Commonwealth v. Perley
| Decision Date | 24 February 1881 |
| Citation | 130 Mass. 469 |
| Parties | Commonwealth v. William H. Perley |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Essex. Complaint on the St. of 1869, c. 384, § 19, to the First District Court of Essex, for illegally fishing in Humphrey's Pond, a great pond which is partly in Lynnfield and partly in Peabody. At the trial in the Superior Court, on appeal, Wilkinson, J. directed the jury to return a verdict of guilty; and the defendant alleged exceptions which, so far as material to the point decided, appear in the opinion.
Exceptions sustained.
G. H Towle, for the defendant.
S. B Ives, Jr., (G. Marston, Attorney General, with him,) for the Commonwealth.
OPINION
In the view which we take of this case, it is not necessary to decide the question, which was discussed at the argument, whether the grant to Humphrey by the General Court in the year 1635 gave him the exclusive right to fish in the great pond now known as Humphrey's Pond; nor the further question, whether that right, if given to him, passed to the present owners of the land which surrounds the pond. If the exclusive right to fish did not vest in Humphrey, the pond stands like all other great ponds in the Commonwealth which have not been specially granted by law nor leased by the commissioners of inland fisheries, and the fishery thereof is public, and the defendant committed no offence in fishing there. St. 1869, c. 384, § 8.
If, on the other hand, the exclusive right of fishery in this pond was granted to Humphrey, and passed from him to the present owners of the land surrounding the pond, the government failed to make a case against the defendant. The leases were not executed by all the owners of the shore of the pond. Those who did not execute them retained the same right to fish in the pond which they had before any lease was given. The fish which were put into the pond by the lessees, and the increase of such fish, had the whole extent of the pond to swim in, and the owners who were not lessors had the whole extent of the pond to fish in. It was impossible, therefore that there should be an absolute ownership of those fishes by the lessees. The St. of 1869, c. 384, under which the complaint in this case was made, provides, in § 7, that the riparian proprietors of any pond less than twenty acres in extent shall have the exclusive control of the fisheries therein; so that they have the same...
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