Swift, Ch. J.
The question is as to the effect of the resolve of the General Assembly passed on the memorial of Ambrose Kirkland.
To determine the nature and effect of the grant, we must consider the object of the party, and the intent of the legislature. Though some words may be used which might be proper in the grant of exclusive rights, yet these may be explained by the allegations in the memorial ; and we must take into view all that is said to ascertain the intent.
The memorial alleged a right of fishery in the memorialist, and complained that this right had been infringed and destroyed by a public act prohibiting him to exercise his right. His object was not to obtain a new right; he supposed that to be complete. It was to obtain a suspension of the general law as it respected himself, for the purpose of exercising an existing right. The legislature unquestionably supposed, according to the common opinion prevalent at that time, that the memorialist had a right to fish in front of his land adjoining Connecticut river. They Could have had no idea of giving him a new right; their intent was to suspend the operation of the law of which he complained, so far as it respected the exercise of an existing right. For this purpose, they have made use of proper and appropriate words. They grant liberty and licence to him, and his heirs and assigns, to use and occupy the fishing-place, any thing in the act prohibiting it to the contrary notwithstanding. These expressions are precisely proper ; admitting it to be their intent to repeal that law so far as it respected the memorialist ; but if they had intended to confer a new right, to have made a grant of an exclusive fishery, a very different language would have been proper.
[515]*515The extension of the licence to heirs and assigns does not vary the construction. It was considered that the right of fishery was appurtenant to the adjoining land ; and the intent was, that the privilege should descend to heirs and be transferred to assigns. This was proper, admitting nothing was intended but an exemption from the penalties of the law.
The reference to Lynde’s cove and Griswold’s cove was not to define the nature or extent of the grant, but merely the limitation of it. It authorises him to fish at the same times, and under the same restrictions and regulations, as at these places. It no where says, that he shall have the same right ; and it would be strange to say, that a limitation should extend a grant.
It appears to me, on a full view of the subject, that the resolve of the Assembly only repealed the operation of a general law so as to give the memorialist a licence to fish in the same manner as though that law had never been made ; and that when the general law was afterwards repealed, it placed all those who lived on this part of the river in the same situation as they were before the law was passed ; and of course, that the charge to the jury that the resolve amounted to a grant of a right of fishery was incorrect.
I would advise to grant a new trial.
Edmond, Smith and Brainard, Js. concurred in the opinion delivered by the Chief Justice.
BALDWIN, J.
The correctness of the charge given in this case depends principally on the validity of the grant to Ambrose Kirkland. It is claimed, that it is void, because the representation of facts on which it was grounded was fraudulent, and the legislature thereby deceived.
It is not necessary in this case to enquire how far the doctrine of misrepresentation may be carried to avoid a grant, by collateral attack ; for it does not appear to me, that any fraudulent statement or misrepresentation of facts has been made. Ambrose Kirkland in his memorial states, that his land abutted on the river ; that he had long enjoyed the right of drawing seines and taking fish upon it, till prohibited by an act of the legislature ; that this act deprives him of the natural advantages appertaining to his freehold, [516]*516and of course of much of its value ; that the mischief intended to he prevented by that act, can be avoided by suitable regulations consistent with the enjoyment of his right ; and he therefore prays the General Assembly to grant to him an exclusive right of fishing in the river adjoining his land, under such regulations as the legislature may prescribe. The memorialist no where states an exclusive right in himself to the fishery. He does indeed claim the right of fishing in the waters adjoining his own land as a right appurtenant. This, though not acknowledged in the extent claimed by some, is undoubtedly correct, and is exclusive as to the right of the shore for drawing. If, then, the right of sweeping the river is common to all mankind, the memorialist having that right, and the exclusive right of the shore, might fairly make the representation he did.
Although the prohibiting act was the cause which led him to address the legislature, yet the scope of his memorial evidently goes further than a dispensation of the penalty. He prays for an exclusive grant ; knowing that others so circumstanced had it. The language of the legislature is that of a grant : “ Licence and liberty is hereby granted to him, and his heirs and assigns, to use, occupy and improve the said fishing-place, &c. for the purpose of catching fish in the season of fishing, at the times, and under the same restrictions and regulations that are in said act provided, respecting the fishing places at Lynde’s cove and Griswold’s cove, any thing in said act notwithstanding, during the pleasure of the General Assembly.” This language admits of no construction. It is not a mere dispensation of the penalties. It is a grant, under specified restrictions and regulations, during the pleasure of the General Assembly.
But it is further claimed, that if the resolve is considered as a grant, it has ceased by the repeal of the act to which it refers for its regulations. This principle, if correct, would introduce a limitation not contained in the grant. That is neither limited by the existence of that act, nor is that the basis of it. The reference to the act is merely for regulations, which, when adopted, do not depend at all on the continuance of that act. They continue the same, whether the act remains in force or is repealed. The only limitation in the grant, is, the pleasure of the General Assembly. It may by them be revoked, but remains in force until, in [517]*517express terms, they shall manifest their pleasure that it cease.
