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per cause de vicinage is not properly a right of common or incorporeal hereditament, but only an excuse for trespass; or in modern terms, it is not an easement, but a mere license. He also points out that it extends to other cases than the example given by Blackstone, as where cattle are lawfully placed in one field or pasture and stray into an adjoining common being open and unenclosed. (Lectures, ii. 50.) So where two neighbors let their lands lie open without a partition fence, but put cattle each into his own land, their relative rights and duties are those of common of vicinage. Much petty litigation might have been saved in some states if this common-law principle had been remembered by lawyers and judges.
(10) A right of way may also arise by act and operation of law, page 36.
"These are termed ways of necessity. It is always of strict necessity; and this necessity must not be created by the party claiming the right of way. It never exists where a inan can get to his property through his own land. That a road through his neighbor's would be a better road, more convenient, or less expensive, is not to the purpose. That the passage through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over the land of another can exist. A right of way from necessity only extends to a single way. That a person claiming a way of necessity has already one way is a good plea, and bars the plaintiff. (McDonald v. Lindall, 3 Rawle, 492.) It is founded on an implied grant, according to the legal maxim, quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest. (Nichols v. Luce, 24 Pick. 102.) But whereabouts shall be the way? The owner of the land over which it exists has a right to locate it in the first instance, with this limitation, that it must be a
convenient way. If he fails or refuses to locate, or makes an inconvenient or unreasonable location, the right devolves upon the grantee of the way. (Russell v. Jackson, 2 Pick. 274.) The right of way of necessity ceases with the necessity which gave rise to it; so that if a public road is opened, or the grantee purchases other land, which gives him a way over his own land, the first right of way ceases. (Collins v. Prentice, 15 Conn. 39; Pierce v. Selleck, 18 Conn. 321; New York Life Ins. & Trust Co. v. Milnor, 1 Barb. Ch. 353.)" Sharswood. The grantee is to assign the way where he can best spare it. (Bolton v. School Board of London, 40 L. T. N. S. 582.)
(11) Where the road was out of repair he who had the right of way might go over any part of the land he pleased, page 36.
As to private ways, this is doubtful in English law. It has been denied by Lord Mansfield in Taylor v. Whitehead, Doug. 716, and by Sergeant Williams in notes to Pomfret v. Ricroft, 1 Saund. 322, while it is supported by the great authority of Comyns' Digest, Chimin, D. 6, citing Henn's Case, Jones, W. 296, as Blackstone does. The American cases are collected by Washburn (Easements, pp. 295, 564), and support his conclusion that he has no right to go out of the prescribed way, unless its founderous condition is the fault of the land-owner.
(12) The free fishery is an exclusive right; the common of piscary is not so, page 39.
Free fishery in the common-law sense as a royal franchise is of course unknown in this country; and common of piscary is probably equally so. But the right of free fishing, not only in the sea and its arms, bays, etc., but also in navigable waters of all kinds, is a well-established common right of all men who can
reach the waters without committing a trespass, or who are willing to risk the consequences of a trespass upon banks which are the property of other men.
In some few cases, as at Newport, Rhode Island, there still exists a right of way along the shore for the purpose of fishing in the sea. But this is exceptional, and can be traced to peculiar customs. Strictly speaking, no man can claim to take fish as a right, unless the law gives him access to the place necessary for the purpose. When it does so, the presumption is that he may take fish there, unless the owner of the land can' show some kind of privilegium that excludes him; and of this there probably are extremely few examples in the country. But the legislature may regulate the exercise of this as of all common rights of citizens; and does so the more freely because not hindered by private and prescriptive rights, either in navigable waters of the state, or in those non-navigable streams where the soil itself is private property. (Commonw. v. Chapin, 5 Pick. 199; 16 Am. Dec. 386; Waters v. Lillay, 4 Pick. 145; 16 Am. Dec. 333; Ingram v. Threadgill, 3 Denio, 59; Howes v. Gnesh, 131 Mass. 207; Doughty v. Conover, 42 N. J. L. 192; Weller v. Shoon, 42 N. J. L. 341; Woolever v. Stewart, 36 Ohio St. 146.)
