Barrows v. McDermott

• Decision Date: 27 May 1882
• Citation: 73 Me. 441
• Parties: WILLIAM E. BARROWS v. JOHN M. MCDERMOTT.
• Court: Maine Supreme Court

73 Me. 441

WILLIAM E. BARROWS v. JOHN M. MCDERMOTT.

Supreme Judicial Court of Maine.

May 27, 1882

ON REPORT.

Trespass qu. cl. submitted to the court upon agreed statement of facts which are substantially stated in the opinion.

A G. Lebroke and W. E. Parsons, for the plaintiff.

The fact tat the public had, for many years, to wit, thirty-five years, had access to the pond on said close, for the purpose of fishing, conferred no right upon defendant to enter plaintiff's close for any purpose. The public cannot acquire an easement by prescription in land for the purpose of taking fish. A custom by the public, to take a profit from the land of another, is bad. Waters v. Lilley, 4 Pick. 145; Littlefield v. Maxwell, 31 Me. 134.

The defendant would invoke the colonial ordinance of 1647. The locus in quo was in 1641 and 1647, if subject to any European power, subject to the grants and control of the French government, and not of the English. The territory of the town or township of Howard as will be seen by inspection of any and all maps, is situated north of the parallel of the forty-fifth degree north latitude. Abbott's History of Maine, 31, 106, 100, 101, 208; British Dominion in America book 3d, part 2d, page 246; Address of Ex-Governor J. L Chamberlain, at the Centennial Exposition, at Philadelphia November 4, 1876, and in Convention of the Legislature of Maine, February 6, 1877, found in the published volume of the acts and resolves of the legislature of Maine, A. D. 1877, 269, 288; Hazard's Collection, vol. 1, 442; Goodrich's History of the United States, edition of 1849, page 47; Holmes' American Annals, vol. 1, p. 301; Hubbard's History of New England, p. 133; Summary of British Settlements in North America by William Douglass, vol. 1, 332, 389; Willis' History of Portland, 222; Williamson's History, vol. II, 10; 1 Hazard's Historical Collections, 105, 111; Plymouth Colonial Laws, (ed. 1836,) 3-10, cited in note appended to Commonwealth v. Roxbury, 9 Gray 503; Laws of Massachusetts, published 1807, vol. 2, page 969.

The above references and books of history are proper to be considered by the court. 1 Green. Ev. § § 4, 5, 6, 497; West Roxbury v. Stoddard, 7 Allen 158; Commonwealth v. Roxbury, 9 Gray 451; Storer v. Freeman, 6 Mass. 438; Winthrop v. Curtis, 3 Me. 115; United States v. Teschmaker, 22 Howard's U. S. Rep. 392.

But suppose the locus in quo had been embraced in territory belonging to Massachusetts, at the time of the adoption of the ordinance of 1647, the result would not be different. First, because the better opinion is that the revocation and annulling of the charter of the colony of Massachusetts Bay by the decree in chancery in 1684 or 1685 swept away every vestige of the ordinances of 1641 and 1647, so that neither afterwards had any effect ex proprio vigore, even in Massachusetts. Storer v. Freeman, 6 Mass. 438; Winslow v. Patten, 34 M. 25; see Governor Chamberlain's address, supra ; Goodrich's School History, edition of 1849, page 77, et seq. ; Storer v. Freeman, 6 Mass. 438; Mayhew v. Norton, 17 Pick. 360; Barker v. Bates, 13 Pick. 258; Commonwealth v. City of Roxbury, 9 Gray 465, note; Laws of Massachusetts, vol. 2, (1807) page 966.

Secondly, it makes no matter of difference who owned the soil because the ordinance of 1647 applied only to the Massachusetts Bay colony. A learned note appended to Commonwealth v. Roxbury, 9 Gray 523, citing the following authorities, reads thus: " The ordinance of 1647 (in relation to flats,) has been extended by usage to Plymouth, to Nantucket, and Dukes county and to Maine, although none of them were under the jurisdiction of Massachusetts when it was made. Sulivan on Land Titles, 285; Barker v. Bates, 13 Pick. 258, 260; Mayhew v. Norton, 17 Pick. 357; Storer v. Freeman, 6 Mass. 435; 2 Dane's Ab. 701; Codman v. Winslow, 10 Mass. 146; Lapish v. Bangor Bank, 8 Greenl. 89; Weston v. Sampson, 8 Cush. 354; Commonwealth v. Alger, 7 Cush. 76; Moulton v. Libbey, 37 Me. 485."

It is not admitted in the case that the ordinance of 1647 applied to, or in any way affected the territory of which the locus in quo was a part. By the above authorities cited in Commonwealth v. Roxbury, 9 Gray 523, it is conclusively settled that neither the ordinance of 1641 nor 1647 applied to the State of Maine. Barker v. Bates, 13 Pick. 258.

A common law rule has grown up in this State, in relation to the flats between high and low water mark, where the tide ebbs and flows, which is a modification of the principle thereon declared in the ordinance of 1641-7. This even, came only by judicial adoption. Lapish v. Bangor Bank, 8 Me. 85; Winslow v. Patten, 34 Me. 25; Storer v. Freeman, 6 Mass. 438; Emerson v. Taylor, 9 Me. 43; Moulton v. Libbey, 37 Me. 499. It is clear that the court in Maine have adopted a rule in relation to flats which is peculiar to our jurisdiction, showing that we are not bound by the literal expression of the ordinance, even as a common law rule.

