1 Whart. 124 | Pa. | 1836
This case brings into the consideration of the court, a species of property, relating to which, we have not many decisions. Fisheries for shad and herring have, however, existed from a very early period; and though we have no act of Assembly expressly creating the right, yet we have acts regulating, and in some respects, restraining it, of an early date. All those acts relating to
Instead of going into the black letter books, to learn what was a fishery, and a free fishery, and a several fishery, I shall first examine our own acts of Assembly, and see what they have considered it and regulated it; for those regulations may show and may determine its nature; and if so, I am disposed to regard them, even though differing from old opinions in old feudal times. Many acts on many subjects were passed and in force for a time, which being re-enacted in a larger and fuller form, the prior acts became obsolete, and, are not easily found, and in some instances not worth looking for. That fisheries were important in early times, is among other things proved by an act in 1761, (1 Smith’s Laws, 231,) which in its preamble recites that large quantities of fry or brood of fish, and young fish are destroyed by dams, wiers, baskets, &c. &c. in the Delaware, Schuylkill, and Susquehanna, whereby the great quantities-of fish which were formerly to be taken in said rivers, are greatly diminished ; and then prescribes severe penalties against such as violate its provisions.
In 1771, (1 Sm. L. 314,) we find an act to regulate the fishery in the river Schuylkill. The first section relates to the practice which had grown up, of drawing several seines or nets in the same pool or fishing place, and prohibits it. The second section defines a pool; “ so much of said river as extends from one side or bank, to the other side or bank thereof; and from the place where seines or nets have been usually thrown in, to the place where they have been usuálly taken out, shall be deemed and held, and is hereby declared to be, a pool or fishing place.” It is hardly necessary to remark, that it is so much of the river, &c. which is the fishing place, and not so much of the lank, as was contended in this case.
So far nothing is said about the owner; but in the third section it is provided, that when two or more persons residing opposite to each other, near the said river, on different sides thereof, may have
Here, also, we first find the words “ privilege of fishing in that part of the river, directly opposite their own land respectively, as a separate pool or fishing place,” and not as giving that right, but “ nothing in this act shall prevent or deprive any person of that privilege;” recognising such rights as then existing, and declaring that it was not meant to impair it. Many other acts were passed for preserving the fish and regulating fisheries in the Schuylkill. The precise nature and extent of the rights of Pennsylvania and New Jersey over the river Delaware, were not settled until 1783; and probably for this reason, we find no act regulating fisheries in the Delaware prior to that period; though the first act cited, was to preserve the fish in that and other rivers, and the preamble stated that they were not caught in such quantities as formerly.
In (4 Dali. Acts of Assembly, 143,) we find the agreement between the commissioners of the two states, dated 26th April, 1783, ratified 20th September, 1783.
The first section of that instrument is thus — “ It is declared that the river Delaware, from the station point, or north-west corner of New Jersey, northerly; to the place on the said river where the insular boundary of the state of Delaware toucheth the same, in the whole length or breadth thereof, is, and shall continue to be and remain a common highway, equally free and open to the use, benefit, and advantage of the said contracting parties. Provided nevertheless, that each of the legislatures of the said states shall hold and
On the 30th of March, 1784, (1 Dall. Acts, 195,) we find an act to regulate fisheries in the rivers Delaware and Lehigh. The 2d section prevents, under a penalty, more than one seine being drawn in the same pool. The 3d section enacts, that “ within so much of the river Delaware as extends from the north-west corner of New Jersey, to the place on said river, where the insular boundary oí said river touches the same, and within all the islands belonging to this state, from the place where a seine has been usually or shall be usually thrown in, to the place' where it has usually been, or shall be usually taken,out, shall be, and hereby is declared to be, a pool or fishing placeand also contains many other regulations of the right of fishing.
On the 7th of April, 1786, (1 Dall. Acts, 446,) we have a supplement to this act, allowing to fish with two seines in one pool from the Falls at Trenton, to the line of Delaware state, and limiting the periods of fishing.
On the 6th of March, 1793, (3 Sm. L. 93,) was passed, an act for the sale of islands in the Delaware, Susquehanna, and other navigable streams. They were to be appraised, in order to ascertain their value, having regard to the wood, distance from the main land, and to the advantages which may be derived from the same in regard to fisheries.
