Treat v. Parsons

Walton, J.

This is a bill in equity to which the defendants have demurred. It appears by the allegations in the bill that the plaintiff owns land bounded by the shore of Penobscot Bay, and that the defendants have obtained by grant " all the right of taking salmon, shad, and alewives, on the whole of the shore frontage of said land, together with all the privileges necessary for carrying on the said fishing.” And the plaintiff avers that by means of weirs the defendants take, and can not avoid taking fish other than the kinds named in the grant; and he claims that these other fish properly belong to him; and it is upon this ground that he asks for the interposition of the court.

We do not think the relief prayed for can be granted. Fish, before they are taken, are the property of no one. When taken, like all animals, fierce naturae, they belong to the taker. The plaintiff’s claim that the fish taken by the defendants, other than the ones named in the grant, properly belong to him, has no foundation in law or equity. The defendants have no right to attach to the plaintiff’s land fixtures for the express purpose of taking fish other than those mentioned in the grant; but if, having constructed weirs for no other purpose than to take such fish as are named in the grant, they find other fish therein, and are the first takers of them, we think such fish become their property, the same as if taken by other means, and that the owner of the shore has no property in them. See Matthews v. Treat, 75 Maine, 594, an action in which the plaintiff in this suit was defendant, and the rights of the parties under the grant in question were fully considered and defined.

Bill dismissed, with costs.

Peters, C. J., Virgin, Libbey, Haskell and Whitehouse, JJ., concurred.