Commonwealth v. Vincent , 108 Mass. 441 ( 1871 )

Gbay, J.

The motion to quash, so far as it rests upon formal defects, cannot be entertained, because it was not made before the trial justice to whom the complaint was originally presented. St. 1864, c. 250, § 2. Commonwealth v. Walton, 11 Allen, 238. Commonwealth v. Norton, 13 Allen, 550.

The other questions presented by the report relate to the construction and effect of the St. of 1869, c. 384, and may be more conveniently approached by first stating a few general propositions of law, which were well established at the time of its passage.

The Body of Liberties, enacted by the general court of Massachusetts in 1641, contained this article: “ Every inhabi ant that is an householder shall have free fishing and fowling in any great ponds, and bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town or the general court have otherwise appropriated them; provided that this shall not be extended to give leave to any man to come upon other’s propriety without their leave.” Body of Liberties, art. 16; 28 Mass. Hist. Soc. Coll. 219. This article was further explained in the ordinance of 1647, which declared that “ no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land;” that the title of the owners of lands next tide waters should extend over the flats, reserving the right of “ passage of boats or other vessels in or through any sea, creeks or coves, to other men’s houses or lands ; ” “ and for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass through any man’s propriety for that end, so they trespass not upon any man’s corn or meadow.” Mass. Col. Laws (ed. 1660) 50; (ed. 1672) 90, 91; Anc. Chart. 148,149. The earlier records of the colony show that the general court had not only, in establishing the boundaries of towns, where they touched great ponds, defined how much of every such pond should be deemed to be within each town; 1 Mass. Col. Rec. 144, 253; but had already made several grants to individuals of exclusive rights of fishing and fowling at particular places, either upon tide water or in great ponds, besides at least one such grant of a tract of land including the whole of a great pond. Ib. 94,114, 127, 128, 147, 236, 277. Stoughton v. Baker, 4 Mass. 522, 527. West Roxbury v. Stoddard, 7 Allen, 158, 165. Tudor v. Cambridge Water Works, 1 Allen, 164.

This ancient ordinance, in its amended form, is the foundation of our law upon this subject. While it prohibits the towns from granting away great ponds, it expressly affirms their power to regulate the fisheries, both in such ponds and in tide waters, and that of the legislature to dispose either of great ponds, (as well of bays, coves and rivers within the ebb and flow of the tide,) or of the common rights of fishing and fowling in them. It has ever since been held that the right of fishing, both in the tide waters and in the great ponds, belongs to the public, unless otherwise appropriated by the legislature, or by the towns acting under its authority. Coolidge v. Williams, 4 Mass. 140. Proctor v. Wells, 103 Mass. 216. West Roxbury v. Stoddard, 7 Allen, 158,166. In streams above the ebb and flow of the tide, the exclusive right of fishing is in the owners of the banks, subject to the regulations of the legislature for the common ben* efit. Waters v. Lilley, 4 Pick. 145. Commonwealth v. Chapin, 5 Pick. 199. Vinton v. Welsh, 9 Pick. 87. McFarlin v. Essex Co. 10 Cush. 304, 309. Commissioners on Inland Fisheries v. Holyoke Water Power Co. 104 Mass. 446, 450.

The power of the legislature of the Commonwealth over the public rights of navigation and fishing in any waters within its boundaries is unrestricted, provided it does not interfere with the power to regulate commerce, conferred upon the general government by the Constitution of the United States. Cooley v. Philadelphia Board of Wardens, 12 How. 299. Gilman v. Philadelphia, 3 Wallace, 713. The legislature of a state has the power to regulate the time and manner of fishing in the sea within its limits ; and, according to the opinions of most respectable judges, may even grant exclusive rights of fishing at particular places in tide water. Burnham v. Webster, 5 Mass. 266. Dunham v. Lamphere, 3 Gray, 268. Smith v. Maryland, 18 How. 71. Corfield v. Coryell, 4 Wash. C. C. 371, 380. Bennett v. Boggs, Bald. 60. In those waters, whether within or beyond the ebb and flow of the tide, which are not navigable from the sea for any useful purpose, there can be no restriction upon its authority to regulate the public right of fishing, or to make any grants of exclusive rights which do not impair other private rights already vested. Nickerson v. Brackett, 10 Mass. 212. Cleaveland v. Norton, 6 Cush. 380. Russell v. Russell, 15 Gray, 159,161.

