{dissenting). If it were not for the desire of all parties to have some questions of general concern settled, if possible, it would be enough to say that there were several essential matters in dispute which, according to any claim made by plaintiff, must necessarily have gone to the jury, and there is no theory on which the case could be treated as leaving plaintiff’s rights undisputed. The case must be reversed, at all events, for this reason. But as, in my view, there is no state of facts which would allow plaintiff to-recover, I proceed to give some reasons which might, perhaps, have been as well left to the treatment of my Brother Morse, whose conclusions on the merits of the case are very fully and clearly presented.
The action is one of trespass, and not of case, and is in the form of trespass quare clausum fregit. It avers the tortious entry on a close covered with water, with a boat, breaking down and destroying the wild rice and grass there growing, and shooting at, wounding, and killing, and frightening away the wild ducks and other game there resting and feeding, and alia enormia.
While I do not myself regard the question of title to the bottom of the bay in question as material under the facts,, yet, inasmuch as it is the starting-point of plaintiff’s theoretical claim, and has been discussed, it may be worth some attention. I think there is some doubt whether the plaintiff, who claims under some supposed trust conveyances, represents, under our statute of uses and trusts, the title derived from the State, even if valid. But this point is of no particular consequence on the record. There was testimony which contradicted the whole claim of title in plaintiff, or in any of his grantors, which should in any event have gone to the jury. A very brief reference to the theory of title will be sufficient.
*503The place where defendant is claimed to hare done what is complained of is a bay, now opening on Lake Erie, and not seriously denied to be navigable in fact, and used more or less as a public water-way. There is testimony that in 184=9 and 1850 there was a narrow peninsula between this water and the open lake, over which was a portage of a few rods wide between the outside and inside waters. But there is also testimony that, at some distance from this carrying place, the entrance to the bay was, long before that, open and used for navigation. About 50 years ago, the United States desiring to make a better outlet for the River Raisin, which then entered La Plaisance bay, ran a ship-canal into Lake Erie across the country just south of this bay, and interfered, not only with the course of the Raisin, but also with the waters of Sandy creek, which open into this bay. There is testimony that, when the ship-canal was built, vessels ran in front, the lake outside and through the waters in controversy.. There is also testimony that the navigation of Sandy creek,, from the harbor of Brest, a few miles north of this, into-Lake Erie, has been carried on over the same waters. There is an abundance of testimony that for many years past the, bay has been connected with Lake Erie by a wide opening, much larger than that at the mouth of some of the considerable bays along the Great Lakes; and there is a good deal of reason to suppose that, if this entrance was ever closed up, it was by a sand-bar, and not by firm land. That it is now navigable water was held by the court below, and cannot be reasonably disputed; but, as some of the testimony bears upon the legality of plaintiff’s title, not only to this water, but also to any land lying near it, a reference may be had to, the facts.
It appears from the record that in 1810 Aaron Greeley, the United States surveyor of private claims, in advance of any of the regular linear surveys, surveyed the private claim numbered, 512, and included all of the territory in question *504in that survey. There is no evidence that this survey was ever lawfully changed. The private claims confirmed were those which Congress provided for confirming in accordance with Jay’s treaty, and, at the time of this survey, there was no statute preventing claimants from having all of their old possessions confirmed, as this seems to have been. By that survey, which undoubtedly conformed to the confirmation, that claim extended all the way to Lake Erie from the River Raisin, and left' no land éast of it. It would have been contrary to the French usages not to make it reach the open water. That this plat was subsequently tampered with, as in some other cases which have come to our notice, is shown by some marks on the reduced copy of the township map made long after. But there is no evidence that the survey was ever altered, and it is clear it could not have been. In 1849, when there could have been no power in the land department to deprive the owners of their land, a survey was made by William Ives, purporting to cover the easterly part of what was included in the survey of claim 512, and in that survey of land and water the space in controversy here was marked as part of a fractional section. We have not the minutim of Mr. Ives’ survey. Mr. Bartlett testified to a continuous sand beach from the ship-canal and the south end of claim 512, northward along the lake. The map made up in the general land-office is not produced, except in a reduced form, as connected with the other parts of the township near the lake. As reduced, however, there are several islands marked, and named as such, scattered over the space inside of the sand-bar, indicating at least that the surface was water and not land, and the so-called sand beach is itself marked between two parallel lines in a way not usual in depicting uncovered land. There is nothing to break the water surface near the spot in question. No meander lines are, on this map, run along the various branches of Sandy creek; and Barn island, within the survey, and rising out of this region *505claimed to be swamp, is made a boundary point, which it should not have been if it were not in fact an island. These facts have some significance. As facts they are not for us to pass on, further than as they, together with other testimony, throw some light on questions which should have gone to the j^y.
