Hathaway v. Thomas , 82 Mass. 290 ( 1860 )

Chapman, J.

The fisheries of Taunton Great River have

evidently been regarded by the legislature as a subject of great public importance; and the St. of 1855, c. 401, providing for their regulation, contains a system which must have been elaborated with much care and labor. It had in view their preservation as well as their most convenient and profitable use. Under its provisions, the entire fishery was divided into shares; the shares were the property of the several towns designated, so far as they were valuable to sell by auction ; and when sold, they became the private property of the purchasers, to be used in conformity with the regulations of the statute during the season for which they were sold.

It is impossible that the St. of 1856, c. 50, could have been intended to apply to these fisheries; for it contains a limitation that the acts done under it, by the use of fish- weirs, shall not encroach on the rights of others. But the taking of fish by weirs in Taunton River would of necessity encroach on the rights of proprietors under the prior act. The encroachment might be to such an extent as to destroy the whole value of the rights, and the erection of weirs might be carried so far as greatly to diminish, and perhaps to destroy, the fisheries themselves. If the legislature had intended to destroy the system created in the previous year, they would have repealed the act; if they had intended to modify it, they would not have done it by hostile and conflicting legislation, but by carefully guarded provisions. There is another class of fisheries in respect to which the act is appropriate and useful, and we think it was intended to be applied to them only.

Judgment for the defendants.