Stannard v. Hubbard

34 Conn. 370 | Conn. | 1867

Hinman, O. J.

Some questions have been argued before us in this case which, under the view we have taken of it, are unimportant to the decision, and will therefore be left undetermined and for the most part .unnoticed.

The finding undoubtedly tends strongly to show that John Lewis had a free fishery to fish with seines on the easterly side of Menunketeset Point, at certain places where he and his grantors had been in the habit exclusively of fishing; and unless the law is so that a private right to a fishery in public waters cannot be acquired by the mere use and possession of it for fifteen years, because such fishing is but the exercise of a right which is common to the whole public, and therefore is not sufficient evidence of an adverse user, as seems to be the doctrine of the case of Chalker v. Dickinson, 1 Conn., 382, it does show such a fishing right in Mr. Lewis. But however this may be, it was not the object of the bill to protect the petitioner in the enjoyment of this fishery. He was not occupying it at the time, and, so far as we know, he had no intention to occupy it during the short period before his lease expired. However true, therefore, it may be that some portion of the respondents’ line of stakes may have extended into ground which had been swept by the seines of the former occupants of this fishery, still, since the petitioner is not now occupying or intending to occupy this place as á fishery, he obviously cannot be so injured in respect to it as to give him any claim to protection by an injunction against an interference with any technical right which he may have ; and especially since the relief sought for in the bill is not founded upon his right to this particular fishery, but wholly upon an injury to his fishing weir or pound, which appears by the finding to be entirely outside of any fishing place connected with the shore, in water which is common to the whole public, unless, indeed, the petitioner has acquired some right thereto under the statute in relation to weirs, by virtue of his being the first to construct his weir there. If, then, the facts relating to this shore or seine fishery, and the injury to it to be apprehended from the respondents’ works, was all there was in the case, it would hardly be claimed that an injunction should be granted. It is equally clear that the facts in relation to this fishery can have no bearing whatever upon the petitioner’s right to be protected from interference in respect to his weir, upon which the principal question in the case arises. The petitioner’s right to protection from interference in inspect to his weir is founded wholly upon the statute. His weir is in the public water, below low water mark, where the whole public, at common law, have an undoubted right to fish at pleasure, and where no one can claim any exclusive privilege, unless he has acquired it either by grant or prescription. Has then the petitioner a right to be protected in the enjoyment of his weir under the statute ? The statute (Gen. Statutes, tit. 23, sec. 2,) enacts “ that whoever shall first make a weir for catching fish on any flat within any river, cove, creek, or harbor, shall not be interrupted in the enjoyment of it by any other person making a weir on the same flat, or in the way or course of the fish coming to said weir first built, and nearer than three-quarters of a mile to said weir first built, unless such other person shall have obtained liberty from the superior court.” The petitioner claims that the finding shows that he first erected a weir, within the meaning of this statute, on the flats within the harbor of Westbrook; and that the respondents interrupted him in the enjoyment of it, by making another weir on the same flats in the course of the fish coming to his weir, and within three-quarters of a mile of it, and that therefore he is entitled to an injunction against the continuance of the last erection.

The statute on which this claim is founded is an ancient one, passed at a time when, in this country, structures like the modern fishing pound were unknown. Still, as the structures of the petitioner and the respondents are used for the same purpose as the weirs in use at the time of the passing of the statute, and operate in the same way by leading the fish into an enclosure where they are retained until taken out of it by the fishermen, we are of opinion that they come within the meaning of the statute, and are weirs within any proper definition of the term; so that the question fairly arises whether the respondents’ weir was an unlawful interruption of the one previously erected by the petitioner. And as they were both in the same harbor, and within the distance within which a second one cannot lawfully be erected so as to intercept the fish in their course to the first; and as the one last built did in fact to some extent thus interfere with and prevent the fish going to' the petitioner’s weir, the’ lawfulness of the last erection must, of course, turn upon whether the petitioner’s weir was upon a “flat” within the meaning of the statute.

This word itself is obviously one which may be used in different senses, but in this statute it is confined to some place or places within a river, cove, creek, or harbor where fish may be taken. It implies, therefore, that it must be a place more or less under water. ■ It is frequently used by nautical men to distinguish it from the channel of a river or harbor, and in this sense, while it includes the idea of being under water, it is used as descriptive of a place not navigable with safety by ordinary vessels, on account of the shallowness of the water. And one of .the definitions given of it is “ a shallow, or shoal water.” And we are inclined to think that this is the sense in which it is used in this statute, that is, shallow water as distinguished from deep water, or water navigable with vessels ordinarily used for commercial purposes' ; and in this sense it appears clear that the petitioner’s weir was, at least for the most part, outside of what, under the statute, is to be regarded as a flat. It was not, as we think, the intention of the statute to authorize structures of this sort which might become nuisances by obstructing navigation. But the structure of the petitioner commences at a point where the water is from four to six feet deep, and extends out into water eighteen feet deep. And being within the limits of the harbor, it is obviously, for the most part, in a place where vessels such as ordinarily navigate the sound would frequently anchor when driven by stress of the weather to a place of safety. It is true that is difficult if not impossible to distinguish between shallow and deep water, and there majr be no better rule than to consider all water which is deep enough for the sailing with safety of the smallest class of vessels which are ordinarily used for the purpose of transporting freight, as deep water. If this be the rule it is obvious that nearly the whole of the petitioner’s structure is in deep water. But whether this be so or not, we think that water which is deeper than the mouths of many of our harbors and navigable rivers, as much of this is, cannot with any propriety be said to be on a flat within the meaning of this statute.

We are therefore of opinion, and so advise the superior court, that the petitioner’s bill should be dismissed.

In this opinion the other judges concurred.