
    [Philadelphia,
    April 10, 1826.]
    SHRUNK against The President, Managers, and Company of the SCHUYLKILL Navigation Company.
    IN ERROR.
    The rivers of Pennsylvania are not subject to the common law rule, that all fresh water rivers, in which the tide does not ebb and flow, belong to the owners of the soil adjacent, so that the owners of one side have, of common right, the property of the soil, and consequently the right of fishing, usque ad jihim medium aquse, and the owners of the other side the lights of soil and fishing adfilum aquse on the other side, and that he who owns both sides, is the owner of the whole river, and has the exclusive right of fishing according to the extent of his shores.
    The owner of land fronting upon the river Schuylkill, above tide waters, who had the exclusiveright of drawing seines on his own land, is not entitled to damages,under the act of the 8th of March, 1815, incorporating the President, Managers, and Company of the Schuylkill Navigation Comp'any, for an injury sustained in consequence of the erection of a dam across the river by the said company, by reason of which, shad, herring, and other fish were prevented from passing up the river.
    The plaintiff in error, Godfrey Shrunk, having instituted proceedings in the Court of Common Pleas of Philadelphia county against the defendants in error, under the act of assembly of the 8th of March, 1815, to recover damages for an alleged injury to his fishery in the river Schuylkill, it was agreed that judgment be entered for the defendants, in the court below, that a writ of error be taken out, and that the following case be considered as a special verdict:
    
      “ The plaintiff, at the time when a dam was erected across the river Schuylkill, by or under powers derived from the defendants, and for a long time before, was seized of one acre of land in the Northern Liberties, containing in front on the river Schuylkill, at low water mark, seven perches and twenty-eight feet, prout deed from Peter Robeson and wife, February 8th, 1806, and also of six acres and sixty-three perches in the same township, containing in front on the same river, forty-nine perches and eight feet, prout deed from John Wagner and wife, September 19th, 1806, and memorandum of sale, January 4th, 1806. ,
    “ On these fronts on the river Schuylkill, both he and the previous owners of the land had been, and, until the time of the.erection of the dam complained of, were in the practice of drawing a fishing seine, and derived profit from taking fish by means thereof, and no person had a right.to come upon the estate for that purpose without the license or consent of the said Godfrey, or the owner of the estate for the time being; and the antecedent owners of the last mentioned lot had at different times granted leases of the premises by the name of a fishery, viz. Thomas Mifflin to Godfrey Shrunk prout lease dated January 3d, 1797, and John Wagner, to the same, prout lease, dated Jammary 1st, 1801. In like manner other persons, the owners of estates in the neighbourhood of the plaintiff, bounded by the river Schuylkill, which estates were conveniently situated for drawing a fishing seine thereon, were in the same practice of either drawing the seine or letting out the use of their fronts for that purpose, under the name of a fishery, and derived a similar profit, and no person had a right to come upon their estates for that purpose without their license and consent, and particularly the Rev. William Smith, who owned land lower down the river, by lease dated September 1st, 1800, let the same to the plaintiff for a term of years, prout lease.
    “ The dam erected across the Schuylkill, as before mentioned, prevents the passage of shad, herring,. and other fish commonly caught by the seine, up the river, and the plaintiff is no longer able to take fish therein by the seine.
    
      “ The question is, whether, under the act of incorporation of the President, Managers, and Company of the Schuylkill Navigation company, they are liable in damages to the plaintiff, by reason of thus preventing the passage of shad, herring, and other fish, as aforesaid, up the river Schuylkill.
    
    “ If the opinion of the court shall be in favour of the plaintiff in error, judgment to be reversed, and a venire de novo awarded,”
    
      Rawle, and Rawle, jun., for the plaintiff in error.
