
    [Philadelphia,
    January 22,1836.]
    HART against HILL.
    IN ERROR.
    1. A will executed in 1748, contained the following clause: “I give and devise unto my cousin J.T., son of my brother T. T., my messuage or tenement and tract of land whore 1 dwell, bounded by the several courses along the line run to Darby creek; thence down the said creek to the river; thence by the river to the place of beginning.........to him and his heirs lawfully descending from his body, and in default of such heirs, to my right heirs for ever.” In a subsequent clause of the same will, was the following devise; “ I give and devise to D. S. my fishing place, to him and his heirs for ever; and likewise it is my will, that he shall have the help and use of my negroes, M. and H., one month in each year, in fishing time, till they respectively attain to thirty years of age.” Held, that D. S. did not acquire by this clause, any right in the soil on the bank of the river, but merely an easement, or so much use of the shore as was necessary for the purpose of the fishery.
    2. Trespass will lie by the owner of a fishery, for a direct interruption in the exercise of his right.
    This was a writ of error to the Court of Common Pleas of the county of Delaware, to remove the record in an action of trespass quare clausum fregit, brought to November Term, 1832, by Mary Hart, against Jacob Hill.
    The plaintiff was the owner and possessor of four lots of land, situate in Tinicum township, Delaware county, lying on the margin of the river Delaware, containing altogether about twenty-four acres, and one hundred and thirty-two perches. The title to these lots was acquired as follows:
    Christopher Taylor, by his will, dated the 8th day of December, 1748, proved the 24th of the same month, devised as follows : “I give and devise unto my cousin, John Taylor, son of my brother, Thomas Taylor, my' messuage or tenement and tract of land, where I dwell, bounded by the several courses along the line run to Darby creek; thence down the said creek to the river; thence by the river to the place of beginning; likewise, I give and devise to him, twenty acres of land, being woodland, to be laid out as conveniently as may be by Plum creek, to him and his heirs lawfully descending from his body, and in default of such heirs to the right heirs of me the said Christopher for ever.”
    In the Common Pleas of Chester county, of August Term, 1761, John Taylor suffered a common recovery, whereby he barred the entail in the premises devised as above.
    The four lots of the plaintiff were included in the said devise, and were but a small portion of the laud thereby given.
    John Taylor, the devisee, and Mary, his wife, by deed dated October 31, 1800, conveyed two of said lots to Benjamin Rue, by metes and bounds as follows, viz.: “ One of them being a piece of marsh meadow, situate at the. mouth of Darby creek, beginning at a stake in the bank next to the river Delaware, thence north two degrees east 33.3 perches to a stake at or in a drain; thence along said drain north 79 degrees west 16 perches to a stake in the bank next to Darby creek; thence along the same south 26| degrees west 17.2 perches to a stake; thence south 13 degrees east 25 perches to a post in the corner of the river bank; thence north 79 degrees east 17.1 perches to the place of beginning, containing three acres and a half more or less.”
    “ The other piece of land begins at a post by the river Delaware; thence along a fence dividing the land rented by Thomas Yernon and Benjamin Rue, north 9 degrees west 36 perches to a stake; thence south 81 degrees west 9 perches to a stake; thence south 9 degrees west 33 perches to the river Delaware; thence up the same to the place of beginning, containing two acres, be the same more or less.”
    Benjamin Rue, and Mary, his wife, by deed dated September 4th, 1804, conveyed by the same metes and bounds, the said two lots to John Shreeve, “together with a right and privilege of a sufficient cartway and passage along the foot of the bank, to and from the hereby granted meadow land.”
    The title to one of the other two lots was thus derived. John Taylor, by his deed dated September 28th, 1801, conveyed to Benjamin Rue for life, and after Lis death to Lewis Rue and Catharine Rue in fee — “ All that certain piece or parcel of upland and meadow ground, situate on Tinicum Island in Tinicum township, aforesaid, bounded and described as follows, to wit: beginning where Darby creek empties itself into the river Delaware; thence up the said river, according to the several courses thereof, about 81 perches; thence still up the said river south 59-^ degrees, east 66^- perches; thence north 9i|- degrees, east 25.9 perches; thence south 84J degrees, east 20.15 perches; thence north 4J degrees, east 103.8 perches to the bar post; thence north 68 degrees, west 23.1 perches to the spring head in the middle of the drain; thence along the drain north 38J degrees, west 15 perches; thence south 42 degrees, west 26 perches to the middle of another drain, thence along the middle of the drain north 55 degrees, west 134 perches to the middle of the bank; and thence the same course to Darby creek, and down the said creek the several courses thereof about 182 perches to the place of beginning, containing 52J acres of upland and 831-acres of meadow within bank, (excepting and always reserving out of this gift two certain pieces of land, one of marsh meadow at the mouth of Darby creek, containing three acres and a half more or less; and the other of upland, containing two acres more or less, which the said John Taylor, and Mary, his wife, by. indenture dated 31st of October, 1800, granted unto the said Benjamin Rue, ‘ in fee.)”
    Mannus Kain and others, being the surviving children of John Taylor, and Mary his wife, then both deceased, by their joint deed dated December 3d, 1804, confirmed the title in the last described premises, by the same metes and bounds (barring two omissions) to the said'Benjamin Rue, Lewis Rue, and Catharine Rue, as given by the deed of September 28, 1801, from John Taylor.
    Lewis Rue and wife, and Catharine Rue, by their deed dated the 7th of May, 1805, conveyed in fee to the said. Benjamin Rue, that part of the land previously conveyed to him for life, described and bounded as follows:
    “All that certain piece of upland marked in the said draft'(referring to the draft made by John Thompson,) No. 1, Benjamin Rue, situate on Tinicum Island aforesaid, part of the aforesaid 'upland and meadow ground, bounded and described as follows, to wit:— beginning at a stone on the bank of the river Delaware, at a corner of a piece of land of John Shreeve — thence extending by the same north 9 degrees, east 27.8 perches to a stone, south 82 degrees, east 9 perches to a stone, south 9J degrees, west 5.7 perches to a corner of land of the heirs of John Taylor, deceased; thence by the same south 84 degrees, east 20 perches to a corner; thence north 4j degrees, east 104 perches to a bar post; thence north 08 degrees, west about 18 perches to a corner; thence south 13 degrees, west 127.5 perches to a stone on the bank of the said river; thence up the same on the several courses thereof 7 perches to the place of beginning, containing 17 acres and 12 perches.”
    Benjamin Rue, and Mary his wife, by deed dated March 13th, 1806, conveyed amongst other real estate, the said seventeen acres and twelve perches, to David Rose, by the following metes and bounds: “ beginning at low water mark of the river Delaware, at the corner of a piece of land of John Shreeve, thence extending by the same and a ston<? on the bank of the said river north 9 degrees, east 27.8 perches from the said stone on the bank to a stone; thence south 82 degrees, east 9 perches to a stone; thence south 9J degrees, west 5.7 perches to a corner of land of the heirs of John' Taylor, deceased; thence by the same south 84 degrees, east 20 pei’ches to a corner; thence north 4J degrees, east 104 perches to a bar post; thence north 68 degrees, west about 18 perches to a corner of Lewis Rue’s land; thence by the same south 13 degrees, west 127.5 perches to a stone on the bank of the said river; thence on the same course to low water mark; thence up the same river on the several courses thereof 7 perches to the place of beginning, containing 17 acres and 12 perches.”
    David Rose, and Ann his wife, by deed dated March 12th, 1823, conveyed the said 17 acres and 12 perches, by the same metes and bounds to Joshua Shreeve, in fee.