I do not care to discuss the light-house reserve question, as that matter concerns the United States, and is not, I think, necessary for our information now.
Between 1850 and 1882, the testimony tends to show, if it does not show conclusively, that this tract had become open water, whatever it had been before, and was recognized and used as such. In 1882, on whose suggestion we have no knowledge, some one procured this assumed land, which was then what it is now, to be patented to the State as swamp lands, and a few months thereafter plaintiff and his associates procured a patent of it from the State Land-office.
But, as already suggested, the proof is that before the public surveys, and more than three-quarters of a century ago, this land, if it is land, had been confirmed to private claimants, and ceased to be public lands.
Had this been otherwise, I am unable to see by what authority the open waters of a navigable bay became liable to treatment as swamp lands. Assuming that lands which are shown by the land-office to be really swamp lands passed at once by the swamp-land law, there is no decision which has been brought to our notice which authorizes any official, either of the United States or of the State of Michigan, to ■convey navigable water as land. Swamp and overflowed lands have been defined with some care, but no definition has been broad enough to cover open waters which form parts of one of our Great Lakes, and are not to be distinguished from any other part of those waters. I do not question the power of the State to sell anything that it owns, but no ■State officer can do it until some law has authorized it, and *506we have no law which permits any sale of what is not in its-normal condition classed as land. The State Constitution prohibits interference with navigable waters in express-terms.
In my opinion, the testimony had at least a tendency to show that the sand-bar referred to in the record may have been such a silting up of the bay as is often created near the mouth of similar waters, caused by the action of winds and waves, and removed in the same way. It has certainly been removed for many years by natural causes, and there is strong testimony that it was not in the way of navigation a long time before Ives’ survey.
I have referred to these things only to show that the court had no right to take from the jury the disputed question of ownership of the place in dispute. If plaintiff did not own the land under the water, he could not complain of anything whatever done upon the bay. But in the view I take of the-case, I do not think it makes any difference who owns the bed of this bay, so far as defendant’s conduct is concerned, inasmuch as it is admitted to be navigable in the full sense of the term.
Most of the confusion concerning the rights' of various persons upon or concerning waters has come from confounding entirely different things. There seems to be a notion that, inasmuch as we have generally in this country refused to class our great fresh-water highways among the category of common-law navigable streams, which were confined to tide-waters, we have thereby subjected them to the condition of private waters. But this is not so. We have transferred the name of navigable waters to our public water-ways because they are in fact navigable, and there is no substantial difference in the public rights in fresh and salt water. The only difference of consequence is as to the ownership of the soil beneath them. By the English law the bed of saltwater belonged presumptively to the crown; but the crown *507owned it as jus privatum or private property, and it was not owned by the public. It might be owned by private persons as royal grantees. So the fishing rights in such waters were presumptively public, but were not always so, as the public right was often extinguished by private privileges. And the authorities indicate that one reason why private lands on salt water did not presumptively go into the water was because, during most of the time, the water did not come up to the dry land line so as to make a permanent boundary, so that in the interval was a space sometimes water and sometimes land, by daily tidal action. Some of the cases were referred to in Lorman v. Benson, 8 Mich. 18. The celebrated treatise of Lord Hale, De Jure Maris, contains a large share of the learning on the subject. It never made much practical difference who owned the land, so long as covered by water. The only matter of much interest concerns the ownership of the shores and shallows. In civil-law countries some have followed the Koman law, which, in this as in some other matters, is in substance in accord with our American laws and recognized private ownership, subject to the public rights. In some civil-law countries the bed of the stream, was in the hands of the crown, subject to the same public rights. In the United States, where there is no potentate having private interests in matters not belonging to citizens,, all enjoyment of the use of property must be public or private; and, while there is not absolute uniformity, there is a decided tendency to give to private riparian owners the jus. privatum, as far as it is capable of appropriation for private purposes without injury to the public, and no further.
