Chalker v. Dickinson , 1 Conn. 382 ( 1815 )

Swift, Ch. J.

In this case, the court directed the jury, that an exclusive right of fishery could be acquired in a navigable river by an uninterrupted possession and use for more than fifteen years.

The right of fishery by the common law in the ocean, in arms of the sea, and navigable rivers below high water mark, is common to all, and the state only can grant an exclusive right. In rivers not navigable, the adjoining proprietors own the fishery, and can grant a right of fishing. Connecticut river being navigable in the place where this right of fishery is claimed, it could be acquired only in such manner as a public right can be appropriated or transferred. By the common law, no right could be acquired by use, possession and occupation, unless it had been from time immemorial ; and this is called a right by prescription. In England, by statute 21 Jac. 1. c. 16. s. 1. it was enacted, that no person that has any right or title of entry, shall enter but within twenty years next after his right or title shall accrue. Courts extended the principle of this statute to similar cases within the same reason. A like statute was at an early period enacted in this country, limiting the right of entry to fifteen years ; and courts extended the principle to similar eases. Hence it has become an established rule of the common law, that easements may be acquired by uninterrupted possession for fifteen years ; such as rights of way, flowing another’s land, diverting water courses, fisheries and the like. But in every case of this description, the use and possession in the first instance are a usurpation of the rights of some other person ; and an action would always lie till the fifteen years were elapsed. It is considered, that no man would permit another thus to occupy and possess his right without a grant ; and in all these cases the law presumes there has been a grant ; for the idea is not entertained that a man by being a trespasser for fifteen years can by the common law acquire a right. But as the grant depends upon a presumption of law, it is always competent to rebut it by proof of such circumstances as shew no grant could have been made. The general rule then, is, that certain rights may be acquired against individuals by fifteen years uninterrupted possession and use, un answered and unexplained. 2 Wms. Saund. 175. n. (2).

But the case under consideration is of a very different description. The fishery in Connecticut river below high water mark is common to all the citizens ; the use and possession of the plaintiffs was lawful ; and the mere lawful exercise of a common right for fifteen years has never been considered as conferring an exclusive right. This case, therefore, does not compare with the cases where a right is acquired by uninterrupted use and possession.

Further, it does not appear that the plaintiffs were the sole possessors and occupiers of this fishery. They might have used it without interruption for the term of fifteen years ; and so might others. At this rate, several persons might, at the same time, be acquiring an exclusive right to the same fishery ; an absurdity that demonstrates the fallacy of the principle contended for.

The public may grant an exclusive right of fishery in a navigable river ; and if it may be granted, it may be prescribed for. Such a right shall never be presumed, but the contrary. It is however capable of being proved. In this case, the plaintiffs relied on the presumption arising from uninterrupted use and possession for fifteen years. This would be presuming, not proving, the prescriptive right. If he claims such right, he is bound to prove it. Carter & al. v. Murcot & al. 4 Burr. 2162.

In this opinion the other Judges severally concurred, except Hosmer, J. who declined acting, having been of counsel in the cause.

New trial to be granted.