Albright v. Cortright

• Decision Date: 05 March 1900
• Citation: 64 N.J.L. 330,45 A. 634
• Parties: ALBRIGHT v. CORTRIGHT.
• Court: New Jersey Supreme Court

45 A. 634

64 N.J.L. 330

ALBRIGHT

v. CORTRIGHT.

Court of Errors and Appeals of New Jersey.

March 5, 1900.

(Syllabus by the Court.)

Error to circuit court, Sussex county.

Action by Andrew Albright against James Cortright. Judgment for plaintiff. Defendant brings error. Affirmed.

Martin Rosenkrans, for plaintiff in error.

Thomas M. Kays and Thomas Kays, for defendant in error.

ADAMS, J. The declaration is in tort, and seeks damages from the defendant for breaking and entering the close of the plaintiff (being a tract of land, covered with water, in Stillwater township, in Sussex county, known as "Swartswood Pond"), and for fishing and catching fish therein, in disregard of a notice by the plaintiff not to trespass on his land, and especially not to fish in said pond. The gist of the defense is found in the following extract from the fifth plea, upon which issue has been joined: "That the said Swartswood Pond has been stocked with fish by the fish commissioners of the state of New Jersey for twenty-five years, and that the fish therein belong to the public, and that the public for sixty years last past have entered the said close, and openly, adversely, continuously, uninterruptedly, and without restriction, used the said close and waters of said Swartswood Pond for the purpose of fishing for fish therein, and catching and taking fish therefrom, and that the defendant, as one of the public, has a right by prescription in and to the said close and the said Swartswood Pond, and had at the time mentioned in the plaintiff's declaration a prescriptive right of profit in the said lands covered with water, and said Swartswood Pond (being the same described in the plaintiff's declaration), and to fish into the said waters of said Swartswood Pond, and to take, catch, and carry fish therefrom, without any hindrance or molestation of the said plaintiff." At the trial the plaintiff proved both possession and title by deed in himself before and at the time of the acts complained of, and that the defendant had fished in said pond, though notified by the plaintiff not to do so. The defendant then offered to prove that the pond had been stocked by the state of New Jersey about 25 years before, and that the public had continuously fished there for 60 years, which offers were denied, and a verdict for six cents was directed and rendered for the plaintiff. The questions presented by the exceptions are whether one who fishes in nontidal water that covers land of another, though forbidden to do so by the owner of such land, can justify either by the long-continued usage of the public, or because the water has been stocked by the state of New Jersey. These defenses, though blended in the special plea, are logically distinct.

Leaving out of view certain relations that are plainly foreign to this case, it may be said that whatever right, provable by user, the defendant could have had in the plaintiff's land, must have been by way of easement, custom, or prescription. The right that the defendant asserted was not an easement, which is a privilege without profit. Nor could he, as one of the public, acquire this profitable right by custom. In the first place, a common-law custom, as distinguished from a usage of trade, must be immemorial; and this, in New Jersey, is impossible. Ackerman v. Shelp, 8 N. J. Law, 125; Allen v. Stevens, 29 N. J. Law, 513; Association v. Brinley, 34 N. J. Eq. 438. In the next place, the right claimed is too comprehensive to be good by way of custom. "Custom is unwritten law, established by common consent and uniform practice from time immemorial, and is local, having respect to the inhabitants of a particular place or district." 2 Greenl. Ev. § 248. This custom is laid in the whole public. A custom so general would be indistinguishable from the law itself, so that the question in such case really is, not whether the usage is customary, but whether it is lawful. Fitch v. Rawling, 2 H. Bl. 393. Finally, a profitable right in land of another cannot be gained by custom, but only by prescription. Cobb v. Davenport, 32 N. J. Law, 369, 33 N. J. Law, 223. In view, no doubt, of these considerations, the special plea alleges "a prescriptive right" in the defendant, to which he is entitled "as one of the public." This proposition is unsound, because it conflicts with the rule that the public cannot prescribe. A right that a man claims merely as one of the public does not He in grant, and therefore not in prescription, which presupposes a lost grant, and so can embrace only things that are grantable. A prescription, says Lord Coke, "always is alleged in the person." Gateward's Case, 6 Coke, 60b. "Prescription," says Sir William Blackstone, "is merely a personal usage, as that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege." 2 Bl. Comm. p. 262. Mr. Greenleaf says: "Prescription is a personal right belonging to one or few persons by particular designation, as, for example, the owners of a certain parcel of land." 2 Greenl. Ev. § 248. To use a technical phrase, the claimant in such a case must prescribe in a que estate; that is, under or in the right of some other person or persons, whose estate has come to him.

That a right to take profit from another's land cannot arise by custom was decided as early as Gateward's Case, 6 Coke, 60. Lord Kenyon, in Grimstead v. Marlowe, 4 Term R. 718, said that the law had been so settled ever since the time of Gateward's Case. This is still the law of England. In Goodman v. Mayor, etc., 7 App. Cas. 048, Lord Cairns says: "I think it to be clear law that while you may by custom claim an easement to be enjoyed over the land of another, you cannot by custom claim a profit a prendre in alieno solo. I think it also to be clear law that you cannot claim by prescription anything which could not have a lawful beginning. And I think it also clear that a fluctuating and uncertain body cannot claim a profit a. prendre in alieno solo, and, indeed, cannot be the grantee of either a several fishery or of any other kind of real property." Two recent cases are Blount v. Layard, reported in a note to [1891] 2 Ch., at page 681, and Smith v. Andrews [1891], 2 Ch. 078. In the case first mentioned, Lord Justice Bowen, speaking of a part of the Thames that is above the reach of the tide, said: "Although the public have been in the habit as long as we can recollect, and as long as our fathers can recollect, of fishing in the Thames, the public have no right to fish there. I mean they have no right, as members of the public, to fish there. That is certain law. Of course, they may fish by the license of the lord or the owner of a particular part of the bed of the river, or they may fish by the indulgence or owing to the carelessness or good nature of the person who is entitled to the soil; but right to fish themselves, as the public, they have none." The following extract is from the opinion by North. J., in Smith v. Andrews: "The idea is sometimes entertained that the right to pass along a public, navigable river carries with it the right to fish in it; but, so far as regards nontidal rivers, this is not so. No lawyer could take that view. Persons using a navigable highway no more acquire thereby a right to fish there, than persons passing along a public highway on land acquire a right to shoot upon it. Some few passages may be found in the books in which judges are reported to have said that subjects have a right to fish in navigable rivers, just as in the sea; but on investigation it always will be found that they are referring to navigable rivers where the tide ebbs and flows, and nothing else. * * * But, even if the public had in fact fished this water with less Interference or Interruption than was actually the case, it would not supply any defense to the defendant in the present action.

Any acquisition of right...