68 Vt. 338 | Vt. | 1895
Marlboro South Pond is a natural body of water from ten to thirty feet deep, except around the edges, where the water is shallow, and it covers about seventy-five acres. It has no inlet, but a small brook forms its outlet. The town of Marlboro was a New Hampshire grant, having been chartered by Benning Wentworth in the name of the King in 1751, without reservation of any ponds or streams.
The plaintiff claimed, and its testimony tended to show, that at the time in question it was the sole owner and the exclusive possessor and occupant of a strip of land around said pond, four rods wide most of the way, and of a piece of land at the north end of several acres, and of the land covered by the water of the pond, and of the ponditself; thatit purchased the property for the purpose of propagating fish there for its own use and benefit, and had thereon erected buildings and expended more than ten thousand dollars, and stocked the pond with trout; and that the premises were inclosed and posted according to law, to the knowledge of the defendant, who entered thereon on May 9, 1893, which was in the open season, and fished on divers parts of the pond, some of which were covered by particular description in some of the deeds in plaintiff’s chain of title. As the court directed a verdict for the defendant, all that the plaintiff’s testimony tended to show must be taken as proved.
Our Constitution provides that “the inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed; and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be hereafter made and provided by the General Assembly.” Ch. II. s. 40. The defendant claims that as this pond is boatable in fact it is boatable within the meaning of the Constitution, and that therefore he had a right to fish therein when he did, as he contends that the words, (“not private property”), qualify,
The plaintiff, on the other hand, contends that the words, (“not private property”), qualify “boatable” as well as “other waters;” but if not, that is not enough that waters are boatable in fact; that to be boatable under the Constitution they must be of such volume and size that they can be advantageously used by boats at certain seasons of the year for transporting the products of the surroundifig country, the products of the mines, the fields, and the forests.
By the law of Rome, all rivers and ports were public; and therefore the right of fishing therein was common to all men. Justinian, Lib. 2, Tit 12.
But by the common law of England there is a public right of fishing only in navigable waters; and no waters are deemed navigable in law except tidal waters.
“The narrow sea adjoining the coast of England is part of the waste and demesnes and dominions of the King of England whether it lies within the body of any county or not. * * In this sea the King hath a double right, namely, a right of jurisdiction, which he ordinarily exerciseth by his admiral, and a right of property or ownership. * * *• The right of fishing in' that sea and the creeks and arms thereof is originally lodged in the crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as the right of fishing belongs to him that is owner of a private or inlandriver. * * * But though the King is the owner of that great waste, and as a consequence of his propriety hath a primary right of fishing in the sea and the creeks and arms thereof, yet the common people of England have regularly a liberty of fishing in the sea or the creeks and arms thereof as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of the common liberty.” 1 Hargrave’s Tracts, Part I., Chap. IV.
Non-tidal waters are not deemed navigable in law
“Fresh rivers, of what kind soever, do of common right belong to the soil adjacent, so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing usque ad filum aqu,ae; and the owners of the other side the right of soil or ownership and fishing unto the 7Hum aquae on their side. And if a man be owner of the land oí both sides, in common presumption he is the owner of the whole river, and hath the right of fishing according to the extent of his land in length. With this agrees the common experience. * * But special usage may alter the common presumption ; for one man may have the river and another the soil adjacent; or one man may have the river and soil thereof and another the free or several fishing in that river.” 1 Hargrave’s Tracts, Part I., Chap. I.
But the distinction between- tidal and non-tidal waters in respect of fishing does not distinguish them in respect of a public right of passage and transportation, for the public have such right in both, for Lord Hale says, that “as the common highways upon the land are for the common land
Thus it appears that to determine whether a non-tidal river is public or private in use, for none of them are public in ownership, the common-law test is, whether it is boatable as a highway as distinguished from navigable in its technical and legal sense.
