In 6 Mod. 73, it was held that every one had a right to fish in a navigable river, or in an arm of the sea. In 4 Burr. 2162, the court followed the language of that case to the effect that in navigable rivers the fishery is common, but held that since prescription was found in the case at bar, the plain tiff's right was good. And it was further said the crown ;nay grant a several fishery in a navigable river where the sea flows and reflows, or in an arm of the sea. The public may grant the exclusive right of fishing in a navigable river ; and if it may be granted, it may be prescribed for. Such a right may never be presumed. It is how ever, capable of being proved; Chalker v. Dickinson, 1 Conn. 382, 6 Am. Dec. 250.
It has been said, on the contrary, that the king has no power, and since Magna Carta; never has had, to grant an exclusive right of fishing in an arm of the sea ; 5 Barn. & Ald. 268; Browne v. Kennedy, 5 Har. & J. (Md.) 203, 9 Am. Dec. 503; and that a private and several right to fish in a navigable river must have had its origth before Magna Car ta ; L. R. 4 Ex. 369. In England' there are such several and exclusive fisheries in navi gable rivers attached Manors, either by early grant from the crown or b prescrip tion, because' there might have been such a grant on which to found it ; Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597, where it is said : "Neither the proprietaries of Pennsylvania or New Jersey ever owned the bed of the Delaware. Their respective grants were to low water mark on either side. The bed of the river and the river itself were in the crown, and passed by force of the revolution and the definitive treaty of peace, Sept. 3, 1783, to the two states, to be owned and enjoyed on the same principle upon which a navigable river flowing be tween two coterminous nations is held." That a fishing place might be granted by compliance with the statute separate from the soil was settled in Pennsylvania by the decision in Hart v. Hill, 1 Whart. (Pa.) 124; but no point was decided in that case as to the nature of such a grant. It would seem, however, to have been considered an incor poreal hereditament ; Tinicum Fishing Co. v. Carter; 61 Pa. 21, 100 Am. Dec. 597, per Sharswood, J., where it was held that a right to take fish is a profit d prendre in alien° solo. It requires for its use and en joyment exclusive occupancy during the pe riod of fishing. It implies the right to fix stakes or capstans for the purpose of draw ing the seine and the occupancy of the bank at high tide as well as the space between high and low water mark as far as may be necessary and usual. The grantee in the na ture of things must have exclusive possession for the time he is fishing, and for that pur pose ; the grantor at all other times and for all other purposes.
Land or an interest in land cannot be prescribed for ; 2 Bla. Corn. 264. It may well be questioned whether such a profit d prendre can be, especially when not pleaded In a que estate, but in a man and his antes-' tors. That kind of a user for twenty-one
years and upwards which may be sufficient to raise a presumption of a grant of a mere easement will not support a claim for an in terest in the land itself or its profits. Where a right to fish in a navigable river is set up as appurtenant or affixed to a sever al fishery in the river or to adjoining lands, if there be a dominant and a servient tene ment, if the plaintiff prescribes in a que es tate in him and those whose estate he had, there might be sufficient evidence to create the presumption of a grant. But there is a manifest reason for the distinction in the nature and amount of the evidence required in case of such an easement and one merely in gross. There is a certainty as to the own ers and occupiers of the land of which the appurtenancy is predicated which does not exist where the claim is in gross. A fair presumption arises of knowledge that the exercise of it is under a claim of right ; Washb. Easem. 86, cited in Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597. No title by user to an inheritable easement in gross could safely be allowed to grow up ; Donnell v. Clark, 19 Me. 174 ; Thomas v.
Marshfield, 13 Pick. (Mass.) 240; Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597. The last case was appealed four times by the defendant on different questions. It is cited in Cobb v. Bennett, 75 Pa. 326, 15 Am. Rep. 752, as discussing the subject of fisheries with much research.
In Louisiana, a manner of acquiring prop erty or discharging debts by the effect of time. Rev. Code of La. Art. 3457. See Lintnan v. Riggins, 40 La. Ann. 761, 5 South. 49, 8 Am. St. Rep. 549.
See ADVERSE POSSESSION; EASEMENT.
In International Law. The doctrine of Im memorial Prescription is indispensable in public law; 1 Phill. Int. L. § 255. The gen eral consent of mankind has established the principle that long and uninterrupted posses sion by one nation excludes the claim of ev ery other. All nations are bound by this consent, since all are parties to it; none can safely disregard it without impugning its own title to its possessions ; 1 Wheat. Int. L. 207 ; Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537; Rhode Island v. Massachusetts, 4 How. (U. S.) 591, 11 L. Ed. 1116 ; Indiana v. Kentucky, 136 U. S. 479, 10 Sup. Ct. 1051, 34 L. Ed. 329 ; Moore v. McGuire, 205 U. S. 214, 27 Sup. Ct. 483, 51 L. Ed. 776; 17 Harv. L. Rev. 346. Prescrip tive rights to territory are binding as be tween two states; Maryland v. West Vir ginia, 217 U. S. 1, 30 Sup. Ct. 268, 54 L. Ed. 645.
The period of time cannot be fixed in pub lic law as it can in private law ; it must de pend upon varying and variable circumstanc es ; 1 Phill. Int. L. § 260.
Burke speaks of the "solid rock of pre scription—the soundest, the most general, the most recognized title between man and man that is known in municipal, as in pub lic jurisprudence." Vol. ix. p. 449.