¶1(after stating the case,) delivered the unanimous opinion of the court, as follows.
¶2The first question is, whether, from the pleadings in this case, any title has been shewn, which can be brought within the meaning of our statute, by virtue of which, the cause could be removed to the County Court ? If this be so, then the second question is, whether the plea of the defendants js sufficient, both in point of form and substauce ?
¶3The words of the statute are, “that when, in any action of trespass, brought before an assistant, or justice of the peace, the defendant shall justify upon a plea of title, a record shall be made thereof, and the matter of fact shall be taken pro confesso, and the party making such plea, shall become bound with one or more sureties, by way of recognizance, unto the adverse party, in a reasonable sum, not exceeding sixty seven dollars, on condition that he shall pursue his plea, and bring forward a suit for a trial of his title at the next inferior court of common pleas, to be hoiden for the county in which such trespess is alleged to be done ; and pay and satisfy all damages and costs, as by the court shall be awarded against him,” &c. “ Or, if upon trial before the said court, he shall not make out a title to the land or ten« menl on which the trespass is laid to be done, paramount So the possession, or other title of the adverse party, judgment shall be rendered for the party trespassed «pon. *76for 1 reble damages, arid costs of suit.'’ 1 Stai. tit. 165. s. 18,19.
¶4As to bringing forward an original action, or an action in its literal sense, it cannot, perhaps, in any instance be done. The defendants, in the present ease, had no cause of action; there was nothing on which to found one.
¶5This statute, like many others of obscure import in point of expression, has, 1 apprehend, received a permanent construction, by an uniform course of decisions. The action intended by the statute, must be the plea, culled the plea oj title, which constitutes the defendant’s justification for doing the acts complained of. The facts stated in this plea, the defendant is bound to verify and support.
¶6A question arises, what is intended by “ a title paramount, to the possession, or other title of the adverse party V’ I apprehend the sound construction of this part of the statute, is this, that in an action of trespass for an injury done to real proper ty, if the defendant, in his justification, sets up such an inter est in the locus in quo, as if supported, would give him rigid and authority to do the acts complained of, he sets up a title paramount to the title of the adverse party, within the mean ing of the statute.
¶7The question, then, is, have the defendants ⅛ their plea, stated such facts, as in point of law, would be a justification ? Where a man, by labour and expence, makes a fishery, without obstructing or infringing upon previous existing rights, he ought to be protected in the enjoyment of it. An adjoining proprietor on a navigable river, has an exclusive right to draw a seine on his own land ; but, the right of fishery in such river is free and common to all the citizens of the state, and this court is bound to consider Connecticut river a navigable river. A variety of public statutes have been enacted. some of which are now in force, treating it as such. Penalties have been enacted to prevent the obstruction of its navigation.
¶8The defendants aver, that the acts complained of, were done by them in Connecticut river, in the exercise and en joyment of this public and common right; and deny that *77utcy interrupted or molested the plaintiff in tlie exercise and enjoyment of his right.
¶9The defendants, in their plea, which is their declaration, and which they were hound to support, have set forth a right to take fish in the waters adjacent to the plaintiff’s land ; which is the act complained of. They, therefore, in that particular, shew title paramount to the title of the plaintiff, within the true construction and meaning of the statute.
¶10I am, therefore, of opinion, that there is no error.
¶11Judgment affirmed.