Free Fishery

A franchise which gives an exclusive right of fishing in a public navigable river, without any ownership on the soil. 3 Kent, Comm. 329; 2 Sharswood, Bl. Comm. 39; 1 Salk. 637; Woolr. Waters, 97. Free fishery is the same as common of fishery. Co. Litt. Hargrave's notes, 122; 2 Sharswood, Bl. Comm. 39; 7 Pick. (Mass.) 79; Angell, Watercourses, c. 6, §§ 3, 4. See "Fishery."

See Fisueby.

A franchise in the hands of a subject, existing bj grant or prescription, distinct from 'an ownership in the soil. It is an exclusive right, and applies to a public navigable river, without any right in the soil. 3 Kent, Comm. 410. Arnold v. Mundy, 6 N. .J. Law, 87, 10 Am. Dec. 356. See Albright v. Sussex County Lake & Park Com'n. 68 N. J. Law, 523, 53 Atl. 612; Brook-haven v. Strong, 60 N. Y. 64.

Defined under Fishery in Black's Law Dictionary.

A franchise in the hands of a subject. existing by grant or prescription, distinct from an ownership in the soil. It is an exclusive right, and applies to a public navigable river, without any right in the soil. 3 Kent, Comm. 410.

[L. Lat. libera piscaria.] In English law. An exclusive right of fishing in a public river, [being a species of] royal franchise. 2 BL Com. 39. 2 Steph, Com. 22. — An exclusive right of fishery in a public navigable river, or sometimes in an arm of the sea, originating in a grant from the king. 1 Chitt. Gen. Pr. 224. — ^An exclusive right to fish in any public wateri as in an arm of the sea. 1 Crahh'B Real Prop. 114, § 108. See 3 Kent's Com, 410. In American law, the definition of a free fishery does not seem to be settled. In Massachusetts it has been held not to be an exclusive right. 7 Pick, E. 19, ^Eh&ijree fishery properly imports an exclusive right, seems apparent from the well settled meaning of the term free in the common law, as explained under that head. See Free. By using free, however, in its popular sense of common, free fishery has sometimes been made identical with common fishery, or a right of fishery common to all. This opinion is maintained by Mr. Schultes in his Essay on Aquatic Bights, in which he also endeavors to show that free fishery and common of fishery (a still different species of the right,) import the same thing. Lord Coke is relied on in support of this Inst view, and Mr. Hargrave supposes the following passage from Coke Littleton to establish it. "So a man may prescribe to have separalem j^ischariam, [a several fishery] in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam pischarioe, [common of fishery,] or liberam pischariam, [a free fishery,] the owner of the soil shall fish there." Co. Litt. 122 a. The passage hardly seems to warrant the inference drawn from it. The opinion of Lord Mansfield, in Seymour v. Lord Courtenay, is also considered by Mr. Schultes as favoring his view that free fishery and common of fishery are alike. But that opinion only went the length of distinguishing a several from a free fishery, and the remark of Lord Mansfield at the conclusion shows that he regarded a common of fishery as quite a different thing from either. 5 Burr. 2814, 2817. That a free fishery signifies an exclusive right seems to have been assumed by the court, (Lord Holt, C. J.) in Smith v. Kemp, where it is clearly distinguished from a common fishery. 1 Sulk, 637. What is said by Lords Coke and Mansfield, {ubi supra) merely goes to show that it is not so absolutely and rigidly exclusive as a several fishery, (the owner of which had it literally to himself,) but that it might or must be shared by another. The true idea of a free fishery seems to be, a franchise or monopoly which may be held by two or more, as well as a single individual, but which, in either case, is equally exclusive of the common right.