2 Binn. 475 | Pa. | 1810
after stating- the facts delivered his opinion as follows:'
It has been contended on the part of the plaintiff, that the owners of lands on the banks of the Susquehanna have the exclusive right of fishery in the river opposite to their shore. 1st. On the principles of the common law of England, applicable to our local situation; 2dly, on the original concessions of the first proprietary; and 3dly, by the particular laws and usages of Pennsylvania.
Cases have been cited from the English books to shew a distinction at common law, between fresh water-rivers and
The preamble of the old act of assembly, “ for the ad- “ vancement of justice, and more certain administration w thereof,” passed 31st May 1718, recites that “ it is a settled “ point, that as the common law is the birth right of English “ subjects, so it ought to be their rule in British dominions.” 1 Dall. St. Lazes 133. And the law of the 28th -January 1777, provides that the common law of England shall be in force and binding on the inhabitants of this state. 1 Dall. St. Laws 723. But the uniform idea has ever been, that only such parts of the.common law as were applicable to our local situation have been received in this government. The principle is self-evident. The adoption of a different rule would, in the language of Sir Dudley Ryder, resemble the unskilful physician, who prescribes the same remedy to every species of disease.
The qualities' of fresh or salt water cannot amongst us, determine whether a river shall be deemed navigable or not. Neither can the flux or reflux of the tides ascertain its character. Pursuing such rule would, in the first case, render the river Delaware an innavigable stream throughout the confines of the state; and in the second, would confine its navigable quality to its several courses south from Trenton. To assert that in either instance the proprietors of lands on the margin of that river, have the sole right of fishery to the middle of its bed, corresponding to their title in front of it, is, I presume, a doctrine which the warmest advocates for the right of exclusive fisheries, would scarcely contend for.
The original conditions or concessions agreed upon by the first proprietary and the adventurers and purchasers in the province, dated the 11th July 1681, have been insisted on by the plaintiff’s counsel as á ground of right. The 6th section thereof is iu these.words: — u Notwithstanding there u be no mention made in the several deeds made to the “ purchasers, yet the said William Penn doth accord and “ declare,- that all rivers, rivulets, woods and underwoods, “ waters, water-courses, quarries, mines and minerals (ex- “ cept mines royal) shall be freely and fully enjoyed, and “ wholly by the purchasers into whose lots they fall.” 1 Dall. Append. St. Laws 7. I do not conceive, that these words would be sufficiently extensive to convey a right to the bed of a navigable river, even to the first purchasers, unless it appeared clearly that it fell within their lot: but be this as it may, I fully concur in opinion with the Chief Justice, that these concessions were personal and confined to the first purchasers, and those claiming under them. Amongst the parts of this instrument, consisting of twenty sections, the 3d, 4th, 7th, 8th, 10th, 11th, -12th, 14th, 17th, 18th and 20th sections, will, on examination of the nature of the subjects to which they respectively relate, be found to be applicable to the original adventurers and purchasers. And in the case of the
' Upon the trial, the act “ for regulating the fisheries in the “ river Susquehanna and its branches,” passed 16th March 1807, was mentioned, but it had not been then published. Another act of 6th March 1793, which bears strongly on the subject in question, was not adverted to. The custom respecting the fisheries in Susquehanna, was insisted on as a imlter notorious to all who lived near the river, but no evidence w 13 given of it. On neither of these laws, nor on the custom, was the opinion of the Chief justice required, nor was it given. I think all of them material in the case.
As So the custom, I need no proof of it. I have cautiously avoided looking into the affidavits overruled on the argument. For forty-five years last past at least, I have understood the settled usage to have been, that the owners of lands on the margin of the Susquehanna, or the islands therein, upon their clearing out a pool oi-reasonable extent immediately opposite to their respective shores, had and exercised the sole right of drawing their seines therein. Even the defendants in this case gave in evidence, a small additional clearing in 1796 in the pool near the sand-bar, from which, I presume they derived some species of right.