    The question presented by the facts of this case is of the first impression, and important in its character and consequences. It is, whether the proprietor of land adjoining a river frequented by fish, who has been in the habit of deriving profit from the exclusive right to take fish from it on his own land, has such a property in the fishery as is susceptible of injury, within the meaning of the act of the 8th of March, 1815, (6 Latos of Penn. 257,) the tenth section of which provides, “that if any person or persons shall be injured by means of any dam or dams being erected, as hereinafter mentioned, or the land of any person inundated by the swelling of water, in consequence of the erecting of any dam or dams, or any mill or other water-works, injured by swelling the water into any tail race of any mill or other water-works, which may have been erected in the said river, or any stream of water emptying into the same; and if the president, managers, and company cannot agree with the owner or owners thereof on the compensation to be paid for such injury,” compensation shall be made in the mode provided by the act. At common law nothing is better settled, than that the owners of the banks of a river, like the Schuylkill, which, though a common.highway, is not technically navigable, are owners ad filum medium aquas, and have several fisheries opposite to their respective shores. This established doctrine of the common law has in one case, Carson v. Blazer, 2 Binn. 475, been , considered inapplicable to the great rivers of Pennsylvania, which are navigable far beyond tide'waters. The question, however, cannot be considered as so much at rest in 
      Pennsylvania, as not to be open to argument. The term, navigable, is technical, and applies only to those rivers which are arms of the sea, and denominated royal rivers; to determine the character of which, the ebb and flow of the tide are the only criterion. There'are many rivers in England, which, though not so large as the Delaware and the Susquehanna, are in the popular and true sense of the term navigable; and others, which are even larger than many streams, which have been declared common highways in Pennsylvania. The Thames and the Severn, above tide waters, are the channels of at least as much commerce as the Delaware and the Susquehanna, and, as to size, are superior to the Bald Eagle, the Conestoga, the Swaiara, and many others, to which , the doctrine of several fishery is, according to the opposite argument, as inapplicable as to the larger rivers;' The acts declaring these rivers public highways, and regulating the navigation and fisheries in them, .do not interfere with the common law doctrine; for the English rivers, above tide waters, are in precisely the same situation. In all those streams which are actually, but not technically navigable, the public have an easement and no more. The private right of soil and fishery are subject to the public right of passage, and the government, for public purposes, exercises the right of regulating the navigation and fisheries. The view which the proprietaries entertained of. this subject, is exemplified by their .mode of appropriating islands. It was their custom to issue warrants for the survey of all islands, before they opened the land office to the public, the object of which must have been, to prevent those who became proprietors of the opposite shores, from becoming, as a necessary legal consequence, the proprietors of the islands. At common law, fresh water rivers belong to the owners of the soil adjacent, so that the owners of the one side have, of common right, the property of the soil, and, consequently, the right of fishing usque ad Jilum aquse, and the owners of the other side, the right of soil or ownership and fishery unto the jilum aquse on their side; and, if a man • be owner of the land on both sides, in common presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length; but these rivers, as well as those which flow and reflow, are under these two servitudes, viz. one of prerogative, belonging to the king, and another of public interest, or belonging to the people in general. Harg. Law Tracts, De Jure Maris, p. I., ch. 1, 3. JLngell on Water Courses, 15, 29. The right of the individual is subject to the right of the public, but is no further interfered with than public utility requires. This doctrine has been fully recognized in several of our sister states, whose rivers are of no less magnitude than those of Pennsylvania. Palmer v. Mulligan, 3 Caines, 307. Shaw v. Crawford, 10 Johns. 236. People v. Platt, 17 Johns. 195. Hooker v. Cummings, 30 Johns. 90. JLdams v. Pease, 2 Conn. Eep. 481.
