91 Me. 349 | Me. | 1898
Haskell, J.
The contention of the plaintiffs is the sole right to maintain a weir opposite their own land in the waters of the Kennebec, a tidal and navigable river, below the ebb of the tide.
I. At the bar, plaintiffs’ counsel abandoned all claim to the exclusive exercise of such right of fishing under the common law. Although the defendants’ brief elaborately argues the question and exhaustively cites authorities applicable to their contention, we have no occasion to discuss it, as the plaintiffs’ counsel abandons all claim upon that score. Our own cases are Parker v. Cutler Milldam Co., 20 Maine, 353; Duncan v. Sylvester, 24 Maine, 482; Moulton v. Libbey, 37 Maine, 472; Preble v. Brown, 47 Maine, 284; Matthews v. Treat, 75 Maine, 594; Parsons v. Clark, 76 Maine, 476.
II. Plaintiffs ground their contention upon K,. S., c. 3, § 63. That section provides: “No fish weir, or wharf shall be extended, erected or maintained, except in accordance with this chapter; and no fish weir shall be erected in tide waters below low water mark in front of the shore or flats of another, without the owner’s consent, under a penalty of fifty dollars, to be recovered in an action of debt by the owner of said shores or flats; but this chapter does not apply to weirs, the materials of which are chiefly removed annually, provided, that they do not obstruct navigation nor interfere with the rights of others.”
This and the two preceding sections consolidated various enactments of existing statutes, and to make clear the meaning of § 63 the legislature, by act of 1885, c. 334, entitled “An act to amend and make clear section 63,” inserted the words “or maintain” after “erected” in line three, and the words “for each offense” after “ dollars ” in line four, and repealed all inconsistent acts, declaring the reading should be as in § 63, with above changes. This puts at rest all question about the subject to which the statute applies, viz:—
2d. To weirs erected below low water mark not removed annually; and
3d. To such as are l-emoved annually when they obstruct navi- . gation or interfere with the rights of others.
In the case at bar, defendants’ weir did not obstruct navigation, so the question is, did it interfere with plaintiffs’ rights? Defendants say no, for fishing is common below low water, and the plaintiffs have no superior right to fish there, and, therefore, no right of theirs has been interfered with. The plaintiffs say, yes, we had located a weir opposite our own land, and you dispossessed us by building a weir there before we had completed our own. The statute forbids the location of a weir in front of the land of another without his consent, and in awkward phrase, declares itself applicable to removable weirs, if they interfere with the rights of others. Defendants’ weir was a removable weir. How did it interfere with plaintiffs’ rights? They had no exclusive right of fishing there, but they had a right to build a weir there and then defendants could not invade it. When plaintiffs once appropriated the privilege of building their weir, then neither defendants nor any one else could lawfully dispossess them,' any more than they could require them to remove a boat from a place where they were fishing so as to enjoy it themselves. The statute means to give the landowner the first right to erect a removable weir abreast his land. When he does not wish to exercise such right, then, any other person may. He must either use it, or let his neighbor do it.
Were the plaintiffs using this privilege? The evidence shows they were not, unless driving a stake in the river as a mark amounted to such use. The plaintiffs claim in their bill the exclusive right of fishing abreast their land. One of the plaintiffs testifies: “There is a "fishing privilege opposite my flats, and we used to consider it a good one. Just before they [defendants] occupied it with their weirs I had leased it to Mr. Robinson here for the fishing season of ’96. These defendants occupied the priv
It appears that defendants had occupied this privilege for three or four years, and that, when they came to build their weir in the spring, they saw a stake near where they intended to build. Robinson testifies: “I went to stick my stake there, I should judge about nine or ten feet from where they started theirs..... After that stake was stuck I saw both the defendants together at the privilege, and I asked them if they were going to build there and they said they were. I says, I have leased this privilege of Mrs. Perry and intend to build myself, and of course we had more or less talk. I can’t remember all. I says, I will see whether you will or not.”
A preliminary injunction was granted in this cause, and the defendants immediately removed their weir, and there is no evidence that Robinson or any one else occupied the privilege after that.
The plaintiffs had claimed the exclusive right of fishing in the river below the ebb of the tide opposite their flats for many years; not because they were actually using the privilege themselves, but because the right was their property. And we do not feel sure that the claim now set up was made because Robinson actually had marked the spot and intended to appropriate it by building a weir that spring, but only intended to assert the plaintiffs’ claim of exclusive right to do so. The defendants had used the privilege for three or four years, and when they begun to build in the spring of ’96 they were forbidden to do so by Robinson for plaintiffs, and were immediately enjoined in this suit on bill dated May 7th. They immediately removed their weir and have not used the privilege- since. This cause was finally heard in about a year, May 4, 1897. There is no evidence that Robinson or plaintiffs have since used the privilege, and there is a very strong inference that they never intended so to do. It is the actual use and appropriation
Bill dismissed with costs.
