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although at common law a grant of such right from the Crown without the assent of Parliament is invalid, if made within the time of memory, or, indeed, according to numerous authorities, if made since Magna Charta.1 In Rogers v. Allen, which was an action of trespass for breaking and entering the plaintiff's several fishery in the river Burnham by dredging for oysters, the question was as to the extent of a prescriptive right of fishery as appurtenant to a manor, the evidence being that the public had been accustomed to fish in the river for floating fish only. The fishery was held to be divisible, Heath, J., saying: "Part of a fishery may be abandoned and another part of more value may be preserved. The public may be entitled to catch floating fish in the river Burnham, but it by no means follows that they are justified in dredging for oysters, which may still remain private property."

3

§ 190. In Fleet v. Hegeman, an action of trespass was brought for taking away a quantity of oysters which the plaintiff had gathered two years before, when they were small, and planted in tide water, about fifteen rods from the shore, in a space enclosed by stakes. In reversing a judgment for the defendant in the lower court, the Supreme

er v. Dickinson, 1 Conn. 382; Church v. Meeker, 34 Conn. 421; State v. Sutton, 2 R. I. 434; State v. Medbury, 3 R. I. 138; Yard v. Carman, 3 N. J. L. 936; Paul v. Hazleton, 37 N. J. L. 106; Wooley v. Campbell, 37 N. J. L. 163; Browne v. Kennedy, 5 H. & J. 203; Day v. Day, 4 Md. 262; Delaware Railroad Co. v. Stump, 8 Gill & J. 479; Chapman v. Hoskins, 2 Md. Ch. 485; Parker v. Cutler Milldam Co., 20 Maine, 253; Moulton v. Libbey, 37 Maine, 472; Prebles v. Brown, 47 Maine, 284; Clement v. Burns, 43 N. H.621; Weston v. Sampson, 8 Cush. 347; 2 Dane Abr. 690; Commonwealth v. Bailey, 13 Allen, 543; Lakeman v. Burnham, 7 Gray, 440; Proctor v. Wells, 103 Mass. 216; Commonwealth. Vincent, 108 Mass. 446;

Hittinger v. Eames, 121 Mass. 539,
546; Paine v. Woods, 108 Mass. 169;
Gough v. Bell, 21 N. J. L. 156; Dela-
ware Canal Co. v. Raritan Railroad
Co., 16 N. J. Eq. 321, 366; Collins v.
Benbury, 3 Ired. 277; 5 Ired. 118;
State v. Glen, 7 Jones, 321; Jackson
v. Lewis, Cheves (S. C.) 259, 262;
Woolrych on Waters, 80.
1 Ibid.

21 Camp. 309, 313.

8 14 Wend. 42. In an action of trespass for taking oysters from the plaintiff's oyster-bed, the defendant cannot, under the general issue, show that the locus in quo is a public river from which the public have a right to take oysters. Shreves v. Liveson, 1 Penn. 247.

Court said: "That a qualified property in the oysters was acquired by the plaintiff is admitted. But it is contended that the planting them in the bay where a common right of taking them existed was an abandonment of them to the public use. If so, it must be by force of law, for the case fully discloses that no such intent in point of fact existed. On the contrary, they were deposited there by the owner to improve, or rather give value to them, and with reference to an ulterior use. As to all inanimate things, an absolute property in possession may be acquired in them, such as goods, plate, money; and if the article in question could be considered as falling within that description, there could be no doubt the defense taken would be untenable, unless there was an abandonment in fact. Oysters have not the power of locomotion any more than inanimate things, and when property has once been acquired in them, no good reason is perceived why it should not be governed by the rules of law applicable to inanimate things. But it is contended they fall within the rules of law applicable to animals denominated ferae naturae, the same as deer in the forest, pigeons in the air, or fish in public waters or the ocean. A qualified property is acquired in these by reclaiming and taming them, or by so confining them within the immediate power of the owner as to prevent their escape and the use of their natural liberty. The right of the plaintiff to the oysters is within the reason of these principles. They have been reclaimed, and are as entirely within his possession and control as his swans or other water fowl that may float habitually in the bay. They were distinctly designated according to usage; and, besides, the defendants had actual information of the ownership, and they can set up no greater right to take them because found in their native element than tame pigeons in the air or a domesticated deer upon the mountain. If the bed interfered with the exercise of the common right of fishery, or if the oysters were undistinguished among others belonging to the public waters, the interest of the owners in them would undoubtedly be subservient to the enjoyment of the public use. But the

