
    The Inhabitants of Randolph versus The Inhabitants of Braintree.
    The town of Randolph has no claim to a share of the avails of the fishery in Brain tree, of which it was formerly a part.
    In this action, which was pending in the county of Norfolk, the inhabitants of Randolph demanded their due proportion of money received by the defendants from the proceeds of a fishery in that part of the River Monaniquet, which is within the town of Braintree.
    
    The action was tried the last week, at Dedham, before Parker, J., from whose report it appears that the plaintiffs grounded their claim on the act of the government incorporating them as a town, [1792, c. 49,] by the second section whereof it is provided, “ that the inhabitants of the town of Randolph shall pay their proportion of all debts now due from the town of Braintree, and shall be entitled to receive their proportion of all debts and moneys now due to the said town of Braintree, and also their proportionable part of all other property of said town of Braintree, of what kind or description soever.”
    By statute of 1791, c. 36, the town of Quincy was incorporated, and in that act there is a provision exactly like the one above quoted. Both Randolph and Quincy, before their respective acts of incorporation, were parts of the town of Braintree.
    
    To prove that, at the time of the incorporation of Randolph, the town of Braintree, in its corporate capacity, had *a property in the fishery of the aforesaid river, the [*316] plaintiffs read copies of sundry records of said town, showing its proceedings relative to said fishery from the year 1735 to the year 1797.
    From these records, it appears that the town had repeatedly chosen committees to take care of the fish, to see that obstructions to their passage in the river were removed, to purchase in the claim of a Mr. Vinton, to determine when the mills might go, and on what days the fish might be taken, to apply to the General Court for an act to prevent obstructions to the passage of fish in the river, and to settle with such persons as had transgressed in stopping the fish.
    In the year 1797, the town voted to farm out the privilege for five years, at 103 dollars per annum; and this rent was annually paid into the town treasury, except that the town relinquished their claim for the last of the five years. For the plaintiffs’ proportion of this money this action was brought.
    
      The defendants proved that the inhabitants of Weymouth, and of Quincy since its incorporation, had used the fishery as well as the inhabitants of Braintree; and that for several years a Spaniard had fished there without any interruption from the inhabitants of Brain-tree or their committee..
    By consent of parties, a verdict was returned for the plaintiffs, subject to the opinion of the Court, whether, at the time of the passing of the act for the incorporation of Randolph, the inhabitants of the town of Braintree had such a property in the fishery in said river, as that the town of Randolph, by virtue of the second section of that act above recited, were entitled to their proportion of said fishery, and so are entitled to recover their proportion of the avails thereof; and if the Court should be of opinion with the plaintiffs, then judgment was to be rendered according to the verdict, otherwise the plaintiffs were to become nonsuit, and the defendants to recover their costs.
    The cause was continued nisi, and at this term was argued by B. Whitman and Whiting for the plaintiffs, and Dexter and Wheaton for the defendants.
   [*317] *The opinion of the Court (the Chief Justice excepted, who had been of counsel in the action) was afterwards delivered as follows by

Sedgwick, J.

It appears that Randolph was, previous to the 9th of March, 1793, part of the town of Braintree; that, on that day, it was incorporated into a distinct town; and what gives rise to the present dispute is a clause in the act of incorporation expressed in these words: “ That the inhabitants of the town of Randolph shall pay their proportion of all debts now due from the town of Braintree; and shall be entitled to receive their proportion of all debts and moneys now due to the town of Braintree; and also their proportionable part of all other property of said town of Braintree, of what kind or description soever.

In the year 1797, Braintree farmed out the fishery in that part of the River Monaniquet, which lies within the limits of the town, at a certain rent, which has been received and paid into the treasury. The action is brought to recover a proportion of this rent. If the fishery was property,” in the meaning of the recited clause, the plaintiffs are entitled to recover, and the verdict must stand. If not, by the agreement of the parties, the plaintiffs must become nonsuit.

It is not pretended, and indeed cannot be, that, by the principles of common law, a town has a right of property in a fishery within its limits. There is no general public statute of our own government, which confers such a right, or acknowledges that it exists There is no private act, shown to the Court, which grants such a right to Braintree, or recognizes it as existing. On the contrary, the act passed in 1770, being an act additional to the act to prevent any persons obstructing the fish in their passage up into Monaniqut t River, within the town of Braintree, negatives, by necessary implication, the supposed right. For, by the second section, it declares “ that the inhabitants of Weymouth shall be entitled to the privilege of taking the fish in the said river, on the banks of the same, with scoop-nets, within the township of Braintree, as the inhabitants of Braintree are entitled to.” Now, it is probable that this statute *was enacted at the instance of Braintree; at [*318] any rate, it cannot be presumed that the legislature would have violated a right of property known, or supposed, to be vested in that town, or claimed by it.

If, then, the right claimed by the plaintiffs cannot be supported on the principles of the common law ; if it is not established by any statute, public or private; and if, in one instance at least, the legislature has made a declaration inconsistent with it,—it only remains to be inquired whether the plaintiffs have established their right, by any prescription which appears in the case.

We have carefully attended to the conduct of Braintree, as shown m their corporate proceedings, and we do not any where find, until after the act of incorporation, even a claim of a right of property in the fishery; and, of course, we perceive no evidence of the exercise of such a right. There is, indeed, a manifest claim of a right to prevent, and to remove obstructions, and to form regulations for the preservation of the fish, and to prevent an unnecessary destruction of them. But we nowhere find any claim of a corporate property in the fishery itself; nor any attempt to make it available, as such, to the benefit of the town. We are therefore of opinion that the verdict must be set aside, and a nonsuit entered.

Plaintiffs nonsuit  