    The remaining lot, containing two acres and forty perches, was conveyed by Christiana Rue to Jeremiah Reeder, by deed dated April 10th, 1808, in fee, and said Jeremiah Reeder, by deed dated May 20th, 1808, conveyed the same to John Shreeve by the following metes and bounds: — “ beginning at a stake or stone on the river Delaware, corner of the said John Shreeve’s other land; thence along a line of the same north 9J degrees, east 25.6 perches to a corner of land now or late of Benjamin Rue; thence in a line, of the same south 84 degrees, east 12.4 perches to a stone, corner of Edith Kain’s lot; thence in a line of the same south 5 degrees, west 32 perches to a stone standing on the bank of the river Delaware; and thence down the said river 15.8 perches to the place of beginning.” John Shreeve being thus the owner of'said four lots, by his will dated February 5th, 1824, proved May 11, 1826, devised the same to the use of his daughter, Mary Hart, the plaintiff
    Christopher Taylor, at the time of making his will, owned all the real estate bordering on the river Delaware, from Darby creek mouth, upwards, to the Lazaretto, a distance of about 1150 yards; and after an interval of half a mile, his possessions continued about one mile further.
    The plaintiff did not complain of any acts of trespass on the lot at the mouth of Darby creek. The trespasses complained of, consisted in the defendant’s coming with his fishermen on the other three lots, which lie contiguous, beginning on the shore at the distance of 753 yards above the mouth of Darby creek, and extending up the river 176 yards.
    About the year 1800, John Shreeve built a house known as the Lazaretto tavern, and a wharf on his lot about 80 yards above his lower line.
    The acts complained of by the plaintiff were not denied by the defendant, but were justified by him on the ground of a right, deduced also from the will .of said Christopher Taylor, in these words: “ I give and devise unto the said David Sanderlin my fishing place, to him and his heirs for ever; and likewise it is my will that he shall have the help and use of my negroes, Milford and Harry, one month* in each year in fishing time, till they respectively attain to thirty years of age.”
    The plaintiff’s counsel requested the court to charge
    1. That under the will of Christopher Taylor, given in evidence, dated 8th of December, 1748, John Taylor took an estate of-inheritance in the messuage, tenement, and tract of land, in which the testator then dwelt; and that such inheritance extended down to low water mark on the river Delaware.
    2. That bjr the devise in the same will to David Sanderlin, of a fishing place, &c., a fee simple to the said David Sanderlin, did not pass in the soil of the land, between high and low water mark, in the premises mentioned in the above devise to John Taylor.
    3. That by such devise to David Sanderlin, he took but an easement, or right to use the said shore for the purpose of fishing.
    4. That such easement extended only so far as the said fishing was used by Christopher Taylor, the testator.
    5. That the devise being merely of an easement; under the pleadings in this cause, no evidence of a right of fishery in the defendant, or those under whom he acts, to justify the acts complained of by the plaintiff, is properly before the jury.
    In answer to this request, the court charged the jury as follows:
    “ The three first propositions embrace one general inquiry, and the sentiments of the court may as well be expressed in answer to them altogether:—
    “ The construction of the words of a will generally belongs to the court, and the intention of the testator must be gathered from the will itself; but to understand its provisions properly, may sometimes require a practical application of the words of the subject matter — the state of facts as they existed at the time the will was made, and the other provisions of the same will: Thus, where one devises a plantation, bordering upon a navigable river, to A., the devisee would prima facie, and without further restriction, be entitled to hold down to the water edge at low water mark: but if in the same will he should give all the land between high and low water mark, or all his shore, or all his wharves, or all his mud flats to another in fee simple, it would be hazardous in reference to such a will to affirm that which in general would be true, viz.: that the boundary of A. would be the water’s edge at low water mark: so by the simple devise to John Taylor of an estate of inheritance of his plantation, bounded by the river Delaware, his boundary would extend to low water mark: but when in the same will a devise is made to David Sanderlin of “ his fishing place to him, his heirs and assigns for ever,” and when we consider the testator had no sort of dominion over any thing beyond low water mark, and that his “ fishing place,” if he had one, must necessarily be within that line, and a part of the land that would otherwise be included within John Taylor’s devise — it would be equally hazardous to say a fee simple did not pass to David Sanderlin, but merely an easement over the land of John Taylor. Christopher Taylor owning and occupying the land bounded by the river Delaware, like all other holders of land on our- principal rivers, had no exclusive privilege or right to fish below low water mark opposite to his banks: that right remained in the state, and unless restrained by its laws, was common to every citizen: he could neither grant nor devise any thing except within low water mark: Every devise should be intended for the benefit of the devisee; and we must ask ourselves what is meant by this devise of his fishing place in fee simple? It had nothing to act upon; and we think it could be nothing else, (for he had no more to give,) than the exclusive right, which every owner of land has on the shore or margin of the river, to use his own property,' for drawing seines and using other devices, by fixing capstans, &c. for catching fish: this is a valuable right and now-a-days' is a species of property producing considerable rents. It is a right which may be conveyed or devised in fee simple, or for any lesser estate. The land itself, the strip between high and low water mark, which is the chief if not the only land, used for these purposes, may be granted or devised away, so that the owner of the adjoining fast land may not interfere with nor interrupt it by building wharves, walls or banks, or establishing ferries or otherwise. '
    The testator devised to his cousin, David Sanderlin, his “ fishing place” in fee simple; and whether he meant the land on-which whatever he could devise, could be exercised, the land between high and low water mark; or only a right to be enjoyed upon and over the land devised to John Taylor, is the question; his meaning may have been the one or the other; but judging from the will itself and its provisions applied to the actual condition of the property; observing that the land given to John Taylor has no other boundary on this side than by the river, and in the same will giving to David Sanderlin a fishing place in fee simple, which could be situate, from the evidence, in no other place but on the shore between the land given to John Taylor and low water mark, the court are of opinion that the devise to David Sanderlin gave him an estate in fee simple to the space between high and low water mark, from the mouth of Darby creek, as high up the river as the evidence shall satisfy the jury the upper end of the fishing place extended; and thus passed an exclusive right to it, so that no one could build or encroach upon it, and thereby obstruct the right of Sanderlin and those claiming under him, in the fishing place in question. This also, from the evidence, seems to have been the understanding and construction adopted by John Taylor and those claiming under him in former times: For all the title deeds and drafts given in evidence, prior to the deed of Benjamin Rue and wife, to David Rose, dated 13th March, 1806, call for stones, posts, or land-marks by, at, or on the bank of the river; and the deed just referred to, is the first one which ventures to pass by those land-marks, on the bank, and extend out to low water-mark, although there is evidence of the carters using that strip, as a fishery, many years before.
    4th and 5th. The two last propositions are immaterial, according to the preceding views of the court, and cannot be answered in the affirmative.
    The length of the fishing place from the mouth of Darby creek upwards, or what is its upper boundary, is a subject for the inquiry of the jury upon the evidence.”
    