    
      It is not necessary, however, that the title to the soil should be vested in the party claiming a several fishery. The soil may remain in the state, while a right to an exclusive fishery in the waters of a river belongs to an individual, and such right may be shown either by actual grant or by long continued usage. Harg. Law Tracts, De Jure Maris, p. 1, ch. 1, 5. Co. Litt. 4, b. 122, a. {also note.') Angelí, 9, {note.) Swift’s Dig. 110. The title of the plaintiff in error to the fishery in question, is proved by long and uninterrupted usage. ■ It may be traced back by the papers, which form part of the case, to the year 1797, — a period long enough to give a title to land, and long enough to raise a presumption of a grant of the fishery. It is to be observed that length of time is not set up against the state, but against individuals who have obtained a grant of certain privileges, and who attempt to take the property of (he plaintiff without compensation. It was formerly requisite that a usage, in order to give title, should amount to prescription; but it is now settled, that a much shorter period will be sufficient to give title to an incorporeal hereditament; and these periods are fixed by analogy to different statutes of limitations. Thus, in England, twenty, in Pennsylvania, twenty-one, and, in Connecticut, fifteen years will give title. Angelí, 42, 43. 2 Saund. 175, {note.) Cooper v. Smith, 9 Serg. & Rawle, 33. Strickler v. Todd, 10 Serg. & Rawle, 63. Ingraham v. Hutchinson, 2 Conn. Rep. 584. Here there has been an undisturbed enjoyment of a fishery nearly thirty years, from which a grant ought to be presumed.
    Independently of the common law doctrine, and of title to the soil of the river, or the fishery, the owners of the shores of our rivers, have, by well known custom, an exclusive right to fish to a reasonable distance opposite their shores. This custom is so notorious as to require no proof. It was considered by Ybates, J., in Carson v. Blazer, to be beyond all doubt. It is the common understanding of the count! y, and such fisheries are universally regarded as substantial property. They are the subjects of transfer by will and by deed, by the name of fisheries, and large prices are often given for them. A long continued course of legislation recognizes, not only a fixed, permanent, valuable interest, but an exclusive property in such fisheries, and many acts have been passed for the preservation of fish, with a view to the interest of those who owned the shores. In relation to the Schuylkill, the legislative recognition of individual right to fisheries, has been even more explicit and emphatic than in relation to other rivers. Acts of the 14th of March, 1761, 1 Sm. L. 331, 9th of March, 1771, 1 Sm. L. 324, 14th of March, 1761, 1 Sm. L. 235, 9th of March, 1771, 1 Sm. L. 314, 24th of March, 1781, 28th of March, 1785, 2 Sm. L. 308, 9th of March, 1786, 2 Sm. L. 370, llth of March, 1793, 3 Sm. L. 115, 2d of January, 1801, 3 Sm. Li 445, 8th of February, 1804, 4 Sm. L. IIS, 16th of 
      
      March, 1807, 4 8m. L. 379, 1st of March, 1815, 6 Laws of Penn. (Reed’s Ed.) 253, 27th of March, 1820, 7 Laws of Penn. (Reed’s Ed.) 296. There is nothing in these acts regulating the fisheries and navigation in the rivers to which they relate, at all inconsistent with separate property in the fisheries. Government may regulate the use of them, but cannot destroy them, and this power has often been exercised in relation to other subjects, as well as this. The right of regulating navigation and fisheries, has always been exercised in England, where the owners of the adjoining shores are owners usque ad filum aquae, and in those states in which this doctrine of the common law’prevails. The regulation of the enjoyment of the right is not repugnant to its existence. Nor has the idea of distinct and exclusive property in the fisheries in our great rivers been confined to public opinion arid the legislature. It has been adopted by this court in Elliott v. Elliott, 5 Binn. 12, and Stoddart v. Smith, Id. 363. The custom is a good one. It is as ancient as the settlement of Pennsylvania. It is general, for it pervades the whole state. It is reasonable, for it tends to public peace and convenience, by assigning an owner to what would otherwise be common and the source of strife. It does not conflict with the common law, but falls short of it. It is no objection to the custom that it has not the antiquity of an English custom. Such an objection would exclude all customs from Pennsylvania; yet a custom as to the way going crop was established in Sttiltz v. Dickey, 5 Binn. 285; and, as to the liability of carriers on the western waters, in Gordon v. Little, 8 Serg. & Rawle, 533.
