But it has been said, that he who has the several fishery in à water, shall have an action on the case against him who erects a dye-house, or any other nuisance, by which the profits of the fishing is injured.1 So again, the causing a superfluity of water to drown or overflow a fishery, is a plain obstruction, and punishable by an action of trespass.2

In the Supreme Court of the State of New York, it appeared, that, in 1784, the country through which a river called the Saranac runs, was wild and uninhabited; and a patent for a tract of land was in that year granted, bounded on the east by lake Champlain, and extending west on both sides of said river, and being seven miles square. The patent contained no other exception or reservation except those of "all mines of gold and silver, salt lakes, springs and mines of salt, and carrying-places upon any water communication, which may be found or contained within the limits of the said land, &c." It was admitted, that the defendants acquired a regular title to the mill property, with its appurtenances, including the dam, pond, and the land on both sides of the Saranac, under this patent. The first dam erected by the patentee was in 1785 or 1786; and at that time there were but two or three inhabitants above the dam. The patentee exercised exclusive acts of ownership over the river and its waters, where the mill-dam and pond were, from the the time the first dam was erected, and the subsequent possessors under him continued to exercise the same

within certain limits, and for certain times, may be prevented by an act of the Legislature. Chalker v. Dickason, 1 Conn. Rep. 510.

1 17 Ed. III. 9, pl. 31.

2 Ro. Ab. 142.

ownership. Before the above-mentioned dam was erected, salmon were seen in the upper part of the river; and after it was built, many salmon were caught at the foot of the dam, but none above it. In 1797, the old dam was taken away, and a new one erected below it. In 1801, in conformity to a statute, a sluiceway or slope was erected, for the purpose of enabling the salmon to ascend the dam to the river above; but, on account of the shallowness of the water, they were never able to ascend; and the number which used to appear had greatly diminished. The Court held, that as there was no reservation of the river, nor any restriction of the use of it, expressed in the grant, the whole river, within the bounds of the patent, passed to the patentee as his exclusive property; and therefore that he was not liable for the erection of his dam, either at common law or under any statute for the preservation and passage of fish in certain waters. And that such statutes should be construed with an implied exception of such streams (not being navigable) as had been fully and absolutely granted by the State, without any reservation or limitation in the use of them; and that, so far as they affected the rights of the patentee, and his assigns, to the absolute and exclusive enjoyment of so much of the river as was included in the patent, such statutes impaired the obligation of contracts, and were, therefore, unconstitutional and void.'1

It has been adjudged in Pennsylvania, that the owner of land fronting upon the river Schuylkill, above tide-water, who had the exclusive right of drawing seines on his own land, was not entitled to damages,

1 The People v. Platt, 17 Johns. Rep. 195; and see Crenshaw v. Slate River Company, 6 Rand. Rep. 245.

under the act incorporating the Schuylkill Navigation Company, for an injury sustained in consequence of the erection of a dam across the river, by the said Company, by reason of which, shad and herring were hindered from passing up the river. The plaintiff, the Court unanimously considered, had suffered no injury intended to be compensated by the act of the Legislature.1

Where it is provided by statute, that a town may regulate the fishery in a river passing through it, and appoint a committee to enforce the regulations and prosecute all violations of them, and gives a penalty against the owners of dams on the river if they do not keep sufficient passage-ways open for fish, the penalty to be recovered, one third for the use of the informer, and two thirds to the use of the town; the committee cannot maintain an action for such penalty in their own names for the use of the town.2

An indictment at common law will not lie for a nuisance, in obstructing the passage of fish, in a river not navigable.3

1 Shrunk v. Schuylkill Navigation Company, 14 S. & Rawle, 71.

2 Commonwealth v. Chapin, 5 Pick. Rep. 199.

3 Vinton v. Welsh, 9 Pick. Rep. 87. As to what rivers are and are not navigable, see the next chapter, sec. 2.

1

CHAPTER VIII.

OF SUCH WATERCOURSES AS ARE SUBJECT TO PUBLIC USE.

Sec. I. When a Watercourse is a Public Highway.

THOUGH all fresh rivers, where there is no flow of the tide, are in point of property, prima facia, private, they may be of public interest, and belong to the people in general as public highways.' Rivers of public use in the transportation of property, are of this class; and, being subservient to commerce, have, by general consent, and by the well-settled doctrine of the English common law, been considered as things of common right.

The excellent treatise of Sir Matthew Hale, just referred to at the bottom, has been universally regarded as of high authority on this subject. It also defines, with much precision, what constitutes a public river, and illustrates, with uncommon perspicuity, the distinction between such rivers as are exclusively private and those in which the community have an interest. The doctrine laid down in this treatise is, that fresh rivers, of what kind soever, do, of common right, belong to the owners of the adjacent soil; but that such rivers, as well as those which ebb and flow, may be under the servitude of the public interest. That is to

1 Harg. Tracts, De jure maris, &c.

say, they may be of public use for the carriage of boats, &c., and, in this sense, may be considered public highways by water. Thus-adds our author-the Wye, Severn, Thames, &c., as well above as below the flowing of the tide, and as well in the parts where they are of private as of public property, are public rivers, juris publici; and nuisances and impediments therein are liable to be punished by indictment. They are called public rivers, not in reference to the property of the river; for that is in the individuals who own the soil; but in reference only to the public use. This is the true and just rule which harmonizes private right with public interest.

2

A more perfect regulation on this subject perhaps could not be devised. It effectually secures common rights, so far as the public interest requires; affords a proper line of demarcation between them and private rights; and promotes the grand ends of civil society, and the peace and security of individuals, by pursuing the wise and useful maxim of assigning to every thing capable of ownership a legal and determinate owner.3

The territory of the United States is particularly distinguished for such rivers as are capable of being held and enjoyed as private property, and which, at the same time, are public highways. In the latter view they have been of infinite utility to the country. They afford a comparatively cheap communication

See chap. i. sec. 1 and 2.

* Royal Fishery in the river Banne, (case of), Davie's Rep. 152; Callis on Sewers, 78; Carter v. Murcot, 4 Burr. 2162; Sampson v. Seavy, 8 Green. (Maine) Rep. 138; People v. Canal Appraisers, 13 Wend. (N. Y.) Rep. 355.

3 Adams v. Pease, 2 Conn. Rep. 48.