      The plaintiff’s counsel excepted to this charge; and upon the removal of the record to this court, assigned several errors; of which the only one insisted upon, was in the construction of the will.
    Mr. Dick, for the plaintiff in error:
    The main question is, did Sanderlin by the will of Christopher Taylor acquire a title to the soil on the bank of the river, or a mere easement. The will gave John Taylor, a tract of land running “ to Darby creek; thence down the creek to the river, and thence by the river to the place of beginning.” Now, it can be shown by the cases, that the ownership of land on tide water, extends to low water mark. [Gibson, C. J. You need not cite authorities for that position, it is well settled.] Our title then, being in the first instance complete, the devise to Sanderlin ought to be so construed as not to conflict with it. If the charge of the court below was right, the benefit to Taylor, whom the testator evidently regarded with favour, will be comparatively small; and the testator will be made to appear extremely inconsistent in the several clauses; whereas the construction contended for, on the part of the plaintiff in error, is in accordance with an established maxim of law, in regard to all instruments, of giving every part a reasonable and consistent meaning. Swinburne, 553. The words “ fishing place” do not, either in common or technical language imply any right in the soil. We contend that they are synonymous with “ fishery” or “ fishing pool.” In Shrunk v. The Schuylkill Navigation Company, (14 Serg. Sf R. 81) C. J. Tilghman, cites the act of 9th March, 1786, (2 Sm. L. 370,) and 11th April, 1793, (3 Sm. L. 115,) as spealiing of “the proprietors of fisheries, and the owners of fishing places or parts used as fisheries.” The act of 9th March, 1771, sec. 2. (1 Sm. L. 315,) defines “ what is to be deemed and held to be a pool or fishing place.” So in the act of 16th March, 1807, (4 Sm. L. 380,) fishing place and pool are used as convertible terms. The will in question was made in 1748; and the general opinion then was, that every one had an exclusive right of fishing opposite his own shore. This idea was not overthrown until the decision of Carson v. Blazer, in 1807, (2 Binn. 486,) and that was by a bare majority of the court. [Rogers, J. In that case, the question was as to the right of fishing in the Susquehanna, where the tide did not ebb and flow; but was such an opinion ever entertained in respect to the Delaware ?] William Penn, in his concessions, when he declared that “ all rivers” should be “ loholly enjoyed by the purchasers into whose lot they may fall,” made no distinction between rivers which are navigable, and those which are not. If we suppose the right given by this will to Sanderlin, to be the same as that which, according to C. J. Tilghman, in Shrunk v. The Schuylkill Navigation Company, was common on the Schuylkill and other rivers, viz. an “ exclusive right to use the margin of the river for the purpose of drawing a seine or practising any other device for the catching of fish,” but not a fee simple in the land; then all parts of the will may be made to harmonize. [Huston, J. There are several acts of Assembly which recognise this kind of right in respect to the Delaware. The act of 8th February, 1804, (4 Sm. L. 119,) for example, applies to the Delaware, the definition of “ pool or fishing place,” which the act of 1771 had enacted in reference to the Schuylkill.]
    