The law applicable to non-tidal rivers in England is also applicable to inland lakes and ponds, however large, and in them the crown has no de jure right of soil nor of fishery. Bristow v. Cormican, L. R. 3 App. Cas. 641.
Such was the common law of England before and at the •time of the adoption of our Constitution in 1777, in which the provision in question was substantially the same as now, and was taken from the Pennsylvania constitution of 1776, in which the language was, “boatable waters and others not private property.” The framers of our Constitution must be presumed to have been familiar with the common law, for the inhabitants of the State had been and were “habituated to conform their manners to the English law, and to hold their real estates by English tenures.” Preamble to the act
We hold, therefore, that boatable waters, within the meaning of the Constitution, are waters that are oí “common passage” as highways.
The rule by which to determine whether waters are of “common passage” as highways or not is variously stated but clearly enough defined. The test of navigability of a river is, as stated by the Supreme Court of the United States, whether it can be used in its ordinary condition as a highway for commerce, conducted in the customary mode of trade and travel on water. And they constitute navigable waters of the United States when they form in their ordinary condition, by themselves or by uniting with other waters, a continuous highway over which commerce is or can be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. The Daniel Ball, 10 Wall. 557. If, however, they do not thus form such continuous highways, but are navigable only between places in the same state, they are not navigable waters of the United States, but only of the state. The Montello, 11 Wall. 411. Hence, the capability of use by the public for the purposes of transportation and commerce affords the true criterion of the navigability of a river rather than the
The Supreme Court of Maine, where timber abounds, has frequently had this question before it, and given it much consideration first and last. In Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525, it is said that the general principle of the common law is, that above the flow of the tide, rivers become private, either absolutely so or subject to the public right of way, according as they are small or great; that those that are sufficiently large to bear boats or barges or to be of public use in the transportation of property, are highways by water, over which the public have a common right; but that such little streams and rivers as are not floatable, that is, cannot in their natural state be used for the carriage of boats, rafts, or other property, are wholly and absolutely private, not subject to the servitude of the public nor to be regarded as public highways by water, because they are not susceptible of use as a common passage for the public. In Brown v. Chadbourn, 31 Me. 9, 50 Am. Dec. 641, a leading case on this subject, much cited in other jurisdictions, it is said that the distinguishing test between rivers that are entirely private property and those that are private property subject to public use and enjoyment, consists in whether they are susceptible or not of use as a common passage for the public: that the true test whether a highway or not is, whether the stream is inherently and in its nature capable of being used for the
As a general proposition, waters above the tide are, frima facie, private in use as well as ownership, and he who asserts the contrary must prove it. Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439; Note to St. Louis, &c., R. R. Co. v. Ramsey, 22 Am. St. Rep. 301; Angell, Watercourses, s. 535. And whether such waters are, in the given, case,
Although this pond is inherently capable of floating “a fishing skiff or a gunning canoe,” no claim is made that it is inherently capable of use to any extent beneficial to trade or agriculture; and the reason may be, because it is thought that no such claim can well be made. But however that is, we cannot say as matter of law that it has not such capacity. All we can say is that as the case is presented it does not appear to have.
A natural pond of not more than twenty acres, owned by a common owner, is, by statute, a “private preserve.” All waters over which the State has jurisdiction, except “private preserves” and “posted waters,” are “public waters,” the crossing of uncultivated land to reach which for the purpose of taking fish is declared not to be actionable unless actual damage was done. Acts of 1892, No. 80, ss. 1 and 31. It is therefore claimed that the waters in question are public waters, for that it is inferrable from the enactment that a natural pond of not more than twenty acres is a private preserve that a larger natural pond is public water, and that it cannot be assumed that the legislature intended that great ponds and lakes can be inclosed and thereby made private property and an exclusive right oí fishing therein established in derogation of rights under the common law, and that therefore the defendant had a right to fish in said pond, and is not liable for crossing plaintiff's land to reach it, as it does not appear that the land was cultivated nor that actual damage was done. But the Constitution itself, in the provi
Judgment reversed and cause remanded.
