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§ 48. The question appears to have been first passed upon judicially in the case of the Royal Fishery of the Banne,1 decided in Ireland in the year 1611. It was there resolved: (1) that, although the rule of the civil law be as it is found in Bracton, "yet, by the common law of England, a man may have a proper and several interest as well in a water or river as in a fishery"; (2) that "there are two kinds of rivers: navigable and not navigable. Every navigable river, so high as the sea flows and ebbs in it, is a royal river, and the fishery of it is a royal fishery, and belongs to the king by his prerogative; but in every other river, not navigable, and in the fishery of such river, the ter-tenants on each side have an interest of common right." It is further said in this case: "The river Lee is found by acquisition the king's high stream; and in the stat. of 28 Hen. 8, c. 22, enacted in this kingdom, the rivers Barrow, Noire, and Suire are called the king's rivers, and the weirs erected in them are called purprestures; and, although the king permit his people, for their ease and commodity, to have common passage over such navigable rivers, yet he hath a sole interest in the soil of such rivers, and also in the fishery." The conclusion was, that “the river Banne, so far as the sea flows and ebbs in it, is a royal river; and the fishery of salmon there is a royal fishery, which belongs to the king as a several fishery, and not to those who have the soil on each side of the water. But, on the other part, it was agreed that every inland river, not navigable, appertains to the owners of the soil where it hath its course, and if such river runneth between two manors, and is the mear and boundary between them, the one moiety of the river and fishery belongeth to one lord, and the other moiety to the other."

and the right of the public in them was not acquired by any compromise with the interests of any individual.

In the first ages of all countries, not only the sea and its shores, but all perennial rivers, were left open to public use. In all countries, it has been matter of just complaint, that individuals have encroached on the

rights of the people. In England, our
ancestors put the public rights in
rivers under the safeguard of Magna
Charta. The principle of exclusive
appropriation must not be carried
beyond things capable of improve-
ment by the industry of man."
1 Sir John Davies, 149.

The real question presented for decision was, whether a royal grant of certain lands, adjacent to the river Banne, conveyed a salmon fishery at a point in the river where it was "navigable." If the word "navigable," as here used, means tidal,1 the question of title to a fresh-water river was not in issue; and the first part of the last resolution, in which the king is held to be the owner of tidal rivers, and the resolution that nothing passes by implication in a royal grant, embrace the only points that were directly decided. It should also be noticed that the Barrow, the Noire, and the Suire, which are both navigable and fresh,2 are here called royal rivers, and that the king is said to have a sole interest in the soil of these rivers, and also in the fishery.

§ 49. The treatise De Jure Maris, published in 1787, and usually ascribed to Sir Matthew Hale, who died in 1676, begins with the statement that "fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquae; and the owners of the other side the right of soil or ownership, and fishing unto the filum aquae on their side." In the second chapter of the treatise, the resolution in the case of the Royal Fishery of the Banne, in which the Barrow and other fresh rivers are termed royal rivers, is criticised, but no authorities are cited in support of

The word "navigable" in this case is, perhaps, of somewhat doubtful meaning, it being said that "every navigable river, so high as the sea ebbs and flows in it," is a royal river; that "every other river not navigable," and “every inland river not navigable," are private, etc. In People r. Canal Appraisers, 33 N. Y. 461, 470, Davies, J., interprets the case of the Royal Fishery of the Banne, and, also, Warren v. Matthews, 6 Mod. 73, and Carter v. Murcot, 4 Burr. 2162, as distinguishing only between those rivers which are, and those which are not, navigable in fact. But this view is

not supported by the English decisions in which these cases are referred to.

2 See Encyclopedia Britannica, tit. Barrow; Murphy v. Ryan, Ir. R. 2 C. L. 143, 153; De Jure Maris, c. 2; post, § 51; People v. Canal Appraisers, 33 N. Y. 461, 470.

3 Hale, De Jure Maris, c. 1, 3; Hargrave's Law Tracts, 5.

De Jure Maris, c. 2. This passage is as follows: "As the common highways on 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

this passage, or of the subsequent statement that the rivers which Bracton declares to be public, "must be taken to be rivers that are arms of the sea."1 In the same chapter, which is entitled "Of the right of prerogative in private or fresh rivers," it is said that the king has jurisdiction to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges and boats, and to reform the obstructions or annoyances therein; that these public streams which are highways by water, are called royal, not in reference to the propriety of the river, but to the public use, and that they are under the king's special care and protection, whether the soil be his or not. In chapter four it is said that the king has the right of property in the sea, and in the shore and in the creeks and arms thereof, where the sea flows and re-flows, and so far only as the sea so flows and reflows; and that, although the water be fresh at high water, yet the denomination of an arm of the sea continues, if it flow and re-flow. These passages support the doctrine that the public have no rights in any fresh-water river except that of navigation. The authorship of the work 2 would not, per

water; and as the highways by land are called altae viae regiae, so these publick rivers for publick passage are called fluvii regales, and haut streames le roy; not in reference to the propriety of the river, but to the publick use; all things of publick safety and convenience being in a special manner under the king's care, supervision, and protection. And, therefore, the report in Sir John Davys, of the piscary of Banne, mistakes the reason of those books, that call these streames le roy, as if they were so called in respect of propriety (as 19 Ass. 6 Dy. 11), for they are called so, because they are of publick use, and under the king's special care and protection, whether the soil be his or not." The case of the Banne is also criticized in other respects in De Jure Maris, c. 5. With respect to the right of fishing, it

is said that salmons, "though they are great fish, are not royal fish, as the report of Sir John Davies in the case of the fishing of Banne would intimate." The other passage relates to the acquisition by a subject of rights in the sea by prescription or usage, in which it is said: "I have added the more, because there are certain glances and intimations in the case of the piscary of Banne, in Sir John Davies's reports, as if the fishing in these kinds of royal rivers were not acquirable but by special charter, which is certainly untrue; for they are acquirable by prescription or usage, as well as royal fish may be."