Until lately, I heard of no one pretending to disturb them. The first attempt of that kind, which I now recollect, was the ingenious device practised near Harrisburg, of anchoring a raft, at a small distance from the shore, and converting it into a landing place. But the contrivance was rendered abortive by the verdict of a jury. Hitherto I have thought, that the exclusive privilege of fishery, confined and limited as I have stated it, conduced to the public good. It did not injure the navigation of the river. But the wild claim of privilege to the middle of the river, I never till this period heard seriously asserted. There can be no shad fisheries unless the rocks and stones are removed froih the bed of the river, which forms the pools. This is frequenly effected at
At present, the custom I have mentioned, appears to me to be a good one; but I hold myself at liberty to retract this opinion, should further consideration induce me to alter my mind.
The legislature have passed several laws for the preservation of the fish in the Susquehanna and its branches. It was discovered, that several persons were desirous of obtaining landings in the river, though even on sand bars, in order to enable them to draw out their nets. It was obyious, that such
The late act, passed on 16th March 180/, 8 St. Laws 74., shews a legislative exposition of individual rights to fisheries in the Susquehanna and its branches. It professed to regulate the fisheries therein, and went into operation immediately after the passing of the act. The third section describes what shall be deemed a pool or fishing place, within the meaning of the law. The fourth section provides, “ that whenever there “ is, or may be, a pool or fishing place on both sides of the “ river, and opposite each other, in whole or in part, or where (£ there is, or may be, a pool or fishing place on an island, ££ shoal, or sand bank, opposite, in whole or in part, to the “ pool or fishing place on either side of the river or island, “ where they sweep the whole channel, no seine or net shall “ be drawn in such pools or fishing places, to both landings, <£ in any one period of twenty four hours,” and proceeds to direct, that such fisheries shall be alternately occupied, under the penalty of three hundred dollars. These regulations appear to me to be utterly inconsistent and incompatible with the common right of fishing in such pools.
The light in which this case strikes me, on the best consideration I have been able to give it, is, that it demands reconsideration; and that the\ peace of the country is intimately connected with our present decision. On another trial, evidence of the usage may be given, without depending on it as a known fact. Its validity may then be determined on, and the laws I have adverted to, will be fully considered and judged of. If the plaintiff cannot establish his exclusive right to this fishery, or shew his possession therein, to the satisfaction of a jury, on a future trial, he cannot prevail: but if his pretensions can be fully established, I see no reason why he should be precluded therefrom; nor can I discover that any injustice will be done thereby to the defendants.
Upon the whole matter, I am of opinion, that a new trial should' be awarded, and that the costs of the former trial should abide the event of the suit.
Whatever may have been the mode of acquiring real estate in England, or whatever the nature of the 'tenure, the designation of separate property in land, would seem to have been by natural boundary, or by the artificial distinction of land marks. The transmission or alienation was made usually by a descr.iptio loci, or by a designation of quantity. If the land was covered with water, a grant of it under that description was necessary to pass the fee simple in the soil; though in order to have an exclusive fishery
The law presumes an incorporeal hereditament like the one in question, to have been originally founded on a grant by him who had the fee simple of the land aquá cooperta; and where a grant by deed cannot be shewn, a prescriptive enjoyment may be alleged as the evidence of a grant. A man may prescribe to have separalem piscariam in such a water, and the owner of the soil shall not fish there. Co. Litt. 122. a.
This is the common law of England, which is our law here, so far as regards the nature of the tenure of real estate. The right of piscary must be a right appurtenant to the soil covered with water. It must be a part of the fee simple of that soil, and must be supposed to have been originally granted out of it, by him who had the fee simple. What evidence is there of a grant here? There will not be found any such grant eo nomine in the land office, nor in the possession of any person.
But it is alleged that the grant of soil adjoining water, carries with it a grant of such hereditament in the soil cover» ed with water; that is, the grant of one soil, carries with it an hereditament in another; for the right in the water cannot be an appurtenance of the soil adjoining, as it never could have made a part of the fee simple of it. What evidence is there, that the grant of the soil adjoining, carried with it the grant of an hereditament in the soil covered with water? It is not found in any application to the land office, in any warrant of survey, or in the recital or grant of any patent.
