FISHERY, estates. A place prepared for catching fish with nets or hooks.
This term is commonly applied to the place of drawing a seine, or net. 1
Whart. R. 131, 2.
2. The right of fishery is to be considered as to tide or navigable
waters, and to rivers not navigable. A river where the tide ebbs and flows
is considered an arm of the sea. By the common law of England every
navigable river within the realm as far as the sea ebbs and flows is deemed
a royal river, and the fisheries therein as belonging to the crown by
prerogative, yet capable of being granted to a subject to be held or
disposed of as private property. The profit of such fisheries, however, when
retained by the crown, is not commonly taken and appropriated by the king,
unless of extraordinary value, but left free to all the people. Dav. Rep.
155; 7 Co. 16, a: Plowd, 154, a. Within the tide waters of navigable rivers
in some of the United States, private or several fisheries were established,
during the colonial state, and are still held and enjoyed as such, as in the
Delaware. 1 Whart. 145, 5; 1 Baldw. Rep. 76. On the high seas the right of
fishing jure gentium is common to all persons, as a general rule. In.
rivers, not navigable, that is, where there is no flux or reflux of the
tide, the right of fishing is incident to the owner of the soil, over which
the water passes, and to the riparian proprietors, when a stream is owned by
two or more. 6 Cowen's R. 369; 5 Mason's R. 191; 4 Pick. R. 145; 5 Pick. R.
199. The rule, that the right of fishery, within his territorial limits,
belongs exclusively to the riparian owner, extends alike to great and small
streams. The owners of farms adjoining the Connecticut river, above the
flowing of the tide, have the exclusive right of fishing opposite their
farms, to the middle of the river although the public have an easement in
the river as a public highway, for passing and repassing with every kind of
water craft. 2 Conn. R. 481. The right of fishery may exist, not only in the
owner of the soil or the riparian proprietor, but also in another who has
acquired it by grant or otherwise. Co. Litt. l22 a, n. 7; Schul. Aq. R. 40
41; Ang. W. C. 184; sed vide 2 Salk. 637.
3. Fisheries have been divided into: 1. Several fisheries. A several
fishery is one to which the party claiming it has the right of fishing,
independently of all others, as that no person can have a coextensive right
with him in the object claimed, but a partial and independent right in
another, or a limited liberty, does not derogate from the right of the
owner. 5 Burr. 2814. A several fishery, as its name imports, is an exclusive
property; this, however, is not to be understood as depriving the
territorial owner of his right to a several fishery, when he grants to
another person permission to fish; for he would continue to be the several
proprietor, although he should suffer a stranger to hold a coextensive right
with himself. Woolr. on Wat. 96.
4.-2. Free fisheries. A free fishery is said to be a franchise in the
hands of a subject, existing by grant or prescription, distinct from an
ownership in the soil. It is an exclusive right, and applies to a public
navigable river, without any right in the soil. 3 Kent, Com. 329. Mr.
Woolrych says, that sometimes a free fishery is confounded with a several,
sometimes it is said to be synonymous with common, and again treated as
distinct from either. Law of Waters, &c. 97.
5.-3. Common of Fishery. A common of fishery is not an exclusive
right, but one enjoyed in common with certain other persons. 3 Kent, Com.
329. A distinction has been made between a common fishery, (commune
piscarium,) which may mean for all mankind, as in the sea, and a common of
fishery, (communium piscariae,) which is a right, in common with certain
other persons, in a particular stream. 8 Taunt. R. 183. Mr. Angell seems to
think that common of fishery and free fishery, are convertible terms, Law of
Water Courses, c. 6., s. 3, 4.
6. These distinctions in relation to several, free, and common of,
fishery, are not strongly marked, and the lines are sometimes scarcely
perceptible. "Instead of going into the black letter books, to learn what
was a fishery, and a free fishery, and a several fishery," says Huston, J.,
"I am disposed to regard our own acts, even though differing, from old
feudal times." 1 Whart. R. 132. See 14 Mus. R. 488; 2 Bl. Com. 39, 40; 7
Pick. R. 79. Vide, generally, Ang. Wat. Co.; Index, h. t; Woolr. on Wat.
Index, h. t; Schul. Aq. R. Index, h. t; 2 Rill. Ab. ch. 18, p. 1,63; Dane's
Ab. h. t; Bac. Ab. Prerogative, B 3; 12 John. R. 425; 14 John. R. 255 14
Wend. R. 42; 10 Mass., R. 212; 13 Mass. R. 477; 20 John. R. 98; 2 John. It.
170; 6 Cowen, R. 369; 1 Wend. R. 237; 3 Greenl. R. 269; 3 N. H. Rep. 321; 1
Pick. R. 180; 2 Conn. R. 481; 1 Halst. 1; 5 Harr. and Johns. 195; 4 Mass. R.
527; and the articles Arm of the sea; Creek; Navigable River; Tide.
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