The term “ navigable waters,” as commonly used in the law, has three distinct meanings: 1st, as synonymous with “ tide waters,” being waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt; or, 2d, as limited to tide waters which are capable of being navigated for some useful purpose ; or, 3d, (which has not prevailed in this Commonwealth) as including all waters, whether within or beyond the ebb and flow of the tide, which can be used for navigation. Commonwealth v. Chapin, 5 Pick. 199. Rowe v. Granite Bridge Co. 21 Pick, 344. Murdock v. Stickney, 8 Cush. 113,115. Attorney General v. Woods, ante, 436. Waters v. Lilley, 4 Pick. 145,147. Genesee Chief v. Fitzhugh, 12 How. 443. The Daniel Ball, 1C Wallace 557.

The object of the St. of 1869, c. 384, is declared by its title to be “encouraging the cultivation of useful fishes,” and its principal provisions, so far as they have any bearing upon this case, are as follows:

“ For the purposes of this act,” it expressly adopts, as to streams at least, the second of the definitions just stated, and gives it additional precision, by providing, in § 14, that “ no tidal stream shall be considered navigable above the point where on the average throughout the year it has a channel less than forty feet wide and four feet deep during the three hours nearest the hour of high tide,” and, in § 17, that the governor and council may “ arbitrarily fix and determine the tidal bounds and mouths of streams, upon the recommendation of the commissioners on inland fisheries.” It further provides, in § 15, that the governor and council, upon the like recommendation, “ may limit or prohibit, for a period not exceeding five years at a time, fishing in the navigable tidal waters of specified streams, and in the unnavigable waters of streams, except in such portions as may be inclosed according to the provisions of section sixteen,” by which section “ any riparian proprietor may, within the limits of his own premises, inclose the waters of a stream not navigable, for the cultivation of useful fishes ; provided he furnishes a suitable passage for migratory fishes naturally frequenting such waters.”

Section 7 provides that “ the riparian proprietors of any pond, the superficial area of which is not more than twenty acres, and the proprietors of any pond or parts of a pond, created by artificial flowage, shall have exclusive control of the fisheries therein existing; but this shall not abridge any rights, heretofore granted, to fish for herring or alewives in ponds of the above dimensions which are connected with salt water, nor affect any previous laws restricting fishing for any period of time.” And by § 13, if any such pond is bounded in part by land belonging to a town, or a county, provision is made for the assessment and payment of compensation for its rights therein.

By § 8, “ the fishery of any pond, the superficial area of which is more than twenty acres, shall be public, except such as may have been specially granted by law or leased as hereinafter provided, and all persons shall, for the purpose of fishing, be allowed reasonable means of access to the same, without rendering themselves liable to prosecution or action for trespass.” By § 9, “ the commissioners, or any two of them, may, in the name of ¿he Commonwealth, lease any great pone', exceeding twenty acres in area, for the purpose of cultivating useful fishes, for such periods of time and on such terms and conditions as shall seem to said commissioners most for the public good; and the lessee of such pond may occupy a portion, not exceeding one tenth part thereof, with inclosures and appliances for the cultivation of useful fishes; but this shall not affect any public rights in such pond, other than the right of fisheries ; and the appliances and inclosures used by the lessee shall be so placed as not to debar ingress to or egress from such pond at proper places.” And by § 10, “ the commissioners shall have the custody of all leases made under the provisions of this act, and may cause any agreements, rights, reservations, forfeitures and conditions therein contained to be enforced, and for that purpose may institute proceedings in the name of the Commonwealth, and may take possession of any premises for conditions in such lease thereof being broken, and, revesting the Commonwealth therewith, may again lease the same.”

By § 18, “ fishes artificially propagated or maintained shall be the absolute property of the person propagating or maintaining them.” And by § 19, “ whoever fishes in that portion of a pond, stream or other water in which fishes are lawfully artificially cultivated or maintained, without the permission of the proprietors,” shall be subject to a penalty. It is upon this section that the present complaint is founded.

