Matthews v. Treat

• Decision Date: 15 February 1884
• Citation: 75 Me. 594
• Parties: JAMES D. MATTHEWS v. JAMES M. TREAT.
• Court: Maine Supreme Court

75 Me. 594

JAMES D. MATTHEWS v. JAMES M. TREAT.

Supreme Judicial Court of Maine.

February 15, 1884

ON REPORT.

An action to recover damages for infringing upon the plaintiff's exclusive right of fishing within certain limits on the southerly side of Cape Jellison in Stockton. The writ was dated March 25, 1882.

(Declaration.)

" In a plea of trespass for that the said defendant on the first day of April, A. D. 1880, now last past, and on divers days and times between that day and the date of this writ with force and arms broke and entered the plaintiff's close, fishery and fishing privilege, situated in said Stockton on the southerly side of Cape Jellison, beginning on the south-easterly and up-river corner of plaintiff's homestead lot on the Penobscot bay in said county, on the shore of said bay, and extending by the shore of said bay down said bay one hundred and fifty rods westerly and southerly to the southernmost extremity of Squam Point Ledge (so called) with the exclusive right of taking salmon, shad and alewives on said premises, and of all the privileges necessary to carry on said fishery, on which premises near the up-river line of the same the plaintiff has annually erected his fish weirs and used them in taking said three kinds of fish, worth to him annually net two hundred dollars a year, without defendant's interference, and the said defendant well knowing the same, and intending to injure and destroy the plaintiff's said business and to convert the same to his own use and benefit, with force and arms aforesaid and against the plaintiff's remonstrance then and there broke, erected and maintained during the whole fishing season each year a close, built two substantial fish weirs, each year aforesaid, extending from the shore fifty rods and more into the bay aforesaid at or near a big rock just far enough below and down river of the plaintiff's weir to catch all or nearly all the said fish, which would have been caught in the plaintiff's weir, but for the said erection and maintenance of the said defendant's fish weir on said plaintiff's privileges used by him as aforesaid for the purpose of destroying said plaintiff's fishing business, and driving him out of the business and converting the same to his own use.

Also for that the said defendant on the first day of April, A. D 1880 and 1881, and on divers days and times between that time and the date of this writ with force and arms broke and entered the plaintiff's close and fishing privilege aforesaid at Stockton aforesaid, and then and there erected and maintained on said plaintiff's fishing privilege during all said fishing seasons two fish weirs, each year, on the up-river side of the southernmost extremity of Squam Point Ledge (so called) or near the southern line of said plaintiff's premises but within his boundary and on his premises, in which weirs said defendant caught a large amount of salmon, shad and alewives, last aforesaid seasons, that would but for said defendant's weir have come into and been caught in said plaintiff's weir built by him the said years on his own premises aforesaid and up-river and above said defendant's said weir.

And the plaintiff avers that said defendant wilfully and wickedly built and maintained said weirs on plaintiff's said premises for the express purpose of destroying his fishing business and thereby depriving him of the value of said premises, and threatens to continue to so destroy said plaintiff's fishing business, in future of said plaintiff. To the damage of said plaintiff as he says, in the sum of four hundred dollars."

A. G. Jewett, for the plaintiff, cited: Duncan v. Sylvester, 24 Me. 482; Treat v. Strickland, 23 Me. 234; Rex v. Oldanlesford, 1 T. R; Eastman's Dig. 353; Angell, Watercourses, (2 ed.) 182-186; Storer v. Freeman, 6 Mass. 439; Lapish v. Bangor Bank, 8 Me. 85.

Thompson and Dunton, for the defendant.

By the express terms of his deed, Treat acquired title on Penobscot bay below high water mark, and by operation of law his title would be extended to low water mark. Colonial Ordinance of 1641; Ancient Charters, c. 63, of Colony Laws; Pike v. Monroe, 36 Me. 309; Parker v. Cutler Milldam Co. 20 Me. 353; Winslow v. Patten, 34 Me. 25.

