The warrant for the meeting of the plaintiff town held March 24, 1873, contained the article, “ To see if the town will sell the Herring Brook for three years or more, as *530the town may deem proper, to the highest bidder.” Under this article, Herring Brook was sold in open town meeting to the defendant for three years, for $170 a year, he being the highest bidder. Though the warrant and the record speak of the sale of Herring Brook, there is no question that the right of ‘fishing in the brook was intended and understood as the subject of the sale. It appeared at the trial that the defendant had taken the fish from Herring Brook during the fishing season of the year 1873, and the presiding judge ruled that the sale by the town was in the nature of a lease, and that the defendant was estopped to deny the title of the town or its right to sell the fishery, unless he was evicted or interrupted by some one having a paramount title.
We are of opinion that this ruling was correct. The case of Watertown v. White, 13 Mass. 477, is decisive of this point. That was an action, to recover the rent of a fishery, brought upon a contract similar to that proved in the case at bar, and it was urged, as one of the grounds of defence, that the plaintiff had not the right, or the exclusive right, to the fishery which was supposed by the parties when the contract was made. The court say : “ The answer which has been made to this argument is, we think, conclusive. -The defendant, having enjoyed the fishery by the permission of the plaintiffs, cannot be permitted, on this ground, to excuse himself from the payment of the stipulated rent. Such an evasion of a fair contract would be gross injustice, and a reproach to the law, if it were allowed. But the law is" not liable to such a reproach. It is a well settled rule, that the tenant shall never be suffered to impeach his landlord’s title. Thus, in an action for use and occupation, which is analogous to the case under consideration, the plea of nil habuit tenementis is not admissible. This rule is founded in good sense, wise policy, and the plainest principles of fair dealing. The plaintiff’s right to the fishery cannot, then, be properly brought in question in this action. It is immaterial whether they have an exclusive right, a right in common, or no right at all.”
In the case at bar, therefore, the defendant was estopped to deny the plaintiff’s right to lease the fishery, and the first and second requests of the defendant for instructions, which were to the effect that the plaintiff must prove its title, were properly refused.
*531The third and fourth requests involve matters of fact, and were properly refused. It was for the jury to say what was understood by the term. “ Herring Brook ” in the contract, and whether it was navigable.
The fifth request was also rightly refused. It was based upon the theory that the owner of the land on the brook has the exclusive right to take fish around the mouth of the stream as far as the tide ebbs and flows, provided it does not ebb more than eighty rods. The defendant relies in support of this claim upon the St. of 1871, c. 281, but that statute applies only to cases where the waters of a stream are inclosed by the proprietors for the purpose of cultivating fishes, and has no application to the case at bar. The only other exception insisted on is that to the refusal of the court to rule that the sale or lease to the defendant was void under the statute of frauds, because there was no memorandum of it in writing, signed by the defendant. The ruling of the court was correct. As in other cases of paroi leases, the defendant having enjoyed, the premises, his promise to pay the stipulated rent, if by paroi, is not void by the statute of frauds.
As no error in matter of law is shown, the plaintiff is entitled to retain its verdict. Exceptions overruled.