Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1896-03-13
The Courts Opinion, Delivered
by Judge ROwell.

lNON Ii4A4s a.
Marlboro South pond is 9 natural body
of water from 10 to 80 feet deep, except
around the edges, where the water is shall
low. and it covers about - acres. 1t has
no inlet, but small brook forms its out
let. The town of Marlboro was New
Hampshire grant, having been chartered
by Benning Wentworth in the name of the
king in 1851, without reservation of any
ponds OF streams.
The plaintiff claimed, and its testimony
tended to show, that at the time in ques-
ton it was the sole owner and the eXclu-
sive possessor and occupant of strip of
land around said pond, four rods wide
most of the way, and of piece of land at
the north end of several acres, and of the
land covered by the water of the pond
and of the pond itself; that it purchased
the property for the purpose of propagat-
ing fish there for its own use and benefit,
and had thereon erected buildings and eX-
pended more than $4,000, and stocked the
pond with trout; and that the premises
were inclosed and posted according to law,
to the knowledge of the defendant, who
entered thereon on May Q, 1S94-which was
in the open season-and tished on divers
parts of the pond some of which were
covered by particular description i'll
some of the deeds in plaintiffs chain of
title.
As the court directed a verdict for the
defendant, all that the PLAINTIFF testimony
tended to show must be taken as proved.
Our constitution provides that 1.-THE in
habtants of this state shall have liberty
in seasonable times, to hunt and fowl on
the lands they hold, and on other lands
not inclosed; and in like manner to fish in
all boatable and other waters mot private
property under proper regulations, to be
hereafter made and provided by the General
Assembly" Oh. H., sec. 40 The de-
PENDANT claims that as this pond is boat
able in fact it is boatable with
in the meaning of the constitution, and
that therefore he had a right to fish there
in when he did. as he contends that the
words, ('not private property"), qualify
"other waters only, and not ''boatable"
waters, so that our inhabitants have liber-
ty in seasonable times TO fish in all waters
boatable in fact, whether private property
or not The plaintiff, on the other hand,
contends that the words (''not private
property"), qualify "boatable' as well as
"other waters but if not, that it is not
enough that waters are boatable in fact;
that to be boatable under the constitution
they must be of such volume and size that
they can be advantageously used by boats
at certain seasons of the year for trans
porting the products of the surrounding
Countrywide products of the mines, the
fields, and the forests.
By the law of Rome, all rivers and ports
were public; and therefore the right of
fishing therein was common to all men.
Justinian, Lib. H., Tit. l., 2, But by the
L., 6 =, L..
right of fishing only in navigable waters;
and no waters are deemed navigable in law
except tidal waters. The narrow sea ad-
joining the coast of England is part of the
waste and demesnes and dominions of the
King of England, whether it lies within
the body of any county or not. In
this sea the King hath a double right,
namely, a right of jurisdiction, which he
ordinarily eXerciseth by his admiral, and
right of propriety or ownership.
The right OF fishing in this sea and the
creeks and arms thereof is originally lodged
in the Crown, as the right OF depasturing
is originally lodged in the owner of the
waste whereof he is lord, or as the right
of fishing belongs 0 him that is owner of
a private or inland river. But
though the King is the owner of this great
waste, and as consequence of his pTopri-
ETY. hath primary right of fishing in the
sea and the creeks and arms thereof, yet
the common people of England have regu-
larry liberty of fishing in the sea or the
creeks and arms thereof as public com
mon of piscary, and may not without in
jury TO their right be restrained of it, un-
less in such places, creeks, or navigable
rivers where either the King or some par
tlcular subject hath gained propriety eX
elusive of the common liberty l, Har-
grave 5 Tracts, part one, Chap. ".
Non-tidal waters are not deemed naviga-
BILE in law though navigable in fact; and
there is no public right of fishing therein.
Reece e. Miller, l., Il. SO. B. 626. Ii is
obvious that the status of navigability can
not OF itself, carry with it public right
OF fishing, for the two things have no nee
essary connection between them. MuSSett
&. BWch, 30 Law Times. n 5. 1856, The
soil under tidal waters is not owned by pri-
Yate individuals, whereas the soil under
non-tidal waters, though navigable in fact,
is thus owned in England, and on this is
based the distinction between them in re-
spect Of fishing, for the right of fishing in
non-tidal waters by one not the owner of
the soil Hereunder is not an easement but
right of profit in the land of another.
Lloyd z. Jones' &C. b. 81; Bland 4. Lips
c0ntJe, e. d b. ia, note-which cannot
exist by custom, except in the case of
copyhold tenant against his lord, nor by
dedication, but only by grant or prescrip-
ton. ! WINS. Saund. BAL, n. (3); Cobb q.
Davenport, 80 N. J. Law, 81 Am. Dec.
us.
"Fresh rivers, of what kind soever, do
OF common right belong to the soil ada
cent, so that the owners of the one side
have, of common right, the propriety of
the soil, and consequently the right of
fishing, uSque .fLum aqua; and the owners
OF the other side, the right of soil or own
ership and fishing unto the .fium dqu9
on their side. And if a man be owner of
the land of both sides, in common pre-
sumption he is owner of the whole river,
and hath the right of fishery according to
the extent of his land in length. With
this agrees the common experience. ,
But special usage may alter the common
presumption; for one man may have the
river, and another the soil adjacent; or
one man may have the river and the soil
thereof and another the free or several
fishing in that river" l. Hargrave's Tracts,
part one, Chap, l,
But the distinction between tidal and
non-tidal waters in respect of fishing does
not distinguish them in respect of a pub
lie right of passage and transportation, for
the public have such right in both, for
Lord Hale says, that las the common high
ways upon the land are for the common
land passage, so these kinds of rivers,
whether fresh or salt, that bear boats or
barges are highways by water; and as the