exercise of that right in this case was a mere pretense. No oysters of the natural growth of the bay, fit for use, had been found there for years. The bed interfered with no other sort of fishing for either profit or pleasure. The case presents a deliberate and wanton violation of property acquired by the industry and care of another, under the pretext of exercising a right in common which the defendants knew to be fruitless. We certainly would have regretted if the law had given countenance to such depredations, and we are rejoiced to find they are as gross a violation of law as they are of the first principles of justice."

§ 191. The privilege of gathering ice upon waters which are public property is a common right. It is so held with respect to great ponds in Massachusetts.1 The remedy for an unreasonable or excessive use of the liberty of cutting ice on the great ponds of this State is by indictment; 2 and although the owner or lessee of an ice-house and land upon the shore of such a pond has the same right as others to cut and take ice which is the natural product of the pond, he cannot, to the exclusion of other public uses, occupy any part of the pond for the purpose of increasing the thickness of the ice by artificial means, or maintain an action against those who come upon the pond lawfully and there cut holes in the ice in the exercise of the public right of fishery. So, the owners of lands bordering upon navigable streams, in those States where they are held to be public property, have no title to the ice which forms on such streams, as incident to their ownership of the banks, but the ice belongs to the first appropriator.4 An appropriation of the ice upon these streams is made by surveying, marking, and staking off the

1 Hittinger v. Eames, 121 Mass. 539; Anc. Chart. 148; Cummings v. Barrett, 10 Cush. 186; West Roxbury r. Stoddard, 7 Allen, 158; Paine v. Woods, 108 Mass. 160; Commonwealth v. Vincent, 108 Mass. 441; Fay v. Salem Aqueduct, 111 Mass. 27; Gage v. Steinkrauss, 131 Mass. 222;

Tudor v. Cambridge Water Works, 1
Allen, 164.

2 West Roxbury v. Stoddard, 7 Allen, 158.

3 Hittinger v. Eames, 121 Mass. 539; Rowell v. Doyle, 131 Mass. 474.

4 Wood v. Fowler, 26 Kansas, 682; Hickey v. Hazard, 3 Mo. App. 480.

ice, if unappropriated by others, and expending money to preserve it, and by these acts a sufficient possession is acquired to support an action of trespass.1 Ice forming on a navigable fresh-water stream, the bed of which belongs to the riparian proprietors, is their property, and a person who appropriates it for his own gain cannot justify the trespass on the ground that its removal was advantageous to the public easement of navigation.2 The fact that the business of harvesting ice is an important industry does not justify the erection of a dam, without the authority of the legislature, across an arm of the sea which is of small importance for navigation, for the purpose of excluding the salt water and creating a fresh-water pond for the formation of ice, and the right to maintain such a dam cannot be acquired by prescription.3

Ice forming upon private fresh-water streams and ponds belongs exclusively to the riparian proprietors, who may prevent its removal by others or maintain trespass against those who cut it without license. The owner of an artificial mill-pond, who is entitled to the water of the pond, is also entitled, as against the riparian owners, to have the ice which forms thereon remain, if its removal will appreciably diminish the head of water at his dam;5 and a grant of the right to flow land by damming a stream has been held to give to the grantee the exclusive right to gather the ice which forms on the pond so made. In Massachusetts, the owner of a mill-dam, by proceedings under the mill act, acquires merely a right to raise the water by his dam, and

1 Ibid.

2 Washington Ice Co. v. Shortall, 101 Ill. 46.

3 Dyer v. Curtis, 72 Maine, 181.

4 Mill River Manuf. Co. v. Smith, 34 Conn. 462; Edgerton v. Huff, 26 Ind. 35; State v. Pottmeyer, 30 Ind. 287; 33 Ind. 402; Bates v. State, 31 Ind. 72; Lorman v. Benson, 8 Mich. 18. When riparian estates are taken by right of eminent domain, the value of ice privileges connected therewith may form an element of the damages.