    Mr. Tilghman, on the same side,
    cited, 3 Kent’s Comm. 329; Seymour v. Lord Courtenay, (5 Burr. 2814;) that a several fishery in England may exist, independently of the right to the soil.
    Mr. Bell and Mr. Edwards for the defendant in error.
    The will shows that the testator entertained as much regard for his “ cousin David Sanderlin,” as for John Taylor. We contend that his intention was to give him his whole interest and property in the fishing station or place, along the bank of the river. The terms of the gift, “ to him and his heirs for ever,” in the first place, furnish evidence of this intention. He would not so have granted a mere easement. It never was supposed that the owner of the land upon a navigable river had any right below low water mark. In 1748, the term fishery was understood to mean some right in the soil adjacent to the river. The deeds of the parties under whom the plaintiff claimed, show that they so understood it, since they are bounded by “ stakes and stones on the bank of the river.” [Kennedy, J. This is universal in the country. Surveyors never go into the water for the purpose.] [Huston, J. It has often been decided that the owners of land hold to low water mark, notwithstanding such boundaries.] Then as to the question of the original right. In England, some jurists have been of the opinion, that by the grant of a several fishery, the soil passes. We contend that by a grant of “ a fishing place,” the right to the soil passes, unless it has been expressly reserved by the grantor. 3 Kent’s Com. 410. 2 Black. Com. 39, 40. Hargrave’s Coke Litt. note, 181. Thomas’ Co. Litt. 233, [199.] Plowden, 154, citing 40 Edio. III. 2 Salkeld, 637. F. JV. B. 188. Angel on Water courses, 10, 13, &c. The following acts of Assembly, were also cited; act of 23d February, 1809, (5 Sm. L. 5;) and the act of New Jersey, adopted by it: act of 23d March, 1819, (7 Sm. L. 194;) act of 27th March, 1820, (7 Sm. L. 295.)
    Mr. Tilghman, in reply, was stopped by the court; whose opinion was delivered by
   Huston, J.

