after stating- the facts delivered his opinion as follows:'
It has been contended on the part of the plaintiff, that the owners of lands on the banks of the Susquehanna have the exclusive right of fishery in the river opposite to their shore. 1st. On the principles of the common law of England, applicable to our local situation; 2dly, on the original concessions of the first proprietary; and 3dly, by the particular laws and usages of Pennsylvania.
Cases have been cited from the English books to shew a distinction at common law, between fresh water-rivers and *484navigable streams, Hargr. Law Tracts 1.; that where the' "tides ebb and flow, rivers are denominated royal or navigable, Davis 152. (56.): and that in rivers not navigable, the proprietors of the land have the right of fishery on their respective sides, generally extending ad Jlhan medium aquce. 4 Burr. 2164. 1 Mod. 105. 1 Swift’s Conn. Syst. 340 to 342. it has also been urged, that the policy of the law assigns an owner to every species of property within the state; as in lands newly created by the alluvion or dereliction of the waters; so that if an island should arise in the middle of a river, it belongs in common to those who have lands on each side thereof, or to the proprietor of the nearest shore; 2 Bl. Comm. 261.
The preamble of the old act of assembly, “ for the ad- “ vancement of justice, and more certain administration w thereof,” passed 31st May 1718, recites that “ it is a settled “ point, that as the common law is the birth right of English “ subjects, so it ought to be their rule in British dominions.” 1 Dall. St. Lazes 133. And the law of the 28th -January 1777, provides that the common law of England shall be in force and binding on the inhabitants of this state. 1 Dall. St. Laws 723. But the uniform idea has ever been, that only such parts of the.common law as were applicable to our local situation have been received in this government. The principle is self-evident. The adoption of a different rule would, in the language of Sir Dudley Ryder, resemble the unskilful physician, who prescribes the same remedy to every species of disease.
The qualities' of fresh or salt water cannot amongst us, determine whether a river shall be deemed navigable or not. Neither can the flux or reflux of the tides ascertain its character. Pursuing such rule would, in the first case, render the river Delaware an innavigable stream throughout the confines of the state; and in the second, would confine its navigable quality to its several courses south from Trenton. To assert that in either instance the proprietors of lands on the margin of that river, have the sole right of fishery to the middle of its bed, corresponding to their title in front of it, is, I presume, a doctrine which the warmest advocates for the right of exclusive fisheries, would scarcely contend for. *485The property of the land covered by the waters of the Susquehanna remains in the commonwealth as other ungranted lands. 'Neither the late proprietaries, nor the state have granted it; and should a new island rise in the river, it would, under the authority of the cases cited, belong to the government. On this branch of the argument, it is sufficient to state that by an act of assembly passed the 9th March 1771, assented to by the then lords of the spil, the river Susquehanna and certain streams running into it were declared highways; and provisions were made to improve the navigation thereof. 1 Dall. St. Laws 556. The cases cited on the argument abundantly shew, that every man may of common right fish with lawful nets in a navigable river; that the proprietors of the land on each side have not the exclusive right of fishery therein, but that the fishery is common and public. 6 Mod. 63. 1 Salk. 357. Willes, 268. 4 Burr. 2164.
The original conditions or concessions agreed upon by the first proprietary and the adventurers and purchasers in the province, dated the 11th July 1681, have been insisted on by the plaintiff’s counsel as á ground of right. The 6th section thereof is iu these.words: — u Notwithstanding there u be no mention made in the several deeds made to the “ purchasers, yet the said William Penn doth accord and “ declare,- that all rivers, rivulets, woods and underwoods, “ waters, water-courses, quarries, mines and minerals (ex- “ cept mines royal) shall be freely and fully enjoyed, and “ wholly by the purchasers into whose lots they fall.” 1 Dall. Append. St. Laws 7. I do not conceive, that these words would be sufficiently extensive to convey a right to the bed of a navigable river, even to the first purchasers, unless it appeared clearly that it fell within their lot: but be this as it may, I fully concur in opinion with the Chief Justice, that these concessions were personal and confined to the first purchasers, and those claiming under them. Amongst the parts of this instrument, consisting of twenty sections, the 3d, 4th, 7th, 8th, 10th, 11th, -12th, 14th, 17th, 18th and 20th sections, will, on examination of the nature of the subjects to which they respectively relate, be found to be applicable to the original adventurers and purchasers. And in the case of the *486Spririgetsbury manor: in York county, in the Circuit Court of the United States, it was decided on argument that the 9th section which runs thus, — “In every 100,000 acres the “ governor and proprietary by lot reserveth ten to himself, “ which shall lie but in one place,” was confined to the cases of the first purchasers.
