Moulton v. Libbey , 37 Me. 472 ( 1854 )

Shepley, C. J.

— The plaintiff’s right to recover is, by the report, made to depend upon the sufficiency of the defence to prevent it. If the Court is “-of opinion, that the facts set up in defence would not constitute a defence, then the defendant is to be defaulted.”

The facts presented in defence are, an attested copy of a “ charter of the Province of Mayne,” from Charles, king of England to Sir Eerdinando Georges, bearing date on the third day of April, in the fifteenth year of his reign. And an attested copy of a conveyance from Georges to Thomas Cammack of fifteen hundred acres of land described made on March 15, 1640. An admission, that the premises described in the declaration, where the -clams were taken, were included in the conveyance to Cammack; and that the defendant may have the same title to them, which Cammack had..

The other ground of defence is derived from a long established custom of taking clams by the owners of the premises.

The defendant’s right to take the clams is, therefore, made to rest upon the basis of title, and upon that of a long established usage.

Assuming that the defendant has acquired all the title, which Georges could convey, a question might be made, whether he could thereby acquire any title to the flats land between high and low water mark. It is not deemed to be important to consider such a question, for by the ordinance of 1641, which has been received as conferring title in this State, the defendant would acquire title to the premises.

The question therefore presented by this branch of the defence is, whether the defendant by becoming owner of the flats acquired any exclusive right to the fisheries upon them in the tide waters.

By the common law, as presented from its earliest time to the present in elementary treatises and judicial decisions without any dissent, the people have “ a liberty of fishing in the sea or creeks or arms thereof as a public common piscary, and may not without injury to their right be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath acquired a propriety exclusive of that common liberty.”

The shores of the sea and navigable rivers, within the flux and reflux of the tide, belong prima facie to the king, and may belong to a subject. “ The fus privatum of the owner or proprietor is charged with, and subject to that jus publicum which belongs to the king’s subjects.” Hale, De Jure Maris, c. 6; De Portibus Maris, c. 1.' Whatever right the king had by his royal prerogative in the shores of the sea and of navigable rivers, he held as a jus publicum in trust for the benefit of the people for the purposes of navigation and of fishery. These positions have been approved in judicial decisions too numerous to be mentioned. They are not known to have been-denied by any respectable authority.

The title of the defendant to impair this common right of fishery and. to assert an exclusive right may be more conveniently considered as derived in the first place from Georges, and in the second place, from the ordinance of 1641.

The grant from the king to Georges, is of “ all and singular the soils and grounds thereof, as well dry as covered with waters,” “ together with the fishing of what kind soever as well pearls as fish, as whales, sturgeons, or any other, either in the sea or in rivers.”

If this grant were considered without the saving clause hereafter to be noticed, it might not be difficult to ascertain its true construction. The grant of fishing is as extensive in the sea as in the rivers. The idea of an exclusive grant to fish in any part of the sea, that must destroy the common right, cannot be received. If it be alleged, that the grant should be permitted to operate upon the shores, where by law it might; it is to be observed, that the whole language of the grant is to be considered for the purpose of ascertaining its true construction. That it is apparent from an examination of the whole instrument to have been the in-' tention to transfer from the king to Georges within thé bounds of the territory granted the same rights, which the king had either by the jus privatum or jus publicum. The juh publicum he held in trust for the common benefit of the subject. There is no indication of an intention to violate that trust by its transfer to another; and his grantee would take subject to it.

u The jus privatum that is acquired to the subject, either by patent or prescription, must not prejudice the jus publicum wherewith public rivers and arms of the sea are affected.,” Hale, De Jure Maris.

“ The king had the right of soil in the shore in general; but the public had the right of way over it, and the king’s grantee can only have it subject to the same right.” Opinion of Mr. Justice Best, in case of Blundell v. Catterall, 5 B. & A. 268.