    
    If the plaintiff in error has, strictly, no title either to the bed of the river or to the fishery in its waters, he has that which gives him substantially an exclusive interest in it. He is the owner of the shore, and has an exclusive right to draw a seine upon it, which, in effect, is the same thing as owning the fishery. That he has such exclusive right, is not only perfectly clear from the nature of property itself, but has been decided by this court; (Cooper v. Smith, 9 Serg. & Rawle, 26,) recognized by numerous acts of assembly, and is conceded by the case stated. This, in substance, makes the fishery appurtenant to the land, and stamps an additional value upon it. There is nothing in principle to distinguish a several fishery, properly so called, from an exclusive right to fish on one’s own ground. In neither case has the proprietor any interest in the fish before they are caught, but they have an equal interest in their passing up to the estate, which their presence renders valuable. One thing is very clear: the plaintiff has sustained an injury in his property; for his land, which, before the erection of the dam was worth many thousands of debars, is now not worth as many hundreds. It cannot be denied, therefore, that he has been injured by the dam, and, if so, the tenth section of the act incorporating the defendants in error gives him a claim to com. pensation. On this subject, Gibson, J., has laid down a safe rule in Thoburn v. The Schuylkill Navigation Company, 7 Serg. fy JRawle, 420. The standard of damages, is the difference be» tween what the property would sell for unaffected by the obstruction, and what it would sell for afterwards. A statute of Massachusetts gave a compensation where any one suffered damage by the erection of works Similar to those of the defendants in error, which was held to extend to all kinds- of injury, and to embrace the case of one whose passage up the river to his own property was interrupted. 2 Pick. 33.
    
      Binney and .Chauncey, for the defendants in error..
    The question to be decided is, whether the defendants, by erect” ing their dam, have done an injury to the plaintiff, for which he is entitled to compensation under the act of the 8th of March, 1815 ? His right is founded wholly on his ownership of a strip of land on the .margin of the Schuylkill, from which he derived profit by catching fish. In the case stated, there is no mention of a grant of fishery, nor of any right founded upon prescription, or the exercise of any exclusive fishery.. The river is a public common, to which every citizen of Pennsylvania has an equal right. The ownership of the shore gives ,a facility of fishing, but nothing more.
    We resist the claim of the plaintiff in error on the following grounds:
    1. In the great rivers of Pennsylvania there is no private right of fishing.
    2. The commonwealth has a right to destroy .the fisheries without compensation.
    3. She has so destroyed them, by the act of assembly in question.
    1. The first point is settled by Carson v. Blazer. The common law recognizes no right of fishery, but from the ownership of the soil of the river. The king has the right to the soil of the sea, which is proved by his unquestioned right to the fisheries in it. Harg. Law Tracts, 11. The right of fishery may be separated from the right of soil, by grant from the owner of the soil. Co. Lift. 122, 123, (note.) Common of piscary is the liberty of fishing in another man’s water. 2 Bl Com. 34, 39. The exclusive right of fishing in a public river is a royal franchise. This Í3 called a free fishery, and relates to an arm of the sea. A several fishery is a different thing, and can only exist, (according to the opinion of some,) in the owner of the soil. At least, there can be no right which is not derived from the owner of the soil. Unless, therefore, the plaintiff in error has a right derived from the owner of the soil, he has no right. He has a mere liberty, like that of pasturing Cattle on the waste lands of the' commonwealth, or of shooting ducks on a point of land. Location near the water gives great, advantages, but no property. The owner of the soil is the commonwealth. To apply the common law description of a navigable river to the great rivers of Pennsylvania, would be absurd, ruinous, and against all experience. The length to which New York has been compelled to go by the adoption of the common law' principle, is shown by the case of The People v. Platt, 17 Johns. 195., in which it was held, that the owners of the shores of the Saranac might erect dams across the river; and the case of Hooker v. Cummings, 20 Johns. 90, which makes the islands the property of the owners of the opposite shores. Now, in Pennsylvania, no man ever thought of claiming an island in the Susquehanna, the Delaware, or the Schuylkill, without a special grant. These have always been the subjects of special grant. Hunter v. Howard, 10 Serg. & Pawle, 243. P'rom the foundation of the province, the course of legislation' and the uniform sense of the profession have been, that as to large rivers and creeks which are susceptible of navigation, the common law rule did not apply. By the charter of Pennsylvania, the fisheries were granted to William Penn, and neither he nor his successors have ever granted them to individuals. They have always exercised a control over them, which is inconsistent with the idea of private property. They have been treated as matters entirely under the control of government, and, consequently, in no law for raising county rates and levies, have fisheries been specified as objects of taxation. The commonwealth being the proprietors of all the fisheries, merely permits the people to fish, and the plaintiff in error having more advantages from situation than others, derived greater profit from a liberty which was common to all. If, as' in the case of Carson v. Blazer, any person could have found a sand bank or other spot to draw a seine upon, he would have been at liberty to do so, unless restrained by the legislature. No private right could have prevented him.