Dissenting opinion by
With all due deference to the opinion of the majority of the court, I most emphatically dissent from their holding in respect to what constitute boatable waters within the meaning of section 40, Chapter 2 of the constitution of Vermont. This is solely a question of construction. Cooley, in his work on Constitutional Limitations (4th ed.), states some rules applicable to the solution of this question. He says:
“The object of construction, as applied to a written constitution, is to give effect to the intent of the -peojle adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. ‘Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.’ Possible or even probable meanings, when one is plainly declared in the instrument itself,*351 the courts are not at liberty to search for elsewhere. * * In interpreting clauses we must presume that -words have been employed in their natural and ordinary meaning. Says Marshall, C. J. : ‘The framers of the constitution, .and the people who adopted it, must be understood to have employed words in their natural sense, and to have understood what they meant.’ This is but saying that no forced or unnatural construction is to be put upon their language ; and it seems so obvious a truism that one expects to see it universally accepted without question, but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held, that it frequently becomes necessary to redeclare this fundamental maxim. Narrow and technical reasoning is misplaced when it is-brought to bear upon an instrument framed by the people-themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to-trace the leading principles of government. * * '* It is a maxim -with the courts that statutes in derogation of the common law shall be construed strictly; a maxim which we fear is sometimes perverted to the overthrow of the legislative intent; but there can seldom be either propriety or safety in applying this maxim to constitutions. When these instruments-assume to make a change in the common law, the change designed is generally a radical one; but as they do not go minutely into particulars as do statutes, it will sometimes be easy to defeat a provision, if courts are at liberty to say that they will presume against any intention to alter the common law further than is expressly declared! A reasonable construction is what such an instrument demands and should receive; and the real question is, what the people meant, and not how meaningless their words can be made by the application of arbitrary rules.” Cool. Con. Lim. 4th ed., 68, 69, 72, 74 and notes and cases cited. '
The phrase “boatable waters” had no fixed technical meaning at common law, nor does it appear that these words-were used by the common law in declaring the rights of the public or individuals to fish in, or to use the waters subject to its jurisdiction. Hence, we are not called upon to give it a technical meaning because of such use at the time of the
It has been repeatedly held by the Supreme Court of the United States in respect to the constitution of the United States, that an interpretation of it, contemporary with its adoption, practiced and acquiesced in for years, conclusively fixes its construction. Stuart v. Laird, 1 Cranch 299, Law. ed 2 Book 115 ; Martin v. Hunter, 1 Wheat. 304, Law. ed. 4 Book 97 ; Cohns v. Virginia, 6 Wheat. 264 Law.
“We cannot shake a principle which in practice has so long and extensively prevailed. If the practice originated in error, yet the error is now so common that -it must have the force of law. The legal ground on which this provision is now supported is that long and contiuous usage furnished a contemporaneous construction, which must prevail over, the mere technical import of the words.”
Discussing a similar question it was said in Packard v. Richardson, 17 Mass. 122, that:
“A contemporaneous is generally the best construction of a statute. It gives the sense of a community, of the terms made use of by the legislature. If there is ambiguity in the language, the understanding and application of it, when the statute first comes into operation, sane*356 tioned by long acquiescence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly explained by practice. A construction under such circumstances • becomes established law; and after it has been acted upon for a century, nothing but legislative power can constitutionally effect a change.”
So far as I can learn no construction- has ever been suggested for the words “boatable waters,” except that for which I contend, by either the bench, the bar, or the inhabitants of the state, or any one else, until quite recently. Under the decisions this construction, contemporaneous with the adoption of the constitution and practiced for nearly one hundred and nineteen years, conclusively determines the meaning of these words tobe as they have been so long construed and understood, and this court should now hold that “boatable waters” as mentioned in the constitution, are all waters boatable in fact.
