The Penn's Grove record., 1885-01-31


Oue cSclcIss 81 sush l.elf, not sJ:
ported ,yjhe dastttia.s Of t4a aoamo
law of EGgl1"d, REGARDS tEcals.ye u.tr
cry in trout of his ,mris.'' / COM" uo"
To give s. 1un cNl;acls from Che ol.Rio
Of Judge Emar-a mn-t rem1gasuj.
maa, aEd aH extremely aide JHj5e
sshosa rre e~spa9jaH,=, great learning
ami cXcellcu. Judgment, hagl b en o.
much value to Ne y Jersey. in shapius
the ju]ri,plu'tnc Vt lie state, ,nm4nl
yital que h.u. lie Wis "a resident d.
West J.r5ty du Ing tae whole cl hi
long aui honorable career, and tie ialev
what he was writing abaut, whom h.
wro,e his opinion III the case Of 6gagt.
vs.. Bd!, in The court If Errors ana
Appeals. lie sad she question IS
not What wa tbs ON on law OF Eng
ldud, but what is The common law cf
this State. That some of the doctrilts
of the common law have never been
considered applicable to our ciIcHn-
stances and never been adop;el htre.
and that others have beeu materially
charge Jed, by our locnl usage, is MT dis
putcd. We are now to consider Wiefl-
er the rules Of the common law, in re-
gard to the ownership Of proFelty adj
joining thesea or our navlgable waters,
have been adopted in this State, OF
whether there is evidence that they
never have been in force herr, or have
teer. materially changed 50. An excel
leucy Of the system of common law
derived originality from the genera
custom Of the country is that it is uot
iufleXible as a statute, but max be mod
ifeI fIom time to time, as circumstan-
ces rpqu;red.2t sit is conceded, . he
says "as well as for those who contend
for the application of the strict rule OF
the English common law to the shores
of nayigable waters in this State, as by
t ose who think We hsve IL LEGAL COM
mon law, on the subject d fferent from
that of England, that the Owners of
the adjoining lands in this State have
the exclusive right on such shore" 1t
was The opinion of Judge Elmer that
the right of several fishery in the slIose
owner, Lad it's origin in the uniform
practice of the holder Of the upland to
extend his exclusive right to the soil
beyond high water mark. But l. mat
ters not how the right originated. The
question which concerns us IS whether
the rightto several fishery to the shore
owner on the Delaware river existed
and does exist. In the Circuit Court
of the United States, Judge Baldwin,
a man of Acknowledged ability, held
the same view, and sald in Bennctt vs..
Boqgs: at is admi ted that from a
very carly period of the history of the
of the State shore fisheries have been
considered private proper y capable
Of being devised and alienated with
or separate from the land 10 which
they are annexed subjected TO taxa
ton and taxed as othar real estate"
This doctrine 50 ably set forth by
Chief Justice Green in G1tyh vs.. Eel
has as late rs 1870 been approved Is
the acute and logical mind Of the pres
ent Chief Justice Of this STATE, So that
it may be and must b. 0 considered
as establishtd las that there is a right
of fishery, a right Of property in fish
cries in the shore owners, and their as
signs. OF the Delaware river on the Jcr-
sey side, and that suca right Of POI
erly has been recognize by the courts.
Had Whitall such property in the fish
cry in question in ISIS when he made
deed thereof to Christian Faunce; or
had Newbold Il property in the rights
aud privileges Of fishing, he granted to
Faunces in 1884; la his fs1ery one
that has ben recognized rs priTats
property? Was it Of the cItss ref'rred
to by those learned Judges L IS All
ancient fishery going back Of the year
1900, how far back Of that time. is not
proved. Tit description # the pool Of
this fishery aud acc 'mptnying bonds
have bsen filed in HE Cler6's Onice,
almost every year for Owe 60 years,
commencing alI3st immediate ely ailet
the law OH that subject vas passed,
and for over so years taxes have been
annually paid by the owners OIL th.sS
fisher. 1t has leau operated as a fish
cry every year. Guided by the opin-
iols of the eminent j~urists | have nam
ed, and adopting iLeil views, / charge
you as matter of law, that under the
evidence the defendant in the Spring OF
lSSt Nhen the ~tIeSYasses are alleged to
have been committed by Inn, had q
right or these under when lie claimed
had Il right of fishery there; tnat plain
tiff held his lease subject to such r'gh'
of fishery, and thl defendant is entitled
10 v,>ur verdic', unless us before said,
| you find he did acts, which did damage
| to the plaintiff that were no. necessary
to his operating the fishery, or which
wer. outside of a. d beyond The rights
and privileges of fishing, granted to
Christian Fauuc4 in 1918 AMI 1884 b.
the then land owners. Amd il lie did
g mmit acts i'll excess of these rights
and privileges YOUR verdict should bt
Tor pI intiff IN such amount of DANA
es as you find resulted therefrom.
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