    2. The commonwealth having merely given permission to fish, and constantly exercised the right to enlarge or restrain that permission, according to its own pleasure, it follows that it had a right to resume it when it pleased; and in granting to the defendants in error the privilege of erecting dams, it interfered with no rights but its own.
    3. The act of 1S15 did not intend to give damages for such injuries as the plaintiff in error complains of. It intended to give damages to the owners of property, but the plaintiff in error had no property injured. The law has provided for several cases of injury by special terms, and if it had intended to give a compensation for damage to fisheries, it would certainly have said so. It was obvious that they would be greatly reduced in value. But the depreciation of the value of land was not contemplated as a subject of compensation. The rendering of the neighbouring grounds unhealthy, would be a more direct injury to their owners than stopping the passage of fish up the river, yet it would hardly be pretended that they could recover damages for such an injury. The law does not act with any injustice upon the plaintiff in error, and others in his situation, because the legislature have always held out the intention of making improvements in the Schuylkill, and all other interests have uniformly been made subordinate to navigation. Having purchased with full notice- of what has happened, there is no ground of complaint. The case in 2 Pickering, 33, turned on an act of assembly of Massachusetts, very different from this. It was a privilege granted to a private company for a private purpose, and the plaintiff was deprived by the defendants of the use of a highway. In the case before us, the plaintiff had -no right either to the fish or to the water; and, with equal propriety, might any one maintain .an action, who, by the erection of the dam, is deprived of the opportunity of catching a shad above the falls.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an important cause, and was well argued. The facts appear in a case stated in the nature of a special verdict, and the question is, whether the plaintiff be entitled to recover damages against the defendants, under the provisions of the act of the 8th of March, 1815, by which the defendants were incorporatéd? The defendants, by virtue of powers vested in them by that act, concerning which, there is no dispute, erected a dam across the river Schuylkill, by which the fish were prevented from running up, to the great injury, as the plaintiff alleges, of his fishery, appurtenant to his land, on the eastern bank óf the river, above the ebbing and flowing of the tide. The plaintiff claimed the exclusive right of fishery, opposite to his own land, to the middle of the river, or at least'the exclusive right of drawing a seine on his own land, and even under that restriction, he contends that his property has sustained an injury, for which he is entitled to compensation. In order to decide this question, it will be necessary to consider 1st, what the plain .iff’s right of fishery really was, and 2d, whether his property has sustained such an injury as was intended to be compensated by the act of assembly.

