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et quantitate agrorum.' Islands, however, are the subject of separate grants, and this doctrine of boundaries in grants of land bordering on streams holds only where the islands are not otherwise appropriated.

This construction of boundaries is applied only to land bordering on streams not navigable. By the common law, a stream, or inlet of the sea, is regarded as navigable only so far as the tide ebbs and flows. Thus far, if it can be used by water-craft to any useful purpose, it is technically navigable. All arms of the sea, coves, creeks and streams, where the tide ebbs and flows, are the property of the sovereign, as far as the ordinary high water mark: But a subject may acquire property therein, by grant, or prescription which supposes a grant. A grant, therefore, bounding the grantee on navigable water, is construed to extend only to ordinary high water mark.

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The shore, technically taken, is the space between low water and ordinary high water mark; and the same construction is, of course, given to a grant of land bounded by the shore. By the civil law, "est autem littus maris, quatenus hybernus fluctus maximus excurrit." By this law, also, the property in streams actually navigable belonged to the sovereign, or public, though the tide did not ebb and flow therein.

This last difference in the two legal systems probably should be ascribed to the different size, &c. of the freshwater rivers on the continent, and on the island of Great Britain. The Code Napoleon adopts the doctrine of the

1 Vinnius, 141, (Amsterdam ed. of 1692,) Heinec. Pand. Pars vi, § 178; Heinec. Inst. Lib. II. tit. 1, § 357; Deerfield v. Arms, 17 Pick. 41.

2 Davis, 55-58; 4 Bur. 2161; 2 Doug. 441; 4 D. & E. 439; 2 Bos. & Pul. 472; 5 Taunt. 705; 1 Pick. 180; 6 Johns. 133; 2 Johns. 362; 21 Pick. 344. 3 3 Kent's Com. 1st ed. 347; Storer v. Freeman, 6 Mass. 435; Blundell v. Catterall, 5 Barn. & Ald. 294. 304.

4 Just. Inst. Lib. II. tit. 1, § 3; 5 Barn. & Ald. 292.

civil law. Flumina autem omnia, et portus, publica sunt ; ideoque jus piscandi omnibus commune est in portu fluminibusque.' Vinnius, in his commentary on this passage (p. 126) restricts the word "flumina" to such streams as are perennial, and the "jus piscandi" to the subjects of the country "cujus fines flumen alluit, et quatenus alluit.”

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In Pennsylvania, North Carolina and South Carolina, the civil law doctrine is adopted in regard to the actually navigable fresh water rivers in those states. In Connecticut, New York, Massachusetts, and Ohio, the doctrine of the common law is adhered to.3

The owner of land adjoining on a stream not technically navigable, has, therefore, by the common law, an exclusive right of fishery ad filum aquæ, and may maintain a suit for a violation of this right. But the public has an easement or servitude in streams that will bear water-craft to any useful purpose; namely, a free right of passage.

The same law, as to boundaries and right of fishery, doubtless applies to cases of land adjoining small ponds. But in Massachusetts, by a colonial ordinance of 1641, "for great ponds lying in common, it shall be free for any man to fish and fowl there, and may pass and repass, on foot, through any man's propriety for that end, so they trespass not upon any man's corn or meadow." It was also provided in the same ordinance, that "every inhabitant, who is an householder, shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they

1 Just. Inst. Lib. II. tit. 1, § 2.

? Carson v. Blazer, 2 Binn. 475; Shrank v. Schuylkill Navigation Company, 14 S. & R. 71; Wilson v. Forbes, 2 Dev. 30; Ingram v. Threadgill, 3 Dev. 59; Cates v. Wadlington, 1 M'Cord, 580.

3 Adams v. Pease, 2 Connect. 481; The People v. Platt, 17 Johns. 195; Hooper v. Cumming, 20 Johns. 90; Freary v. Cooke, 14 Mass. 488; Commonwealth v. Chapin, 5 Pick. 199; Gavit v. Chambers, 3 Hammond, 496. 4 See cases last cited, and Waters v. Lilley, 4 Pick. 145.

dwell, unless the freemen of the town, or the general court have otherwise appropriated them." To this privilege is however added a proviso, that no town shall appropriate to any particular person any great pond containing more than ten acres of land, &c.' This ordinance altered the common law in regard to the right of a several fishery in large ponds, and was designed to preserve to the people at large a favorite privilege and amusement. The effects of the ordinance are clearly perceptible at this day. As to fishing, &c. in tide waters, it seems to have been intended to restrict the right to householders in the town where the waters were. But this part of the ordinance is not at all regarded in practice, and probably was never so applied as to restrain the common law right of every citizen in those waters. Otherwise, it is believed, as to ponds. Great ponds, that is, of more than ten acres, have in many instances become private property: But whether the owners can exclude all other persons from fishing therein, is not known to have been decided.

