
    Moses Coolidge versus Amasa Williams.
    Towns adjoining on, or extending across, a navigable river, may own the soil oi the flats, or even of the channel, if a grant has been obtained of the government; but the property in the fish, and also in the tide waters, is in the public.
    But by the common law here, towns may appropriate the fish, if not appropriated by the legislature; yet for taking the fish no one can lawfully go on the soil of another without leave. If no appropriation be made of the fish, any citizen may take them, so that he does not trespass upon the land of others. Where two towns adjoin a river, the citizens of each may take the fish swimming in the tide waters.
    Private statutes, made for the benefit of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others; unless such construction result from express words, or from necessary implications.
    This was an action of the case brought in Middlesex, pursuant to the private statute of 1797, c. 75, to recover treble the value of certain shad and alewives, alleged to have been taken by tile de fendant within the limits of Watertown.
    
    
      The statute gives a power to the inhabitants of Watertown, Weston, and Waltham, to regulate, by their agents, the times, [ * 141 ] * places, and manner of taking those fish, within the limits of the said towns, and to sell the right of taking them. The third section enacts that “ If any person, other than those to whom the said right shall be sold as aforesaid, shall take any fish, of the description aforesaid, such persons so offending shall forfeit and pay treble the value of such fish so taken, to be recovered in an action on the case, to the use of any person who may sue for the same.
    Upon not guilty pleaded, the action was tried at Cambridge, October term, 1806, before the Chief Justice, and a verdict found for the plaintiff by consent of the parties, subject to the opinion of the Court upon the following facts, viz.: —
    
      “ That the defendant caught, with a seine, shad and alewives to the value of the sum mentioned in the verdict, in Charles River, within the times mentioned in the plaintiff’s declaration ; that the place in said river, where the said fish were caught, lies where the said town of Watertoivn is on the north shore, and the town of Cambridge on the south shore ; that the defendant put the said seine into the said river on the Cambridge side, and extended it across the river over the flats on the Watertown side, and then drew the seine on shore on the Cambridge side, with the said fish in it; that one witness testified that it was reputed that the limits of Watertown, at the said place, extended into the said river towards said Cambridge, to the middle point between high-water mark on each shore; that the deepest water was on the side of the channel nearest the said Watertoivn shore, where the greater part of the fish swim ; that farther up the river, over against the said Watertown shore, lies Newton, adjoining on the said river, or on the channel thereof; that still farther up said river, Watertown lies on both sides thereof, and extends across it, in which place is a fishery for shad and alewives, commonly called the Watertown fisheryand in no other place, but the last mentioned, have the inhabitants of Water-town been accustomed to carry on the shad and alewife fishery; that higher up the said river, where the tide does not flow, lies the said town of Waltham, on each side thereof, and extending across the same, where is carried on the Waltham [ *142 ] * fishery; that still higher up is the said town of Weston, on both sides of, and extending across the same, but the said town has no fishery within its limits; that the place where the said fish were caught, as aforesaid, is the most convenient place, in said town of Cambridge, for carrying on the shad and ale-wive fishery; that the seine fishery cannot be conveniently carried on in the same river, unless the seine be carried across the said river; and that the inhabitants of Cambridge have been accustomed to carry on the shad and alewive fishery at the place where the said Williams caught them, it being a convenient place for that purpose.”
    “If, upon these facts, the Court shall be of opinion that the verdict ought to have been found for the plaintiff", judgment shall be rendered accordingly; but if otherwise, the said verdict shall be set aside, and a verdict shall be entered for the defendant, and judg ment be rendered accordingly.
    
      Tyler Bigelow, for the plaintiff.
    
      Samuel P. P. Fay, for the defendant.”
    The action stood continued until the last October term at Cambridge, when it was briefly spoken to by the counsel, who signed the foregoing statement of facts.
    
      Bigelow, Jun.,
    relied on the express words of the statute giving the penalty, as above cited, for the support of the action.
    
      Fay, Jun., for the defendant.
    At common law, the fishery of every navigable river belongs to the king, for the benefit of his subjects generally, and every man may fish therein of common right, although it flow over the soil of another. 
    
    By statute of the colony of Massachusetts Bay, passed in 1641, it is ordered, decreed, and declared, that every inhabitant, who is a householder, shall have free fishing in any rivers so far as the sea ebbs and flows, within the precincts of the town where they dwell, unless the freemen of the same town, or the General Court, have otherwise appropriated them. 
    
    *The soil of all navigable rivers belongs to the pub- [* 143 ] lie, and not to the owner of the adjacent lands. 
    
    "As to the words of the statute which were relied upon by the plaintiff, it was said that this statute was highly penal; and it is a rule of law that a penal statute must receive a strict construction. Every statute must be so construed that no man who is innocent, be punished or endamaged ; and no statute shall be construed so as to be inconvenient or against reason. 
    
