Proctor v. Wells

103 Mass. 216

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Gray, J.

The law which governs this case is well settled by repeated and carefully considered decisions of this court. The right of fishing in the sea or rivers in any town in this Commonwealth, either for swimming fish or for shell fish, is a public right, which belongs to all the inhabitants of the town, unless restricted by acts of the legislature or of the town, inconsistent therewith, or by prescription; and a grant by the legislature to a town of the title in the bed of a river, or in flats covered by tide water, within its limits, does not convey by implication the right of fishing to the town as its own property; for the right of fishing, not being an incident to the right of property in the soil, but a public right to take the fish, which, whether moving in the water or imbedded in the mud covered by it, depend upon (he water for their nourishment and existence, is unaffected by the question whether the title in the land under the water is in the C unrnonwealth, in the town, or in private persons. Coolidge v. Williams, 4 Mass. 140. Randolph v. Braintree, Ib. 315. Dill v. Wareham, 7 Met. 438. Weston v. Sampson, 8 Cush. 347. Lakeman v. Burnham, 7 Gray, 437. Commonwealth v. Bailey, 13 Allen, 541. The St. of 1841, c. 64, imposing a penalty to the use of the town of Ipswich for the taking of clams by any person, without permission of the selectmen, from the flats owned by the town, contains no indication that the legislature intended or understood that the right of fishing for them was the property of the town or incident to the ownership of the flats. It follows that the deeds under which the plaintiff claims title to the flats in question, whether made before or since that statute, gave her no exclusive right to the shell fish therein as against other inhabitants of the town ; and that, as she has offered no evidence of having acquired any such right by prescription, there must be Judgment for the defendant