It is now well settled that there is a public right to take shell-fish on the shore and flats below high-watermark and within one hundred rods of the upland, until the flats are enclosed by the proprietors. Weston v. Sampson, 8 Cush. 347. Dunham v. Lamphere, 3 Gray, 268, 271. Lakeman v. Burnham, 7 Gray, 437. 9 Gray, 526, 527. Commonwealth v. Bailey, 13 Allen, 541, 542. Proctor v. Wells, 103 Mass. 216. Commonwealth v. Manimon, 136 Mass. 456, 458. But the right to take shell-fish is asserted on the single ground that the general right of fishing extends to and includes it. Weston v. Sampson, and Lakeman v. Burnham, ubi supra. The cases cited show too plainly for further discussion, that, if .there is a right to go upon flats and to disturb the soil for clams, a fortiori there is a right to pass over them for fishing, in the stricter sense of the word. The defendant did not set nets, or create any permanent obstruction, as in Duncan v. Sylvester, 24 Maine, 482.
Exceptions sustained.