The opinion of the Court was by
Si-iepley J.This corporation was created by the act approved March 16, 1836, Spec. Laws, ch. 123, and was “empowered to erect, maintain, repair and rebuild, a milldam on. their own land across the head of Little river harbor in the town of Cutler, with flood gates thereto at least fifteen feet wide so as to admit the passage of gondolas and boats at high water.” The counsel for the plaintiff contends, that the act did not authorise the corporation to build the dam below the highest point to which the tide usually flowed. The gates were to be constructed for the purpose of admitting gondolas and boats to pass through the dam at high water. The corporation is authorised to “ use the water retained by said dam,” which is to be built across, not above, the head of the harbor. This language exhibits an intention to permit the dam to be built in such a manner as to allow the corporation to retain and use the tide water. And the fact, that there is no natural fall in the river near that place, would tend to remove all doubts respecting the design of the act.
It is said, that the place of building was limited and nearly designated by that part of the act, which requires it to be built on their own land. The first section authorises the corporation to take and hold real estate, but it would own no land until a purchase had been made. It is the body corporate, not the corporators, that is authorised to build “ on their own land.” The provision must therefore have been inserted for some other *357purpose, than to designate the place of building. It probably was to prevent any inference, that the legislature intended to authorise the corporation to take the land of others for that purpose.
The corporation is proved to have been in possession of the dam and mills, and of the lands on which they were erected, and that is sufficient evidence of title for this defence.
The regulation of the navigable waters within the State is vested in the sovereign power to be exercised by laws duly enacted. The navagation may be impeded, if in the judgment of that power the public good requires it. And if the more apparent object be the profit of a grantee, it is its right and duty to determine whether the public interest be so connected with it as to authorise the grant. To refuse it this right, would be to prevent the union of public and private interests for the accomplishment of any object.
The jury have found that the dam was erected across the head of Little River harbor, the corporation is not therefore liable for any injury, which the plaintiff may have suffered by obstructions to the navigaton, by altering the flux and reflux of the tide. This will embrace the flowing of the beach complained of as an injury to the plaintiff in repairing vessels; tthe alleged injury to his mill site by retaining the tide water; and the increased difficulty in navigating the river occasioned by the flood gates.
In rivers where the tide ebbs and flows as well as in the sea the right of taking fish is common to all the citizens. Warren v. Mathews, 1 Salk. 357; Ward v. Creswell, Willes, 265; Carter v. Murcot, 4 Burr. 2162. And in Bagott v. Orr, 2 B. & P. 472, this right was decided to extend to the taking of shell fish on the shore of a navigable river. The colonial ordinance of 1641 extended the right of the riparian proprietor in the soil from high to low water mark, where it did not exceed one hundred rods. But this was a qualified right to use the interest granted in such a manner as not to interrupt the rights of the public, as secured by the ordinance. The right of navigation was expressly reserved And the right of each house*358holder to have free fishing, so far as the sea ebbs and flows, had been in the same ordinance declared. It was the policy of the colonial legislatures, instead of granting away any portion of the public right of fishery, to extend and enlarge it. Hence the claim and appropriation to public use of that which by the common law was private property, the fishery in rivers where the tide does not ebb and flow. It cannot readily be admitted under such a state of legislation to have been the intention of the legislature by that ordinance to part with any of the public rights of fishery. The right to fish in waters where the soil was private property, having been appropriated and secured to the public, a grant of the soil in navigable waters to an individual could not have been regarded as putting him in possession of greater rights than he would have had by owning it without such grant. And it would be a strange construction to consider thé right of fishery as granted away indirectly by another part of the same ordinance, which declared it.
The testimony in this case does not prove any appropriation of the clam fishery to private use. The witnesses speak of the fishermen generally, and not of the owners of the fiats, as taking them for bait.
The case does not show any such injury as will authorise the plaintiff to maintain the suit. It is not therefore necessary to examine the principles upon which the damages were assessed.
Verdict set aside.