If the grant claimed exists, it is admitted it cannot be defeated collaterally, by third persons, on the ground of misu-user. But
It is claimed the court erred in the construction they gave the grant; and that they ought to have limited its extent to the waters in front of the plaintiffs' land. I am of opinion, that the subject matter of the grant ought to be taken into consideration, and that construction given which will ensure the beneficial effect intended. A fishing-place is necessarily undefinable by metes and bounds. The ebb and flow of the tides, the strength of the current, and other circumstances, will require, at different times, a different direction and extent of sweep to the same length of seine, and yet the fishing-place will remain the same.
Free access — add to your briefcase to read the full text and ask questions with AI
Swift, Ch. J.
The question is as to the effect of the resolve of the General Assembly passed on the memorial of Ambrose Kirkland.
To determine the nature and effect of the grant, we must consider the object of the party, and the intent of the legislature. Though some words may be used which might be proper in the grant of exclusive rights, yet these may be explained by the allegations in the memorial ; and we must take into view all that is said to ascertain the intent.
The memorial alleged a right of fishery in the memorialist, and complained that this right had been infringed and destroyed by a public act prohibiting him to exercise his right. His object was not to obtain a new right; he supposed that to be complete. It was to obtain a suspension of the general law as it respected himself, for the purpose of exercising an existing right. The legislature unquestionably supposed, according to the common opinion prevalent at that time, that the memorialist had a right to fish in front of his land adjoining Connecticut river. They Could have had no idea of giving him a new right; their intent was to suspend the operation of the law of which he complained, so far as it respected the exercise of an existing right. For this purpose, they have made use of proper and appropriate words. They grant liberty and licence to him, and his heirs and assigns, to use and occupy the fishing-place, any thing in the act prohibiting it to the contrary notwithstanding. These expressions are precisely proper ; admitting it to be their intent to repeal that law so far as it respected the memorialist ; but if they had intended to confer a new right, to have made a grant of an exclusive fishery, a very different language would have been proper.
[515]*515The extension of the licence to heirs and assigns does not vary the construction. It was considered that the right of fishery was appurtenant to the adjoining land ; and the intent was, that the privilege should descend to heirs and be transferred to assigns. This was proper, admitting nothing was intended but an exemption from the penalties of the law.
The reference to Lynde’s cove and Griswold’s cove was not to define the nature or extent of the grant, but merely the limitation of it. It authorises him to fish at the same times, and under the same restrictions and regulations, as at these places. It no where says, that he shall have the same right ; and it would be strange to say, that a limitation should extend a grant.
It appears to me, on a full view of the subject, that the resolve of the Assembly only repealed the operation of a general law so as to give the memorialist a licence to fish in the same manner as though that law had never been made ; and that when the general law was afterwards repealed, it placed all those who lived on this part of the river in the same situation as they were before the law was passed ; and of course, that the charge to the jury that the resolve amounted to a grant of a right of fishery was incorrect.
I would advise to grant a new trial.
Edmond, Smith and Brainard, Js. concurred in the opinion delivered by the Chief Justice.
BALDWIN, J.
The correctness of the charge given in this case depends principally on the validity of the grant to Ambrose Kirkland. It is claimed, that it is void, because the representation of facts on which it was grounded was fraudulent, and the legislature thereby deceived.
It is not necessary in this case to enquire how far the doctrine of misrepresentation may be carried to avoid a grant, by collateral attack ; for it does not appear to me, that any fraudulent statement or misrepresentation of facts has been made. Ambrose Kirkland in his memorial states, that his land abutted on the river ; that he had long enjoyed the right of drawing seines and taking fish upon it, till prohibited by an act of the legislature ; that this act deprives him of the natural advantages appertaining to his freehold, [516]*516and of course of much of its value ; that the mischief intended to he prevented by that act, can be avoided by suitable regulations consistent with the enjoyment of his right ; and he therefore prays the General Assembly to grant to him an exclusive right of fishing in the river adjoining his land, under such regulations as the legislature may prescribe. The memorialist no where states an exclusive right in himself to the fishery. He does indeed claim the right of fishing in the waters adjoining his own land as a right appurtenant. This, though not acknowledged in the extent claimed by some, is undoubtedly correct, and is exclusive as to the right of the shore for drawing. If, then, the right of sweeping the river is common to all mankind, the memorialist having that right, and the exclusive right of the shore, might fairly make the representation he did.
Although the prohibiting act was the cause which led him to address the legislature, yet the scope of his memorial evidently goes further than a dispensation of the penalty. He prays for an exclusive grant ; knowing that others so circumstanced had it. The language of the legislature is that of a grant : “ Licence and liberty is hereby granted to him, and his heirs and assigns, to use, occupy and improve the said fishing-place, &c. for the purpose of catching fish in the season of fishing, at the times, and under the same restrictions and regulations that are in said act provided, respecting the fishing places at Lynde’s cove and Griswold’s cove, any thing in said act notwithstanding, during the pleasure of the General Assembly.” This language admits of no construction. It is not a mere dispensation of the penalties. It is a grant, under specified restrictions and regulations, during the pleasure of the General Assembly.
