as to catching, taking, Sic. the fish of the plaintiff in the fourth count mentioned, by leave, Sic. he said, that the plaintiff ought not to have or maintain his action thereof against him, because, he said,
p. 92
that the fish in the first count, the fish in the second count; ggh jn the third count, and the fish in the fourth count, mentioned, were and are the same fish, and not other or different; and the fishery mentioned in the first, second, and third counts, are one and the same fishery, and not other or different; and the defendant further said, that the said supposed fishery, in which,, &c. at the several times when, &c. was, and still is, and from time immemorial has been, part and parcel of the said river, called Salmon river ; and that the said part thereof in which, &c. now is, and at the said several times when, Sic. was, and from time whereof the memory of man is not to the contrary, has been a public and common navigable river, in which the waters of the sea or lake, called lake Ontario, during all the time aforesaid, has flowed and reflowed; and that in the said part of the said river, called Salmon river, in which, &ic., every citizen of the state, at the said several times, when, &c., of right had, and, of right, ought to have, and still hath, and of right has, the liberty and privilege of fishing; wherefore, the defendant, being a citizen of this state, entered into the said fishery, in which, 8ic. so being part of the said navigable river as aforesaid, where the waters of the said sea or lake flow, to fish in the said river, at, &c.3 when, Sic., being seasonable times of the year for such fishing ; and did the acts complained of, &c., with a verification, Sic.
The plaintiff demurred to the second plea, and assigned special causes of demurrer, to wit: 1. That the plea is not an answer to the breaking and entering the closes of the plaintiff, as set forth in the first and last counts; 2d. That it is attempted, by the said plea, to make that an answer to both counts, which is an answer to one count only; 3d. That it is not an answer to the breaking and entering mentioned in either of the counts in particular; and is otherwise defective, insufficient, and informal. There was, also, a special demurrer to the third plea: 1st. Because, that plea is not an answer to the trespasses alleged in the first, second, third and fourth counts, which were particularly referred to in the introductory part of the said plea. 2d. Because, the plea attempts to make that an. answer to the trespasses al
p. 93The declaration in this case charges two distinct entries on two distinct closes. The defendant cannot, therefore, allege in his plea, that they are one and the same close, and so set up a justification as to one, in answer to both trespasses. The case of Nevins v. Keeler ( 6 Johns. Rep. 63 .) is in point. There, the defendant’s plea was held bad; and the Court said, that he should have pleaded not guilty as to all but the one close, and a justification as to that. The second plea is, therefore, bad. Again; the third plea is liable to the same objection. One close is alleged to be a free fishery, and the other a several fishery, which are, in their nature, distinct doses. This plea is, also, bad on another ground. Salmon river is not a river in which the public have any common right of fishery. The plea alleges that it is a public and common navigable river, into which the sea, or lake, called lake Ontario, flows and réflows. But it is notorious, that there is no re-i guiar flow of tide in lake Ontario ; and, of course, there can be no flux or reflux of tide in any river which empties into that lake, within the meaning of the rule of the common law. Salmon river is not common or public, nor has it been declared to be so by any statute. Sir Matthew Hale, in his treatise de jure mar is, &c. ch. 1. (1 Harg. Law Tracts, p. 5.) says, “Fresh rivers, of what kind soever, do, of common right, belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and, consequently, the right of fishing, usque jilum aqua," &c. “ And if a man be owner of the land on both sides, in common presumption, he is the owner of the whole river, and hath the right of fishery, according
leged in all the counts, which is an answer to the trespasses set forth in one of the counts only. 3. Because, the said plea does not allege that the tides of the sea, or of the lake, called lake Ontario, during all or any part of the time mentioned in the said plea, have flowed and reflowed in that part of the said river in which, &c, 4. That the plea is double, 8ic. .
The defendant joined in demurrer.
Talcot, (A. G.) in support of the demurrer.
p. 94to the extent of his land in lengths” Fresh rivers are, prima facie, private property. In the case of the People v. Platt, ( 17 Johns. Rep. 195 .) relative to the salmon fishery in the river Saranac, this Court adopt the principles laid down by Lord Hale. In the case of Adams v. Pease, decided in the Supreme Court of Errors of Connecticut, (2 Day’s Connect. Rep. 481.) it was decided, that the owners of land, adjoining the Connecticut river, above the flux and reflux of the tide, had an exclusive right of fishery opposite to the land owned by them, to the middle of the river, and that the public had an easement in the river, as a highway, for passing and repassing, with vessels, boats, or any watercraft. In fact, a river, in its whole course, may partake of the three kinds of rights : As far as the tide flows and ebbs, it is a public river, both as to fishing and navigation. Above the flow and reflow of the tide, it is private as to the right of-fishing, but public as to transportation, by vessels and boats; and, higher still, or where the river is fresh, it is wholly private property. It seems to have been rather hastily admitted, in some late American cases, that the flow and ebb of the tide, is the only criterion by which to determine whether a river is navigable and open to the public use or not. This doctrine owes its origin to Lord Hale, in the treatise which has been cited. But the fair inference from what Lord Hale has said, appears to be, merely, that where the tide flows and reflows, the river is, prima facie, navigable and common to all. He so states the rule in Lord Fitzivalter’s case, (1 Mod. 105.) " A river,” he says, “ that flows and reflows, and is an arm
JV. Williams, contra.