Ham v. Salem, 100 Mass. 350; Paine v. Woods, 108 Mass. 173.

5 Mill River Woollen Manuf. Co. v. Smith, 34 Conn. 462; Seeley v. Brush, 35 Conn. 419; Cummings v. Barrett, 10 Cush. 186; Paine v. Woods, 108 Mass. 160, 173; Myer v. Whitaker, 55 How. Pr. 376; Marshall v. Peters, 12 How. Pr. 218.

Myer v. Whitaker, 5 Abb. N. C. 172. The case was criticized in a later decision in New York. Dodge v. Berry, 25 Alb. L. Journ. 303.

the owner of land thereby flowed may remove the water when formed into ice, for use or sale, provided he does not lessen the water-power.1 When the State appropriates the fee of land for the construction of canals, the former owner has no right to take ice therefrom;2 but if the canal is simply a servitude, the owner of the fee is entitled to take the ice when its removal does not interfere with the navigation or the use of the water for hydraulic purposes.3 In Indiana and Illinois, ice forming upon private waters is held to be real estate.1 In Michigan it is held that, as the ephemeral character of ice renders it incapable of any permanent or beneficial use as part of the soil, it is unlike crops or emblements, and that any sale of ice actually formed is a sale of personalty. The measure of damages for a wrongful taking of ice from another's waters, like that of an unauthorized taking of coal from another's mine, is the value of the ice when converted into a chattel and ready for removal and sale. If wantonly destroyed while in the process of formation, the value of the ice that would probably have been saved for market, less the expense of storing it, is the measure of damages.7

§ 192. By the common law, as stated by Lord Mansfield, and approved by Chancellor Kent, vessels or goods cast

1 Cummings v. Barrett, 10 Cush. 186; Paine v. Woods, 108 Mass. 173.

2 Indianapolis Water Works Co. v.
Burkhart, 41 Ind. 364; Cromie v.
Board of Trustees, 71 Ind. 208.
Card v. McCaleb, 69 Ill. 314.

See

3 Edgerton v. Huff, 26 Ind. 35. State v. Pottmeyer, 33 Ind. 402; 30 Ind. 287; Washington Ice Co. v. Shortall, 101 Ill. 46.

318.

134, 144; Proctor v. Adams, 113 Mass. 376; Wonson v. Sayward, 13 Pick. 402; The Augusta, 1 Hagg. Adm. 16, 18, 20; Rex v. Property Derelict, 1 Hagg. Adm. 383; Rex v. 49 Casks of Brandy, 3 Hagg. Adm. 270; Rex v. Two Casks of Tallow, 3 Hagg. Adm. 294; The Pauline, 2 Rob. Adm. 358; Bracton, fol. 120, § 5; Woodward v. Fox, 2 Vent. 188; Sir Henry Consta

5 Higgins v. Kustener, 41 Mich. ble's Case, 5 Co. 108; Talbot v. Lewis,'

6 Washington Ice Co. v. Shortall, 101 Ill. 46; 25 Alb. L. Journ. 106.

7 People's Ice Co. v. The Excelsior, 44 Mich. 229.

* Hamilton v. Davis, 2 Burr. 2732;. 2 Kent Com. 322, 359; 3 Dane Abr.

6 C. & P. 606; Dickens v. Shaw, reported in Hall on the Seashore, App. 45; Alcock v. Cooke, 2 M. & P. 625; Stackpoole v. Queen, Ir. R. 9 Eq. 119; Clark v. Chamberlain, 2 M. & W. 78; Legge v. Boyd, 1 C. B. 92; Palmer v. Rouse, 3 H. & N. 505; 1 Black. Com.

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