— Debt, to recover a penalty for taking clams, in violation of c. 61 of the Revised Statutes, which provides as follows : —■
11 Section 4. If any person shall take or otherwise wilfully destroy any oysters or other shell-fish, or obstruct their growth in their beds in any of the waters of this State, except as provided in the two following sections, he shall forfeit to the person sueing therefor not less than one dollar nor more than two dollars for each bushel thereof, including the shells so taken and destroyed. Section 5. The selectmen of the town or the assessors of the plantation, wherein such oysters or other shell-fish may be found, may, in writing, authorize any persons to take the sanje at such times as they shall think proper, and shall express in their permits; and any inhabitant of such town or plantation, or native Indian within this State, may take the same without any permit for the consumption of himself or family, provided, that no person, without such permit shall be allowed to take oysters for any purpose, in the month of June, July or August. Sect. 6. Any fisherman may, without such permit, take any shell-fish suitable for bait, necessary for his use, and in quantity, not exceeding seven bushels including the shells, at any one time.”
The case finds, that the defendant took the clams from é their beds where they had been accustomed to grow, &c., on the flats between high and low water mark, and within one hundred rods of high water mark. The defendant justifies under claim of title to the land, from which they were taken, by deed from the council of Plymouth, New England, to Thomas Cammack, dated November 1, 1631, and confirmation thereof by Sir Eerdinando Georges by deed of March 15, 1640, recorded September 24, 1670, and the charter of Charles, King of England, to Georges, which appears to have been duly recorded in 1636.
By the report of the case, the defendant is to be considered as legally holding Cammack’s title. The charter to Georges was similar to those granted by Charles n. to the *496Duke of York, in 1664 and 1674, and, adopting the language of Taney, C. J., in Martin & al. v. Waddell, 16 Peters, 367, “The right of the king to make this grant with all its prerogatives and powers of government cannot at this day be questioned.” And besides, it is familiar law that a person holding title, by deed recorded, is prima facia .the owner of the land which his deed purports to convey. The legal presumption is, that seizin follows the title, and that they are coincident, and the case furnishes no evidence of pos» session or title in the plaintiff adverse to the defendant. The question presented, therefore, is simply concerning the right of a person owning lands bounded by the sea, or by a navigable river, to dig and take clams on his flats lying between high and low water mark, or within one hundred rods of high water mark, where the sea ebbs further.
“ An exclusive right of fishing in a public river is a royal franchise, and is considered as such in all countries where the feudal polity- has prevailed, though the making such grants, and by that means appropriating what seems unnatural to restrain, the use of running water, was prohibited by King John’s great charter.” 2 Black. Com. 39, 417; 4 Black. Com. 424.
King Charles seems to have regarded this prohibition, and the rights of, his subjects as protected by it, for although the grant of the fisheries to Georges was quite universal in its scope, yet it was made subject to a specific limitation, “ saving always to all our subjects oí our kingdom of Eng» land, liberty of fishing, as well in the sea as in the creeks of the Province and any the premises.” By the common law of England, the title to the land or property in the soil under the sea, and over which the tide waters ebbed and flowed, including the flats on the seashore, lying between high and low water mark, was in the king as the representative of the sovereign power of the country, but this right of property was held by the king in trust for public uses, 'the principal of which were for fishing and navigation, and these were common to all his subjects. Such being the *497common law, the proprietor, of land, bounded by the sea, or by a river where the tide ebbed and flowed, held title to the soil only to high water mark. The right of the public to fish in tide waters was coextensive with the king’s ownership of the soil over which the waters flowed and ebbed, for the right of property in the sea was prima facie vested in the king, as the representative of the public, and he had no other legal tenure in the rights of fishery and navigation, than belonged to him in the character of protector of public and common rights. Angelí on Tide Waters, 33.
“ Piscarial rights of whatever nature, and in whatever manner acquired, are always subservient to the rights of the public, that is, to the rights of navigation.” Angelí, 93 to 95. And whether for the purpose of increasing the facilities for commerce and navigation, or for the encouragement of. individual enterprise among the inhabitants living on the seacoast, or'foi’ both purposes.
The colonists of Massachusetts passed a law, commonly called the Ordinance of 1641, (Ancient Charters, c. 63, of Colony Laws,) by which it was enacted, “ Sect. 2. Every inhabitant who is an householder shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows, within the precincts of the town, where they dwell, unless the freemen of the same town, or the general court have otherwise appropriated them, provided, that no town shall appropriate to any particular person or persons, any great pond containing more than ten acres of land, and that no man shall come upon another's propriety, without their leave, otherwise than as hereafter expressed. The which clearly to determine, Sect. 3, It is declared, that in all creeks, coves and other places about and upon salt water, where the sea ebbs and flows, th'e proprietor of the land adjoining, shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more, wheresoever it ebbs further; provided, that such proprietor shall not, by this liberty, have power to stop or hinder the passage of boats or other *498vessels in or through any sea, creeks or coves to othe'r men’s houses or lands.” This Act, which is the common law of Massachusetts and Maine, made a very essential change in the common law of England, as applicable to the colony. It gave to the riparian proprietor, bounded by tide waters, the fee of the soil to low water mark, not exceeding one hundred rods, where the tide ebbed further, instead of limiting his boundary at high water mark, as the law had been before. It divested the sovereign of the ownership of the soil, between high and low water mark, and vested it in the riparian proprietor, subject only to the express reservations specified in the Act.