In the case respecting the fishery of the Banne, it appear» ed, that the king had the fishery as parcel of the ancient' in* heritance of the crown, that he granted the territory, where the fishery was, with “ omnia castra messuagia,” &c., “pis* caris, piscationes, aquas,” &c.; and it was held, that the fishery of the Banne did not pass by the grant of the land and the general grant of all piscarles. That general words in a grant by the king would not pass such a special royalty. Davis, 55. This case and the construction was approved by the opinion in the case of Somerset v. Tazwell, 5 B. & C. 875.

If such language must be so construed as not to convey a private fishery, which the king might lawfully convey, much less should it be construed in this conveyance so as to im» pair rights, which he held in trust and could not convey discharged of it without a violation of duty. “ And it has been frequently held, that the king takes this right of soil in trust for the public, so far as the fishery is concerned, and although the king may grant away this right of soil to another* yet his grantee will take it subject to the same trust; and by such grant, however comprehensive in its terms, the public, that is the king’s subjects, cannot be deprived of their common right.” Weston v. Sampson, 8 Cush. 352, In the construction of a grant made to the Duke of York, of a character very similar to that of the grant to Georges, the opinion states, “ if the right of common fishery for the common people sta,ted by Hale, in the passage before quoted Was intended to be withdrawn, the design to make this important change in this particular territory would have been clearly indicated by appropriate terms, and would not have been left for inference from ambiguous language.” Martin v. Waddell, 16 Peters, 367. Mr. Justice Thompson in hia dissenting' opinion in that case, says, “ the sovereign power itself, therefore, cannot consistently with the principles of the law of nature and the constitution of a well ordered Society make a direct and absolute grant of the waters of the State divesting all the citizens of a common right. It would be a grievance, which never could be long borne by a free people.” If so, no grant of the sovereign power capable of any other should receive a construction, that would destroy or impair any right held in trust for the common benefit of the people.

If however there may be doubt respecting the legal construction of the grant to G-eorgés, When considered without the saving clause, there can be none, when that is noticed as part of the instrument. That clause contains these words— “ Saving always to all subjects of our kingdom of England liberty of fishing as well in the sea as in the creeks ©f said province and premises aforesaid, and drying of their fish and drying their nets ashore of the said province and the premises, any thing to the contrary thereof notwithstanding.” The common right of fishery is thus clearly reserved and preserved for the king’s subjects.

It is insisted, that although the liberty of fishing in the creeks as well as in the sea inay be saved, yet that liberty is restricted to the taking of such fish as may be and are usually dried^on the shore. This construction is inadmissible, both upon general rules, and upon the use of the language. By general rules a construction, which would allow a grant of the king to diminish -a common right, is to be rejected, unless it be so clearly and fully expressed as to be incapable of any other reasonable construction. The language respecting the drying of fish and, of nets according to its-literal and grammatical construction does not restrict the liberty to take all kinds of fish. It saves to his subjects other and further rights than they had b.y the common law, those of drying their fish and nets “ ashore.” This saving of additional rights to them exhibits a general intention not only to preserve to them their common right of fishery, but to afford unusual facilities for its exercise.

The third position presented by the counsel for the defendant asserts, “ that the grant to Georges conveys a right ’to a several fishery in all the waters covering the land conveyed.”

A several fishery is an exclusive one. No other person can lawfully fish within its bounds. A construction of the .grant, which would make it convey such a fishery, would not only destroy the whole effect of the saving clause, but it Would exclude all the people from fisheries of every description in the sea and tide waters within the bounds of the territory.

It will not be necessary to offer any examination of the ordinance, or any argument to prove that a title to the shore acquired by it does not destroy the common right of navigation or of fishery. Its construction with reference to the rights of fishery was considered in the case of Parker v. The Cutler Mill-dam Co. 20 Maine, 353, and no error in it has yet been perceived. If needing support, it may be found in the opinion of the Court in the case of Weston v. Sampson, 8 Cush. 347, in which it is said, “ It is quite certain, we think, that the mere fact that the jus privatum or right of soil was vested in an individual owner does not necessarily exclude the existence of a jus publicum or right of fishery In the public.” If the title vested in the owner does not necessarily exclude the common right of fishery, that cannot be affected by a title to the soil merely j and the ordinance does not attempt to impart any exclusive right of fishery to such owner.