There is really no substantial difference, in most parts of the United States, between public rights in public rivers, and waters, whether fresh or salt, not parts of the high seas. In England, as already suggested, in addition to the rights strictly connected with the business of navigation, the public had usually such rights of fishing in salt water as were prac*508ticable; but there were exceptions of private grants or franchises to the contrary. In fresh public rivers, there were also some cases of general public fishing, so far as it did not require the use of the banks or shores, while in others the public could not fish. Mr. Woolrych intimates that the original condition was in favor of the public right. Woolr. Waters, 129- It is very difficult, according to all the authorities, to know much about the original condition of affairs of this nature; for histories are silent, and the reports do not go back far enough. But it is everywhere admitted that originally the common law concerning the capture of wild creatures was in substance the same as the civil law, and that the restrictions arose out of feudal and royal encroachments. If so, then it is easy to see that fishing in public streams was of common right. So far as all wild animals are concerned, the early text writers make no difference between beasts, fish, and fowls, and are uniform in holding that in all cases they belong to the captor. But this will be referred to presently.
It is the law of this State that the riparian owner on any kind of water has presumptively the right to such uses in the shores and bed of the stream as are compatible with the public rights, if any exist, or with private rights, connected with the same waters. In rivers the theoretical line of ownership is in the middle thread or line of the stream, unless changed' by islands or some other cause of deflection. If the stream is crooked, the curves must be adjusted so as to save all the rights of the different owners. But lakes have no thread, and, while there is usually no difficulty in fixing equitable bounds near the shore, it cannot be done, by any mathematical process, over any considerable extent of the lake; and, if — which does not often happen — there is any occasion for making partition of the surface, it can only be reached by some measure of proportion requiring judicial -or similar ascertainment, and not by running lines from the shore. Small and entirely private lakes are sometimes divided up *509for such purposes as require separate use; but for uses like boating, and similar surface privileges, the enjoyment is almost universally held to be in common. This was held by ■¿he house of lords in Menzies v. Macdonald, 36 Eng. Law & Eq. 20. It was .there held that, for all purposes of boating and fishing, the whole lake was open to every riparian owner; while for such fishing as required the use of the shore, each was confined to his own land for drawing seines ashore, and the like uses. In streams purely private, the enjoyment of rights in the bed of the stream is very important, as dams and other permanent erections may be necessary to get the value of their use, and it may sometimes be desirable to fence or close portions of them for shutting out or shutting in what needs such management.
Every benefit which can be drawn from the use of private waters belongs to the private owners, and no one but the owners has any right to go upon or to use them for any purpose whatever, without license from the owner. It is as much a wrong against the owner to touch his stream as to touch his land, without his consent.
But where waters are public there is no part of the open water from which the riparian'owner can exclude the public; and, while he may make such erections and appropriations near the shore as will not interfere with the public convenience, he cannot prevent the public from using any part of the water not so shut off. So long as the water is open, the riparian owner’s rights in the bed away from the shore are purely theoretical and valueless. He can do nothing to impair navigation, or any of its incidents; and, as explained in Lincoln v. Davis, 53 Mich. 375 (19 N. W. Rep. 103), in our Great Lakes it would be impossible to ascertain any theoretical rights very far out from shore. Upon the whole space of navigable surface, a riparian owner has, for most purposes, no better rights than any one else.
*510A difficulty has, however, been suggested in this State, arising out of the partially public character given to certain streams for floatage purposes, and it has been very sensibly urged that in those streams it has always been understood that the beneficial and sole use for all purposes but floatage belonged to the riparian owners; and it is claimed that our rules as to the use of small as well as great streams must, in order to produce uniformity, either extend the rights of owners in the large waters, or destroy the valuable ownership in the small ones.
The difficulty, however, is more apparent than real. As already suggested, in this country, navigable and public streams mean the same thing. No stream or water can come within that category that is not a public water-way for general purposes of transportation by some sort of boats or vessels. All of our Great Lakes, and their connecting waters, have been declared, as well as used as, public navigable waters, and are such in their entirety. There was a time when most of our inland rivers, even though shallow and interrupted by rapids, were mediums of travel and transportation of great value, in the absence of land highways and vehicles, although the boats used were canoes and bateaux, which no one would'now think of using for any such purpose. While so used, they were treated as navigable and valuable public highways, and are so declared by the ordinance of 1787. But when such streams have become unfitted for valuable public use, and have actually ceased to be used for public highways, there is no more reason for holding them to be public than a land highway that has been abandoned, and has become useless. Such has been the universal understanding, and no waters are regarded as public or navigable waters that are not capable of general use, and so appropriated in some part, at least, of their course. Instances are found in the common-law authorities of abandoned waters that once were held navigable. There *511■are many streams in this State which were once public ways that now are and long have been appropriated entirely to private uses, and could not be made valuable for any other.