Prescriptive enjoyment is alleged as evidence of the grant; an enjoyment whereof the memory of man runneth not to the contrary. Has there been time since the opening of the proprietary land office, or even since the granting the charter to William Penn, for such a prescription to run? Admit that there has, so far as regards what may be the subject of a writ of right, in which by the statute of 32 Hen. 8. sixty years is the limitation. Yet this prescription .is still founded on the
But the acts of ownership continued to be exercised by the proprietary government, and by the commonwealth since it succeeded to the fee simple of the soil, repel all presumptions of an original grant. The charter to William Penn is bounded on the east by the Delaxvare river, and it gives him the free and undisturbed use of rivers within the limits and bounds mentioned, together with the fishing of all sorts of fish. In the conditions or concessions agreed upon in England, by William Penn and those who were adventurers and purchasers, it is provided that all rivers and waters shall be freely and fully enjoyed by the purchasers into whose lot they shallfall; so that it may be inferred, that waters must fall into a lot, before they can be enjoyed. Grants from the proprietary land office have been carried into effect in a manner that excludes all land not contained within the survey returned. For these grants have been originally made, and are still in some measure to be ascertained, not by natural boundary or land mark, or description of place or quantity, as originally in England, but by the course of the compass, and measured distance. Where the survey is bounded by the water, and calls for it, as in this case, the land to the water is supposed to pass, even though an interstice may remain ad flam aqua; but no conclusion can be made of a further grant. By the instructions to surveyors, the proprietary would seem to have had in view the accommodating settlers witfr the use of water, by restricting a front to a certain propor
The provincial legislature, of which the proprietary by his governor made a part, appear to have exercised from the earliest period, an ownership over all rivers and waters within the province, making them highways, or considering them as such. By an act of 1700, they prohibited the erection of wears, “ to the end that all persons inhabiting near any creek “ or river in the province, might enjoy all privileges and ad- “ vantages that from them were to be reaped.” 1 St. Laws 21. In 1724 they prohibited the erection of bridges over any river or creek within the province, navigable for any sloop, shallop, fiat, or other craft, which might anywise stop or hinder the navigation; reciting in the preamble of the law, that the erection of bridges over rivers, to the obstruction of their, navigation, not only affected the interest of the owners of lands upon and near navigable waters above those bridges, but also the trade of the province in general. 1 St. Laws 227. In 1761 they again interdicted the erection of wears in the Delaware, Susquehanna, and Lehigh, and made various regulations to preserve the fish in those rivers. 1 St. Laws 396. In 1768 they passed an act for regulating the fishery in the river Brandywine, with this striking preamble: “ Whereas “it hath been represented to this assembly, by petition from “ a number of the freeholders in the county of Chester, that “ live on or near the river called Brandywine, that their an- “ cestors, themselves, and the poor adjacent inhabitants, have “ formerly enjoyed great advantages from the fishery in the “ same river; and although no person owning land below the “ fork or main branches, can claim any right, by survey, to the “ lands covered with the waters thereof, yet divers persons “ have erected dams across the said river, to the almost to- “ tal obstruction of the fish running up the same, be itenact- “ ed, &c.” 1 St. Laws 497. In 1771 there is the same preamble, and the same.remedy for preserving the fish in the rivers Codorus and Conewaga. 1 St. Laws S47. In 1774 by a law with the same preamble, and with similar regulations, they prohibit all persons from drawing their seines
These principles do not apply to surveys which include Streams, where the soil covered with water makes a part of the grant. But even in the case of surveys bounded on water, where a small stream intervenes, I can see nothing that can give either of them the exclusive use of that stream. Wading up a brook between surveys on each side, and which call for the brook as a boundary, or pushing a canoe, or throwing out a hook and line, and angling for fish, would not seem a trespass. Could I be disturbed if I occupied a rock in the stream? Might I not claim by my possession against all but the proprietary originally, or the commonwealth now? What Is there to hinder me from calling a lizard’s length of land my own? Est aliquid dominum sese fecisse lacerta;. Admitting however that a streamlet or brook shall not be considered as dividing surveys, so as to make a space separate between them that could be appropriated, shall it be so considered to the mouth of the river which this streamlet shall become? The charter proprietary, the Commonwealth which has succeeded, has not so considered it. This repels the allegation of an undisturbed or acknowledged exclusive occupancy, which must be the foundation of any prescription that can be alleged in this case.
I am therefore of opinion in the words of the Chief Justice at the trial, that the owner of lands on the banks of the
New trial refused, and Judgment for defendants.