This seems to us to be a very plain case. Admitting the right of the plaintiff, as an inhabitant of West Cambridge, under the statutes of the Commonwealth, to take fish in Mystic River on certain days, he cannot, in the exercise of such right, prevent the defendant from making a lawful use of his own property. The colony ordinance of 1641 (Anc Chart. 148) secures to the inhabitants the right of free fishing and fowling in ponds, bays and rivers, so far as the sea ebbs and flows, within the precincts of the town where they dwell, unless the freemen of the town or the general court shall otherwise appropriate them. But the ordinance of 1647, usually printed with the ordinance of 1641, provides that the property in flats shall, under certain restrictions, be in the proprietors of the adjoining upland, subject only to the right of persons to pass and repass over such flats for fowling and fishing, until they are actually reclaimed or occupied by the proprietor of the upland. Weston v. Sampson, 8 Cush. 347. Commonwealth v. Alger, 7 Cush. 53, 68. It was subject to this ancient right of property in the flats appurtenant to upland, that the legislature, under the power reserved to them in the ordinance, enacted the statutes defining and regulating the right of fishery in Mystic River, among the several towns bordering thereon. Sts. 1788, c. 68; 1793, c. 66, § 1; 1820„c. 67.
These statutes conferred no additional rights, over private property, upon the inhabitants of the town to whom the right of fishery was reserved. So long as the adjoining proprietor left the flats open and unoccupied, the inhabitants had the right to take fish upon them; but the right of the proprietor to use, occupy and improve them, by inclosing them, or erecting fixtures thereon, remained unimpaired. 8 Cush. 348. The defendant therefore, in driving stakes upon the flats appurtenant to upland, under the authority and by direction of the owner thereof, was exercising a lawful right; and although it may have obstructed the plaintiff in the taking of fish, and prevented him from using a particular mode of carrying on his *267fishery, it can give him no right of action therefor against the defendant. In this respect, the right of the public" to “ free fishing and fowling ” is subordinate to the right of property in the soil belonging to the individual.
If it were necessary to the decision of the case, we should be strongly inclined to hold, that the plaintiff, under a common right of fishery, had no right to fix stakes in the flats of a riparian owner, for the purpose of fastening a seine across the river, unless he could show a prescriptive right to such use of the flats, or a necessity for so doing in order to the exercise of the right of fishery. The statute of 1788, c. 68, § 4, only authorizes the use of “ any kind of fishing implement” in the taking of fish in Mystic River. This term would include, without doubt, the use of lines, seines, spears, nets and any of the ordinary and usual modes of catching fish in rivers or bays. But it would seem quite clear that it would not give the right to place stakes or other permanent fixtures in the soil of another, as incidental to the right of fishery. See Coolidge v. Choate, 11 Met. 82. Exceptions overruled