¶1By the common law, in the sea, in navigable rivers, and navigable arms of the sea, the right of fishing is common to all. In rivers not navigable, the adjoining proprietors have the exclusive right. Rivers are considered to be navigable as far as the sea flows and reflows ; and thus far the common right of fishing extends. Above the ebbing and flowing of the tide, the fishery belongs exclusively to the adjoining proprietors ; and the public have a right or easement in such rivers, as common highways, for passing and repassing with vessels, boats, or any watercraft. 2 Roll. Abr. 107. Davies’ Rep. 56. [or 155, 6. Dub. e.d. 1762.] A more perfect system of regulations on this subject could not be devised. It secures common rights, as far as the public interest requires; and furnishes a proper line of demarcation between them and private rights. As we have adopted the principal part of these regulations, I think we ought to take the whole, and deckle, that above tide-water the adjoining proprietors on rivers have-the exclusive right of fishery, and the community a right of passing them, as highways, with every kind of water-craft.
¶2I am of opinion, that the plaintiff is entitled to recover.
¶3"In rivers not navigable,” says Lord Mansfield in Carter & al. v. Murcot & al. 4 Burr. 2164. “ the proprietors of the land have the right of fishery on their respective sides, and it generally extends ad f.lnin medium 11 quip. But in navigable rivers, the proprietors of the laud *484oti each side have it not.” These principles of common lar have nor been controverted, and indeed, are incontrovertible.
¶4The case is reduced to this question merely, whether the river Connecticut is a navigable river, where the tide does not ebb and flow ? if the term navigable is construed according to its popular import, every river capable of being sailed upon by a boat, however small or shallow, is embraced by it. Many of the inconsiderable streams which fall into Connecticut river, are of this description. The same common law, however, which has established the principle, has furnished a definite explication of the disputed term. Every river, where the sea ebbs and flows, is, by the common law, considered as navigable ; and all rivers not thus distinguished, are not navigable. 2 Roll. 170. pl. 14. Royal Fishery of the Banne, Davies’ Rep. 152, 5, 7. Carter & al. v. Murcot & al. 4 Burr. 2162. The King v. Wharton & al. 12 Mod. 510. Hale de jure maris, Harg. Law Tracts 5. Lord Fizwalter’s case, 1 Mod. 105.
¶5The distinction between rivers navigable and not navigable, that is, where the sea does, or does not, ebb and flow, is very ancient. The King v. Smith, Doug. 441. The former are called arms of the sea, while the latter pass under the denomination of private or inland rivers. “ That is called an arm of the sea where the tide flows and re-flows, and so far only, as the tide flows and reflows.” Hale de jure marts, cap. 4. « If a river runs contiguously between the land of two persons, each of them is owner of that part of the river, which is next his land, of common right.” Rex v. Wharton & al. 12 Mod. 510.
¶6The detriment, which, it has been argued, the public must derive from this doctrine, is entirely ideal ; and rests on a misconception of the law. All rivers above the flow of the tide, in reference to the use of them, are public, and of consequence, are subservient to the public accommodation. Hence, the fisheries, ferries, bridges, and the internal navigation, are subject to the regulation of government.
¶7The argument, from inconvenience, must be very powerful, to cast a shade on a long established principle. Here I discern no inconvenience. On the other hand, the doctrine of the common law, as 1 have stated it, promotes the grand ends of civil society, by pursuing that wise and orderly maxim of *485assigning to every thing capable of ownership, a legal and determinate owner.
¶8Judgment to be entered for the plaintiff.