    The statute in this case inflicts the penalty demanded on such as shall take fish otherwise than is therein authorized, “ within the toivns aforesaid,” viz., Watertown, Weston, and Waltham. Now, to bring this fact within these words, it should appear that the whole offence was committed within those towns, or some, or one of them. But the case expressly finds that these fish were drawn on shore in Cambridge. The case finds also that in another part of the river, where it adjoins Watertown on each side, is the Watertown fishery, which this statute was undoubtedly intended to protect, and which alone it does protect. If the inhabitants of Cambridge have a right, at common law, to take fish in the river adjoining their town, they must be considered to have, with such right, every thing necessary to its enjoyment. But if they cannot stretch their seines across the river, they lose completely all benefit to be derived from the right so secured to them.
    In the case of Simpson vs. Scales, 
       which was upon the construction of an act of parliament, the Court say they must regard the intention and object of the legislature in making the law ; and Chambre, J., well observes that “ conclusions from acts of parliament against the rights either of the public or of individuals ought not to be enforced by too strict an adherence to the letter.”
    
      
       2 Rol. Abr. 170, l. 20. — Davis’s Rep. 56, 149 — 1 Mod. Rep. 105. — Warren vs. Matthews, 6 Mod. Rep. 73. — Com. Dig. Prœrogative, D. 50. — Carter & Al. vs. Murcot & Al., 4 Burr. 2162.
    
    
      
       2 Mass. Gen. Statutes, 966.
    
    
      
      
        Rex vs. Smith & Al., Dong. 441. — 1 Sid. 148. — See, also, Lord Hale's Treatise de Portubus Maris, in Hargraves Law Tracts.
      
    
    
      
      
        Bac. Abr. tit Statute 1, 9, 10
    
    
      
      
        Bos. & Pull. 496.
    
   The action being continued nisi, the opinion of the Court was delivered at this term by

Parsons, C. J.,

who, after shortly stating the nature of the action, the provisions of the statute on which it was [ * 144 ] * brought, and the terms of the agreement on which the verdict was found, proceeded as follows : —

The defence relied upon is, that the defendant took the fish in Cambridge.; that he put in his seine from the Cambridge shore, and having extended it into the river, he drew it upon the same shore, and there took the fish ; and that the fishery, thus carried on in Cambridge, is an accustomed fishery for the inhabitants of that town, in this place, and carried on in the accustomed manner.

The plaintiff insists that this fishery by the defendant is prohibited by the act, because Watertown is situate on the other side of the river, opposite to this place, and the defendant extended his seine across the channel, and over the flats on the Watertown side.

The decision of the question must depend upon the construction of the statute. It is stated that higher up the river, Watertoion is situated .on both sides of the river, where there is a convenient place for the shad and alcwive fishery, and which is called the Watertown fishery; and that the inhabitants of that town have been accustomed to fish there, and in no other place.

Towns adjoining, or extending across a navigable river, may own the soil of the flats, and even of the channel, if a grant has been obtained from the government; but the property in the fish, and also of all tide waters, is in the public. But it seems to be a part of the common law of the state, that the town may appropriate the fish, if not appropriated by the legislature; but for taking the fish, no man could lawfully go on the soil of another without his leave. This rule of our common law probably originated from a declaration of common liberties, made by the General Court of the colony of Massachusetts Bay, as early as in the year 1641, which was cited at the bar. If, therefore, no appropriation has been made of the fish, any citizen may take them, so that he does not trespass on the land of others. But any town adjoining any river may appropriate the fish taken within its limits, and that the town on the opposite side of the river may have the same right, the limits must not include the tide waters ebbing and flowing, but the shores on which the *fish are drawn and placed, when they may be said [* 145 ] to be taken according to the intent of this privilege. If the fish, when caught swimming in the public tide waters, are to be considered as taken within the limits of any town before they are haled on shore, it will be difficult, in many cases, to define the interfering rights of towns situate on opposite banks; and when the channel is not granted, fish swimming there out of the limits of any town would not be subject to appropriation.

The power of appropriation only not meeting the wishes of many towns, acts have been passed authorizing them, not only to fix the times and manner of taking the fish, but also the places, and the disposition of them when taken ; and to sell the exclusive right of fishing; and guarding this authority by pecuniary penalties. And the place of fishing is always understood to be that part of the shore used for employing seines and nets, or other engines, and for bringing the fish to land; and not any part of the tide waters in which they were swimming.

Independently of the statute in question, the defendant, or any other, might have put his seine into the river from the Cambridge shore, and might have landed his fish, if he had committed no trespass on the land ; and the inhabitants of that town might have appropriated the fish, and have secured to themselves a several fishery. But the plaintiff" supposes that these privileges are restrained, or at least that the fish shall not be caught on the Watertown side of the river.

Private statutes, made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or from necessary implication. But every part of this statute may have a reasonable effect without any such construction. The object of it was to enable the towns of Watertown, Weston, and Waltham, to regulate their own rights then subsisting, and to secure to themselves the benefits arising from such regulation, and not to grant any new privileges. The two last towns lay on each side of the river, and a part of Watertown extended across it. Watertown had a fishery on its shores, where the people were accus[*146] tamed to fish, and not at the place opposite * to the Cambridge fishery. The defendant was fishing on the Cambridge shore, where the people were accustomed to fish, and in the accustomed manner extending his seine across the river towards, but not upon, the Watertoivn shore, and taking his fish on the Cambridge shore. This privilege of the defendant it was not the intention of the statute to infringe. He may enjoy it consistently with all the provisions of the statute, giving them a reasonable construction.

It is, therefore, our opinion that the verdict be set aside, and a verdict of not guilty be entered, upon which the defendant must have judgment.  