Cole v. Inhabitants of Eastham

• Decision Date: 15 May 1882
• Citation: 133 Mass. 65
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Joshua Cole & others v. Inhabitants of Eastham

133 Mass. 65

Joshua Cole & others v. Inhabitants of Eastham

Supreme Court of Massachusetts

May 15, 1882

Barnstable. Petition for the assessment of damages for land taken under the St. of 1879, c. 45. ^[*] Trial in the Superior Court, before Brigham, C. J., who reported the case for the determination of this court, in substance as follows:

It appeared in evidence that the petitioners were owners of a lot of land extending on both sides of a non-navigable stream, through which alewives were accustomed to run; that the respondent town, for the purposes and in pursuance of the St. of 1879, c. 45, took possession of said stream and of the land on both sides of the stream; and that the petitioners claimed the right of an exclusive fishery in the stream by virtue of their riparian ownership.

The jury, in answer to questions submitted to them, found that the value of the land taken, excluding the value of the fishery, was $ 166.66, and, including the fishery, was $ 825.

The judge then ruled, against the petitioners' exception that their right to the fishery as riparian owners was not an element of damage for which the respondent was liable under the St. of 1879, c. 45; and directed the jury to return a verdict for the petitioners in the sum of $ 166.66, and ordered judgment accordingly.

If the ruling was right, judgment was to stand for the amount of the verdict; otherwise, judgment for the sum of $ 825.

Judgment affirmed.

H. P Harriman, for the petitioners. 1. At the time of the passage of the St. of 1879, c. 45, the petitioners owned land on both sides of a non-navigable stream, and had the exclusive right to take fish therein. Such a right has been recognized as private property in many cases. Nickerson v. Brackett, 10 Mass. 212. Waters v. Lilley, 4 Pick. 145. Commonwealth v. Chapin, 5 Pick. 199. Vinton v. Welsh, 9 Pick. 87. McFarlin v. Essex Co. 10 Cush. 304, 309. Commonwealth v. Essex Co. 13 Gray 239, 251. Angell on Watercourses, §§ 61-70.

2. Although this right was subject to be regulated by the Legislature, and to be taken away, if required for the public good, yet it stands in no different position from other private property; for every man holds his property subject to regulation by the Legislature, and subject also to the right of the Legislature to deprive him of it, if required for the public good. While the Legislature may, in the exercise of its police power, regulate the use of private property, it cannot take such property and devote it to public uses, without compensating the owner therefor. Declaration of Rights, art. 10. Cottrill v. Myrick, 12 Me. 222.

3. Section 2 of the act in question provides, in the most general terms, that the town "shall be liable to pay all damages that shall be sustained in any way by any persons in their property, in carrying into effect this act." Section 3 distinctly recognizes the right of fishery to be property, by declaring that any fishery created by the act "shall be deemed to be the property of said town." The question therefore does not arise in this case, whether the Legislature could take the property of the petitioners, without providing compensation, and give it to the town, for the Legislature has provided for compensation, as it has previously done in similar cases. McFarlin v. Essex Co. and Commonwealth v. Essex Co. ubi supra.

G. W. Park & G. F. Piper, for the respondent.

Devens, J. Endicott & C. Allen, JJ., absent.

OPINION

Devens, J.

By the common law the exclusive right to a fishery in a stream not navigable was in the proprietors of the banks, who, owning the bed of the stream ad filum aquae, thus owned the land where such fishery was carried on. It was a right of taking the fish only, and did not involve the right to prevent their passage to the portion of the stream which lay above such fishery. But this rule has been modified in this Commonwealth by successive legislative acts from the earliest settlement of the country, passed under the two governments of the Plymouth and Massachusetts Bay Colonies, as well as under the Province and our present form of government. There was much jealousy on the subject of exclusive individual privileges in fisheries, and much desire to protect the public in the enjoyment of such privileges. The laws of Plymouth Colony provided that "fishing, fowling and hunting be free," while they also provided that the General Court might make a grant to one who desired to improve and stock a place of a private fishery. Such was the law when the town of Eastham, which was a part of Plymouth Colony, was settled in 1646, and also when the two Colonies were united in the Province of Massachusetts Bay. Plymouth Col. Laws, 29, 34, 282. Anc. Chart. 213, 229. Const. Mass. c. 6, art. 6.

It was especially deemed for the public good that certain fisheries, like those for salmon, shad and alewives, which furnished an abundant supply of healthful and agreeable food, should be subjected to public control and dealt with as public property whenever the Legislature should see fit to interpose. "From the first settlement of the State," says Mr. Dane, "men have understood that they have held these non-navigable rivers and streams, subject to this legislative control, and, therefore, it is, as it were, a part of our common law." 2 Dane Ab. c. 68, art. 6, § 1. The paramount claims of the public are thus necessarily implied in all grants of the lands abutting on these streams, and the rights of citizens of this Commonwealth in the fisheries are to be determined according to the effect of this ancient and long-established system of legislation, rather than by the principles of the common law. Nickerson v. Brackett, 10 Mass. 212. Commonwealth v. Chapin, 5 Pick. 199. Vinton v. Welsh, 9 Pick. 87. Angell on Watercourses, § 85.

The diligence of the counsel for the respondent has enabled them to furnish a long list of acts passed by the Provincial Legislature and that of the Commonwealth, by which the full control over and property in the alewive fisheries within their limits has been transferred to the towns in which they were located, not only as to the mode in which the fishery shall be pursued, but as to the persons by whom they shall be enjoyed. These acts are very various in form, but all treat these fisheries as properties belonging to the Colony Province or State, which the Legislature may confer upon the town, on such terms as it deems proper for the interest of the public, and which may be managed by the towns or their authorities as they see fit, subject to the regulations made. The days of taking the fish are sometimes prescribed by the Legislature and sometimes left to the town. These acts provide sometimes for the taking of fish by all the inhabitants, for the sale of this right, for the distribution of the fish taken among the inhabitants, or for the price at which the fish shall be sold to them; also for gratuitous distribution to those who are judged by the town or the selectmen too poor to pay. They provide sometimes for the sale of the right for money, with authority to the town to dispose of the money by vote, and, where more than one town is interested in the same fishery, for the proportions in which they shall divide the money. Sales of the fish to others than inhabitants of the town are forbidden. Penalties are...