73 Mass. 437 | Mass. | 1856
The rights of the people of this commonwealth to the benefits of navigation and fishery in the sea, and ir. the shores, bays and arms of the sea, and the qualified rights of proprietors of lands bordering on tide waters, in the flats lying between high and low water mark, have been so largely discussed and deliberately decided in numerous recent cases, that we do not think it expedient to go again much at large into the principles and authorities on which this case must be decided. Weston v. Sampson, 8 Cush. 347. Commonwealth v. Alger, 7 Cush. 53. Dunham v. Lamphere, 3 Gray, 268.
By these cases, we think the following propositions are wel established: That by the Revolution, and by the acknowledgment of our independence by the British Government, the State of Massachusetts succeeded to all public rights of British subjects, whether originally belonging by prerogative to the Crown, or exercised and administered by Parliament in due course of law; that by the charter of the Colony of Massachusetts the people and settlers of the territory acquired not only the right of soil, but a right to the shores and arms of the sea, for all useful purposes of navigation and fishery; that since that charter no exclusive right of navigation or fishery, on the sea shores or in the bays or arms of the sea, could be acquired, except under the authority of the colonial, provincial or constitutional government, administered by the legislature by act or resolve; that though perhaps, in the absence of such proof by act or resolve, such grant might be proved by adverse use and enjoyment, it must amount to that degree of exclusive occupation, sufficient to raise a belief that such act or resolve had actually been passed, though not now appearing; and, in general, this can only be done by showing an actual possession of the flats where the tide ebbs and flows, by building thereon or inclosing the same, so as to exclude the access of boats and vessels; that the common law, giving the rights of navigation and fishery to the public, remains
On these grounds the court are of opinion, that the plaintiff b as shown no proof of an exclusive right to the clam fishery; ti tat he has proved an ownership in the soil only, which is not inconsistent with the public right to the shell fishery in the flats; and that the case is governed by that of Weston v. Sampson, 8 Cush. 347. Exceptions overruled