But it is further claimed, that if the resolve is considered as a grant, it has ceased by the repeal of the act to which it refers for its regulations. This principle, if correct, would introduce a limitation not contained in the grant. That is neither limited by the existence of that act, nor is that the basis of it. The reference to the act is merely for regulations, which, when adopted, do not depend at all on the continuance of that act. They continue the same, whether the act remains in force or is repealed. The only limitation in the grant, is, the pleasure of the General Assembly. It may by them be revoked, but remains in force until, in [517]*517express terms, they shall manifest their pleasure that it cease.
If the grant claimed exists, it is admitted it cannot be defeated collaterally, by third persons, on the ground of misu-user. But
It is claimed the court erred in the construction they gave the grant; and that they ought to have limited its extent to the waters in front of the plaintiffs' land. I am of opinion, that the subject matter of the grant ought to be taken into consideration, and that construction given which will ensure the beneficial effect intended. A fishing-place is necessarily undefinable by metes and bounds. The ebb and flow of the tides, the strength of the current, and other circumstances, will require, at different times, a different direction and extent of sweep to the same length of seine, and yet the fishing-place will remain the same. I think the court gave a reasonable and fair construction of the grant when they said, it was not confined to the front of the plaintiffs’ land, but will extend so far above and below in the river as may be necessary to sweep the ground with a seine twenty-five rods in length, in order to the fair and beneficial enjoyment of the grant.
As I cannot say that the grant is void from misrepresentation, or forfeited by misuser, and am persuaded the court gave a fair construction of its extent, I find no cause for a new trial.
Trumbull and Goddard, Js. were of the same opinion.
Gould, J.
I am of opinion, that the direction to the jury, upon the construction of the resolve of the legislature, in 1789, was wrong. It is clear, according to a rule heretofore established, that the fishery in question did not belong to A. Kirkland, in severalty, before that resolve was passed ; and the inquiry now is, whether the resolve conferred it upon him.
By the general prohibitory law of 1783, all persons were forbidden, under a penalty, to fish, with seines, at the place in question. The resolve of 1789, granted to Kirkland, his heirs. &c. permission to use a seine there, the general prohibition notwithstanding. The statute of 1808, has now repealed the prohibitory act, and thus extended or restored [518]*518the same permission, (the fishery having been originally a common one), to all persons, unless the resolve amounted to a grant of a several fishery to Kirkland, under whom the plaintiffs claim. Does the resolve, then, contain such a a grant ? Or is it a mere exemption to Kirkland, his heirs and assigns, from the operation of the prohibitory act ?
In construing the resolve, we have, doubtless, a right to recur to the recital, which precedes it, and the memorial, upon which it is founded, precisely as we might, in any case, consult the preamble of a statute. Now Kirkland in his memorial does not even ask for the grant of an original right, or, one which he did not, before, claim, as his own. He represents the fishery as his ; complains of the impediment which the statute of 1783, had interposed, to the exercise of his privilege; alleges, that “ none of the mischiefs,” intended to be prevented by that statute, would be occasioned by the limited exercise of his right." and concludes with praying for the " exclusive right,” or — which he represented as the same thing—to be " restored” to his original right. The recital, introductory to the resolve, without finding any fact, merely recapitulates those several representations ; and the resolve then grants to him, his heirs, &c. “ liberty and licence,” to use a seine at the place described, under certain restrictions, during the pleasure of the legislature. It does not import to grant to him, what was not before his own,—as a several fishery clearly was not; or to establish a right already vested in him. It does not even contain the word, right, title, interest, franchise, or any term of similar import; but grants “ liberty and licence,” (terms almost appropriate to denote a matter of mere favour, or indulgence,) during the pleasure of the legislature. From this review of the proceedings, which terminated in the resolve of 1789, the result appears to be, that the utmost amount of Kirkland’s claim, or request, was, that he might be restored to a supposed right, (which, however, never existed,) by an exemption from the penalty of the statute of 1783: and that the legislature granted the exemption, during its own pleasure, without deciding, or intending to decide, the question of right. This, I think, appears from the whole scope of the proceedings. If so, it follows, that, by the subsequent repeal of the statute of 1783, the rights of Kirkland, and of all others, in relation to this fishery, are [519]*519left, precisely as they were, before that act was passed ; upon which supposition Kirkland never owned the several fishery, now claimed by the plaintiffs ; and the plaintiffs, of course, do not own it.
The words, in the resolve, “ under the same restrictions and regulations,” as are prescribed for “ Lynde’s cove and Griswold’s cove,” obviously relate only to the mode of exercising the right or privilege, intended to be granted ; not to the character, or nature, of that right or privilege.
I am of opinion, that a new trial ought to be granted.
Hosmer, J. gave no opinion, having been of counsel in the cause.
New trial to be granted.