1. The plaintiff contends, that the'rivers of Pennsylvania are subject to the rule of the common law, that is, that all fresh water rivers, (by which is understood, rivers where the tide does, not ebb and flow, and which are therefore said to be not navigable,) belong to the owners of the soil adjacent; so that the owners of one side have, of common right, the property of the soil, and consequently the right of fishing* usque ad filum, medium aquae, and the owners of the other side, the right of soil and fishing, unto the filum aquae of their side ; and if a man is owner of the land on both sides, he is owner of the of the whole river, and hath a right of fishing according to the extent of his land in length. This is the law laid down in Harg. Law Tracts, 5, for which he cites good authority. The right of fishing, in England, is founded originally on the right of soil. The king has a right of property or ownership in the sea, and soil thereof, and in the arms and creeks of the sea; yet a subject may have such right by grant from the king, or by prescription which supposes a grant. (Harg. Law Tracts, 11, 17.) But the common law does not vest the right of soil or fishery, in the owners of land on the margin of navigable ‘ rivers, that is, rivers where the tide ebbs and flows. The great rivers of America are so different from those of England, that in the opinion of many, the same definition of a navigable river cannot properly be applied to both. Many of our rivers, such as the Mississippi, Ohio, Alleghany and Susquehanna, are navigable, even in their natural state by vessels of considerable burden, and whether if such rivers had existed in England', the rule of the common law might not have been different, may, certainly admit of question. As to the extension of that law to the American rivers, the judges of different states have held different opinions. Massachusetts, Connecticut, and New-York, seem to be for the common law, if we are to judge from the cases of The Boston, and Roxbury Mill Corporation v. Gardner and another, 2 Pick. Rep. 33, Adams v. Pease, 2 Conn. Rep. 481, The People v. Platt and others, 17 Johns. 195, and Hooker v. Cummins, 20 Johns. 90. On the contrary, Pennsylvania and South Caro-Una, think the rule of the common law inapplicable to their great rivers, as appears from the cases of Carson v. Blazer, 2 Binn. 475, and Cates v. Wadlington, 1 M'Cord's Rep. 580. Distinctions might be found between the cases decided in Massachusetts, Connecticut, and New York, and that now before us. But I am not disposed to enter minutely into these cases, or to combat the opinions of the learned judges of other states, since much depends on the customs which have prevailed, and the laws which have been enacted in each state. I consider it as settled in Pennsylvania, by the decision in Carson v. Blazer, that the owners of land on the banks of the Susquehanna and other principal rivers, have not án exclusive right to fish in the river immediately in front of their lands, but that the right to fisheries, in these rivers, is vested in the state, and open to all. It is unnecessary to enumerate at this time the rivers which may be called principal, .but that name may bo safely given to the Ohio, Monongahela, Youhiogeny, Alleghany, Susquehanna, and its north and west branches, Juniata, Schuylkill, Lehigh, and Delaware. There is one decisive reason against extending the common law to Pennsylvania, ánd that is, that the right of fishing in England flows from the right of soil. Now, with us, it never has been supposed, from the earliest times to the present moment, that the owners of land on the bank had the right of property in the soil, to the middle of the river in front of their land ; because, if they had, they would have a right to the islands also, contrary to universal opinion and practice. These islands have never been open to applicants under the common terms of office, éither under the proprietary or state government, but have always been sold on special contract, and for higher prices than common; whereas the lands on the banks of rivers have always been open to the public on the usual terms and at the usual prices. For a particular account of the manner in which islands have been granted, I refer to the case of Hunter v. Howard, 10 Serg. & Rawle, 243. Tt is worthy of observation, also, that the proprietaries of Pennsylvania, and after them the commonwealth, which succeeded to their estate, exercised the right of granting licenses to keep ferries over rivers. Acts of assembly granting these licenses, with respect to the Susquehanna, Monongahela, Youghiogeny, Ohio, Schuylkill, and Juniata, will be found in 2 Sm. L. 81, 89, 232, 243, 269, 412; 3 Sm. L. 270, 258; 4 Sm. L. 359, 484, 516. As for the soil over which our great rivers flow, it has never been granted to any one, either by -William Penn, or his successors, or the state government. Care seems to have been taken, from the beginning, to preserve the waters for public uses, both of fishery and navigation ; and the wisdom of that policy is now more striking than ever, from the great improvements in navigation already made and others in contemplation, to effect which it is often necessary to obstruct the flow of the water in some places, and in others to divert its course. It is true, that the state would have had a right to do these things, for the public benefit, even if' the rivers had been private property; but then compensation must have been made to the owners, the amount of which might have been sp enormous as to have frustrated, or at least checked these noble undertakings. When the case of Carson v. Blazer was first decided, some’persons apprehended scenes of confusion, from throwing open the right of fishery. But, on the contrary, peace and good order, to a degree unknown before, have been the consequences, and the decision has given general satisfaction.