The defendant contends that the Tisbury Great Pond is within the ebb and flow of the tide, and therefore not within the purview of the statute. It is true that most of the great ponds which have heretofore been the subject of judicial decision have been above the ebb and flow of the tide. Cummings v. Barrett, 10 Cush. 186. West Roxbury v. Stoddard, 7 Allen, 158. Berry v. Raddin, 11 Allen, 577. And if this pond had been accessible in vessels or boats from the sea, there would be great force in the objection that the legislature could not have intended by this statute to put it so far under the control of the commissioners on inland fisheries as to authorize them to lease it. But many or the great ponds of the Commonwealth have a more or less direct communication with salt water, as is recognized in § 7 of this very statute above quoted. See also Tudor v. Cambridge Water Works, 1 Allen, 164. And it appears by the facts stated in the report that this pond is not connected with the sea except by a narrow channel, partly natural and partly artificial, not suited to any other use than the passage of fish, not always sufficient for that purpose without being artificially cleared, and not a navigable stream within the definition of the statute itself. The court is of opinion that such a pond is a great pond, within the mean ing of the statute, of which, as it exceeds twenty acres in extent, the commissioners may make a lease.

It is next contended that the statute does not apply to migratory fish, which come and go from the pond to the sea. But many provisions of the statute show that it is not to be so limited in its application. Section 1 declares that “ all the laws of the Commonwealth, relating to the culture, preservation, capture or passage of fish, shall be known as the laws relating to inland fisheries.” The commissioners on inland fisheries are authorized by § 3 to enforce all laws regulating inland fisheries, and to seize and remove illegal obstructions, except mill dams, “ to the passage of migratory fish; ” and by § 4 to compel the construction and improvement of fishways, which can only be required for migratory fish. The only restriction imposed by § 16 upon the right of any riparian proprietor to inclose within the limits of his own premises the waters of a stream not navigable, for the cultivation of useful fishes, is that he must provide a suitable passage for “ migratory fishes naturally frequenting such waters.” And the statute contains many specific provisions regarding fishes that go annually to the sea, such as alewives, shad, salmon, trout and smelt. §§ 7, 23, 24, 26-29, 31. The general words of § 9, authorizing leases of great ponds of more than twenty acres “ for the cultivation of useful fishes,” and of § 19, for the punishment of “ whoever fishes ” without permission of the proprietors where “ fishes are lawfully artificially cultivated or maintained,” must therefore be taken to include all kinds of fish, whether migratory or not.

It is next argued that this complaint cannot be supported, because, when the defendant took fish as alleged, the lessees had in fact introduced no new fish into the pond, nor fed the fish already there, nor erected any fish-houses, appliances or inclosures, nor put up any notices to prohibit persons from fishing, nor done anything towards cultivating, propagating or maintaining the fish, except to clear the passage to the sea. But we are of opinion that, upon the fair and reasonable construction of the statute, a pond which has been leased by the commissioners for the cultivation of useful fishes under § 9, and thereby set apart and held for that purpose, and the occupation of which has not been abandoned by the lessees, is a place “ in which fishes are lawfully artificially cultivated or maintained,” within the meaning of the statute, and that the question whether any special means should be taken by the lessees to carry out the object of the lease is one to be determined by the commissioners in framing the lease under § 9 and in enforcing breaches of agreements and conditions therein under § 10, and not to be raised by a person fishing without authority.

The objection that the exclusive right of the lessees to the fish in the pond was limited to one tenth part of the pond is inconsistent with the express terms of the statute. Section 9 authorizes the whole pond to be leased for the cultivation of useful fishes, subject only to the restrictions that the appliances and inclosures for the purpose shall not occupy more than one tenth part of the pond, and shall be so placed as not to debar reasonable ingress to and egress from it, and that any public right in the pond, other than the right of fishing, shall not be affected. The reason for the terms of the prohibition of § 19 against fishing “ in that portion of a pond, stream or other water in which fishes are lawfully artificially cultivated or maintained,” evidently was that fishes might lawfully be cultivated or maintained by the proprietors of part of a pond created by artificial flowage, under § 7, or by the proprietors of part of a stream not navigable under § 16.

The remaining objections made are to the form of the lease. One is, that it contemplates the occupation of one tenth part of the pond with appliances and inclosures “for the taking,” as well as the cultivation of fish by the lessees. But § 20 provides “ that any person lawfully engaged in the artificial culture and maintenance of fishes may take them in his own waters how and when he pleases; ” and the terms of the lease in this respect were within the discretionary authority of the commissioners under § 9. The other is, that it only requires the lessees so to arrange their inclosures and appliances as not to debar ingress and egress at proper places “ at proper times ” and not at all times. But this only affirms what would otherwise have been implied, for the statute could not be construed to secure a right of ingress and egress at unreasonable times.

The result is, that none of the grounds of defence can be sustained, and there must be Judgment on the verdict.