The distinction is obvious between streams which are highways and publicly enjoyed as such, and streams which, if capable of bearing any class of boats or water-craft, are not serviceable for any general convenience or utility in that way. Highways by land always rest on a supposed public convenience bordering on actual, as it is professedly based on legal, necessity. Streams exist before population, and may serve useful, though limited, purposes when no other facilities exist, as trails and natural roads are used for lack of roads laid out and improved. When no longer serving that office, no one would regard them as public ways.
A somewhat similar difference is recognized between navi-. gation and floatage. While language is sometimes carelessly misapplied, no one can seriously confound streams which are or may be used for general purposes of passage and transportation with those that furnish more or less means of floating down the current logs and similar articles, which carry nothing, and are not carried or propelled, but go as the current takes them, and are only kept from jams or stranding by constant attention. It was held in Moore v. Sanborne, 2 Mich. 519, that streams capable of furnishing such floatage, and running where it was necessary to get logs moved, were to be regarded as subject to that burden; and that decision, which is in harmony with decisions in other lumbering regions, has been followed. But, while such uses have been recognized, it has not been considered that it made of streams not suited to other purposes either navigable waters or public streams. Those uses are peculiar, and, to some extent, anomalous. They are entirely inconsistent with anything like general public purposes, and very few logging streams are available steadily, or without more or less flooding. During parts of the year the streams are entirely idle, and useless for *512any transportation. There is language used in that case, as well as in some others, which cannot be safely applied beyond the occasion and its analogies, and experience has shown that very great abuses have grown up under some of the rules-apparently laid down but not involved in the issue, which render it doubtful whether the Court was not seriously misled into announcing doctrine much too broadly. But the decisions made since, while recognizing the authority of the precedent, have never confounded log-driving with navigation, or logging streams with public waters. The practice, so far as it is legal at all, is one arising out of a supposed necessity, and cannot be enlarged. So far as it follows the analogies of ways, it has little resemblance to the use of highways except as to respecting mutual rights, and from the litigation frequently before us it would seem that private rights are not very religiously respected in the use of these streams. The case of Booming Co. v. Jarvis, 30 Mich. 308, illustrates-forcibly some of the difficulties of the subject, and the abuses which have grown up under it even in actually navigable ' streams. The existence of a distinction between public rights of floatage and navigation is somewhat referred to in Middleton v. Booming Co., 27 Mich. 533, where it was distinctly held that rights of floatage were not superior to the rights of mill-owners. The whole doctrine that submits purely private waters to easements in favor of floating logs is one which can, only be justified by that particular necessity, and cannot go beyond it. Such limited and special use is not consistent with the waters being public. It is not a doctrine that ought to be enlarged, and, as an original question, it is not very clearly sound.
In considering the respective rights claimed to exist in this-case, therefore, we have nothing to do with questions which arise in private waters. In Marsh v. Colby, 39 Mich. 626, the lake was entirely owned by the adjacent proprietors, and the real controversy was whether each of them had common *513rights of boating and angling all over the lake, or whether each must keep within specified limits. This question was not passed upon, because the ‘Court recognized the general usage of fishing where not forbidden .in such waters, and held it was no trespass.
In the present case, assuming all that is claimed as to ownership of the bottom of the lake or bay, there is no ground: for claiming the place of the occurrence is not open to the public, and therefore to the defendant, for all the incidents of boating and navigation. And, this being so, there is not, as I conceive, any rule of law which deprived defendant of the right of taking or killing there any wild creature of air or water.
As suggested by my Brother Morse, we cannot, in this country, treat the game laws of England as any part of our inheritance. It has not been done anywhere; and it is especially true here, because care was taken, at an early stage of our territorial existence, to expressly abrogate the operation of any English statutes. Even the English common law has always been considered as applicable in this country only to the extent that it has not been modified by our usages or necessities. It should not be forgotten that the usages on our public waters, especially as to shooting and fishing, existed ■ under the French customs for nearly a century, and it would hardly be consistent with our institutions to subject our people to any less liberal usages than those which were not only tolerated, but favored, under a very despotic government.
The common law which we inherit is the common law untainted by feudalism or royal prerogative; and, if we eliminate these elements and their statutory modifications, the' case presents no difficulties.