This case brings into the consideration of the court, a species of property, relating to which, we have not many decisions. Fisheries for shad and herring have, however, existed from a very early period; and though we have no act of Assembly expressly creating the right, yet we have acts regulating, and in some respects, restraining it, of an early date. All those acts relating to fisheries, seem to apply to fisheries for taking shad; or in the Delaware, perhaps, shad and herring. Ip fact, 1 do not know that the term fishery, either in any act of Assembly, or in common parlance in this state, is applied to any thing else than to a place where a seine or net is drawn, to take shad or herring; or to a right to fish with a net or seine in a particular part of a river, to take those fish; though, perhaps, those who have the exclusive right to a certain fishery, to take those fish, may also have the same kind of right to fish in the same place at all seasons, with a net, for any kind of fish; but I have not heard of any contest as to this matter. The right in question, arises under a will dated in 1748, and in 1752 was recognised in the Orphans’ Court, on a petition to divide the real estate of Sanderlin, the devisee; a well known kind of right, which being incapable of division, was allotted to one of five heirs, in fee, subject to a payment of an annual sum to each of the others; and by conveyance or descent, became again the sole property of the plaintiff.

Instead of going into the black letter books, to learn what was a fishery, and a free fishery, and a several fishery, I shall first examine our own acts of Assembly, and see what they have considered it and regulated it; for those regulations may show and may determine its nature; and if so, I am disposed to regard them, even though differing from old opinions in old feudal times. Many acts on many subjects were passed and in force for a time, which being re-enacted in a larger and fuller form, the prior acts became obsolete, and, are not easily found, and in some instances not worth looking for. That fisheries were important in early times, is among other things proved by an act in 1761, (1 Smith’s Laws, 231,) which in its preamble recites that large quantities of fry or brood of fish, and young fish are destroyed by dams, wiers, baskets, &c. &c. in the Delaware, Schuylkill, and Susquehanna, whereby the great quantities-of fish which were formerly to be taken in said rivers, are greatly diminished ; and then prescribes severe penalties against such as violate its provisions.

In 1771, (1 Sm. L. 314,) we find an act to regulate the fishery in the river Schuylkill. The first section relates to the practice which had grown up, of drawing several seines or nets in the same pool or fishing place, and prohibits it. The second section defines a pool; “ so much of said river as extends from one side or bank, to the other side or bank thereof; and from the place where seines or nets have been usually thrown in, to the place where they have been usuálly taken out, shall be deemed and held, and is hereby declared to be, a pool or fishing place.” It is hardly necessary to remark, that it is so much of the river, &c. which is the fishing place, and not so much of the lank, as was contended in this case.