In 1804, (4 Sm. L. 118,) we find another law, re-enacting and modifying the provisions of the act of 1784; it again describes a pool or fishing place; and in the 4th section directs that “ wherever any fishery is occupied upon the river Delaware, within the limits aforesaid, (that is, as far as it has been declared a highway) either the land-holder, tenant in possession, or some respectable person appointed by the fishing company, shall give bond to satisfy and pay any fines, for disobeying the provisions of the law at his or their respective fishery; and also file with the prothonotary a description of his or their fishing place, and of the township in which it is situated.” In this act we find, as before, in the agreement with New Jersey, the word fishery used; it also supposes a fishery may be owned by a fishing company; and the owner or occupier of the shore, or some person for that company, must give bond to the prothonotary. This act .proposes a joint law with Jersey.
On the 26th November, 1808, such an act was passed in Jersey; and on the 23d of February, 1809, (5 Sm. L. 5, and following pages) it is recited and re-enacted in this state. This act contains the substance of all the former acts, and some additions in direction and
In the seventh volume of Pennsylvania Laws, 295, 296,- we find another law of New Jersey, re-enacted in this state, defining and limiting the right ,of fishing on islands and sand bars in the Delaware, to be within lines drawn from the upper and lower points of said island, at right angles, to a base line from the upper to the lower point of said island; and permitting the net tó swing below the lower line only, where there is no fishery below and adjoining.
■ Before proceeding to draw conclusions as to the nature and extent of the right of fishing with a seine in the Delaware, it will be proper to notice two cases in our own reports; (Carson v. Blazer, and Shrunk v. The Schuylkill Navigation Company,) and it will strike every one that there are several laws, and different provisions in those laws, as regards different rivers. When Carson v. Blazer, was tried before the Circuit Court, no law to regulate fisheries in the Susquehanna had been enacted. Several will be found since; the provisions in which have made the law in that river very different from the positions decided in that case; and evidently, the enactments to the Schuylkill and Delaware were not considered as applicable to that case, for they were not adverted to.
The case of Shrunk v. The Schuylkill Navigation Company, decided a matter totally different from the point trying in the case before us. When the Delaware was declared a navigable stream and public highway, from the southern to the northern line of the state, such declaration gave certain rights and privileges to all persons
The right of one person to draw a seine in a particular part of the Delaware, is not inconsistent with the right which every person has to navigate his vessel in the same part of the river, in the course of his business. I shall not go farther back than is necessary to ascertain the origin or nature of a right of fishing in the Delaware, and confine my remarks to a fishery in that river. This case shows that the people and the courts, recognised, without dispute, a right of fishery in 1745 and 1752; we may say it was well known a century back. The act of 1761 states, that owing to the destruction of young shad in fish baskets, &c. the quantity was greatly less than had been taken in former times.
All the laws regulating fisheries in the Delaware, as well as the agreement between Pennsylvania and'New Jersey, before cited, are predicated of the idea of separate fisheries existing; and the agreement expressly stipulates, that the states shall hold and exercise the right of regulating the fisheries in the river Delaware, annexed to their respective shores, in such manner that the fisheries shall not be unnecessarily interrupted during the season of catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under a claim of common right in said river. It is not easy to see how, after this solemn treaty between these two states, any person can allege that each fishery was not a separate fishery, and that any person had, or could have, a right to fish, under a claim of common right. Neither state could grant such common right to fish in any and every part of that river; neither where the tide flowed or did not flow. But if this was not explicit enough, the act passed by both states in 1808-9, removes all possibility of doubt. It expressly prohibits every person from throwing out a net above, or drawing it in, or even letting it swing below his own line on land. Fisheries, then, existed long ago; by grant or sufferance, I care not which. The state had a right to regulate
Clearly, for a direct interruption while actually fishing, trespass may lie; there may be acts injurious to the fishery, for which cafe may be the proper remedy. ' The case, as exhibited to us, does not show what was done by the defendant, what acts are complained of, and we can only say that for a direct interruption, trespass is a proper action.
Let it be distinctly understood that this opinion relates only to the right of citizens, to. interfere with a fishery. What right the state of Pennsylvania and New Jersey jointly have to change the channel of the river; to build dams in it; to draw off its waters, &c., _&c., even though this should affect fisheries, I have said nothing about.
Judgment reverséd, and a venire de novo awarded.