QUESTION ONE. 39 



Lord Hale in speaking of the presumptive right of the owner of 

 land on both sides of a stream to fish therein remarks : 



But special usage may alter that common presumption for one man 

 may have the river, and the others the soil adjacent, or one man may 

 have the river and the soil thereof, and another the free or several 

 fishing in the river. 



Lord Coke says : 



A man may prescribe to have seperalem piscariam in such water 

 and the owner of the soil shall not fish there. But if he claim to have 

 communiam piscarice or liberam p'iscariam the owner of the soil shall 

 fish there. 6 



And again: 



In the technical sense of the words a common (or right of common) 

 is the right of taking some part of any natural product of the land 

 or water belonging to another man in common with him. Therefore, 

 the right to take the whole of the product or to exclude the owner 

 from taking it is not a common although sometimes called a sole 

 common but an estate in land; for it is against the nature of this 

 word common and it was employed in the first grant that the owner 

 of the soyle should take his reasonable profit therein. 



A fishery also may be said to be a free tenement either several or 

 in common in a man's own grounds, as if anyone possessed land on 

 both sides of the waters, near the bank, here he may fish without 

 the hindrance of any as his own free tenement and etc. So it is 

 again, if he possesses only the land on one side of the water, then he 

 may fish to the middle line of the stream, unless by chance he has 

 imposed a service on his lands so that another may fish with him, and 

 so, in common; or that another may fish by himself out of the whole ; 

 or again, that anyone should have imposed upon himself a service 

 so that he could not fish. c 



It would not be of value to enlarge on the general doctrine of the 

 common law of England relating to fisheries, since the only object 

 of referring to it at all is to show that the words in common when 

 employed in connection with a fishing right, whether in public navi- 

 gable waters, or in waters susceptible of private ownership, have an 

 established meaning known to that law, and therefore, known to the 

 negotiators of the treaty of 1818, on both sides.* It will suffice to 

 state the distinction as to the several kinds of fisheries laid down 

 by the commentators of repute on both sides of the water for the 

 purpose of showing what is indisputably the fact, that while there 

 were several kinds of fisheries known to that law, as free, several, and 

 common, and there was some confusion in early days concerning the 



a riarg. Law Tracts, 5. 

 6 Co. Litt. 122a. 



c Kracton's De Legibus et ConeuetudtnibUS Aniline, book 4; cap. 28, sec. 4; 3 

 Tv^'. )). .'5T4-375. 

 *U. S. Case, p. 63. 



