This is an action of trespass for breaking and entering the plaintiff’s close; taking and carrying away fish, &c.
The land of Charles Polk by the original patent and survey, extends to the Delaware bay, which has encroached upon the land some seventy perches ; and the question is, whether the defendants are guilty of a trespass for taking fish between high and low water mark, or below that line, but over soil which once belonged to the plaintiff, and which by the encroachments of the sea had become covered with water.
The right of fishing in all public streams where the tide ebbs and flows, is a common right, and the owner of land adjoining tide water, though his title runs to low water mark, has not an exclusive right of fishing ; the public have the right to take fish below high water mark, though upon soil belonging to the individual, and would not be trespassers in so doing; but if they take the fish above high water mark, or carry them above high water mark and land them on private property, this would be a trespass; but the damages would be merely nominal, as for an illegal entry; it being agreed in the argument that there was no other injury. In all navigable rivers,, where the tide ebbs and flows, the people have of common right the privilege of fishing, and of navigation, between high and low water mark; though it be over private soil.
The jury could not agree, and the parties compromised.