' Upon the trial, the act “ for regulating the fisheries in the “ river Susquehanna and its branches,” passed 16th March 1807, was mentioned, but it had not been then published. Another act of 6th March 1793, which bears strongly on the subject in question, was not adverted to. The custom respecting the fisheries in Susquehanna, was insisted on as a imlter notorious to all who lived near the river, but no evidence w 13 given of it. On neither of these laws, nor on the custom, was the opinion of the Chief justice required, nor was it given. I think all of them material in the case.
As So the custom, I need no proof of it. I have cautiously avoided looking into the affidavits overruled on the argument. For forty-five years last past at least, I have understood the settled usage to have been, that the owners of lands on the margin of the Susquehanna, or the islands therein, upon their clearing out a pool oi-reasonable extent immediately opposite to their respective shores, had and exercised the sole right of drawing their seines therein. Even the defendants in this case gave in evidence, a small additional clearing in 1796 in the pool near the sand-bar, from which, I presume they derived some species of right.
Until lately, I heard of no one pretending to disturb them. The first attempt of that kind, which I now recollect, was the ingenious device practised near Harrisburg, of anchoring a raft, at a small distance from the shore, and converting it into a landing place. But the contrivance was rendered abortive by the verdict of a jury. Hitherto I have thought, that the exclusive privilege of fishery, confined and limited as I have stated it, conduced to the public good. It did not injure the navigation of the river. But the wild claim of privilege to the middle of the river, I never till this period heard seriously asserted. There can be no shad fisheries unless the rocks and stones are removed froih the bed of the river, which forms the pools. This is frequenly effected at *487a considerable expense, and requires renewed attentions. No one will bestow his money and labour on a pool, which' afterwards is to become the common right of every citizen. Forcible opposition would of course be made to the invaders of the supposed right; and the shores of the Susque-r hahna would thus be rendered the theatres of violence and tumult. I well recollect, that on the trial of Diffedorffer et al. v. Jones, before all the judges of this court at nisi prius in this place, we urged on the part of the plaintiffs the established common law doctrine, that the landlord after the end of a term for years, for which lands were leased, was entitled to the exclusive possession, and that it vvas the folly of the tenant to put in a crop, which he could not remove during the continuance of the lease. But we were told by M'-Kean Chief Justice, that the tenant was justified by the custom of the country, in what he had done, and that the strict common law rule did not apply to the case. This was previous to the publication of the report of Wigglesworth v. Dallison et al. amongst us, wherein it was held, that a custom, that tenants should have the way going crop after the expiration of their term, was good. I was then dissatisfied with the decision of this .court, considering it as an innovation on settled law. It made a strong impression on my mind, which was increased by the circumstance of Judge Bryan copying the English case from the book, Doug. 190. 201., which arrived some time after, and furnishing me with it at the ensuing court. It is laid down by the court, that the law has a great regard to the usage and practice of the people; the law itself being nothing else but common usage, with which it complies, and alters' with the exigency of affairs. 2 Mod. 238.
At present, the custom I have mentioned, appears to me to be a good one; but I hold myself at liberty to retract this opinion, should further consideration induce me to alter my mind.
The legislature have passed several laws for the preservation of the fish in the Susquehanna and its branches. It was discovered, that several persons were desirous of obtaining landings in the river, though even on sand bars, in order to enable them to draw out their nets. It was obyious, that such *488landings would affect the interests of the owners of lands on the opposite shores, if they possessed any peculiar privileges from the situation of their lands. The act of 6th March 1/93, 3 Dal. St. Laws 310., prevented that injury. It directed, that no warrants should issue for islands in the Susquehanna, unless the same were susceptible of cultivation; and that all sand bars and islands not susceptible of cultivation, for which titles had not been obtained prior to the 4th of July 1ZZ6, should be and remain common highways for ever. In ascertaining the value of the islands applied for, regard was to be had to the soil, wood, and distance from the main land, and to the advantages that might be derived from the same, in regard to fisheries. I cannot think that these provisions in the law, were founded on the policy of preventing obstructions in the navigation of the river, as has been suggested. The preamble recited, that “ it was convenient to dispose of the “ islands in the Susquehanna and its branches;” and the sale of even sand bat s would bring money into the public treasury; but the public sense seemed to be, that this ought not to be effected, to the manifest loss of the individuals on the opposite shores.
