I think the judgment dismissing the plaintiff’s complaint can be sustained only on the theory that the so-called reserva^ tion in the deed from defendant’s mother to Carroll was in fact an exception and not a reservation. *371If the words used in the deed, “reserving the right to William H. Brown, Jr., to fishin said Millbrook stream,” be regarded as a reservation merely such reservation would be void, because, in the first place, the right to fish is legally a part of the land itself and not something issuing out of it, which is a necessary element of a reservation, and in the second place, because, even though it be assumed that the defendant was not such a stranger to the deed as to make the reservation void, his acts in permitting his mother to convey, as though she was the owner, estopped him from asserting that he was not a stranger to the title and that he had some equitable interest in the property which justified a reservation in his behalf.
If the words be treated as a mere reservation the plaintiff and its grantors had a right to say, from the record and from the language employed, that it was one in behalf of a stranger and, therefore, inoperative and void, and hence one which they had the right to ignore and concerning which they were under no obligation to make inquiry. But from the nature of the thing attempted to he reserved the law compelled the language to be read as an exception rather than a reservation. Millbrook stream was private water, and while the defendant’s mother held title to land through which it ran, she could have conveyed the right to take fish thereon separate and apart from any conveyance of the land, and when she conveyed the land itself she could except from such conveyance the right to take fish from such stream, thereby retaining in herself that portion of the land conveyed. Proprietors of the soil through which nonriavigable streams flow have the exclusive right of fishing therein, and the right to fish is an interest in the land itself and may pass by grant. (Rockefeller v. Lamora, 85 App. Div. 254.) The right of fishery is not a mere easement in land. It is more than that, and is in the nature of an incorporeal right, and by strict classification is a profit a prendre, like a right to take coal or ore, or cut grass or timber, without severance or ownership of the land itself, and is within the Statute of Frauds and can he granted only by deed. (Jones Ease. §§ 57-60; Washb. Ease. & Serv. [3d ed.] 528-532.)
The right to fish being, therefore, an interest in the land itself and not something growing out of it and created by *372virtue of the conveyance, the language used in the deed from the defendant’s mother to Carroll must necessarily be deemed to create, not a reservation, but ah exception, and the plaintiff and its grantors were bound to so construe it. (West Point Iron Co. v. Reymert, 45 N. Y. 703; Corning v. Troy Iron & Nail Factory, 40 id. 191, 209.) The plaintiff and its grantors must be assumed to .have known that the right of fishery was an interest in land and that it was not, strictly speaking, a subject of reservation, and that, therefore, it must be deemed, in order to give the words any effect whatever, an exception out of the premises granted. If, however, there was any doubt as to the intention of the parties that it should be an exception rather than a reservation, they are presumed to know that extrinsic evidence was competent for the purpose of showing the intention of the parties in using the language employed. (Bridger v. Pierson, 45 N. Y. 601.)
It is true that the defendant’s mother prior to her conveyance to Carroll had not granted the right to fish to the defendant and that the exception in the deed from her did not operate to vest title thereto in him, nor was it shown upon the. trial that the mother had subsequently conveyed such title to him. The evidence does show, however, that she made the exception at his request and that he asserted his right to fish thereunder, and it is fair to assume that he exercised that right under license from her and by her authority and consent. This right for him she excepted from her conveyance, and while the plaintiff has the right to prohibit all others from fishing in the stream, there was expressly withheld from it through the mesne conveyances from the mother the right to' prevent the defendant from so doing while he was acting under her, and, hence, no injunction could issue against him.
It might be added that undoubtedly the mother has no power to convey the right to fish to any other person than the defendant, and that the defendant himself has no right to convey such privilege to others, but can only exercise it himself.
For these reasons I concur in an affirmance of the judgment.
Judgment affirmed, with costs.