
    Freary & Al. versus Cooke.
    Trespass for breaking and entering the plaintiff’s several fishery in Connecticut River, and taking thereout 300 shad and 50 salmon. This action came on to be tried in this county at September term, 1770, when a special verdict was found, in substance as follows, viz.: That Connecticut River is a certain ancient, navigable river; that there is an ancient custom among the inhabitants on said river, that when any one of them cleared a place for seine-fishing, he held it against every body during the fishing season ; and that, in the year 1767, the plaintiffs entered and cleared the place where the alleged trespass was committed, in front of the defendant’s upland, and prepared it for a seine-fishery; and had used it ever since at proper seasons. It was further found, that the defendant, at the time when, &c., took the fish specified, &c. And if on the whole matter, &c.
    This special verdict was first argued at Springfield. September term, 1773, before Oliver, C. J., Trowbridge, Hutchinson, Ropes, and Cushing, justices ; and was continued from term to term for advisement, until the dissolution of the provincial government; and after the reorganization of the judiciary, was argued again before this Court.
    The following is a condensed sketch of these arguments: —
    
      Hawley and Strong, for the plaintiffs,
    argued that their * claim, arising from this special verdict, was of an exclusive right of fishing; that the plaintiffs had such an estate as the grantee has, from one who grants the right of fishing only, and retains the soil.
    They considered, — 1. 'Whether the special verdict did not support the proposition, that the plaintiffs possessed a several fishery, and its incidents ; if not, 2. Whether the custom found did not entitle them to judgment on this verdict.
    In Co. Lit. 4, b, it is laid down that a grant of aquam suarn passes a several fishery. This is, in fact, what the verdict finds the plaintiffs to possess. ■ Can such a right exist, to exclude the owner of the soil ? In order to determine this, the nature of a several fishery ought to be examined.
    There is some confusion in the different cases reported, happening, probably, from not distinguishing between a common of fishery, free and several fishery. The difference between them, however, is well explained in 2 Black. Com. 39, 40, where it is stated that a free 'fishery is an exclusive right of fishing in a public river, and derived by a grant from the crown; a several fishery is also an exclusive right, but derived from the owner of the soil; and a common of fishery differs from the others in not being exclusive. This definition is, indeed, at variance with Coke’s Comment., (Co. Lit. 122, a,) where he asserts a free fishery and a common of fishery to be the same, and quotes 2 Rol. Abr. 267, in support of his opinion. But in Fitz. N. B. 200, there is to be found a writ of trespass in a free fishery, which would not lie for a common of fishery ; there being in that case no special property in the fish until they are caught — Vide Smith vs. Kemp, 2 Salk. 267. — 1 Lev. 253. — 2 Lev. 2. — It therefore may be inferred, that a free fishery and a several fishery are one and the same, in the particular of being exclusive rights.
    By the charter of Will. 8f Mar. the property of the river is vested in the inhabitants of the province; and this the Court are bound to take notice of, without being found by the jury; and. the inhabitants having modified this property by the custom stated in the verdict, “ that when any one cleared a place for fishing, he held it against every body,” the Court must recognize the plaintiffs’ right to a several or free fishery, and * affirm the verdict, which, in fact, finds that they have such an estate.
    If the Court, however, should be of opinion that this right cannot be supported by these authorities, to exclude the owner of the soil, the custom found will be sufficient to maintain the verdict. This leads to the second head of inquiry proposed in this case.
    The custom stated has the essential of a good one, in a reasonable commencement. It is founded on the best of all titles, “ labor and expense; ” inasmuch as the verdict finds, “ that the plaintiffs entered and cleared the place for seine-fishing.” — 2 Black. Comm. 6, 7. — It possesses another essential feature of a good custom, “ that it lias been continued ever since at proper seasons.” And in such cases, although it be contrary to common law, or against the interest of an individual, yet it shall be valid.— Co. Lit. 110.
    
      Putnam and Worthington, for the defendant,
    moved two questions to the Court,— 1. Whether the plaintiffs, by the verdict, have a several fishery; 2. Whether the custom is good.
    
      As to the first question, it was insisted there could be no doubt that this was not a several fishery; for by me verdict it appeared that the plaintiffs were not the owners of the soil. According to 2 Black. Comm. 39, 261, and Salk. 637, he that has a several fishery has the soil. It is a prerogative of the crown, vested in the owner of the water. And, by the authorities cited, it is evident that the proprietors of both sides of the river shall have the soil to the middle, when it dries up. This is certainly incompatible with the doctrine attempted to be supported for the plaintiffs ; and therefore they cannot have a several fishery.
    
    There is a manifest distinction between a free fishery and a several fishery. The former is a royal franchise; and it is certain, from 2 Black. Comm. 417, that none can have been granted since the reign of Hen. II. It is against common right, that fishing in public navigable rivers should belong to the crown or any indi vidual.
    To support the verdict by the custom is impossible. It militates with the charter which gives the right of fishing to the inhabitants of the province generally; and therefore the * custom could not have a reasonable commencement. It is an uncertain custom ; it savors of arbitrary power ; and is in derogation of the rights of the subject; and therefore void. Vide 1 Wils. 64, Wilkes vs. Broadbent. — 2 Strange, 1224. — Cro. Jac. 357.
   Judgment was finally given, at this term, for the defendant The Court, in deciding the case, did not enter into the arguments relative to the question, whether it was a free or several fishery ; but considered the custom absolutely void, from its uncertainty and unreasonableness.  