Turner v. Selectmen of Hebron , 14 L.R.A. 386 ( 1891 )

On the 16th day of May, 1888, the selectmen of the town of Hebron laid out a public highway in that town over the laud of Phineas W. Turner, which lay-out was accepted by the town at a town meeting holden on the 6th day of June following. On the 2d day of July Mr. Turner made application for relief, in the nature of an appeal from the doings of the selectmen in laying out the highway, to the Superior Court in Tolland County, alleging as a reason for the application that the highway was not of common convenience and necessity. In the Superior Court a committee was appointed pursuant to the statute — (Gen. Statutes, § 2701,) to hear and determine the application and to make report thereon. The committee heard the parties and made their report to the court. Mr. Turner remonstrated against the acceptance of the report, but the court overruled the remonstrance, accepted the report, and dismissed the application of Mr. Turner with costs. From that judgment he now appeals to this court, and assigns various reasons of appeal.

The statute above cited provides that "if said committee shall find that the highway is not of common convenience and necessity * * * said court shall set aside such lay-out thereof; but if they shall find that such highway is of common convenience and necessity * * * the application shall be dismissed with costs."

The committee, after setting forth the facts at some length, concluded their report in these words: — "If, on these facts, the law is so that all members of the unorganized public have the right as against the plaintiff to fish in North Pond, except the part owned by the plaintiff as aforesaid, then the committee are of opinion and find that the laid-out way is of common convenience and necessity. But if on these facts the law is otherwise, then the committee are of opinion and find that the laid-out way is not of common convenience and necessity."

The only question we propose to consider is, whether or not the law is so on the facts stated that all members of the unorganized public have the right, as against Mr. Turner, to fish in said pond.

North Pond is a natural pond, situated in the towns of Hebron and Lebanon. By deeds which were confirmed by the Colonial legislature the title to the pond and the soil beneath it became vested in the proprietors of said towns; much the larger part in the proprietors of the town of Lebanon. This part by sundry conveyances came to Abigail Bosworth in the year 1773. There is no record on the town records, or probate records, or other record, that the title to this land ever passed from said Abigail; and so the committee find that the title to said land "never passed from said Abigail Bosworth to any party or parties, but the same has become lost and abandoned." Of that part which once belonged to the proprietors of Hebron a portion has come and now belongs to Mr. Turner, and the remainder, so far as the records disclose the title, still belongs to that town, or to the representatives of the proprietors.

In 1865 the plaintiff became the owner of all the land surrounding the pond. He raised the dam at the outlet so much that he thereby raised the water of the pond seven and a half feet. The present area of the pond is one hundred and eight acres, of which more than one fourth is caused by such raising of its water. The plaintiff applied the water of the pond to use in manufacturing, in which he employs one hundred and twenty persons. Prior to the time when the plaintiff so became owner, and in the words of the finding, "from time immemorial, all members of the great unorganized public, both near the pond and remote from it, whenever and wherever disposed so to do, fished in North Pond as a matter of right, at all seasons of the year, in boats during the spring, summer and fall, and through the ice during the winter. This was done without objection from any source whatever down to the time when the plaintiff bought all the land adjoining the pond. * * * When the plaintiff became the owner of all the land surrounding and adjoining the pond, he posted notices forbidding all persons fishing in the same, and on one occasion he drove a party with force and arms from the pond whom he found fishing there. He sought to prevent all persons fishing in the pond without his leave, and did so as far as it was within his power. * * * At one time he spent the sum of one hundred dollars stocking the pond with fish. His objection to fishing was not on account of the value of the fish, for he freely gave permission to fish whenever requested, but through fear that the public might acquire the right by prescription to fish there."

These facts, while they may not be sufficient to show that the plaintiff has acquired title to the soil under the original pond, do show that he has acquired the right to keep that soil covered with water. The easement of flowing he owns. and so he owns the water. Mill River Woolen ManufacturingCo. v. Smith, 34 Conn., 462. These facts also show that the plaintiff, as such owner of the water and of the laud surrounding the water, had been for more than twenty years in the actual, exclusive and uninterrupted possession and occupation of the right of fishing in the entire pond, claiming it as his own and keeping all others away. There is no evidence that since 1865 any person whatever has succeeded in fishing in that pond, except he did it by the permission of the plaintiff. Whoever has attempted to fish there without such permission has been driven away.