1. The important question in this case is, whether Salmon river is a public river, open to the common use of all the citizens of the state, for the purpose of fishing ? The defendant puts his right on that broad basis; although it is well known that this river has been used in common for navigation and fishing, during the last twenty-six years. Then what is necessary, by the common law, to render a river public, and subject to the public or common use ? A free fishery and common fishery mean the same thing. (Co. Litt. 122 a. Harg. note 23. 2 Bl. Com. 40.)
p. 95of the sea," is, prima facie, common to all.” The soil of the river Severn, he observes, belongs to the lords on either side, and a special sort of fishery belongs to them likewise; but the common sort of fishery is common to all. And “ there is no such contradiction betwixt the soil being in one, and yet the river being common to all fishers,” &c. The true test of a river being public and open to all, is its being navigable. Fresh rivers, according to Lord Hale, are not navigable. In Warren v. Matthews, (6 Mod. 73, S. C. 1 Salk. 357.) Lord Holt lays down the rule, according to this distinction. He says, “ the subject has a right to fiáh in all navigable rivers, as he has in the sea.” And in Carter v. Murcot, (4 Burr. 2162.) Lord Mansfield, in 1768, adopts the same distinction. “ In rivers riot navigable,” he says, et the proprietors of the land have the right of fishery on their respective sides, and it generally extends ad filum medium aqua. But in navigable rivers, the proprietors on*each have it not; the fishery is common; it is, prima facie, in the king, and is public. If any claim it exclusively, he must show a right, by prescription or otherwise.” The same Judge, afterwards, in 1774, keeping in mind this same distinction, repeats the same doctrine; “ How does it appear,” says he, " that this is a navigable river ? The flowing and reflowing of the tide does not make it so; for there are many places into which the tide flows, that are not navigable rivers.” He clearly considers it as a question of fact, whether a river is navigable or not. Ex facto oritur jus. (The Mayor of Lynn v. Turner, Cowp. 87.) In Ward v. Cartwell, Chief Justice Willes adopts the same doctrine. (Wi lles' Rep. 265. 268.) He observes,that this is not merely the law of England, but the law of Nations; and he cites Grotius, B. et P. lib. 2. c. 3. s. 9. Bract. b. 1. c. 12. s. 6.[1]
p. 96No doubt, the flowing of the tide, according to the com-» mon jaW) makes a river, prima facie, navigable. But when a river is, in fact, used by the public as a navigable river, no prima facie evidence is wanted as to its being public. Every one has a right to navigate it, and to fish in it. (Miles v. Rose, 5 Taunt. 705.) Whether salmon or any other kind of fish frequent a river, can have no influence in the consideration of this question; ( 17 Johns. Rep. 211 .) which is merely, whether the river is navigable, and subject to a public servitude or easement. On the doctrine that the flow and ebb of the tide is what renders a river navigable or public, what is to become of the great inland seas or lakes of Europe and Asia, as well as of the still greater lakes and rivers of this country ? In the Mediterranean there is no perceptible tide. “ There shrinks no ebb in that tideless sea.” The common law of England, on this subject, was never intended to- be applied to the large .rivers of this country; nor has it, in fact, been adopted; but, on the contrary, our rivers have always been free to all our citizens, for fishing as well as for navigation. In Carson v. Blazer, (2 Binney's Rep. 475.) Chief Justice Tilghman so considers it; and says, that the rule of the English common law has never been applied to the fresh water rivers in Pennsylvania. Yeates, J. observed, that “ the qualities of fresh or salt, or the flux and reflux of the tide, cannot decide whether a river is navigable or not.” If rivers, in which the tide does not flow, are private property, then the islands in those rivers must belong to the owners of each shore, a doctrine which has never been asserted in this country, as to any of our navigable rivers. That Salmon river is a navigable river, and that the water of lake Ontario flows into it, are facts admitted by the demurrer; and if the river is private property, so also must be the lake, on the same principle. What, then, is the rule of law in this state? It is, that any river, which is subservient to public use, is common to all, for the purposes of fishing, as well as navigation; though a private individual may be the' owner of the soil. If Salmon river is susceptible of such use, as a common passage for the public, then, according to established law and usage, the fishing in it is common. In the case
p. 97oí the Saranac, Mr. J. Platt said, that it was conceded; that the river was not navigable for boats of any kind; and that the defendant had enjoyed the sole right to the river for more than thirty years. That “the power of regulating and eontrolling the use of the Saranac, to subserve the public interest, would have been- impliedly reserved, had the river been navigable.” (S. P. 10 Johns. Rep. 236 . 238.) In Palmer v. Mulligan, ( 3 Caines’ Rep. 307 .) all the Judges considered the Hudson river, above tide water, where it was navigable, as common to all $ as a highway. Though the Chief Justice seemed to recognise the English doctrine, as to the ebbing and flowing of tides, he admitted that fresh rivers of every kind may be under the servitude of the public, and be regarded as common highways, by water. That Salmon river has been so considered, is evident from the statutes regulating the fishery in it. (2 N. R. L. 544. sess. 35. ch. 131. sess. 37. ch. 213.) 2. As to the pleadings : The first plea of not guilty is an answer to the charge of breaking and entering the closes, and to all that depends on force : The second plea justifies as to the first and last counts, by stating that both the closes were public highways, &c. (2 Chitty’s Pl. 570, 571.) It was not necessary to state how they became so. (3 Term Rep. 265. 8 Term Rep. 608.) The third plea justifies as to all the other counts, enumerating the trespasses, &c. by stating that the locus in quo, which is the same in all the counts, is, and has been a navigable river, &c. (1 Chitty’s Pl. 506, 507, 533. 2 Chitty’s Pl. 556, 557. 562.) The third count is for entering a free fishery; and a free and common fishery are the same. There is a precedent in" 2 Chitty’s Pl. for such a count. The question here, is not whether the public have a right of fishing in a navigable river, but what is a navigable ri
