FISHERY. A place prepared for catch ing fish with nets or hooks. This is com monly applied to the place of drawing a seine or net. 1 Whart. Penn. 131, 132.
A common of fishery is not an exclusive right, but one enjoyed in common with cer tain other persons. 3 Kent, Comm. 329.
A free fishery is said to be a franchise in the hands of a subject, existing by grant or prescription, distinct from an ownership in the soil. It is an exclusive right, and applies to a public navigable river, without any right in the soil. 3 Kent, Comm. 329.
A several fishery is one by which the party claiming it has the right of fishing, independ ently of all others, so that no person can have is coextensive right with him in the object claimed ; but a partial and independ ent right in another, or a limited liberty, does not derogate from the right of tire owner. 5 Burr. 2814.
A diatinction has been made between a common fishery (commune piecavial4 which may mean for all mankind, as in the sea, and a common of fishery (communium piecarite), which ie a right, in common with certain other persons, in a particular stream. 8 Taunt. 183. Mr. Angell seems to think that common of fishery and free fishery are convertible terms. Law of Watercourses, c. 6, ss. 3, 4.
Mr. Woolrych says that sometimea a free fishery is confounded with a several, sometimes it is said to be aynonymous with common, and again it is treated as distinct from either. Law of Waters, etc. 97.
A several fishery, as ita name importa, is an exclusive property : this, however, is not to be understood as depriving the territorial owner of bis right to a several fishery when he grants to another person permission to fish ; for be woold continue to be the several proprietor although he shoold suffer a stranger to hold a coextensive right with himself. Woolrych on Wat. 96.
These distinctions in relation to several, free, and common of fishery are not strongly marked, and the lines are sometimes scarcely perceptible. "Instead of going into the black-letter hooks to learn what was a fishery, and a free fishery, and a several fishery," says Huston. J., "I sm disposed to regard our own acts, even thongli differing from I old feudal law." 1 Whart. Penn. 132.
2. The right of fishery is to be considered with reference to navigable waters and to waters not navigable ; meaning, by the for mer, those in which the tide ebbs and flows ; by the latter, those in which it does not. By the common law of England, the fisheries in all the navigable waters of the realm be long to the crown by prerogative, in such way, nevertheless, as to be common to all the subjects: so that an individual claiming an exclusive fishery in such waters must show it strictly by grant or prescription. In rivers not navigable the fisheries belong to the own ers of the soil or to the riparian proprietors. 2 Blackstone, Comm. 39 ; Hale, De Jure Mar. c. 4 ; 1 Mod. 105 ; 6 id. 73 ; 1 Salk. 357 ;
Willes, 265 ; 4 Term, 437 ; 4 Burr, 2162; Day. 155 ; 7 Coke, 16 a; Plowd, 154 a. The common law has been declared to be the law in several of the United States. 17 Johns. N.Y. 195 ; 19 id. 256 ; 20 id. 90 ; 6 Cow. N.Y. 518 ; 3 N. H. 32] ; 1 Pick. Mass. 180. 4 id. 145 ; 5 id. 199 ; 5 Day, Conn. 72 ; 1 Baldw. C. C. 60 ; 5 Mae. C. C. 191 ; 5 Harr. & J. Md. 193 ; 2 Conn. 481. But in Pennsylvania, North Carolina, and South Carolina, the right of fishery in the great rivers of those states, though not tide-waters, is held to be vested in the state and open to all the world. 2 Binn, Penn. 475 ; 14 Serg. & R. Penn. 71 ; 1 M'Cord, So. C. 580 ; 3 Ired. No. C. 277. The free right of fishery in navigable waters extends to the taking of shell-fish between high and low water-mark. 2 Bos. & P. 472 ; 6 Day, Conn. 22 ; 37 Me. 472.
3. In Massachuaette and Maine, private fisheries are subject to legislative control. 5 Pick. Mass. 199 ; 9 id. 87. 2 Cush. Mass. 257 ; 6 id. 380 ; 13 Me, 417 ; 15 id. 9 ; 17 id. 106 ; see, also, 20 Johns. N. Y. 90 ; and public fisheries may be appropriated by towns in which the waters lie. 4 Mass, 140 ; 14 id. 488. Public fisheries are, of course, subject to legislative regulation. 37 Me. 472; 18 How. 571 ; 1 Baldw. C. C. 76. Private or several fisheries in navigable waters may be esta blished by the legislatures, or may, perhaps, be acquired by prescription clearly proved, 16 Pet. 369 ; 6 Cow. N. Y. 369 ; 5 Ired. No. C. 118 ; 1 Wend. N. Y. 237 ; 4 Md. 262 ; 10 Cush. Mass. 369 ; and in some of the United States there are such private fisheries, esta blished during the colonial state, which are still held and enjoyed as such : as, in the Delaware. 1 Whart. Penn. 145 ; 1 Baldw. C. C. 76. The right of private fishery may exist not only in the riparian proprietor, but also in another who has acquired it by grant or otherwise. Coke, Litt. 122 a, n. 7 ; Schultes, Aq. Rights, 40, 41 ; Angell, Waterc. 184. But see 2 Salk. 637. Such a right is held subject to the use of the waters as a highway, An gell, Tide-Wet. 80-83 ; 1 South. N. J. 61; 1 Jones, No. C. 299 ; 1 Campb. 516 ; 1 Whart. Penn. 136, and to the free passage of the fish. 7 East, 195 ; 1 Rice, So. C. 447; 5 Pick. Mass. 199 ; 10 Johns. N. Y. 236 ; 17 id. 195 ; 4 Mass. 522 ; 15 Me. 303, 378.
4. Oysters which have been taken, and have thus become private property, nay be planted in a new place flowed by tidewater and where there are none naturally, and yet remain the private property of the perscn planting them. 14 Wend. N. Y. 42 ; 4 Barb. N. Y. 592 ; 2 R. I. 434. A state may pass laws prohibiting the citizens of other states from taking oysters within its territorial limits. 4 Wash. C. C. 371; Angell, Tide Wat. 156.
See, generally, 2 Blackstone, Comm. 39 ; 3 Kent, Comm. 409 ; Bacon, Abr. Prerogative; Schultes, Aq. Rights ; Washburn, Easement-.