40 THE ARGUMENT OF THE UNITED STATES. 



nature of a free fishery and whether it was exclusive or not, and also 

 whether a separate fishery which was admittedly exclusive could be 

 held and enjoyed as a property right separate and apart from owner- 

 ship of the soil, the principal distinction was between exclusive fish- 

 eries which were denominated by some authors free and several and 

 by others several alone, and fisheries not exclusive which were de- 

 nominated by all, fisheries in common" 



The recent and valuable English publication of Stuart A. Moore 

 and Hubert Stuart Moore states the matter thus : 



Woolrych, Law of Waters (p. 110), divides fisheries into four 

 classes, over and above the common or public fishery in the sea, 

 viz.: (1) Several fishery, (2) free fishery, (3) common of fishery, 

 (4) fishery in gross. 



The last-named fishery, fishery in gross, he says, may be more 

 properly referred to several fishery or common of fishery; for, if it 

 be granted to a person exclusively of others what is it but a several 

 fishery, and if in common with other individuals, how does it differ 

 from a fishery in gross ? Therefore, there remains only " several," 

 " free," and " common of fishery." Now, it would appear that several 

 and free are all one so that this classification is reduced to two classes, 

 which comprehends all the others, viz.: (1) Exclusive fisheries; (2) 

 fisheries not exclusive, usually called commons of fishery. 



1. Exclusive fisheries are those in which one has the sole and ex- 

 clusive right of fishing either by reason of the ownership of the soil 

 and its profits, or because the right of fishing is derived from the 

 owner of the soil. These fisheries in both tidal and non-tidal waters, 

 are sometimes described as several and sometimes as free. * * * 



2. Fisheries not exclusive or common of fishery are of two kinds, 

 viz. ; " common fishery," or " common of fishery." " Common fishery " 

 is the right of the public to fish in waters not apportioned as exclusive 

 waters. " Common of fishery," is (a) where the owners of the ex- 

 clusive right in two halves of a river fish in common between them- 

 selves over the whole river, each being owner of the soil of the river 

 to the midstream; or (&) where the right to fish in the water has been 

 granted by an owner of the exclusive fishery to one or more persons 

 who fish in common with him, either all over the extent of the river 

 or over particular parts of it. 6 



The law was thus declared by a distinguished English judge in a 

 comparatively recent case: 



This is more of the confusion which the ambiguous use of the 

 word " free " has occasioned from as early as the Yearbook 7, 

 Henry VII, folio 13, down to the case of Holford v. Bailey, when it 

 was clearly shown that the only substantial distinction with respect 

 to fisheries is between an exclusive right of fishery, usually called 



Blackstone, Commentaries, Book 2, pp. 39-40. Kent: Commentaries, Vol. 3. 

 pp. 410-411. Woolrych, Waters and Sewers (1830), pp. 55, 96-97-101. Wasli- 

 burne : Easements and Servitudes, 3 Ed., pp. 522-523-524. 



''The History and Law of Fisheries, Stuart A. Moore and Hubert Stuart 

 Moore, pp. 34-35-36. 