If, then, this river is a highway, any person may take fish in it, for fish are fierce natures, and become the property of the first taker, (2 Bl. Com. 392. 403. Cooper’s Justinian, b. 2. tit. 1. s. 12.) Trespass will not lie for taking fish in a free fishery ; for the plaintiff can have no fish until he takes them. (3 Mod. 97.)
Talcot, (A. G.) in reply.
p. 98ver, in the common law sense of the term ; and we contend, that in the common law acceptation of that term, no river is navigable where the tide does not flow and reflow. In Palmer v. Mulligan, (3 Caines, 315.) ©brief-Justice Thompson adopts the rule of the common law of England, as laid down in the treatise of Sir Matthew Hale ; and Kent J, refers to that treatise with the highest approbation, and considers that the true and just rule on the subject is there laid down; and so do all the Judges in the case of A dams v. Pease, in regard to the Connecticut river.
delivered the opinion of the Court.
The case of Nevins v. Keeler, ( 6 Johns. Rep. 64 .) is decisive, that the second and third pleas are informal. They profess to answer the whole declaration. The defendant should have justified as to one locus in quo, and pleaded not guilty to all but one close. He had no right to narrow the plaintiff’s declaration in the manner attempted; and the plaintiff could not take issue on the allegation that the several closes %were one and the same, and that the fisheries were one and the same. But the real question in the cause is, whether the defendant has set forth, in the third plea, sufficient matter to bar the plaintiff’s right of action. He alleges that the locus in quo is part and parcel of Salmon river, and that the part thereof in which, &tc., is, and always has been, a public and common navigable river, in which the waters of lake Ontario have flowed and reflowed, and that every citizen of the state has the right of fishing therein ; and therefore, Sic, justifying the fishing complained of by the plaintiff.
We cannot consider this plea as setting up, that the waters of Salmon river are not fresh water; or that the flowing of the waters of lake Ontario into it, and the reflowing thereof, are the flux and reflux of the tides, or any thing else than occasional and rare instances of a swell in the lake, and a setting up of the waters into the river, and the subsiding of such swells; nor can we understand the allegation, that it is a public and common navigable river, in any other sense, than that it is used with boats and small craft. I will not say, that we can judicially notice the real state of the facts, but they are indisputably soand as the plaintiff must have
p. 99
judgment on this demurrer, for the formal defects of the pleas, it would probably be desirable to both parties, that the Court should pronounce an opinion on the facts as they are, and as they would prove to be, on a trial, I shall, then, assume, that Salmon river is a fresh water river, that there is no regular flux and efflux of the tide in it, that it is navigable only for boats and small craft, and that it has all been granted by the state to private individuals. In the case of The People v. Platt and others, ( 17 Johns. Rep. 195 .) we were not called upon to decide this precise question, because the river Saranac was not navigable for boats of any description, although salmon ascended into it, beyond the obstruction occasioned by Platt’s dam; but we recognised the principles of the common law to be, that in the case of a private river, that is, where it is a fresh water river, in which the tide does not ebb and flow, and is not, therefore, an arm of the sea, he who owns the soil has, prima facie, the right of fishing; and if the soil on both sides he owned by an individual, he has the sole and exclusive right; hut if there be different proprietors on each side, they own, on their respective sides, adfilum medium aqua. We considered, in the case referred to, that it was not inconsistent with this right, that the river xvas liable and subject to the public servitude, for the passage of boats; the private rights of the owners of the adjacent soil were no otherwise affected, than ?oy the river’s being subject to public use. The same doctrine was advanced by Kent, Justice, in Palmer v. Mulligan, ( 3 Caines’ Rep. 319 .) without any dissent by the other Judges. The case of Adams v. Pease and another, (2 Connecticut Rep. 481.) has been published since the decision of the case of The People v. Platt, and there is an entire coincidence of opinion. All the Judges there held, that the owners of land adjoining Connecticut river, above the flowing and ebbing of the tide, have an exclusive right of fishing opposite to their land, to the middle of the river; and the public have an easement in the river, as a highway, for passing and repassing with every kind of water craft. The decision of that case was placed on the same adjudged eases as were relied upon in the case of The People v. Platt.