So far nothing is said about the owner; but in the third section it is provided, that when two or more persons residing opposite to each other, near the said river, on different sides thereof, may have suitable landing places on their respective shores, or on an island opposite thereto, for taking seines or nets out of the pool or fishing place; it shall be lawful for such persons to fish with their seines or nets alternately, and not otherwise; and the act then proceeds to define how this shall be done. This clearly points to the persons who have a suitable landing place on the shore, or on an island, as those who have a right to fish. This act was to be in force five years, and was continued in 1776; and in 1785, (2 Sm. L. 308,) a more full and particular act is found. The 4th and 5th sections are transcripts of the 1st and 2d above. The 6th section provides that “ where two or more persons hold or occupy lands on the same side of the river, adjoining to any pool or fishing place, nothing herein contained shall be construed to prevent or deprive any such person's from enjoying th e privilege of fishing in that part of the river, directly opposite their own land respectively, as a separate pool ox fishing place; the position of which pool is to be by continuing the course of the division line or lines of the persons next adjacent; and every such division to be subject to the same rules and regulations as 'other pools and fishing places are by this act subject.” This act contains several other provisions; and fixes periods at which they shall cease to fish for shad below the Falls, and ’other places. In this act we find the phrase fishing for shad, first mentioned; and a day of the year when they shall cease to fish for shad.

Here, also, we first find the words “ privilege of fishing in that part of the river, directly opposite their own land respectively, as a separate pool or fishing place,” and not as giving that right, but “ nothing in this act shall prevent or deprive any person of that privilege;” recognising such rights as then existing, and declaring that it was not meant to impair it. Many other acts were passed for preserving the fish and regulating fisheries in the Schuylkill. The precise nature and extent of the rights of Pennsylvania and New Jersey over the river Delaware, were not settled until 1783; and probably for this reason, we find no act regulating fisheries in the Delaware prior to that period; though the first act cited, was to preserve the fish in that and other rivers, and the preamble stated that they were not caught in such quantities as formerly.

In (4 Dali. Acts of Assembly, 143,) we find the agreement between the commissioners of the two states, dated 26th April, 1783, ratified 20th September, 1783.

The first section of that instrument is thus — “ It is declared that the river Delaware, from the station point, or north-west corner of New Jersey, northerly; to the place on the said river where the insular boundary of the state of Delaware toucheth the same, in the whole length or breadth thereof, is, and shall continue to be and remain a common highway, equally free and open to the use, benefit, and advantage of the said contracting parties. Provided nevertheless, that each of the legislatures of the said states shall hold and exercise the right of regulating and guarding the fisheries on the said river Delaware, annexed to their respective shores, in such manner that the said fisheries may not be unnecessarily interrupted, during the season of catching shad, by vessels riding at anchor on the-fishing ground, or by persons fishing under a claim of a common right on said river.”

On the 30th of March, 1784, (1 Dall. Acts, 195,) we find an act to regulate fisheries in the rivers Delaware and Lehigh. The 2d section prevents, under a penalty, more than one seine being drawn in the same pool. The 3d section enacts, that “ within so much of the river Delaware as extends from the north-west corner of New Jersey, to the place on said river, where the insular boundary oí said river touches the same, and within all the islands belonging to this state, from the place where a seine has been usually or shall be usually thrown in, to the place' where it has usually been, or shall be usually taken,out, shall be, and hereby is declared to be, a pool or fishing placeand also contains many other regulations of the right of fishing.

On the 7th of April, 1786, (1 Dall. Acts, 446,) we have a supplement to this act, allowing to fish with two seines in one pool from the Falls at Trenton, to the line of Delaware state, and limiting the periods of fishing.

On the 6th of March, 1793, (3 Sm. L. 93,) was passed, an act for the sale of islands in the Delaware, Susquehanna, and other navigable streams. They were to be appraised, in order to ascertain their value, having regard to the wood, distance from the main land, and to the advantages which may be derived from the same in regard to fisheries.

In 1804, (4 Sm. L. 118,) we find another law, re-enacting and modifying the provisions of the act of 1784; it again describes a pool or fishing place; and in the 4th section directs that “ wherever any fishery is occupied upon the river Delaware, within the limits aforesaid, (that is, as far as it has been declared a highway) either the land-holder, tenant in possession, or some respectable person appointed by the fishing company, shall give bond to satisfy and pay any fines, for disobeying the provisions of the law at his or their respective fishery; and also file with the prothonotary a description of his or their fishing place, and of the township in which it is situated.” In this act we find, as before, in the agreement with New Jersey, the word fishery used; it also supposes a fishery may be owned by a fishing company; and the owner or occupier of the shore, or some person for that company, must give bond to the prothonotary. This act .proposes a joint law with Jersey.

