The Rutland weekly globe. [volume] (Rutland, Vt.) 1873-1877, 1874-03-13
A Communication about Fisheries
and Their Present Relation 10 the
Law,


BY NJ. GOLDSMITH, COMMISSIONER OF FISH
ERIEs.
The title to all the land III Vermont UNI
DERIVING running waters navgable or not,
excepting, possibly, those RAINING into
Lake Champlain as far up their courses as
they rise and fall with the lake is unques-
toned, and probably unquestionable. The
exclusive right to capture fish goes with
the ownership of the SOIL
That the public have a right Of way over
and through navigable rivers by boats or
on the ice when frozen, is equally notori-
Gus, as well as the right to float logs through
fit streams, not navigablc in the ordinary
sense of the term.
This public right of way, while it is
dominant right. does not convey or carry
with it any other use of the water-as the
right of fishing. All uses of the water,
which do not interfere with the right of
way, still attack to the soil. 1t is not the
occupation of stream or lake for the pur-
pose of navigation which renders the fish
ing in its waters public it is the owner
ship of the land. If the state owns the
land under the water the state owns the
fishing. If l own the land under the
water own the fishing, and it is as abso
lutely mine, for it rests upon the same
principle as is the fishing in the spring
brook which runs through my own door
yard.
Yet, somehow, our people, indeed the
public almost everywhere, have an idea
that they have right TO fish IN all streams
of water, in all ponds, mill ponds as well
as natural ponds. This idea is based upon
ancient custom or immemorial usage. How
much there is in such reasoning will appear
from what follows sin case in Massa-
chusetts the defendant undertook to give
evidence of a custom for all the inhabitants
in the vicinity to take fish in the plaintiffs
mill pond and that the pond was merely
the enlargement of natural stream. But
the court asserted that there was no such
general right as suggested and as to Gus
tom, it might be sufficient to say, that if it
were legal and could be found to exist, it
would not be defence under the general
issue. But the custom proposed to be
proved was not one that could be sustained
in law, even if specially pleaded for n
custom to take anything from another's
land, or for profit a pandre Cor for the
profit from the taking is not lawful GUS
tom"+
The custom which you have followed for
twenty years, of taking trout from my
brooks does not give you any right to CON
tinue the taking, any more than the habit
VI IobDlHS my oTCHhlu lbl twenty JtdlS III
succession gives you mortgage on my
apples or that the like continuance of the
habit of helping yourself to poultry from
my hen coops, makes for you continuous
claim to my Christmas turkeys. A statute
of limitations may apply to the penalty,
but it does not apply to the practice.
Nor does the failure to exercise my right
of exclusive fishery effect my right to fish in
my good pleasure. 1t might as well be
said that have no right to raise potatoes
in pasture lot which has not been plough
ed for twenty years.
Back of all this however, it must appear
evident that, where the original grant of a
tract of land, running from the common
wealth, included within its boundaries con-
siderable lakes or ponds or that, where,
in the original surveys, the areas covered by
natural ponds have not been deducted from
the total amount, and the price made TO nc
cord with the deduction or that, where,
in the government surveys, sections came
to corner in bodies of water-that the title
of the ripariOn owners is absolute; or that
in all such cases, the grantees are possessed
of land underlying the water II is true,
that in many such cases the land underlying
the waters may have become escheated.
Still, there are doubtless some instances