The defendant therefore fails to show that he has acquired either under the grant to Georges or under the ordinance, any right of fishing in the premises inconsistent with the common right of all the people.

If this be so, his counsel insists that the common right of fishery does not include the fishery of clams, which are taken out of the soil.

In all the treatises respecting that common right, the general term “¡piscaría,” or its equivalent, is used as including all fisheries, without any regard to their distinctive character, or to the method of taking the fish. There are many binds of fishery recognized in them, and' in judicial decisions ; but the general term is uniformly used not with reference to any one of them, unless that one be particularly named, but as including them all. The fact that the soil ■between high and low water mark may be dug up or disturbed to take oysters and clams, would have no tendency to prove that they were not included in the general term, for the king held his title to that soil as a jus publicum for the common benefit, and the digging upon it in the exercise of a common right would occasion no injury. That shell-fisheries have ever been regarded as a part of the public fisheries of England, is further shown by the fact that they have been regulated as such by statutes, in which they are •denominated fisheries. The oyster fisheries, by 2 George II., c. 19; 31 George III., c. 51. Lobster fisheries, by 9 George II., c. 33. In like manner have the salmon fishery, the herring fishery, the pilchard fishery, and other fisheries been regulated. *

The case of Bagott v. Orr, 2 B. & P. 472, was trespass for taking and carrying away shell-fish and shells in certain closes. The special plea of the defendant alleged that the •closes were certain rocks and sands of the sea within the flux and reflux of the tides, that in them every subject had of right the liberty of taking shell-fish and shells. The replication traversed that right. The report states that “ the Court were of opinion, that if the plaintiff had it in his power to abridge the common right of the subject to take sea-fish, he should have replied that matter specially, and that not having done so, the defendant must succeed upon his plea, as far as related to the taking of the fish; but observed that as no authority had been cited to support his claim to take shells, they should pause before they established a general right of that kind.”

Although no judgment appears to have been rendered, the opinion of the Court respecting the rights of. the parties, appears to have been fully and clearly stated. ■ Kent, in his commentaries, refers to the case as so deciding, but in notes in the different editions he says, it may be considered as overruled, or as shaken by the case of Blundell v. Catterall, 5 B. & A. 268; 3 Kent, 417. This remark is regarded as erroneous.

The question presented in the case of Blundell v. Catterall, was, whether the king’s subjects had a common right to cross the sea shore with bathing machines to bathe. The decision was against it.

It seems a little extraordinary that a decision denying such a right should be regarded as affecting an opinion that a common right to take shell-fish upon the seashore did exist. Mr. Justice Bayley did not regard the two cases as in conflict. He says “the case of Bagott v. Orr seems to me to conclude nothing on the right in question.” After making other remaks upon it, he says, “ the claim therefore in that case was very different from the present; it was a claim for something serving to the sustenance of man, not a matter of' recreation only;» a claim to take, when left by the water, what every subject had an undoubted right to have taken, while they remained in the water; and upon that claim there was no regular judgment. But it would by no means follow because all the king’s subjects have a right to fish up fish on theshore, that they have therefore a right to pass over the sea shore for the purpose of bathing.” The case was noticed by Mr. Justice Best, with approbation. The case of Bagott v. Orr must, therefore, still be regarded as the deliberate and unshaken opinion of the Court, after a full and learned argument by distinguished counsel upon the right now in question.

The case of Seymour v. Lord Courtenay, 5 Burr. 2814, appears to have been referred to by Mr. Justice Thompson, in his opinion in the case of Martin v. Waddell, as unfavorable to such a conclusion.

The action was trespass for disturbing the plaintiff’s several fishery, claimed by a grant from Lord Clifford, with .the exception of an oystery, and a reservation of a right to take fish for his own table. The question was, whether the exception and reservation destroyed the several fishery. Lord Mansfield, as reported, says, “ Here Lord Clifford being the general owner demised to the plaintiffs, reserving a particular species of fishery, viz. the oystery, which in its nature is to be exercised in a particular mo.de.” An oystery is here regarded as a “ particular species of fishing,”' and of course included in the common right of fishery. The case, so far as it has any bearing on the present question, is clearly favorable to the common right, and not opposed to it. Eor oysters as well as clams are often taken out of the soil by digging.