On the 26th November, 1808, such an act was passed in Jersey; and on the 23d of February, 1809, (5 Sm. L. 5, and following pages) it is recited and re-enacted in this state. This act contains the substance of all the former acts, and some additions in direction and penalties, and in section 10 provides, “That if any person or persons whatever shall cast or lay out any seine or net into the river Delaware, within the jurisdiction of this state, beyond the right angle of the shore and where his line strikes the river at low water mark going out, or suffer it to swing beyond the right angle of the shore of the river, and where his line strikes it at the water mark coming in, (except by unavoidable accident) every such person shall forfeit and pay, on being legally convicted thereof, the sum of twenty-five dollars for each offence, and costs to be paid to the person, against whose land such offence shall be committed;” and after reciting that part of the agreement between the two states, before copied, it proceeds in the 11th section to provide, “ That if any ship, vessel, or raft shall, during the season of catching shad in the Delaware, come to anchor at the same on any fishing ground, where shad are usually taken, and shall not immediately be removed from the said fishing ground, if such removal can be done with safety, on application for that purpose by the owner of occupier of said fishery, to the captain, pilot, or person having command of the said ship, vessel, or raft; or if any such vessel or raft be wilfully run on shore on any such fishing ground, then such captain, pilot, or person having the command as aforesaid, shall forfeit and pay sixty dollars to be recovered with costs by the said owner or occupier.

In the seventh volume of Pennsylvania Laws, 295, 296,- we find another law of New Jersey, re-enacted in this state, defining and limiting the right ,of fishing on islands and sand bars in the Delaware, to be within lines drawn from the upper and lower points of said island, at right angles, to a base line from the upper to the lower point of said island; and permitting the net tó swing below the lower line only, where there is no fishery below and adjoining.

■ Before proceeding to draw conclusions as to the nature and extent of the right of fishing with a seine in the Delaware, it will be proper to notice two cases in our own reports; (Carson v. Blazer, and Shrunk v. The Schuylkill Navigation Company,) and it will strike every one that there are several laws, and different provisions in those laws, as regards different rivers. When Carson v. Blazer, was tried before the Circuit Court, no law to regulate fisheries in the Susquehanna had been enacted. Several will be found since; the provisions in which have made the law in that river very different from the positions decided in that case; and evidently, the enactments to the Schuylkill and Delaware were not considered as applicable to that case, for they were not adverted to.

The case of Shrunk v. The Schuylkill Navigation Company, decided a matter totally different from the point trying in the case before us. When the Delaware was declared a navigable stream and public highway, from the southern to the northern line of the state, such declaration gave certain rights and privileges to all persons passing in ships, boats, or rafts; and left in the state the power to regulate such navigation, and to improve such navigation in any way, which should seem to the government of the state, to be for the interest of the state. Several laws had been enacted, forbidding, under severe penalties, a.ny individuals from erecting dams, wiers, &c. within the bed of the Schuylkill, which would injure the navigation or the passage of fish. At length a law was passed to improve the navigation, and to render the water of that stream of general and permanent utility; but this was alleged as an injury to Shrunk’s fishery. The decision was that the state had, though no unauthorized individual had, a right to improve the navigation and render it a public advantage and benefit, even though some of the privileges and conveniences of those on its banks were impaired. The present is a different question; it is one between two citizens, in which the primary object, free navigation by all, or what the state may do, to improve that navigation, is not in question.

The right of one person to draw a seine in a particular part of the Delaware, is not inconsistent with the right which every person has to navigate his vessel in the same part of the river, in the course of his business. I shall not go farther back than is necessary to ascertain the origin or nature of a right of fishing in the Delaware, and confine my remarks to a fishery in that river. This case shows that the people and the courts, recognised, without dispute, a right of fishery in 1745 and 1752; we may say it was well known a century back. The act of 1761 states, that owing to the destruction of young shad in fish baskets, &c. the quantity was greatly less than had been taken in former times.

