This sеems to us to be a very plain case. Admitting the right of the plaintiff, as an inhabitant of West Cambridge, under the statutes of the Commonwealth, to take fish in Mystic River on certain days, he cannot, in the exercise of such right, prevent the defendant from making a lawful use of his own property. The сolony ordinance of 1641 (Anc Chart. 148) secures to the inhabitants the right of frеe fishing and fowling in ponds, bays and rivers, so far as the sea ebbs and flows, within the precincts of the town where they dwell, unless the freemen of the town or the general court shall otherwise appropriate them. But the ordinance of 1647, usually printed with the ordinance of 1641, provides thаt the property in flats shall, under certain restrictions, bе in the proprietors of the adjoining upland, subject оnly to the right of persons to pass and repass ovеr such flats for fowling and fishing, until they are actually reclaimed or occupied by the proprietor of the upland. Weston v. Sampson,
These statutes conferred no additional rights, over private prоperty, upon the inhabitants of the town to whom the right of fishery was reserved. So long as the adjoining proprietоr left the flats open and unoccupied, the inhabitаnts had the right to take fish upon them; but the right of the proprietor to use, occupy and improve them, by inclosing thеm, or erecting fixtures thereon, remained unimpaired.
If it were necessary to the decision of the case, we should be strongly inclined to hold, that the plaintiff, under a common right of fishery, had no right to fix stakes in the flаts of a riparian owner, for the purpose of fastening a seine across the river, unless he could show а prescriptive right to such use of the flats, or a neсessity for so doing in order to the exercise of the right of fishery. The statute of 1788, c. 68, § 4, only authorizes the use of “ any kind оf fishing implement” in the taking of fish in Mystic River. This term would include, without doubt, thе use of lines, seines, spears, nets and any of the ordinary and usual modes of catching fish in rivers or bays. But it would seem quite clear that it would not give the right to place stakes or other permanent fixtures in the soil of another, as incidental to the right of fishery. See Coolidge v. Choate,