At best, the deeds through which plaintiff claims only convey an easement in the shore of the land, of which defendant has the fee.

An action of trespass quare clausum fregit does not lie for an injury to an incorporeal right or easement. Hilliard on Torts, 612; Morgan v. Boyes, 65 Me. 124.

The right of fishing in the sea, and in the bays and arms of the sea, and in navigable and tide waters, is a right public and common to every citizen; and if any individual will appropriate an exclusive privilege in navigable waters, and arms of the sea, he must show it strictly by grant or prescription. Preble v. Brown, 47 Me. 284; Parker v. Cutler Milldam Co. 20 Me. 353; Angell on Tide Waters, 22, 23, 24; Moulton v. Libbey, 37 Me. 472; Colonial Ordinance of 1641; Ancient Charters, c. 63 of Colony Laws, § 2; Weston v. Sampson, 8 Cush. 347; Proctor v. Wells, 103 Mass. 216; 3 Kent's Com. 413.

The right of fishing in the sea, and bays, and arms of the sea, and in navigable and tide waters being prima facie, a public right, common to all citizens, it follows that only the sovereign power, the legislature in this country, can grant any special or exclusive right to an individual. Angell on Tide Waters, c. 6, p. 102; Barrows v. McDermott, 73 Me. 441; 2 Blackstone's Com. 39; Parker v. Cutler Milldam Co. 20 Me. 353.

Plaintiff has shown no such grant, nor has he shown any exclusive right by prescription. Preble v. Brown, 47 Me. 284.

DANFORTH J.

In this action the plaintiff claims damages for a disturbance of his alleged right of fishery, the limits of which are fully described in the writ. The place is located upon an arm of the sea where the tide ebbs and flows.

The defence besides the general issue, is a denial of the plaintiff's and a claim of title in the defendant, that the right claimed by the plaintiff is a public right, that whatever the defendant has done, was in the exercise of that right and that the plaintiff did not have the exclusive right of taking fish as described in his writ. Thus the defence is put upon two grounds; that of title in himself exclusively and a general right in the public, or a free fishery.

That the public have the right of fishing in all tide waters, by the common law is too well settled to admit of denial. Moulton v. Libbey, 37 Me. 472; Weston v. Sampson, 8 Cush. 347; Proctor v. Wells, 103 Mass. 216. Thus the defendant as a part of the public and in common with all other persons, would have the right to take fish not only from the deep waters adjacent to the flats described, but also from the water over the flats at flood tide. The fish swimming in the water above, as well as below low water mark, are the property of the first taker whether he has or has not an interest in the soil under the water where they are taken. This right resting in the public can be conveyed only by the public, or the sovereign power which represents the public and can be exercised only by such ordinary methods as will not interfere with private rights.

Since the ordinance of 1641, modified by that of 1647, which is a part of the common law of this state, (Barrows v. McDermott, 73 Me. 441) the flats not exceeding one hundred rods in width are the property of the owner of the adjacent upland, or his grantee, subject to the rights of the public to pass over and fish in the waters upon them. This private ownership must necessarily give to the proprietor some privileges which do not belong to the public. Among others is the right of erecting fixtures thereon or attaching them to the shores. Hence while the proprietor of the flats may fasten his seine by grappling to the shore and erect weirs for the purpose of catching fish, those having public rights only cannot do so. Duncan v. Sylvester, 24 Me. 482-486; Locke v. Motley, 2 Gray 265. This being a private right may, of course, be conyeyed by the owner with or without the upland and with such limitations and qualifications as he sees fit. This principle of law was recognized and adopted in a case from Sagadahoc county not yet reported. [[[[[ Wyman v. Oliver, 75 Me. 421, Reporter.]

It is an infringement of this private right, the erection of a weir upon or attached to the flats or shore which is here complained of. Thus the public right of fishery is not involved in this case. The only question at issue is whether the defendant has wrongfully erected a weir within an exclusive right of fishery belonging to the plaintiff.

That each pa...