The late act, passed on 16th March 180/, 8 St. Laws 74., shews a legislative exposition of individual rights to fisheries in the Susquehanna and its branches. It professed to regulate the fisheries therein, and went into operation immediately after the passing of the act. The third section describes what shall be deemed a pool or fishing place, within the meaning of the law. The fourth section provides, “ that whenever there “ is, or may be, a pool or fishing place on both sides of the “ river, and opposite each other, in whole or in part, or where (£ there is, or may be, a pool or fishing place on an island, ££ shoal, or sand bank, opposite, in whole or in part, to the “ pool or fishing place on either side of the river or island, “ where they sweep the whole channel, no seine or net shall “ be drawn in such pools or fishing places, to both landings, <£ in any one period of twenty four hours,” and proceeds to direct, that such fisheries shall be alternately occupied, under the penalty of three hundred dollars. These regulations appear to me to be utterly inconsistent and incompatible with the common right of fishing in such pools.
*489It has been contended by the defendants’ counsel, that this action being founded in possession, could not be maintained,' unless such possession was shewn in the plaintiff. The possession of a pool of water, and the exercise of the right oi fishery in it, is of a very special nature. It is confined to the season when the nets are thrown into the water, and the element is in a constant state of change: and such a possession as the nature of the subject was capable of, should be shewn from time to time. But if the custom I have spoken of be legal, the peaceable possession of the land adjoining the river, would be prima facie evidence of possession of the pool. The jury were to judge whether this possession was abandoned and relinquished. I do not find that the Chief justice charged the jury, or gave his opinion on this point to them.
The light in which this case strikes me, on the best consideration I have been able to give it, is, that it demands reconsideration; and that the\ peace of the country is intimately connected with our present decision. On another trial, evidence of the usage may be given, without depending on it as a known fact. Its validity may then be determined on, and the laws I have adverted to, will be fully considered and judged of. If the plaintiff cannot establish his exclusive right to this fishery, or shew his possession therein, to the satisfaction of a jury, on a future trial, he cannot prevail: but if his pretensions can be fully established, I see no reason why he should be precluded therefrom; nor can I discover that any injustice will be done thereby to the defendants.
Upon the whole matter, I am of opinion, that a new trial should' be awarded, and that the costs of the former trial should abide the event of the suit.
Brackenridge, J.Whatever may have been the mode of acquiring real estate in England, or whatever the nature of the 'tenure, the designation of separate property in land, would seem to have been by natural boundary, or by the artificial distinction of land marks. The transmission or alienation was made usually by a descr.iptio loci, or by a designation of quantity. If the land was covered with water, a grant of it under that description was necessary to pass the fee simple in the soil; though in order to have an exclusive fishery *490in a river, all that was necessary, was that the party seised of the river, should by bis deed grant separalem piscariam in it, and make livery secundum formam chartce, in which case neither the soil nor the water passed, but merely the fishery; or should grant aqiiam suam, which was attended by the same consequences. Co. Litt. 4. b.
The law presumes an incorporeal hereditament like the one in question, to have been originally founded on a grant by him who had the fee simple of the land aquá cooperta; and where a grant by deed cannot be shewn, a prescriptive enjoyment may be alleged as the evidence of a grant. A man may prescribe to have separalem piscariam in such a water, and the owner of the soil shall not fish there. Co. Litt. 122. a.
This is the common law of England, which is our law here, so far as regards the nature of the tenure of real estate. The right of piscary must be a right appurtenant to the soil covered with water. It must be a part of the fee simple of that soil, and must be supposed to have been originally granted out of it, by him who had the fee simple. What evidence is there of a grant here? There will not be found any such grant eo nomine in the land office, nor in the possession of any person.
