
    John Waters versus David Lilley.
    
      Oct. 4th.
    
    The owner of the soil of an unnavigable stream has a right, in exclusion of the public, to take fish in the stream.
    A custom to take fish in alieno solo in an unnavigable river, is not a good custom; but if it were, it could not be given in evidence under the general issue, in defence to an action of trespass; and even if the action is brought before a justice of the peace, such custom ought to be pleaded specially, for it affects the title to land. Such a right, if it can be sustained at- all, must be claimed by prescribing in a qut estate.
    This was an action of trespass, commenced before a justice of the peace, and carried by appeal into the Court of Common Pleas. The plaintiff declared, that the defendant broke and entered his close covered with water and took his fish. The defendant pleaded the general issue.
    It was in evidence, that the defendant entered the plaintiff’s close and took the fish, as averred ; and it was admitted, that the plaintiff was the owner of the land covered by the water in which the fish were caught. The defendant then offered to prove, that the pond, in which the fish were taken, is merely an enlargement of a stream of water, produced by the plaintiff’s dam; that the stream is a natural str.eam, and large - enough for the sustenance of fish; and that the inhabitants of the vicinity have, from time immemorial, taken fish in the pond and stream, without any interruption from the plaintiff or any of the previous owners of the locus in quo, who were knowing to this custom. Howe J. refused to admit this evidence, and directed the jury to find a verdict for the plaintiff: and thereupon the defendant filed his exceptions.
    Barton, in support of the exceptions.
    The plaintiff had no such right in the fish as will enable him to maintain this action. The right to the fish in the ponds, rivers, and streams not navigable, within this commonwealth, is in the public, and not in the owner of the soil. Prov. St. 8 Ann. c. 3; St. 1818, c. 45; St. 1819, c. 49; Burnham v. Webster, 5 Mass. R. 269. If the public have a right to fish in this natural stream, the plaintiff cannot, by enlarging the stream, obstruct that right. Stoughton v. Baker, 4 Mass. R. 528; 
      Coolidge v. Williams, ibid. 144. At an early period in the settlement of Massachusetts, the taking of fish was used, not for amusement, but for a livelihood, as it still is by many in the poorer classes of society, and the right of free fishing and fowling was established by the legislature. The owner of the soil might maintain trespass for an injury to his corn or meadow, but not for taking game or fish ; unless indeed the game were reclaimed or the fish were in a private pond, that is, a pond entirely artificial. Bac. Abr. Trespass, E ; 2 Bl. Com. 392; Just. Inst. lib. 2, tit. 1, § 12. As to fish being feres natures, see 2 Bl. Com. 393 ; Gillet v. Mason, 7 Johns. R. 16.
    
      April term 1827
    But the defendant offered, and should have been permitted, to prove a custom in the inhabitants in the vicinity to take fish in the locus in quo ; it is like a custom to dry nets on another man’s soil. Bac. Abr. Custom, C. If there was such a custom, the defendant had a right to go on the plaintiff’s land. The evidence should have been admitted, if not in justification, at least in mitigation of damages.
    
      Newton and Sibley, contra.
    
    The plaintiff, being owner of the soil covered with water, had an exclusive right to take fish in the pond, and the defendant’s entry was a trespass. Bac. Abr. Piscary; Anc. Charters &c. 148, 149; Coolidge v. Williams, 4 Mass R. 144; Adams v. Pease, 2 Connect. R. 481; Carter v. Murcot, 4 Burr. 2164.
    The supposed custom, if it were valid, ought to have been pleaded specially, and could not be received in evidence under the general issue. 1 Chit. Pl. 364, 365; Spear v. Bicknell, 5 Mass. R. 125; Strout v. Berry, 7 Mass. R. 385. But the inhabitants of a town &c. cannot prescribe for profits in alieno solo, but only for an easement. Com. Dig. Prescription, H; Smith v. Gatewood, Cro. Jac. 152; Baker v. Brereman, Cro. Car. 419.
    
      Barton, in reply, observed, that by St. 1783, c. 42, § 7, in actions before a justice of the peace, in which a title to real estate is not pleaded, the defendant is authorized to introduce, under the general issue, any evidence which might be received under a special plea.
   Parker C. J.

delivered the opinion of the Court. The case states that it was proved, that the defendant entered the plaintiff’s close and took the fish, as set forth in the declaratian, and that the defendant admitted that the plaintiff was the owner of the land under the water where the fish were taken. Thus the plaintiff’s title is made out,* until the defendant should be allowed to give evidence of a custom for all the inhabitants of the vicinity to take fish in the pond within the plaintiff’s close, and that the pond was merely an enlargement of a natural stream of water, produced by a dam built by the plaintiff. It is not contended that the plaintiff had not a right to erect this dam, and so to stop the stream of water and flow his own lands by means of the pond so artificially made, and it surely cannot be supposed, that in consequence of this exercise of a lawful right, every one of the vicinity acquired a right to take fish in that pond. The law does not take notice of the right of fishery in small streams and rivulets, any further than to secure to owners of the banks of such streams the right of taking fish therefrom. If the stream is not navigable for boats or any water craft, the owner of the land can exclude every one from the right of fishing ; and therefore it is that the legislature, in establishing the right to occupy such streams for the use of mills, have made no provision in regard to fish, except where there is a communication with the sea or salt water, through which fish from that element have been wont to pass into the fresh water streams and ponds, to cast their spawn and multiply their species.

There is therefore no such general right as is suggested by some of the facts proposed to be proved.

And as to the custom, it might be sufficient to say. that if it were a legal custom, and could be proved to exist, it would not he a defence under the general issue, but ought to be specially pleaded, notwithstanding the action was commenced before a justice of the peace, for it affects the title to land as' much as an easement of a right of way, which in the case of Slrout v. Berry, 7 Mass. R. 385, was decided to be proper matter for a special plea, and not for the general issue.

But the custom proposed to be proved is not one that could be sustained in law, even if specially pleaded; for a custom to take any thing from another’s land, or for a profit á prendre, is not a lawful custom. If such a right is available at all, it must be set up by prescription as belonging to some estate, and should be pleaded with a que estate. So it was decided in Gateward’s case, 6 Co. 60 ; and Coke says, “note reader the law in this general case well resolved, and no book in the law is adjudged against it.” And in the case of Grimstead v. Marlowe, 4 T. R. 718, Lord Kenyon says, the law has been so settled ever since the time of Gateward’s case.

The Court of Common Pleas rightly rejected the evidence offered by the defendant, and the judgment of that Court must be affirmed. 
      
       See 2 Stark. Ev. (5th Amer. ed.) 912; Adams v. Pease, 2 Connect R 481, Ingraham v. Wilkinson, 4 Pick. 271; 3 Kent’s Comm (3d ed.) 415.
     
      
       A custom regulating the rights of the owners of all lands bordering on the sea,is so general, that it need not be pleaded. Rex v. Yarborough, 2 Bligh, (New Ser.) 147; S. C. 1 Dow & Clark, 178; S. C. 5 Bingh. 163. See Ramson v. Morse, ante, 127; St. 1836, c. 273.
     
      
       See I Wms’s Saund. 341, n. (3).
     