Beach v. Morgan

41 A. 349, 67 N.H. 529

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1893
• Status: Published

Opinion

Smith, J.

The stream flowing through the land leased to the plaintiff not being navigable, and not being public water, the right of fishing in it is limited at common law to the riparian owner of the soil, and belongs exclusively to him, unless the defendant shows a right acquired in some way recognized by law. State v. Roberts, 59 N. H. 256.

So far as the facts agreed and the facts which the defendant offers to prove are evidence of a custom of fishing in the brook on the land leased to the plaintiff, they are immaterial. “ A custom to take anything from another’s land, or for a profit a prendre, is not a lawful custom. If such a rig-ht is available at all, it must be set up by prescription as belonging to some estate, and should be pleaded with a que estate.” Waters v. Lilley, 4 Pick. 145, 148; Gateward's Case, 6 Co. 60; Grimstead v. Marlowe, 4 T. R. 717, 718; Wash. Eas. 10.

Whether a party can prescribe for a several fishery in the estate of another without alleging some estate of freehold to which it is appendant, was left undecided in McFarlin v. Essex Company, 10 Cush. 304, and is immaterial in this case, for the facts agreed and the facts which the defendant offers to prove do not show a prescriptive right of fishery in the stream on the land leased to the plaintiff. An adverse right to an easement cannot grow out <of a mere permissive enjoyment for any length of time. There was no assertion by the defendant that his entry upon the leased land was under a claim of right, and his occasional acts in entering and fishing were such as have been so generally regarded as permissive that it must have been understood by the parties that the defendant entered under a license. They were not of such exclusive and notorious character as to afford notice of a claim of right. Any right which his father or others acquired, if they could acquire or have acquired any, being a mere personal right not appendant to an estate, a right in gross, is not assignable nor inheritable, and cannot avail the defendant. Wash. Eas. 8.

The plaintiff’s lease is valid against his lessor, although unrecorded (P. S., e. 137, s. 4), and, upon being recorded, is admissible in proof of his title. But irrespective of the lease, his possessory title is sufficient to enable him to maintain this suit in the absence of any better title in the defendant.

The stocking of streams with young trout, raised at the expense of the state, by the fish commissioner, does not operate as a license to the public for fishing in waters not public, nor in unnavigable streams on private lands. The “ public ” benefited by the placing of young trout in the stream in question are the land-owners on their respective lands on the stream, from its source to its mouth, its tributaries, and the stream into which it flows.

The fish taken by the defendant being ferae naturae, the plaintiff can recover for the trespass only.

Judgment for the plaintiff for one dollar.

All concurred.