The Act clearly established that the owner of the adjoining upland should have “ propriety” to the low water mark, not however exceeding one hundred rods from high water mark, where the tide ebbs further. It established or confirmed the right of free fishing and fowling in tide waters, subject to the proviso, that no man should “ come upon another’s propriety without their leave,” excepting only, that such proprietor should not have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves to other men’s houses or lands.” The language of the colonial law is plain, and the rights of the proprietor of the o soil, and of the public under its provisions, seem to be entirely free from complication or uncertainty. There is no doubt of the right of the government to regulate the fisheries, both in navigable waters and in those which are not navigable.
If the government had not such power, the migratory fish, such as salmon, shad and alewives, &e., which can be perpetuated only by allowing them to ascend the streams and deposite their spawn in the ponds and head waters of the interior, according to their nature, might 'Soon become extinct. That right is too well established by a long course of salutary legislation to be questioned. But clams grow in their beds, between high and low water mark, and are dug therefrom, when the ground is uncovered with water} *499they are attached to the soil, and.are part of it, and it was competent for the colonial government to grant the soil to the riparian proprietors.
The constructions of the ordinance by the courts of Massachusetts, prior to the compilation of Dane’s Abridgment, were carefully collected by the learned author of that work, vol. 2, c. 68; and the subject was very thoroughly considered in Commonwealth v. Alger, 1 Cush. 53; and all the authorities touching the questions of its construction and effect, examined, and the conclusions to which the Court arrived in that case were expressed in their opinion delivered by Shaw, C. J. “ That it was an authoritative declaration of owners having a full right of property, and power of disposal annexing additional land to that previously granted to hold in fee, subject to a reserved easement, and if not strictly a grant it partook of most -of the characteristics of a grant and could not be revoked by the power that gave it. That the ordinance made no alteration in the use of places there described while they were covered with water,” but that the riparian proprietor was “ restricted from such a use of the property granted as would impair the public right of passing over the water in boats and other vessels. through any sea, creeks or coves to other men’s houses or lands, and could lawfully, erect nothing upon the flats which would obstruct or hinder such passage over the water, so as to constitute a public nuisance.” See also Low v. Knowlton, and Gerrish v. Proprietors of Union Wharf, 26 Maine, 128 and 384.
The ordinance of 1641 is our common law, and it should be observed that the decisions of the courts principally relied upon by the plaintiff as authority, and also the doctrines of the elementary writers, are based upon the common law of Englandy and can, therefore, have no effect as authority when conflicting with the provisions of the Colonial law.
The counsel for the plaintiff, however, relies upon the case of Parker v. The Cutler Mill-dam Company, 20 Maine, *500353, and Weston & al. v. Sampson & al., 8 Cush. 347, as conclusive in his behalf. The case of Parker v. The Cutler Mill-dam Company does not decide that a person can be lawfully prevented from digging clams on his own flats; nor does it decide that the common right of fishing in this State extends to the taking of shell-fish on the shore of a navigable river, when the tide is out.
The language of the present Chief Justice, delivering the opinion of the Court in that case, was in these words: — “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,” and Angell, on Tide Waters, also, p. 24, said “the Court, in case of Bagott v. Orr, expressly recognized the doctrine that it is a right common to every subject to take shell-fish on the shore by digging up the soil,” and Ohancelor Kent, in his Commentaries, vol. 3, p. 417, said, “it has been decided that though the sea shore, between high and low water mark, be held by grant as private property, the common right still exists to go there and fish, and even to dig and take shell-fish; and if the owner of the soil claims an exclusive right he must show a prescription for it, controlling the general right at common law,” and cites Bagott v. Orr, and Peck v. Lockwood, 5 Day, 22, as the only authorities to sustain his text, and adds in a note to his first edition, “but the case of Bagott v. Orr, may be considered as overruled by that of Blundell v. Catterall, 5 Barn. & Ald. 268, and the doctrine of Peck v. Lockwood seems to be very questionable;” and by recurring to the opinion of the Court in Peck v. Lockwood, it will be perceived that Bagott v. Orr is the authority upon which that case also was decided.
We have here a goodly superstructure of authorities, all resting upon one case, which the learned Ohancelor. who cites it informs us had been overruled.
But the case of Bagott v. Orr concludes nothing upon the right in question, nor is there any apparent reason for saying it has been overruled. The case seems to have been *501misapprehended. The opinion of the Court therein, which was very brief, only recognized the unquestioned principle that, by the common law of England, the subject, prima facie, had a right to take sea-fish; and decided that if the plaintiff had it in his power to abridge that right “ he should have replied that matter specially.” The decision was upon the pleadings.