All the laws regulating fisheries in the Delaware, as well as the agreement between Pennsylvania and'New Jersey, before cited, are predicated of the idea of separate fisheries existing; and the agreement expressly stipulates, that the states shall hold and exercise the right of regulating the fisheries in the river Delaware, annexed to their respective shores, in such manner that the fisheries shall not be unnecessarily interrupted during the season of catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under a claim of common right in said river. It is not easy to see how, after this solemn treaty between these two states, any person can allege that each fishery was not a separate fishery, and that any person had, or could have, a right to fish, under a claim of common right. Neither state could grant such common right to fish in any and every part of that river; neither where the tide flowed or did not flow. But if this was not explicit enough, the act passed by both states in 1808-9, removes all possibility of doubt. It expressly prohibits every person from throwing out a net above, or drawing it in, or even letting it swing below his own line on land. Fisheries, then, existed long ago; by grant or sufferance, I care not which. The state had a right to regulate fisheries, and has regulated them and bound itself by treaty to regulate'them, and has complied with the treaty. No man can be interrupted in his fishery opposite his own land, with impunity; and he who does interrupt such fishery, is tried, convicted, and sentenced to pay a fine, and forfeits his seine or net. But further, this act recognises, that a fishery may belong to the owner of the shore opposite to it, or to some other person, or to a company, who are, by a respectable person, to give bond to conform to the law, and to pay all penal ties if they violate it. The plaintiff has shown such right of fishery; but still matters were disputed at the trial of the cause, and here also. And first, a fishery is- in the river, and is not the space between high and low water mark, though the use of that space may be necessary in the use of it, and may be included in the term fishery. The men employed in carrying the rope attached to one end of the seine, may walk on the space between high and low water mark; and on the same space may place logs, or boards, or stone, to make what is called a pound, into which to throw the fish when taken out of the net, and on that space do all that has been usual and is necessary to the use of a fishery; but the right to a fishery does not of itself imply a fee simple in such space, between high and low water opposite the fishery; nor does it lessen or impair the right of the owner of the land opposite, except so far as is necessary to the use of the privilege of the fishery. • The right of the owner of land opposite and adjoining a navigable river, down to the water’s edge, has been too often and solemnly decided to be questioned; though this right is not in all respects the same as to the main land abo.ve the bank; for in high tide, or high floods, a vessel or raft may sail over it, or fasten to the shore in a storm, or any case of necessity; but the owner has the right and sole right to quarry stones or take gravel above low water mark, and the sole right to use it and the river opposite as a fishery, unless the right of fishery has been separated from the land; in which case, the right of fishery gives the use of it so far as is necessary, and has been used in the fishery, and no farther. The owner of the land may still, even in the fishing season, drive his cattle over it to water, or do any other act which does not injure or impede the use of the fishery. But he must not, even out of fishery season, do any act which will injure or destroy the fishery. “ When,” the court say, “the devise to David Sanderlin, is of the fishing place, to him, his heirs and assigns for ever; when we consider that the testator had no sort of dominion over anything beyond low water mark, and that his fishing place, if he had one, must necessarily be. within that line, and a part of the land that would otherwise be included within John Taylor’s devise, it would be hazardous to say a fee simple did not pass to David Sanderlin, but merely an easement over the land of John Taylor. Christopher Taylor, owning and occupying land bounded bf the river Delaware, like all other owners.of land on.our principal rivers, had no exclusive privilege or right to' fish below low water mark opposite to his bank: that right remained in the state, and unless restrained by its laws, was common to every person in the state; he could neither grant nor devise any thing except within low water mark,” &c. We think this was said without a due examination of the treaty with New Jersey, and the acts of Assembly cited. A pool, or fishing place — a fishery is in the river; rafts, boats, or vessels, are not to cast anchor in it; the seine or net is cast out in the river; it is drawn through the river; it swings in the river; and the owner of the shore has the right, and sole right, unless he has parted with. it, to fish with nets opposite his land; the owner below cannot come a foot above the right angle from dividing point; the owner above cannot even let his net swing below the line from the dividing point, and no person can come there and fish under a claim of common right. Originally, it was a privilege, or franchise appurtenant to the shore; but may be leased, sold, or devised to a person not owning the land on the shore ; and such lessee, devisee, or purchaser, has no other right to the adjacent land than is necessary to the full use of the fishery. The fee simple, and all other rights not inconsistent with the use of fishery, may remain in- the owner of the land adjoining the river, opposite to the fishery.

Clearly, for a direct interruption while actually fishing, trespass may lie; there may be acts injurious to the fishery, for which cafe may be the proper remedy. ' The case, as exhibited to us, does not show what was done by the defendant, what acts are complained of, and we can only say that for a direct interruption, trespass is a proper action.

Let it be distinctly understood that this opinion relates only to the right of citizens, to. interfere with a fishery. What right the state of Pennsylvania and New Jersey jointly have to change the channel of the river; to build dams in it; to draw off its waters, &c., _&c., even though this should affect fisheries, I have said nothing about.

Judgment reverséd, and a venire de novo awarded.  