Mr. Justice Thompson referred also to the case of Rogers v. Allen, 1 Camp. 308, for the same purpose. That was an action of trespass for breaking and entering the several oyster fishery of the plaintiff. The special plea of the defendant alleged that the locus was in a navigable river, and arm of the sea; that all the king’s subjects had a right there to fish and dredge for oysters. The plaintiffs did not deny that common right* b,ut in their replication prescribed for a several fishery as appurtenant to the manor of Burnham, and attempted to prove it as existing “in very early times.” The defendants attempted to disprove the existence of a several fishery, by showing that all persons who chose, had been accustomed to fish there for all sorts of floating fish. In reply to this, among other remarks, Mr. Justice Heath said, “part of a fishery may be abandoned and another part 6f more value may be preserved.” In the whole case the fishery for oysters is treated as included and as governed by the laws respecting the common right of fishing, unless withdrawn by a prescription for a several fishery, which may as well be applied to a salmon as to an oyster fishery. The case is therefore favorable to the common right as including shell-fish.”

No case has been cited or noticed in the English books in which shell-fish have not been regarded as included in the. communis piscaría of the kingdom. They are so regarded and spoken of in the opinion of the Court in the case of Martin v. Waddell.

In the case of Weston v. Sampson, the question whether shell-fish including clams constituted a part of the common fisheries was very fully considered, and the decision was that they did. This Court may therefore well rest upon its former decision to the same effect, in the case of Parker v. The Cutler Mill-dam Company, until further light is obtained.

It is with some surprise that an intimation has been noticed that the case of Moore v. Griffin, 22 Maine, 350, may in principle be opposed to it. The only question in that case having any relation to the subject was whether “the right to take muscle bed manure” from the shore of tide waters was common to every "inhabitant of the town. The idea that “ muscle bed manure” could constitute any part of a common fishery was not then and cannot now be entertained.

It is insisted in argument, that if a common fishery, by which the soil may be disturbed, can be established, the owner of the shore will be deprived of all right to erect a wharf, or to make improvements upon his own land.

The common right of fishing has always been held and enjoyed in subordination to the right of navigation. Any erection which can be admitted by the latter will not be prevented by the former right.

The remaining ground of defence is, “that he and those under whom he claimed have been accustomed to take clams for a period of sixty years last past, at their free will and pleasure, from the flats described in the plaintiff’s declaration.”

Such a taking would prove nothing more than a lawful exercise of their common right to do so until they had been precluded by some statute regulation of that common right. Since that time it might amount to a continued violation of a public statute. Every other citizen might before any statute regulation lawfully conduct in like manner. No legal defence would be presented by tbe proof proposed.

. Objection is made in defence to the validity of the statute enacted for the regulation of the common right. The right of the plaintiff to have judgment is not by the report made to depend upon such a question. It may be desirable for •the purpose of quieting litigation to express an opinion upon it.

That the State as representing the people has the right to regulate such common rights and privileges has been repeatedly declared, by judicial decisions.

If those rights are to be regulated, it may be necessary to place the exercise of them under the superintendence and care of some persons to make them as valuable or useful as possible, as well as for their preservation. The law may designate persons holding particular official positions, as well as others for that purpose, and may prescribe their duties. The fifth section of the Act does not deprive any citizen of the right to take clams “ for the consumption of himself or family.” Or any fisherman of the right to take them for bait for his own use, not exceeding a certain quantity at one time. Those not needed for such uses are not t5 be taken without a permit from the selectmen or assessors. If they could be taken by all without any limitation of the quantity and for the purpose of sale for profit, the result might be, that they would soon be so much diminished or destroyed, that none desirable would be loft for the common use for food or for bait. Such control of them may be rather for their protection, and in furtherance of the enjoyment of the common right. If the agents of the law abuse their trust, they may be discharged, and others may be employed. Defendant defaulted.

How Ann, Rtce and Cutting, J. J., concurred. A dissenting opinion was drawn up by Hathaway, J.