The case of Weston & al. v. Sampson & al. 8 Cush. 347, relies also upon Bagott v. Orr and Peck v. Lockwood before cited. In that case the Court held, “ that when flats are left wholly open to the natural ebb and flow of the tide, unoccupied by the upland proprietor, the right of fishing exists on the part of the public, and that the law in this respect makes no difference between swimming or floating fish and shell-fish, and the Court held, that the defendants having gone in their boat upon the plaintiff’s flats when they were covered with water, and after remaining there till the tide was out, dug five bushels of clams and put them into their boat, and departed with them therein, on the returning flood tide, that their ingress and egress having been by water, they were not trespassers. The Court, in that case, has the merit of directly deciding a question in Massachusetts, which had never before been decided in Massachusetts' or Maine, and whether or not that decision be in accordance with the rights of soil as established and confirmed to the riparian proprietors, by the colonial law, or in conformity with the uniform course of decisions of the Courts, whenever the rights of parties under that law have been presented for their consideration, are questions which need not be considered in this case.
“When the Eevolution took place, the people of each State became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soilst-under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government; a grant made by their authority, must therefore manifestly be tried and determined by different *502principles from those which apply to the grants of the British crown, where the title is held by a single individual, in trust for the whole nation.” Per Taney, C. J., Martin & al. v. Waddell, 16 Peters, 410. “The power of the Commonwealth, by the Legislature, over the sea, its shores, bays and coves, and all tide waters, is not limited, like that of the crown, at common law.” Commonwealth v. Alger, 7 Cush. 82, and authorities there cited.
The colonial ordinance of 1641 was adopted by the Commonwealth of Massachusetts, and is common law there and in this State, with all the effect and force of a statute, and it has the sanction of the judicial tribunals, as having the effect of a valid and irrevocable grant of the fee in the soil to the riparian proprietors,, subject only to the express reservations contained therein. Commonwealth v. Alger, before cited.
The counsel for the plaintiff relies, with much stress, upon some remarks made by the Judge who delivered the opinion of the Court in Parker v. Cutler Mill-dam Co. 20 Maine, 353, by whom it was said, that “it cannot be readily 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 high character of the Judge, by whom those remarks were made, entitle them to the most respectful consideration. But the conclusion cannot be avoided, that it is to be presumed, and should be admitted, that the Colonial Legislature intended to do precisely what they expressed their intention to do, by the language used in that ordinance. By its phraseology, which is marked and peculiar, to wit, “ the which more clearly to determine,” &e., it seems to have been their manifest intention, to enact the law in language so plain that it could not be misunderstood, and there is no ambiguity in it, either in the grant, the provisos or reservations; everything is clearly and accurately expressed.
The riparian proprietor, bounded by tide waters, in this State, has the same title to his flats, between high and low *503water mark, as one has holding such flats in England, as part of his manor, under a valid grant from the crown, or by prescription, which implies such grant, deducting only such portion of his absolute title, as was withheld from him, by the provisions of the ordinance of 1641.
Where the flats belong to the riparian proprietor, there is a marked distinction with respect to the right of fishery, in relation to floating fish, and those shell-fish which grow in beds between high and low water mark, and which are taken only when the ground is uncovered with water. The latter are local and connected with the soil, and constitute a part of it. In Constable’s case, 5 Coke, 107, “It was resolved, that the soil upon which the sea floweth and ebbeth, scil between high water mark and low water mark, may be parcel of the manor of a subject, and. that when the sea floweth and hath jplenitudinem maris, the admiralty shall have jurisdiction of every thing done upon the water, between the high water mark and low-water mark, yet when the sea doth ebb, the land may belong to a subject, and every thing done upon the. land, when the sea is ebbed, shall be tried at the common law, for the same is then part of the county.” And “evidence, to prove the shore parcel of a manor, disproves the general right of all the king’s subjects on the shore, at least when and where it is not covered with water.” Hale, De Jure Maris, 26, 27. Opinion of Holroyd, J., in Blundell v. Catterall, before cited; Carter & al. v. Mencott & al. 4 Burr. 2162.
Whatever may be the effect of the statute, upon which this action was brought, as applicable to shell-fish, which grow and are taken below low water mark, and below one hundred rods from high water mark, where the tide ebbs further, and also to the taking of such shell-fish between high and low water mark, as may be taken when the flats are covered with water, is not material, in this case. But to give the statute a construction, which would prohibit the owner of the soil from digging and taking-clams, at his pleasure, on his own flats, when uncovered with water, “ from *504their beds, where they had been accustomed to grow,” would be authorizing a violation of his rights of property in the land, between high and low water mark, which was granted, and intended to be secured to him, by the Colonial ordinance, and would, in my opinion, be entirely unjustifiable by law. And upon the facts presented by the report, I think, this action cannot be lawfully maintained.