By the action of the Colonial legislature in confirming the title deeds of the land under and around North Pond, no public or common right of fishing therein remained, if such a right had ever existed. Smith v. Miller, 5 Mason, 191; Adams v. Pease, 2 Conn., 481. Nor could the unorganized public, as such, acquire the right of fishing there either by grant or prescription. A deed or devise to the unorganized public by that name would be void for uncertainty. And there can be no prescription where there can be no grant. Merwin v. Wheeler,41 Conn., 23; Pearsall v. Post, 22 Wend., 425; Washburn on Easements, 119; Rogers v. Brenton, 10 Q. Bench, 26. Doubtless any member, or each member, of the unorganized public might obtain the right of fishing in that pond in either of the ways mentioned. There is no suggestion of any grant. The right which the committee say was exercised by all the members of the great unorganized public was "to fish in the pond at all seasons of the year, in boats during the spring, summer and fall, and through the ice in the winter." If the right so exercised had been completely acquired by long use it would be a right in the nature of aprofit a prendre in alieno solo, and must have belonged to each member in gross. The facts show that the right was not exercised as appurtenant to a freehold. Such a right is a mere personal one; it cannot be assigned and it does not descend to heirs.

We are not, however, interested so much to discuss what right of fishing in North Pond the unorganized public may have had in 1865, as to ascertain what right of fishing in that pond Mr. Turner did in fact have in 1888.

Primâ facie the right to take fish in any water other than navigable rivers belongs to the owner of the, soil over which the water flows. This is because in ordinary cases the ownership of the soil carries with it the ownership of the water. But the ownership of the water may be separated from the ownership of the soil, and where this is done the right of fishing goes with the ownership of the water. The law is stated in Coke Little ton, 4 b: — "If a man be seized of a river and by deed do grant separatampiscariam in the same, and maketh livery of seizinsecundum formam chartœ, the soil doth not pass, nor the water, for the grantor may take water there, and if the river become dry he may take the benefit of the soil, for there passeth to the grantee but a particular right, and the livery being made secundum formam chartœ cannot enlarge the grant. For the same reason, if a man grantaquam suam, the soil shall not pass, but the piscary within the water passeth therewith." See also Comyn's Digest,Grant, E., 5; Jackson v. Halstead, 5 Cowen, 216.

Whenever the ownership of water is in one person and the ownership of the soil under the water is in another, the right of fishing in the water belongs to the former; for he owns that element in which alone the fish can exist. Mr. Turner being the owner of the water of North Pond, was the owner of the right of fishing therein. Coke Litt., 5 b.

A several or exclusive right of fishing in the estate of another may also be gained by an adverse, uninterrupted and exclusive use and enjoyment of it for the period required by the statute of limitations. 2 Washburn's Real Property, (4th ed.,) 366; Tinicum Fishing Co. v. Carter, 61 Penn. St., 21. In such case the one so using it acquires title to the right of fishing against all the world. Chalker v. Dickinson, 1 Conn., 382; Church v.Meeker, 34 Conn., 421; Preble v. Brown,47 Maine, 284; 3 Kent's Com., 43. And can maintain trespass against any one, even the owner of the soil, for taking the fish. Adams v. Pease, 2 Conn., 481 Smith v. Kemp, 4 Mod., 187; S. C., 2 Salkeld, 637; Holford v. Bailey, 13 Q. Bench, 426; Collins v. Benbury, 5 Iredell Law, 118; Delaware Maryland R. R. Co. v.Stump, 8 Gill J., 479; Phipps v.The State, 22 Md., 380.

Whether we regard the plaintiff as the owner of the water of North Pond, and so the sole owner of the right of fishing therein, or us having acquired the exclusive right to fish there by adverse use we are clearly of the opinion that as against him no member of the unorganized public has the right to fish in that pond. It follows from this that the report of the committee finds the highway not to be of common convenience and necessity.

There is error in the judgment of the Superior Court.

In this opinion the other judges concurred.