726 HISTORY AND METHODS OF THE FISHERIES. 



to have been inaccessible for nearly two hundred years, so that the very tradition of their presence 

 has become dim. It is, however, beyond question that before the obstruction of the river the 

 principal auadromous fishes, especially salmon, were very plenty. Salmon have continued to 

 show themselves occasionally in the river to within forty years. Shad and alewives held on much 

 better, and considerable numbers of both were taken twenty years ago, but .since then have greatly 

 declined, and at the present time the attempt to catch them is almost wholly abandoned. Two or 

 three small weirs yielding a very small number of shad and alewives are still maintained on the 

 New Hampshire side of the river. The fishery on the Main shore in 1880 was reduced to a half 

 dozen smelt weirs, whose united product of smelts, toincods, bass, eels, and perch was valued at 

 $965. 



5. LAWS RELATING TO THE RIVER FISHERIES OF MAINE. 



THE COMMON LAW. The common law, as interpreted and applied by the Maine courts, makes 

 a broad distinction between navigable and unuavigable rivers. In the former category are placed 

 all rivers and parts of rivers in which the tide ebbs and Hows ; in the latter all in which the tide 

 does not ebb and flow. 



In navigable rivers, as thus defined, the riparian proprietors own the soil from high- water to 

 low-water mark, excepting cases in which the distance between the two marks is greater than 100 

 rods, and in these cases they own to the 100-rod limit and no farther.* This title to the soil car- 

 ries with it the exclusive right to erect fixtures for iishiug or other purposes, or even to make a 

 net fast to the shore or bottom within the 100 rod limit ; but does not include any exclusive owner- 

 ship in the water covering the flats, nor in the fish that may swim in it, nor any exclusive right 

 to use a movable net or other apparatus for catching fish, nor does it include any title whatever 

 beyond the 100-rod limit. The public, on the. other hand, have not only a right, on equal terms 

 with the riparian owner, to fish in the deep water and on the flats beyond the 100-rod limit, but 

 also the, right to take fish with movable apparatus in the water over the soil of the proprietor even 

 up to high-water mark, t 



In nunavigable rivers the title of the riparian owner is held to extend to the laud under the 

 water from each shore as far as the middle of the stream, carrying with it the exclusive right to 

 fish by any mode in the water covering this land, the public rights being limited to the privHege 

 of passing with boats and other craft, and to float timber up and down streams of suitable size. 

 In the ease of fresh-water lakes and natural ponds of greater area than 10 acres, the law of Maine 

 is founded upon that of Massachusetts, t and the exclusive rights of the riparian owner extend 

 only to high-water mark. 



Thus we have in fresh- water ponds and lakes a fishery witli movable apparatus in the hands of 

 the public, in non-tidal rivers an exclusive fishery with movable apparatus in the hands of the 

 riparian owners, and in tidal waters both the same free fishery with movable apparatus and a 

 fishery with fixed apparatus in the hands of laud-holders. The law on these points is suffi- 

 ciently clear, but custom does not in all points agree with the law. Neither have the riparian 

 owners on the non-tidal rivers enforced their rights against the public, nor the public against the 

 riparian owners on tidal waters. In the former case the public has always enjoyed, and now 

 enjoys, the privilege of free fishing with movable apparatus, which is alone allowed by law in those 

 waters; and in the latter the riparian proprietors have maintained an exclusive fishery with fixed 

 apparatus in the waters in front of their respective estates, not merely on the shores laid bare by 



* This modification of the common law springs from Jlussachnsrt ts coloni:il ordinances passed in 1641 and 1647. 

 t According to decision of the courts even the digging of clams on Hats which are private property is held to be 

 a public right. 



t An ordiuancv of Kill ilrmvd free fowling ;m<l lishing in all surli great ponds. 