1 De Jure Maris, c. 4; Hargrave's Law Tracts, 12. Ante, § 18.

haps, be of importance, were it not for the fact that, being associated with the name of Lord Hale, the positions here taken have been frequently accepted as a sufficient authority, without inquiring whether the positions themselves had a sound basis.1 The work is posthumous, and there appears to be no evidence that it was revised or intended for publication, or at what period of the author's life it was written, while Lord Hale's name has not made it, in all respects, incontrovertible.3

§ 50. The early authorities being thus discordant, no certain rule is supplied by the earlier English cases, which relate either to tidal rivers or to fresh rivers which do not appear to be navigable. In Bulstrode v. Hall, and other cases, which, upon the facts, involved no rights in places above the tide, rivers are said to belong to the king as far as the sea ebbs and flows in them. So in Carter v. Murcot,5 and Rex v.

48.

1 See Phear's Rights of Water, 47, & C. 106; 2 Bligh, N. S. 147; post, c. 5. Fourth, It is now established that the

See Hall on the Seashore, Intro- right of towage along the banks of duction.

* In the light of modern decisions, the following rules laid down in this treatise are not law: First, That the realm of England extends beyond low-water mark, and includes the adjacent seas, whether they are within the body of a county or not. De Jure Maris, c. 4; Hargrave's Law Tracts, 10; Contra, Regina v. Keyn, 2 Ex. D. 63, referred to ante, §§ 13, 14. Second, That "any man may justify the removal of a common nuisance, either at land or by water, because every man is concerned in it." De Portibus Maris, c. 7; Hargrave's Law Tracts, 87; Contra, see post, § 128; Third, That alluvion "is de jure communi, by the law of England, the king's, viz.: if by any marks or measures it can be known what is so gained." De Jure Maris, c. 6; Hargrave's Law Tracts, 28; Contra, Foster v. Wright, 4 C. P. D. 100; In re Hull & Selby Railway, 5 M. & W. 327; Rex v. Yarborough, 3 B.

rivers does not exist in the absence of usage, grant, etc., notwithstanding the intimation in this book that this is a common-law right. De Portibus Maris, c. 7; Hargrave's Law Tracts, 86; Ball v. Herbert, 3 T. R. 253; Blanchard v. Porter, 11 Ohio, 100; post, § 150, c. 4. The view that has been expressed in this country that this treatise is of so high authority that there is no appeal from it (6 Cowen, 536, note; Cobb v. Davenport, 3 Vroom, 369, 379) would appear, therefore, to be somewhat exaggerated.

41 Sid. 148. See, also, Rex v. Trinity House, Id. 86; and cases ante, § 18, notes; Malcomson v. O'Dea, 10 H. L. Cas. 619; Warren v. Mathews, 1 Salk. 357; 6 Mod. 73; Carter v. Murcot, 4 Burr. 2162.

54 Burr. 2162. In this case the only question was whether the plaintiff had by prescription a right of several fishery at the place in question, which was admitted to be a

Smith,1 Lord Mansfield's opinions were to the effect that the distinction is between those rivers in which the sea flows, and those in which it does not; but the cases related solely to tide waters. Upon the other hand, in Lord Fitzwalter's case, before Chief Justice Hale, and in Rex v. Wharton,3 before Chief Justice Holt, a case which has been referred to1 as bearing upon this question, the rivers in question are not only called private rivers, but there is no intimation that they were, in fact, capable of navigation.

§ 51. The rule thus indicated may be adequate for a country like England, where the rivers are small and rarely navigable in their natural condition above the tide, and where, also, the question has not often arisen. In Ireland,

navigable river and arm of the sea. Lord Mansfield said: "The rule of law is uniform. In rivers not navigable, the proprietors of the land have the right of fishery on their respective sides; and it generally extends ad filum medium aquae. But in navigable rivers, the proprietors of the land on either side have it not; the fishery is common; it is prima facie in the king, and is public. If any one claims it exclusively, he must show a right. If he can show a right by prescription, he may then exercise an exclusive right, though the presumption is against him, unless he can prove such a prescriptive right."

12 Dougl. 441. See ante, § 44. 21 Mod. 105. The question here was as to the defendant's right of exclusive fishery in the river of Wallfleet, and Hale, C. J., said: "In case of a private river, the lord's having the soil is good evidence to prove that he hath the right of fishing, and it puts the proof upon them that claim liberam piscariam. But in case of a river that flows and reflows, and is an arm of the sea, there, prima facie, it is common to all."

3 12 Mod. 510; s. c. Holt, 499. This case was an indictment for riot, "the

cause of the riot being the right of a private river." According to the report in 12 Mod., Holt, C. J., said: "If a river run continuously between the land of two persons, each of them is, by common right, owner of that part of the river which is next his land, and may let it to another or to a stranger." See, also, Gibbs v. Woolliscott, 3 Salk. 291.

4 Hopkins Academy v. Dickinson, 9 Cush. 544, 547.

5 The word "private" in this connection would seem to exclude rivers, whether fresh or salt, that are capable of navigation. Although in the second chapter of the treatise De Jure Maris the heading is, "Of the right of the prerogative in private or fresh rivers," and the expression, "a fresh or private river," is again used there; yet in that and the following chapter, the terms "public rivers" and "public streams are applied to all rivers that are a common passage.

6 In Elder . Burrus, 6 Humph. (Tenn.) 366, Turley, J., said: "All laws are, or ought to be, an adaptation of principles of action to the state or condition of a country, and to its moral and social position. There are many rules of action recognized

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