But it is alleged that the grant of soil adjoining water, carries with it a grant of such hereditament in the soil cover» ed with water; that is, the grant of one soil, carries with it an hereditament in another; for the right in the water cannot be an appurtenance of the soil adjoining, as it never could have made a part of the fee simple of it. What evidence is there, that the grant of the soil adjoining, carried with it the grant of an hereditament in the soil covered with water? It is not found in any application to the land office, in any warrant of survey, or in the recital or grant of any patent.
Prescriptive enjoyment is alleged as evidence of the grant; an enjoyment whereof the memory of man runneth not to the contrary. Has there been time since the opening of the proprietary land office, or even since the granting the charter to William Penn, for such a prescription to run? Admit that there has, so far as regards what may be the subject of a writ of right, in which by the statute of 32 Hen. 8. sixty years is the limitation. Yet this prescription .is still founded on the *491¡•resumption of an original grant. How is this presumption repelled? By the acts of ownership which the proprietary, originally, and the commonwealth since, has continued to exercise bn the subject of this alleged grant; or if acts of ownership did not exist, the presumption would be repelled by the history of the settlement of the state. Could it be inferred from the taking vesturam terree, of unappropriated land, that such hereditament had been granted out of it? If this w.ere the case, that the enjoyment for sixty years of the Vesture of unappropriated land, would give a right to that vesture in perpetuum, the fee simple of most of the lands in the state would have been diminished before they were granted. The same reasoning will hold with regard to a claim of piscary in water.
But the acts of ownership continued to be exercised by the proprietary government, and by the commonwealth since it succeeded to the fee simple of the soil, repel all presumptions of an original grant. The charter to William Penn is bounded on the east by the Delaxvare river, and it gives him the free and undisturbed use of rivers within the limits and bounds mentioned, together with the fishing of all sorts of fish. In the conditions or concessions agreed upon in England, by William Penn and those who were adventurers and purchasers, it is provided that all rivers and waters shall be freely and fully enjoyed by the purchasers into whose lot they shallfall; so that it may be inferred, that waters must fall into a lot, before they can be enjoyed. Grants from the proprietary land office have been carried into effect in a manner that excludes all land not contained within the survey returned. For these grants have been originally made, and are still in some measure to be ascertained, not by natural boundary or land mark, or description of place or quantity, as originally in England, but by the course of the compass, and measured distance. Where the survey is bounded by the water, and calls for it, as in this case, the land to the water is supposed to pass, even though an interstice may remain ad flam aqua; but no conclusion can be made of a further grant. By the instructions to surveyors, the proprietary would seem to have had in view the accommodating settlers witfr the use of water, by restricting a front to a certain propor*492tion to the extent back, as a general rule. But I cannot infer from all that I know of these grants, any presumption of an exclusive use of the water, or hereditament of the soil covered with water, but rather the contrary.
The provincial legislature, of which the proprietary by his governor made a part, appear to have exercised from the earliest period, an ownership over all rivers and waters within the province, making them highways, or considering them as such. By an act of 1700, they prohibited the erection of wears, “ to the end that all persons inhabiting near any creek “ or river in the province, might enjoy all privileges and ad- “ vantages that from them were to be reaped.” 1 St. Laws 21. In 1724 they prohibited the erection of bridges over any river or creek within the province, navigable for any sloop, shallop, fiat, or other craft, which might anywise stop or hinder the navigation; reciting in the preamble of the law, that the erection of bridges over rivers, to the obstruction of their, navigation, not only affected the interest of the owners of lands upon and near navigable waters above those bridges, but also the trade of the province in general. 1 St. Laws 227. In 1761 they again interdicted the erection of wears in the Delaware, Susquehanna, and Lehigh, and made various regulations to preserve the fish in those rivers. 1 St. Laws 396. In 1768 they passed an act for regulating the fishery in the river Brandywine, with this striking preamble: “ Whereas “it hath been represented to this assembly, by petition from “ a number of the freeholders in the county of Chester, that “ live on or near the river called Brandywine, that their an- “ cestors, themselves, and the poor adjacent inhabitants, have “ formerly enjoyed great advantages from the fishery in the “ same river; and although no person owning land below the “ fork or main branches, can claim any right, by survey, to the “ lands covered with the waters thereof, yet divers persons “ have erected dams across the said river, to the almost to- “ tal obstruction of the fish running up the same, be itenact- “ ed, &c.” 1 St. Laws 497. In 1771 there is the same preamble, and the same.remedy for preserving the fish in the rivers Codorus and Conewaga. 