p. 100
The defendant’s counsel supposes, that the common law of England, which he seems to admit, if applied to this case, would be decisive against his client, is inapplicable here, as our navigable rivers are formed on a much larger scale than those in England; and that where the Judges of their Courts, or their elementary writers, have said that the right of fishing was a common and a public right in navigable rivers, in which the tide ebbs and flows, they have adopted the ebbing and flowing of the tide as evidence of the navigability only of the river; and that, therefore, where the fact of navigability is proved, and does exist, in any given case, the river is, arid must be, public. This I conceive to be a mistaken idea. The common law of England considers a river, in which the tide ebbs and flows, an arm of the sea, and as navigable, and devoted to the public use, for all purposes, as well for navigation as for fishing. It, also, considers other rivers, in which the tide does not ebb and flow, as navigable, but not so far belonging to the public as to devest the owners of the adjacent banks of their exclusive rights to the fisheries therein. The case of Carson v. Blazen, (2 Binney's Rep. 475.) has been much relied on to sustain the doctrine contended for by the defendant’s counsel. In that case, only two of the Judges gave opinions as to the common law right of the proprietor of the bank or margin of the Susquehannah, to the exclusive enjoyment of the fishery opposite to his shore; and it will be seen that they admit the common law of England to be in favour of the right claimed; but they supposed, that the people of Pennsylvania had not adopted that, part of the English common law, as it was not deemed proper in that country. They placed great stress, too, on several acts of the Assembly, declaring that river to be a highway, and regulating the fisheries, which they held to be incompatible with the common law right. They rejected, as inapplicable to them, the common law principle, that the flux and reflux of the tide ascertained the character of the river. Now, I do not feel myself authorized to reject the principles of the English common law, by saying they are not suited to our condition, when I can find no trace of any judicial decision to that effect, nor any legislative declaration or provision,
p. 101
leading to such a-conclusion. Indeed, I concur in the opinion expressed by the late and present Chief Justice of Connecticut, in the case cited, that a more perfect system of regulations on this subject could not be devised : it secures common rights, as far as tue public interest requires, and furnishes a proper line of demarcation between them and private rights; that is, by considering rivers navigable as far as the sea flows and reflows, and the right of fishing as common to all; and rivers not, in that sense, navigable above the flow and reflow of the sea, in which the adjoining proprietors have the exclusive right 5 and I concur in the doctrine, that all rivers, in fact, navigable, whether above the flow of the tide, or whether in its whole extent unaffected by the tides, in reference to the use of them, as public, and subservient to public accommodation, and liable to governmental regulation. I agree, also, with Chief Justice Hosmer$ in the position, that the doctrine of the common law promotes the grand ends of civil society, by pursuing that wise and orderly maxim, of assigning to every thing capable of ownership, a legal and determinate owner. Lord Mansfield’s opinion, in Carter and another v. Murcott and another, (4 Burr. 2162.) has been misconceived; the defendant’s counsel supposed it to be favourable to the pretensions set up by the defendant, but it is directly otherwise. He says, "In navigable rivers, the proprietors of the land on each side have it not; the fishery is common; it is, prima facie, in the king, and is public.” The case under consideration was that of a navigable river, which was an arm of the sea; and his lordship spoke of navigable rivers in the common law sense of the term, or of such as were arms of the sea. '
The defendant’s counsel laid some stress on the acts of the legislature, (2 R. L. 544. and the act, sess. 37. ch. 214.) regulating fishing, and the taking of salmon, in Salmon river. These acts prove nothing; for the legislature have, confessedly, the right of regulating the taking of fish in private rivers; and do, every year, pass laws for that purpose, as to rivers not navigable in any sense, and which are, unquestionably, private property.
p. 102
There must be judgment for the plaintiff, with leave to the defendant to plead de novo, on payment of costs.
Judgment accordingly.