7 Conn. 168 | Conn. | 1828
Whether the writing offered in evidence by the plaintiffs below, was admissible, is the question now to be determined.
By the statute for encouraging and regulating Fisheries, it is enacted : “ When any person or persons have been at the ex-pence of clearing any fishing place or places in Ousatonic river, between the mouth thereof and Leavenworth’s ferry, and have constantly used the same for taking fish, in the season thereof; he or they shall be established in the full enjoyment thereof, so long as he or they continue to use the same for the purpose of fishing, in the proper season, and shall not be liable to any action for damages below high-water mark.” Stat. 229, tit. Fisheries, s. 8.
In construction of this statute, the plaintiffs in the action of trespass, insist, that the provision that the use and enjoyment shall be co-extensive, extends to those only, who have occupied a fishing-place, and then abandoned it, — in which event their right is extinguished ; but that they are not prohibited, by the law, from selling their fishing-place, or from giving to others a right to use it for their advantage.
On the other hand, the defendants contend, that the statute does not authorize the transfer of title, in any manner ; that the right, by virtue of clearing, is strictly personal; and that a deed or licence to others, to use the fishing-place as their own, is an abandonment and forfeiture of the grantor’s title.
It was within the competency of the legislature to give to the persons clearing and occupying a fishing-place such a title, as was thought expedient; and the popular meaning of a plain expression, shows, with infallible certainty, what interest they
The phrase applied to those who clear and occupy a fishing-place in Ousatonic river, that they shall enjoy it, “ so long as they continue to use the same, for the purpose of fishing,” is so plain and unequivocal, as to admit of one construction only. They — i. e. those who clear and occupy — are invested with title, so long as they use the fishing-place. By the word “ use,” the right of the occupier is co-extensive with his customary enjoyment of the fishery; and stops at this point. The estate is merely a personal privilege, and not a transferable property. There are too many established analogies to render this construction questionable. There is a qualification or condition annexed to the right, inseparable from its continuance. To acquire and preserve the privilege, a person must clear a fishing-place ; and constantly use it; and then his right continues so long as he continues the use. His right is qualified like that of a person who is invested with a base fee ; i. e. who has an estate so long as he is tenant of a certain manor ; or like that of one who has licence to do any act personally; or like that of a widow, who holds an estate, so long as she remains single. It is a transient property, such as all property was at the earliest stage of society, when the actual use and right of using were co-extensive, and the right of possession continued for the same time only that the act of possession lasted. The unassignable licence to Tallmadge Hall and Jacob Brown, was of the same nature, except that its termination was made to depend on the pleasure of the General Assembly. Nichols v. Gates & al. 1 Conn. Rep. 318. The right of Ford and others, like that of Hall and Brown, was an incorporeal hereditament in the nature of a franchise, merely personal, with this difference, that it was forfeited by non-user.
From this view of the law, it clearly results, that Ford and others could not convey any title to the fishing-place, by sale or licence, or in any other manner. The writing to Hurd and Van Ostrand was on valuable consideration, and intended to convey to them an interest in the fishing-place. As a grant, it was void. Incorporeal inheritances or franchises are said to lie in grant, and cannot pass without deed. 2 Roll. Abr. 62. Co. Litt. 169. At the same time,'notwithstanding the form of the instrument, if a licence were valid, I would construe the
It has been argued for the plaintiffs below, that the writing, if of no legal avail, was admissible as evidence to prove certain essential facts in the case. The principle implied is not disputed ; but there is no point of controversy on which it has a bearing. The commencement of the occupancy is not in question; nor the intention to occupy as early as the year 1800; nor the clearing ; nor the actual occupancy since. It was admitted, that Ford and others cleared the fishing-place, and occupied until they attempted to convey their right to Hurd and Van Ostrand; and that.the “ fishing-place had been constantly occupied successively by Ford and others, by Hurd and Van Ostrand, and by the plaintiffs.” Then, as the bill of exceptions declares, “ to shew the title of said Wolcott Hurd and the said Charles F. Van Ostrand, the plaintiffs offered and read in evidence a certain writing.” It is unquestionably clear, that the evidence ought not to have been received ; and that the determination of the court admitting it, was erroneous.
Judgment to be reversed.