1 St. Laws S47. In 1774 by a law with the same preamble, and with similar regulations, they prohibit all persons from drawing their seines *493iwithin twenty perches of milldams built in a certain manner on the Connestogoe. 1 St. Lazos 693. In the act of the 20th ~ of September 1783, for settling the jurisdiction of the river DeTcnvare, between the states of Pennsylvania and Nezo Jersey, there is a provision that each of the legislatures of those states shall hold and exercise the right of regulating the fisheries on that river. 2 St. Laws 143. By an act of March 1803 privilege is given to any persons owning lands adjoining any navigable stream declared a highway, certain rivers excepted, to erect dams for mills, under the restriction of not injuring others or the public. 5 St. Laws- 389. The act of the 8th of February 1804, regulating the fisheries in the Delaware and its branches, speaks of a pool, and provides that where any fishery is occupied upon the Delaware, either the landholder or tenant in possession shall regulate such fishery, and shall be answerable for all fines and penalties that may occur on account of any transgression of the act that may or shall be committed at his or their respective fisheries, and shall give a description in writing of their pool or fishing place; and if any person shall undertake to fish without having entered security to pay the fines and penalties that may occur, or without permission of the person who has entered security, he shall pay one hundred dollars for every offence. 6 St. Lazos 77. An act of March the 9th 1771, regulating the fisheries in the Schuylkill, prohibits a practice of fishing with divers seines in the same pool, diminishing the fish too much, and depriving inhabitants above of a reasonable proportion; and it directs, that where two or more persons residing opposite to each other near the said river, on different sides thereof, may have suitable landing places on the respective shores, or on an island opposite thereto, for taking seines and nets out of a pool or fishing place, it may be lawful to fish alternately, and not otherwise. 1 St. Laws 546. By the act of 13th March 1807, we have the latest and most complete regulations with regard to fisheries, particularly of the Susquehanna; from all which I deduce an exercise of ownership, both under the proprietary, and under the commonwealth, over all waters not included in surveys, or which have been made highways; and where the acts speak of pools or fishing places of persons, the owners of the ad*494joining grounds are meant, who by having the shore, have-the right of drawing the seine upon it, but not as having an exclusive right to the pool; so that though other persons could not draw there, the land being owned adfilum aquae, yet an island or sand bar lying off, there could be nothing to hinder the drawing a seine in the same pool, under the regulations prescribed by the act. For by act of the 6th of March 1793, all sand bars and islands in the Susquehanna, not susceptible of cultivation, and not surveyed and returned into the surveyor general’s office for the use of the late proprietaries, are made highways. From hence therefore it would seem to follow, that an individual might fish, as well’as the owner of the adjacent soil on either side, under the regulations prescribed; these regulations seeming to respect the reasonable Use of a common property, and not the protection of an exclusive enjoyment.
These principles do not apply to surveys which include Streams, where the soil covered with water makes a part of the grant. But even in the case of surveys bounded on water, where a small stream intervenes, I can see nothing that can give either of them the exclusive use of that stream. Wading up a brook between surveys on each side, and which call for the brook as a boundary, or pushing a canoe, or throwing out a hook and line, and angling for fish, would not seem a trespass. Could I be disturbed if I occupied a rock in the stream? Might I not claim by my possession against all but the proprietary originally, or the commonwealth now? What Is there to hinder me from calling a lizard’s length of land my own? Est aliquid dominum sese fecisse lacerta;. Admitting however that a streamlet or brook shall not be considered as dividing surveys, so as to make a space separate between them that could be appropriated, shall it be so considered to the mouth of the river which this streamlet shall become? The charter proprietary, the Commonwealth which has succeeded, has not so considered it. This repels the allegation of an undisturbed or acknowledged exclusive occupancy, which must be the foundation of any prescription that can be alleged in this case.
I am therefore of opinion in the words of the Chief Justice at the trial, that the owner of lands on the banks of the *495Susquehanna, has no exclusive right to fish in the river immediately in front of his lands; but that the right to fisheries in the said river is vested in the state, and open to all.
New trial refused, and Judgment for defendants.