The fact that our courts have adopted the ordinance, or any principle of it in relation to flats is no evidence that they have adopted, or will adopt the same in relation to fishing in ponds.

When a principle of common law, or body of common law, is adopted by one state or country from another state or country, it is always at the option of the former to adopt the same with such modifications as are deemed proper, under the circumstances of the country. Joel Prentiss Bishop, says in his first book of the law, § 51, (edition of 1868,): " The established doctrine of our courts is, that our ancestors conveyed hither the entire body of the English law as it was when they emigrated, only they did not need and so did not bring any laws which were inapplicable to their altered situation and circumstances." Of course they were the sole judges of what they should adopt or reject.

Among a multitude of authorities he cites: Commonwealth v. Hunt, 4 Met. 111, 122; Pawlet v. Clark, 9 Cranch 292, 333; Wheaton v. Peters, 8 Peters 591, 659; Piatt v. Eads, 1 Blackford, 81; Lindsley v. Coats, 1 Ohio 243; Lyle v. Richards, 8 Sergeant and Rawle, 322; Piersons v. The State, 12 Ala. 149; Stout v. Keyes, 2 Douglass, Mich. 184; Abell v. Douglass, 4 Denio 305; Commonwealth v. Holmes, 17 Mass. 336; Commonwealth v. Churchill, 2 Met. 118; Simpson v. The State, 5 Yerger 356; The State v. Rollins, 8 N.H. 550; The State v. Moore, 6 Foster, N. H. 448, 455; Norris v. Harris, 15 Cal. 226.

Grindstone Pond does not lie in common, in the sense of the ordinance of 1647; but is wholly within plaintiff's close, which is in his actual possession, both by cultivation of the soil, and occupancy for maintaining fish. The seizin of the entire estate was, and is, in the plaintiff. Waters v. Lilley, 4 Pick. 145; Commonwealth v. Tiffany, 119 Mass. 303; Commonwealth v. Weatherhead, 110 Mass. 175; Cummings v. Barrett, 10 Cush. 188; West Roxbury v. Stoddard, 7 Allen 167; Canal Commissioners v. The People, 5 Wend. 423; Ledyard v. Ten Eyck, 36 Barb. 102; R. S., c. 40, § § 51, 52, 53, amended by c. 170 of pub. laws of 1874; the plaintiff, in this case had the exclusive right to protect the fish in Grindstone Pond, against all parties.

The word " pond" in § 53, c. 40, R. S., is general, without regard to size. " To take fish no one can, lawfully, go on another's land without his leave." Dane's Abridgement, ed. of 1823, vol. 2, c. 68, art. 7, § 4, item 3, page 706.

" But for taking fish, no man could lawfully go on the soil of another without his leave." Peables v. Hannaford, 18 Me. 106; Boatwright v. Bookman, 1 Rice, (South Carolina) 447; Stephenson v. Gooch, 7 Greenl. 152; Cooley on Torts, 329, et seq.; Cottrill v. Myrick, 12 Me. 222. A right to fish in any waters gives no power over the land. Cortelyou v. Van Brundt, 2 Johns. 274; Cooley on Torts, 329, 330, 331; Bickel v. Polk, 5 Harrington, (Del.) 325; Cobb v. Davenport, 32 N.J. 369; Sup. C. 33 N.J. 223.

By the common law the rule regarding fresh water streams in the matter of taking fish, applies to the small lakes or ponds of the country. Cooley on Torts. 330, and authorities cited. Now then, by the common law, the right to take fish in the fresh water streams of the country, belongs to the owners of the soil under them, extending to the middle of the stream, if the riparian proprietor owns only on one side of the stream, but extending the whole width of the stream, if such riparian proprietor owns on both sides. This right excludes the public from fishing on the proprietor's estate, though the legislature may regulate the passage of fish on such streams. McFarlin v. Essex Company, 10 Cush. 309; Cooley on Torts, 329, and note 2; Waters v. Lilley, 4 Pick. 145; Commonwealth v. Chapin, 5 Pick. 199; Adams v. Pease, 2 Conn. 481; Yard v. Carman, 2 Penn. 936; Ingram v. Thready, 3 Devereux, (North Carolina) 59; Randolph v Braintree, 4 Mass. 317; Lunt v Holland, 14 Mass. 149; Cottrill v. Myrick, 12 Me. 222; Hooker v Cummings, 20 Johns. 90; Trustees, & c. v. Strong, 60 N.Y. 56; Williams v. Buchanan, 1 Iredell 535; Beckman v Kreamer, 43 Ill. 447; Cobb v Davenport, 32 N.J. 369; and Same v. Same, 33 N.J. 223; Browne v. Kennedy, 5 H. & J. (Md.) 195.

J F. Sprague and Henry Hudson, for the defendant, cited: Moore v. Veazie, 32 Me. 356; Brown v. Chadbourne, 31 Me. 22; Attorney General v. Woods, 108 Mass. 439; West Roxbury v. Stoddard, 7 Allen 171; Lapish v. Bangor Bank, 8 Me. 85; Winslow v. Patten, 34 Me. 25; Partridge v. Luce, 36 Me. 16; Clancey v. Houdlette, 39 Me. 451; Cummings v. Barrett, 10 Cush. 188; Fay v. Danvers A. Co. 111 Mass. 27; Paine v. Woods, 108 Mass. 169; Commonwealth v. Alger, 7 Cush. 67; Storer v. Freeman, 6 Mass. 439; Barker v. Bates, 13 Pick. 258; Weston v. Sampson, 8 Cush. 353; Com. v. Roxbury, 9 Gray 503; ...