Still there are important differences between the right in navigable and non-navigable waters. Prescriptive rights may be obtained in the latter as well as rights by grant; while in the former, though prescription is not impossible, it could only be obtained by showing adverse enjoyment, not only against the owner, but against all the world beside. (Challen v. Dickerson, 1 Conn. 382; Collins v. Benbury, 3 Ired. 277; 5 Ired. 118; 38 Am. Dec. 722; D. & M. R. Co. v. Stump, 8 Gill & J. 479; 29 Am. Dec. 561; Day v. Day, 4 Md. 462; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71. It should be needless to say that this does not apply to shell-fish, such as oysters, etc., that are ascripticii glebæ
and therefore depend on an entirely different rule. State v. Sutton, 2 R. I. 434; McCarly v. Holman, 22 Hun, 53; Robins v. Ackerly, 24 Hun, 499.)
The decisions upon this difference are hopelessly conflicting in different states, owing to the acceptance or rejection of the supposed common-law doctrine that only waters where the tide ebbs and flows are navigable in the eye of the law. (Houck on Rivers; The Genessee Chief, 12 How. 443; The Hine v. Trevor, 4 Wall. 655; N. E. M. M. Ins. Co. v. Dunham, 11 Wall. 1.) This rests on the authority of Sir Matthew Hale's treatise, De Jure Maris, as commonly quoted; although it was shown twenty years ago that even had this been the English rule, it was not a rule of law to be followed here, but only an inference of fact, true in England but inapplicable here. It is not easy, however, to overthrow a doctrine once established on the authority of a great name, by drawing logical distinctions; and it is interesting to find that, even in England, the fact is now recognized that Lord Hale's opinion has been wrongly stated, and that he held navigability in law to depend on navigability in fact. I owe the information on which this statement is made to an opinion of counsel as to public rights in navigable rivers, printed by the corporation of Nottingham, England, in a recent case in which they were interested. From this opinion of Mr. P. Edward Dove, their counsel, I quote the following:
It has been decided in several recent cases (Murphy v. Ryan, 2 I. R. C. L. 143; Pearce v. Scotcher, 9 Q. B. D. 162) that there can be no public right of fishing in nontidal waters. The point has not yet come before any English court of appeal, and I have no hesitation in saying that it is not consistent with our earlier law. Indeed, doubts have been expressed about it by several judges. For example, in Bristow v. Cormican, 10 I. R. C. L. at page 433, Whiteside, C. J., says: "Inquisitive
lawyers have raised the question, did Lord Hale propound dogmatically that navigable in law meant tidal, not that it really was so? . . . . It may fairly be said that this question should now be thoroughly investigated in principle, and decided according to analogy and reason by the ultimate court of appeal." And at page 411, Dowse, B., says that he is by no means satisfied that the question has been thoroughly investigated. After an examination of all the material for forming an opinion on the early law of rivers, I have come to the following conclusions: (1) Every river that is in fact navigable for ships or boats is a "public river" and a highway.
Hale (De Jure Maris, c. 11) in treating of the right of prerogative in rivers, says: "Another part of the king's jurisdiction in reformation of nuisances is to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage not only for ships and greater vessels, but also for smaller, as barges or boats; to reform the obstructions or annoyances that are therein to such common passage; for as the common highways on the land are for the common land passage, so these kind of rivers, whether fresh or salt, that bear boats or barges are highways by water; and as the highways by land are called altæ viæ regiæ, so these public rivers for public passage are called Aluvii regales and haut streames le Roy; not in reference to the propriety of the river, but to the public use. . . . . There be some streams or rivers that are private, not only in propriety or ownership but also in use, as little streams and rivers, that are not a common passage for the king's people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for man or goods, or both, from one inland town to