The counsel on both sides have relied on several acts of assembly which have been made, respecting the navigation and fisheries of the Schuylkill. The material parts of these acts I will briefly notice. On the 14th of March, 1761, 1 Sm. L. 235, an act was passed, the object of which was, to render the Schuylkill navigable. For this purpose commissioners were appointed, and vested with extensive powers. They were authorized to erect dams, pens for water locks, or any other works whatever, which they might think most fit and convenient, to answer the purposes of improving the navigation, also to make towing-paths, &c. The same act prohibits the erection, by individuals, of any wears, racks, fishing-dams, pounds, or other devices, by which the fish may be obstructed in their passage up the river, — provided, that this shall not be tonstrued so as to affect the right before given to the commissioners, to erect dams, &c. Considering the whole of this act, it would seem, that the legislature supposed they had a right to injure the fisheries to what extent they pleased, for the purpose of improving the navigation of the river, without making compensation to the owners of lands contiguous to it, because it is evident that the construction of dams and locks was in contemplation, which must necessarily obstruct the passage of fish upwards. By the act of the 9th of March, 1771, 1 Sm. L. 314, it was enacted, that a seine should be drawn only once, in any one pool or fishing place, from twelve o’clock at noon of one day to the same hour of the next day, in order that the inhabitants in the upper part of the Schuylkill, might not be deprived of a reasonable proportion of fish. But every person might fish with a hoop-net. This general permission to fish with hoop-nets, negatives the exclusive right of those persons who owned the lands adjacent to the river. But the acts of the 9th of March, 1786, 2 Sm. L. 370, and the 11th of April, 1793, 3 Sm. L. 115, speak of the proprietors of fisheries, and the owners of fishing places or parts used as fisheries. And by these expressions, it was argued by the counsel for the plaintiff, the right to fisheries was recognized. The right to fisheries certainly was recognized, but it remains to be inquired what was meant by a fishery. And I apprehend that by a fishery, was understood the exclusive right which every owner of land on the margin of the river has, to use his own property for the purpose of drawing a seine, or practising any other device for the catching of fish. This exclusive right gave the proprietors of these lands such great advantages, that it was hardly worth while for any other persons to attempt to fish with seines. The right of property on the front of the river was valuable, therefore ; it was called a fishery, and some spots remarkably favoura-ble might be rented for considerable sums annually. Nevertheless, as the entire right to the soil and water of the river remained vested in the state, for the benefit of the public, the owners of the adjoining lands could not complain that their property was invaded, if, for the purpose of improving the.navigation (of infinitely more importance than fisheries,) such works were erected unuer sanction of law, as obstructed the passage of fish. But as the value of these lands would be lessened by the erection of such works, although the public, in strict justice, might not be bound to make compensation, yet it might perhaps be thought reasonable by the legislature to make it. The act of assembly under which the defendants erected the dam, which prevented the fish from passing up as high as the land of the plaintiff, has directed compensation to be made in certain cases, and whether the plaintiff can bring himself within either of these cases, is, I think, the only question in this cause. Let us examine this act, then, on which every thing depends, after premising, that there is no reason why the court should be inclined to depart from the common meaning of words, in order to introduce what is sometimes called a liberal construction in favour of one party or the other. The plaintiff may think it hard if his laqd should be deteriorated in value, without receiving compensation; and the defendants would surely have cause to complain of hardship, if after engaging in an enterprize of immense importance to the public, and great hazard to themselves, they should, by a forced construction, be involved in damages to an unknown amount, not contemplated when they accepted then-charter. In the 9th section of the act, (6 State Laws, 258,) authority is given to the defendants, “theiqsuperintendants, surveyors, engineers, artists, and workmen, to enter upon the said river Schuylkill, to open, enlarge, or deepen the same, in any part thereof which shall appear to them most convenient, for opening, changing, makihg anew, or improving the channel, and also to cut, break, remove, and take away all trees, rocks, stones, earth, ground, sand, or other material, or any obstruction or impediment whatever within the said river, and. to use all such timber, rocks, stones, gravel, earth, or other material in the construction of their necessary works, and to form, make, erect, and set up any dams, locks, or any other device whatsoever which they shall think most fit and convenient to make a complete slackwater navigation,” &cc. And by the 10th section, which bears most im- . mediately on the case, “ if any person or persons shall