Although the borderers on streams not navigable own to the centre of the water, and have an exclusive right of fishery to that extent-subject only to the easement of passage on the water by the public; yet the legislature of Massachusetts have, from the earliest period, made provision for the passage of fish from the ocean into the ponds and streams above, and have subjected the owners of contiguous land, of mills, &c. to divers onerous duties such as keeping open fish-gates on their dams, &c. And this legislative power has often been judicially recognized.'

It is a part of the law of that state (probably derived from the ordinance abovementioned,) that towns may ap

1 Ancient Charters, &c. 148, 149.

2 See Sullivan's Land Titles, 284, et seq.; 2 Dane's Ab. Ch. LXVIII. See 9 Pick. 87; Bigelow's Digest, Fishery. Not so in New York. 17 Johns. 195,

propriate the fishery in tide waters within their limits, if not appropriated by the legislature.'

The right in the waters and shores of the sea, and in navigable tide waters in North America, originally belonged to the English crown. That right, to a certain extent, passed, to the council, established at Plymouth in England, for the settlement of New England; and so far as it respects Massachusetts and Maine, the same right was transferred to the company which undertook that settlement; and their transfer was confirmed by the charter of Charles II. In that charter (dated May, 1628) "ports, rivers, waters, fishing," &c. were fully confirmed unto the company; and upon their establishing a government here, they took the dominion of the territory, and all its franchises and privileges, and parceled them out in small divisions. Thus the people of the colony, in their political capacity, succeeded to all the territorial right that formerly belonged to the English crown and government. As the king might grant an exclusive right to a subject, in a fishery, or in the soil under navigable waters; so the colony, succeeding to his property and power, had the same authority to make like grants to individuals, or to corporate bodies. This power, like all other powers of a kindred nature, vested in the legislature of the colony.

The ordinance beforementioned made a material change in the law on this subject of public property in tide waters. And that change has continued till the present time. For though the colony charter was annulled in 1684, by a decree in chancery, yet a new charter was granted in 1691, granting to the inhabitants of the province of Massachusetts Bay, and their successors, the territory therein described, and all “havens, ports, rivers, waters," &c. Indeed, the laws of the colony were not affected, in fact, by the an

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nulling of the charter-whatever might have been the strict legal theory.' By statutes, passed in 1692, all the local laws of Massachusetts and of New Plymouth were to remain and continue in full force, in the respective places, until, &c.❜

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As to shores, flats, &c. by the ordinance of 1641, "it is declared that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further "—with a proviso securing the passage of boats or other vessels over the water. A grant of land, therefore, "below high water mark," if not otherwise restricted, will extend to low water mark, if that be not more than one hundred rods; and if it be more, the grant will extend to that distance. So if the grant bound the grantor on a cove or creek, or on the salt water, sea, bay, &c. But the grantee cannot always claim the flats in the direction of the exterior lines of his upland, but only in the direction towards low water mark from the two corners of his upland at high water mark: As in the case of a circular cove, &c.

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If a grant bound the grantee upon the bank or margin of a stream, the stream itself is excluded. Low water mark would doubtless be the boundary, in such case.

When a river is the boundary between two nations, or states, if the original property is in neither, and there is no convention respecting it, each holds to the middle of the

1 See 6 Mass. 438; 3 Amer. Jurist, 115, 241; 2 Hutchinson's History, (3d ed.) 20.

2 Ancient Charters, &c. 213. 229.

* Ancient Charters, &c. 148.

4 Adams v. Frothingham, 3 Mass. 352; Austin v. Carter, 1 Mass 231.

5 Rust v. Boston Mill Corporation, 6 Pick. 158. See further, 6 Mass. 332; 10 Mass. 146.

6 Hatch v. Dwight, 17 Mass. 298.

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