FISHERY. A place prepared for catching fish with nets or hooks. This is commonly applied to the place of drawing a seine or net. Hart v. Hill, 1 Whart. (Pa.) 131.
A common of fishery is not an exclusive right, but one enjoyed in common with cer tain other persons. 3 Kent 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 piiblic navigable river, without any right in the soil. 3 Kent 329.
A. several fishery is one by which the party claiming it has the right of fishing, independ ently of all other, so that no person can have a coextensive right with him in the object claimed ; but a partial and independent rigbt in another, or a limited liberty, does not dero gate from the right of the owner. 5 Burr. 2814.
A distinction has been made between a common fishery (commune piscarium), which may mean for all mankind, as In the sea, and a common of fish ery (communium piscarice), which is a right, in common with certain other persons, in a particular stream. 8 Taunt. 183. Angell seems to think that common of itshery and free fishery, are convertible terms. Law of Watercourses, c. 6, se. 3, 4.
Woolrych says that sometimes a free fishery is confounded with a several, sometimes it Is said to be synonymous with common, and again it is treated as distinct from either. Law of Waters, etc., 97.
A sevOral fishery, as its name Imports, is an ex clusive property ; this however, Is not to be under stood as depriving the territorial owner of his right to a several fishery when he grants to another per son permission to fish ; for he would continue to be the several proprietor, although he should suffer a stranger to hold a coextensive right with himself. Woolr. Wat. 96.
These distinctions In relation to several, free, and common of fishery are not strongly marked, and the lines are sometimes scarcely perceptible. "In stead of going into the black-letter books to learn what was a fishery, and a free fishery, and a sev eral fishery," says Huston, J., "I am disposed to regard our own acts, even though differing from old feudal law." Hart v. Hill, 1 Whart. (Pa.) 132.
The right of fishery is to be considered with reference to navigable waters and to waters not navigable; meaning, by the former, those in which the tide ebbs and flows ; by the lat ter, those in which it does not. By the com mon law of England the fisheries in all the navigable waters of the realm belong to the crown by prerogative, in such way, neverthe less, as to be common to all the subjects: so that an individual claiming an exclusive fish ery in such waters must show it strictly by grant or prescription. Such a grantee may
not use a right of fishery in such a manner as to interfere with navigation, which belongs to all the subjects of the realm; 20 C. B. N. S. 1. In that country navigable waters meant tide-waters; [1891] 2 681; but aif ferent conditions in this country have result ed in the application of the rule cetritat ratio cessat leo, and while the same-principle is recognized that navigable waters belong to the state and non-navigable ones to the riparian 'proprietor, the recognition of tide-water as the test of navigability is abandoned.
By Magna Carta, c. 16, "no river banks shall be guarded from henceforth, but such as were in defence at the time of King Henry, our grandfather, by the same places and in the same bounds as they were wont to be in his time." That this chapter limited the right of the crown to grant several fisheries was contended by Coke; 2 Inst. 30. Lord Hale, however, construed it to apply only to the custom of putting fresh as well as salt rivers in defence for the king's recreation, and to limit the right of the crown to the use of such rivers as were in defence in the time of Henry II. De Jure Mar. c. 2. That the Great Charter restrained the king from granting exclusive rights of fishery in navi gable waters is held in some cases; Lowndes v. Dickerson, 34 Barb. (N. Y.) 586; 23 L. T. N. S. 732; Arnold v. Mundy, 6 N. J. L. 4, 10 Am. Dec. 356 ; Gough v. Bell, 21 N. J. L. 156 ; Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597. That the crown may grant exclusive rights of fishery in tide-waters is held in Rogers v. Jones, 1 Wend. (N. Y.) 237, 19 Am. Dec. 493. That Magna Carta was only intended to restrain the king from granting exclusive rights of fishery discon nected with the soil, in disregard of the rights of the owner of the soil, was held in Trustees of Brookhaven v. Strong, 60 N. Y. 56 (followed in Robins v. Ackerly, 91 N. Y. 98). In Martin v. Waddell, 16 Pet. (U. S.) 367, 10 L. Ed. 997, it was said, following Lord Hale's construction, "The true rule on the subject is that prima facie a fishery in a navigable river is common, and he who sets up an exclusive right must show title either by grant or prescription," and that this is the doctrine of the King's Bench in England in the case in 4 Burr. 2163.