he injured by means of any dam or. dams being erected, as hereinafter mentioned, or the land of any person inundated by swelling of the water, in consequence of the erecting of any dam or dams, or any mill or other water works injured by swelling the water into any tail race of any mill or other water works, which may have been erected in said river, or any stream of water emptying into the same; and if the president, managers, and company cannot agree with the owner or owners thereof, on the compensation to be paid for such injury, the same proceedings shall be had as is directed in the 11th section of the act,” &c. The 11th section authorizes the defendants to enter upon find occupy all land which shall be necessary and suitable for erecting of any lock, sluice, or canal, and directs the manner of ascertaining the compensation for the damages, in case the parties cannot agree on it. The 13th section authorizes the defendants to enter upon any land contiguous and near to the river, and take and carry away any stone, ground, sand, or earth, making amends for any damages that may be done, and directing the manner of ascertaining the damages, if the parties cannot agree on the amount. These are the only parts of the act necessary to be taken into consideration. The expressions of the 10th section are remarkable, — “ if any person shall be injured by means of any dam being erected, as hereinafter mentioned.” One would suppose at first, that the words, as hereinafter men-tionedt referred to dams; but it appears that there is no mention afterwards of the erection of dams; the power 'to erect them having been previously given in the 9th section. So that, in strictness, the words as hereinafter mentioned have nothing to refer to, but the injury done by means of the dams. The different kinds of injury arising from dams are afterwards mentioned, and if this be the true construction, all injuries to fisheries are out of the question, because no mention is made of them. I should be loth, however, to rest my opinion on this law on such a criterion. I choose rather to collect the intention of the legislature from a more enlarged view of the subject. And, first, as different kinds of injury arising from dams, are specified, it is extraordinary that fisheries should not have been mentioned, if intended to be included ; because it could not have escaped the attention of the legislature, that all lands suitable for drawing a seine, would be rendered less valuable, when fish should cease to ascend the river. The next observation that arises, is, that all the injuries mentioned in the act, are those which are done to property immediately, — such as the inundation of land, the swelling of the water into the tail races of mills or other water works, the carrying of a canal or lock through a man’s land, or the taking away of ground, earth, stone, or other material. These are palpable and direct, so that there can be no dispute about the injury, though there may, as to the quantum. This is the line, then, which seems to have been marked by the legislature. Compensation shall be made for all damage arising from immediate injury to property, but not for any damage where there is no legal injury, which is called dam-num sine injuria. And, upon reflection, we shall find that this was a wise restriction. There would be no end to damages for injuries considered in the most extensive sense of the word. For .not only may the owners of land contiguous to the river, complain of injury by the obstruction to the ascent of fish, but also all other, persons living in towns or-lands near the river. All these persons feel the loss of fish. They either cannot get them at all, or must pay a higher price for them. All persons accustomed to fish with an ángle, or a hoop net, may truly say they are injured. There are other kinds of injury too, sustained, particularly by the owners of lands on the river, between the Fairmount dam and the Lower Falls. All these persons have lost the benefit of navigation free from toll, in batteaus, flats, &c. which was very useful, as it served for carrying produce to market, and bringing up manure for their lands. Yet it has not been contended that for such injuries compensation is to be made. Suppose the health of the country to be injured by the evaporation from the dams. Is compensation to be made for this, the greatest of all injuries ? I presume not. Where, then, are we to stop, or what is to be the boundary, if we go beyond the line which I have mentioned? I confess I should be at a loss to fix any other. The plaintiff retains .the complete ownership of his land, and the exclusive right of using it for the purpose of a fishery. There will still be fish, which remain all the year in the river, though the ascent of those from the sea is stopped. The value of his land is lessened, and that is bis misfortune. But it is lessened by an accidental circumstance.' No property has been taken from him. He had no property either in the fish, or the river. And he was bound to know the law, by which the river remained public property, and of course all emoluments from fisheries were precarious. Upon full consideration, it is the unanimous opinion of this court, our brother Gijjson included, who is now absent, that the plaintiff has suffered no injury intended to be compensated by the act of assembly, and therefore the judgment of the Court of Common Fleas should be affirmed.

Judgment affirmed,  