A riparian proprietor whose land borders upon tide water has, by the common law, certain private rights to the shore between high and low water mark. These do not amount to seizin in fee, but are in the nature of franchises or easements.
East Haven
v.
Hemingway,
The State holds the legal fee of all lands below high water mark as at common law, as has been uniformly and repeatedly decided by this court.
Bailey
v.
Burges, supra ; Engs
v.
Peckham,
11 R. I. 210, 224;
Brown v. Goddard,
13 R. I. 76, 81;
Folsom
v.
Freeborn, ib
200, 204. By the conxmon law of Massachusetts and Maine, based upon or declared by a colonial. ordinance, the fee in lands to a certain distance below high water mark was given to the upland proprietor,
*116
and this rule applies to such portions of our shore as have been ceded from Massachusetts. .This right of the State is held, however, lay virtue of its sovereignty, and in trust for all the inhabitants, not as a private proprietor. The public ■ rights secured, by this trust are the rights of passage, of navigation and of fishery, and these rights extend, even in Massachusetts, to all land below high water mark unless it has been so used, built upon or occupied, as to prevent the passage of boats, and the natural ebb and flow of the tide.
Weston
v.
Sampson,
The establishment of a harbor line permits the riparian owner to cany the upland or high water mark out a certain distance from the natural shore. Actual extension of the upland to the new line extinguishes all public rights within it. The land which was formerly shore becomes upland and while the rights to shore and upland are not changed, they are carried further out into the tidal stream, or sea. Engs v. Peckham, 11 R. I. 210, 224; Providence Steam Engine Co. v. Providence & Stonington Steamboat Co., 12 R. I. 348, 355. Until actual filling out, the public rights exist as before. Gerhard v. Bridge Commissioners, 15 R. I. 334.
Shell fisheries are public rights which may be regulated for the public good; State v. Cozzens, 2 R. I. 561; State v. Medbury, 3 R. I. 138; New England Oyster Co. v. McGarvey, 12 R. I. 385 ; as may also the rights of navigation. In the absence of any express restriction, any inhabitant may take shell fish anywhere in the waters of the State and on the shores below high water mark as it exists from time to time. In doing so, he may disturb the soil and dig up the grass or sedge if necessary.
The public right of fishery is paramount to the private right to cut grass or sedge.
Bagott
v.
Orr,
2 Bos. & Pul. 472;
Parker
v.
Cutler Milldam Co.,
The instructions of the judge before whom the case was tried were erroneous in affirming that it was a trespass in the defendant to disturb the plaintiff’s thatch in digging clams.
A new trial must be granted.