EXTRACTS FROM ANGELL'S “THE RIGHT OF PROPERTY IN TIDE WATERS,” 2nd Ed., BOSTON, 1847.
Ch. iii. p. 66.
Having shown that by the common law as expounded and settled in
England, and as recognised and applied by the judicial tribunals in the United States, the right of property in tide waters and in the soil under their surface, is prima facie in the sovereign, and held subject to the right of use of the public or jus publicum ; in order to determine the exact limits of this sovereign and public right, it next becomes necessary to consider what, in legal acceptation is understood by the terms “shore”, “high-water mark” and “navigable river”.
The rule as to ordinary high-water mark applies as well to the shore of an arm of the sea, or wherever the tide flows and reflows, as to the shore by the sea itself. And an arm of the sea is considered as extending as far into the interior of a country, as the water of fresh rivers is propelled backwards by the ingress and pressure of the tide. To the extent that such fresh rivers are backwardly propelled, they are denominated “navigable” rivers ; and to determine whether or not a river is “navigable”, both in the common law and in the Admiralty acceptation of that term, regard must be had to the ebbing and flowing of the tide. In the Supreme Court of the United States, in a case which came up from the district Court of the Eastern district of Louisiana, the question was presented of admiralty jurisdiction in the river Mississippi, which the Court considered was to be determined by the ebbing and flowing of the tide ; and in determining the question, the ordinary state of the water, uninfluenced by any extraordinary freshets, was to be regarded. Peyroux v. Howard 7 Peters (U.S.) R. 324.
It was urged in * Rex v. Smith (2 Doug. R. 441), that the river Thames, above London Bridge, was not navigable, although it was flowing and reflowing, inasmuch as the tide beyond that limit was occasioned by the pressure and accumulation backward of the fresh water. But the distinction attempted was, by Lord Mansfield, pronounced new and inadmissible. In a case, in the British House of Lords, where the question was, what was to be considered “river” and what “sea” ; and where the direction was, that the thing to be looked to is the fact of the absence or prevalence of the fresh water, though strongly impregnated with salt ; the direction was held to be erroneous. * Horne v. Mackenzie 6 Clark & Finn
R. 628. The Supreme Court of the United States, referring to the above case of Rex v. Smith, have decided that although the current in the river Mississippi at New Orleans, may be so strong as not to be turned backwards by the tide ; yet if the effect of the tide upon the current is so great as to occasion a regular rise and fall of the water, it might properly be said to be within the ebb and flow of the Tide. Peyroux v. Howard 7 Peters (U.S.) R. 324. The Colonial ordinance of Massachusetts of 1641, is applicable wherever the tide ebbs and flows, though it be fresh water thrown back by the influx of the sea. Lapish v. Bangor Bank 8 Greenl. (Me.) R. 85.
There is therefore an important distinction between the term “navigable” as applied to a river, in its technical sense, and in the common acceptation of it when so applied. In the case of the Royal Fishery of the river Banne in Ireland, Davies' R. 149 it was resolved “that there are two kinds of rivers, navigable and not navigable ; thus every navigable river, so high as the sea ebbs and flows in it, is a royal river and belongs to the King by virtue of his prerogative ; but in every other river, and in the fishery of such other river the tertenants on each side have an interest of common right ; the reason for which is, that so high as the sea ebbs and flows, it participates of the nature of the sea, and it is said to be a branch of the sea so far as it flows.”
Ch. v. p. 124.
Fishery in the sea and in the waters which are made to flow inland therefrom by its egress and influence, constituting as it does a great source of sustentation, has in all ages and in all Countries been deemed of such importance, that it has ever been regarded a privilege open and common to all persons. Selden in his Mare Clausum and Grotius, De Jure Gentium, have collected from the works of the learned of all civilised nations, as well philosophers, divines, and poets, as lawyers, to prove that the waters of the sea are, conformably to the use which nature intended them, as common to all men as the air which blows over them. The obvious justice that fishery in such waters should be free open and common to every one, has made it a part of the civil law and of the common law. Jus piscandi, says the former, omnibus commune est in portu fluminibusque. (Just. I 2 § 1.) The civil law on the subject, is the customary law of France, and is recognised and expressly confirmed, by the ordinance of Louis XIV, which thus declares, (47)—“We declare the fishing in the sea to be common to all our subjects, whom we allow to fish, as well in the high sea, as upon the shore, with the nets and engines specified in this ordinance.” The civil code of Louisiana declares, that navigable rivers, sea ports, roads, harbours, etc., are among things public, or among things the use of which is allowed to all the members of the nation ; and that hence it follows that every man has a right freely to fish in the rivers, ports, roads and harbours. (Civil code of Louisiana Fisheries, Art. 6.)
By the common law (though the right of fishery is subservient in a measure to the right of navigation) it has ever been well settled that no member of the community can be excluded from an equal and fair participation of the benefit afforded by tide waters of fishing therein, so long as it remains unrelinquished or not curtailed by public authority, or so long as no particular and exclusive right has been acquired by an individual by prescription, or by the inhabitants of a place, by custom. In England, although the King, says Lord Hale, “has the primary right of fishing in the sea, and the creeks and arms thereof ; yet the common people of England have regularly a liberty of fishing in the sea, or the creeks and arms thereof, as a public common of piscary, and may not without injury to their right, be restrained in the exercise of it, unless in such places, creeks or navigable rivers, where either the King or some particular subject has acquired a property exclusive of this common liberty.” The doctrine as thus laid down is expressly recognised in Carter v. Murcot, 4 Burr. R. 2162, in which it was asserted by Lord Mansfield, that a man may have an exclusive privilege of fishing in an arm of the sea ; but such right is not to be presumed, it must be proved. In the same case, Yates J. observed, that he knew a case to fail wherein an exclusive right was claimed, because no prescription was proved, and in that case it was determined, that the right of fishing in the salt water was common to all. The case of the Mayor and Commonalty of Oxford v. Richardson, 4 T.R. 437, in the King's Bench and afterwards in the Exchequer Chamber was determined wholly on the ground that every subject, prima facie, has a right to fish in an arm of the sea.