See NAVIGABLE WATERS.
In rivers not navigable the fisheries belong to the owners of the soil or to the riparian proprietors ; 2 Bla. Com. 39; Gould, Wat. 42, 48; Hale, De Jure Mar. c. 4 ; 4 Burr. 2162; Day. 155; 7 Co. 16 a; Plowd. 154 a. In such rivers the owner of the adjoining soil has an exclusive right of fishery in front of his land to the thread of the river, except so far as this right has been qualified by legis lative regulation; but this right is limited to the taking of fish, and does not carry with it the right to prevent the passage of fish to lakes and ponds for breeding purpose; Corn. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386. The common-law doctrine accepting the tide-water test of navigability has been de clared to be the law in several of the United States ; People v. Platt, 17 Johns. (N. Y.) 195, 8 Am. Dec. 382 ; Hooker v. Cummings, 20 Johns. (N. Y.) 90, 11 Am. Dec. 249 ; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386 ; Lay v. King, 5 Day (Conn.) 72 ; Bennett v. Boggs, 1 Baldw. 60, Fed. Cas. No. 1,319 ; Smith v. Miller, 5 Mas. 191, Fed. Cas. No. 13, 080 ; Adams v. Pease, 2 Conn. 481; Corn. v. Vincent, 108 Mass. 446, 447; Moulton v. Lib bey, 37 Me. 472, 59 Am. Dee. 57. But in some states 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; Shrunk v. Nay. Co., 14 S. & R. (Pa.) 71; Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dee. 597; Collins v. Ben bury, 25 N. C. 277, 38 Am. Dec. 722 ; Sloan v. Biemiller, 34 Ohio St. 492 ; See Harvey v. Vandegrift, 89 Pa. 346; People v. Dox tater, 75 Hun 472, 27 N. Y. Supp. 481. This modification of the common-law doctrine has been applied not to the abandonment of the distinction between the public and private rights of fisheries as affected by navigability, but to the establishment of a different test of navigability, made necessary by the differ ence of physical conditions in the two coun tries already alluded to. So in the leading Pennsylvania case the point of the decision was that neither the quality of fresh or salt water, nor the flux or refiux of the tide, would determine whether a river should be considered navigable or not ; Carson v. Bla zer, 2 Binn. (Pa.) 475, 4 Am. Dec. 463. After changing the test of navigability, these cases applied the rule of the public character of streams actually which had been in England determined by the mere test of tide water. Stover v. Jack, 60 Pa. 339, 100 Am. Dec. 566.
It is for the states to determine the ques tion of the title to the beds of navigable non tidal waters between the state and the ri parian owner ; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224. Each state has the ex clusive control of fisheries in the tide-waters and beds of tide-waters within its jurisdic tion, subject to the paramount right of navi gation; Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159. The
jurisdiction of a state is coextensive with its territory, coextensive with its legislative powers, and, within what are generally recog nized as the territorial limits of a state, by the law of nations, a state can define its boundaries on the sea and the boundaries of its counties; U. S. v. Bevans, 3 Wheat. (U. S.) 386, 4 L. Ed. 404.
In the control of fisheries within a state, the state government is supreme; II. S. v.
Packer's Ass'n, 79 Fed. 152 ; Martin v. Wad dell, 16 Pet. (U. S.) 369, 10 L. Ed. 997 ; Marsh v. Colby, 39 Mich. 626, 33 Am. Rep. 439. It may regulate public rights of fishing ; Daniels v. Homer, 139 N. C. 219, 51 S. E. 992, 3 L. R.
A. (N. S.) 997 ; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385 ; or make grants of exclusive rights which do not im pair any private rights already vested ; Smith v. Look, 108 Mass. 141; Corn. v. Hilton, 174 Mass. 29, 54 N. E. 362, 45 L. R. A. 475 ; it may prohibit the taking of fish during cer tain seasons of the year or with certain im plements; Duncan v. Sylvester, 24 Me. 482, 41 Am. Dec. 400 ; Matthews v. Treat, 75 Me. 597 ; Donnell v. Joy, 85 Me. 118, 26 Atl. 1017 ; even on the part of private individuals from waters in which as riparian owners they have the exclusive right of fishing, if such waters connect with the public waters of the state ; People V. Bridges, 142 Ill. 30, 31 N. E. 115, 16 L. R. A. 684 ; People v. Lumber Co., 116 Cal. 397, 48 Pac. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183 ; Barrows v. McDermott, 73 Me. 441; or a state may prohibit all such acts as would render the public right less valuable or destroy it altogether ; Smith v. Maryland, 18 How. (U. S.) 71, 15 L. Ed. 269. It may prohibit the taking of oysters and shell fish in its public waters by the citizens of other states, without infringing on the privileges and immunities of citizens of oth er states; State v. Medbury, 3 R. I. 138 ; New England Oyster Co. v. McGarvey, 12 R.
I. 385; Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230 ; or without discrimina tion against them ; State v. Tower, 84 Me. 444, 24 Atl. 898 ; People v. Lowndes, 130 N. Y. 455, 29 N. E. 751: The rights, privileges and immunities secured by the constitution of the United States to the inhabitants of the several states do not include, in favor of the inhabitants of any state, right in the common property of the inhabitants of the states ; Com. v. Hilton, 174 Mass. 29, 54 N. E. 362, 45 L. R. A. 475. No rights under the com merce clause of the federal constitution are infringed by a state act under which a con viction may be had for using a dredge in tidal waters of a state for the purpose of catching oysters upon lands leased by another person ; Lee v. New Jersey, 207 U. S. 67, 28 Sup. Ct. 22, 52 L. Ed. 106. A state may require a li cense fee from all persons engaged in fishing for profit in the navigable waters of Lake Erie ; State v. Hanlon, 77 Ohio St. 19, 82 N.