It is a matter of common history, that within a very few years last past there have been, and now are, a lew persons resident in this and other states, who have anxiously sought for some way by which they could convert into private fish preserves, controlled by themselves, many streams and ponds in this state, boatable in fact, and in which its inhabitants have fished as public waters ever since the adoption of the constitution of 1777. The idea that “boatable waters” to the minds of the fathers of this state, meant “waters of common passage,” was originated and first broached by these persons thus seeking to obtain control of the waters of this state.
At the time of the adoption of the constitution of 1777, the common law had not been adopted by this state by legislative enactment; the state was not then a member of the federal union and, therefore, was not precluded from enacting laws or constitutional provisions impairing the obligation of contracts. The power of this state was then as omnipotent as that of the parliament of Great Britain, which could take
The opinion of the majority is based upon English cases, and the decisions of the courts of states having no constitu-. tional provision like Vermont, and which follow the English cases, and upon the theory that the rule as enunciated by those decisions, is the common law of this state. By this assumption the fact is ignored that this state only adopted so much of the common law of England as is applicable to the local situation and circumstances, and is not repugnant to the constitution or laws of Vermont, and that such adoption was subsequent to the adoption of the constitution of 1777. If the construction of the constitution for which I contend, is correct, the principles of the common law upon which the decision of the court is based, are repugnant to our constitution, and, therefore, have never been adopted as a part of the common law of Vermont. St. 1779, St. 1782, in Slade’s State Papers, 287, 450; V. S., s. 898; State v. Burpee, 65 Vt. 1; Morrill v. Palmer, 68 Vt. 6.
There is another circumstance which bears upon this question. “It is a notorious fact that when the country was new, all our waters swarmed with fish of various kinds," Thompson’s Vermont Natural His. Division, 128. The early settlers as a rule were poor, and were often in great straits to procure' the necessaries of life. On this account the early inhabitants of the state often resorted to the
When we consider the crime and misery in England during the last century resulting from its private fish and game preserves, protected by its system of fish and game laws, and then consider how free from such crime and misery this state has been during the same time, it is apparent that this provision of the constitution as construed by the people, was one of the wisest that could have been made. This decision is most far reaching in its consequences. Hitherto in our history as a state, our people, young and old, rich and poor, have fished as a matter of right in all the waters of the state, which were boatable in fact. This freedom to associate with and enjoy nature, has borne fruit" in the independent, liberty loving character of our people, and has had its influence in forming a type of manhood that has had a potent influence in making Vermont to-day in many respects, the ideal republic of the world. The result of this decision is to change a large portion of such waters into private fish preserves and to exclude the inhabitants of this state from the rights which hitherto they have so freely enjoyed.
The holding of the court, as I understand it, is that only such waters are boatable within the meaning of the constitution, as may be utilized in conveying to market the products of the farm, the forest, the mine and the factory, and for transportation, or in other words, only such waters as may be utilized for the purposes of commerce and travel. If they may be so utilized, then they may also be used for pleasure. The only door of escape left open by this deci.sion, is the holding that in each case, the jury is to deter,mine whether the waters in question can be so utilized. .It may be that juries, moved by what an ancient law
In arriving at the conclusion to w'hich it has come, it •seems to me that the court has made a departure from the sound and well established principles of constitutional construction. I further deem its holding to be contrary to sound public policy, not conducive to good morals, and in effect a change of the constitution as it was intended by its framers and has been understood and acted upon by the inhabitants of this state throughout its entire history as a state.
The people must zealously guard their constitutional rights, especially of the kind involved in this case, if they would perpetuate them. If they lose such rights, it usually occurs by their being frittered away by legislative action, or ■unintentionally by judicial decision, without the extent of such action or decision being fully understood by the people. Believing this decision to be an infringement on and an impairment of their constitutional rights, I have deemed it to be my duty to express my dissent, feeling that I should be ■derelict in my duty if I failed so to do.