Even in the case of Blades v. Higgs, 13 C. B. (N. S.) 866, which, after all, was decided on the strength of a previous exchequer chamber decision that had not been supposed to *514go so far, that-game killed on a man’s land by a trespasser belonged to the land-owner, it was not pretended that this was not a long step forward, even under the game laws, and not sustainable except as a piece of new judicial legislation. It has not yet been carried far enough to make the property so complete that larceny will lie for the bird or animal killed and taken, and this of itself condemns the doctrine. But in that ease it was practically admitted that the original common law did not vary from the civil law, and was conclusive against any ownership but that of the captor. According to all the elementary common-law writers, no one had any interest whatever in any wild creature of earth, air, or water, until he had taken it into his own keeping alive or dead, and then only so long- as it did not escape from his custody. Bac. Abr. “Game;” Finch, Law, 45; Wood, Inst. 367; Toml. Law Dict. “Ferae Naturse,” “Game Law;” Doct. & Stud. chap. 5; 1 Hale, P. C. 511; Fost. Cr. Law, 366; 2 Inst. 199, 233a; Co. Litt. 122; Com. Dig. “Biens, F.;” Case of Monopolies, 11 Coke, 87b; 2 Rolle, Abr. 812, l. 25; 3 Inst. 109; Fitzh. Nat. Brev. 86; Mallocke v. Eastly, 3 Lev. 227.
It is also common law doctrine, never changed until by the rulings of Blades v. Higgs, that game started in one man’s soil, and killed in another, belongs to the hunter; as was the civil law rule also. Sutton v. Moody, 1 Ld. Raym. 251; Ersk. Inst. 108; Mack. Rom. Law, 168, 189. And, even in case of a lawful park or warren, it was lawful for any one to take animals escaped from their enclosure. Wood, Inst. 314; Churchward v. 14 East, 249. And animals not included under the designations of the game laws belong, in any case, to the first taker. Schultes, Aq. Rights, 8.
Blackstone’s notion that the property of animals farm naturm was in the crown has no foundation in authority, and is roughly handled by his annotators. See Toml. Law Diet. “ Game Laws,” where Sergeant Tomlyn repeats twice and emphatically that the game laws are a system of positive *515regulations, introduced and confirmed by statute; and see Christian’s notes to 2 Bl. Comm. 416, and 4 Bl. Comm. 175. Tomlyn also indicates that, while these laws are in some quarters regarded as desirable, there is a very strong feeling in many quarters that they are cruel and unreasonable, and he refers to a criticism from the bench in Jones v. Smart, 1 Term R. 49, where they are declared to be an oppressive remnant of the ancient arbitrary forest laws^ under which, in darker ages, the killing one of the king’s deer was equally penal with murdering one of his subjects. The doctrine, quite often laid down by learned writers, that they were passed to prevent common people from wasting théir time in vain amusements, is not one which would meet much favor in this country, where a gun has always been as much an every-day implement of farmers and people,of all sorts as any other article.
It is one of the popular privileges, secured by the charters, that no more land should be put into forests. Is is also settled that no one can create a warren (which means a place privileged for keeping certain wild animals and fowls), except by the king’s grant, or prescription. 1 Inst. 233; 8 Rep. 108; 11 Id. 87. And the recognized reason of this is that it is a monopoly of animals, which belong to the people at large, and within the laws against monopoly. And while the courts, in some cases, have given the privileges of a warren extent enough to include several classes of wild fowl not in the old list, including water fowl, the better doctrine is that the list cannot be enlarged from the original classes except by statute. See Toml. Law Dict. “Warren,” and• references. It was held in Duke of Devonshire v. Lodge, 7 Barn. & C. 36, that the list could not be so enlarged, and that therefore no trespass was committed against rights of warren in killing grouse. The cases in 11 Bast (Carrington v. Taylor, 571, and Keeble v. Hickeringill, 574), were cases where a man was charged with willfully disturbing a decoy which was lawfully *516owned by the plaintiff. The former case is not reasoned out, but is based on the latter, which held expressly that the grievance was not in shooting wild fowl, for that was lawful,, but for shooting for the mere purpose of disturbing the decoy pond. And the decision was put on the ground that a malicious and willful disturbance of another’s business or occupation of any kind, whereby it is interrupted, is actionable. The latter case has some foundation of reason. The former is not well reasoned, and can only be supported on the ground that the appellate court in bank could not-weigh, the testimony. Both cases hold it lawful to shoot wild fowl, except against parliamentary restrictions, which do not seem to apply to particular places. It is worthy of remark that in Hannam v. Mockett, 2 Barn. & C. 934, it was held n'ot.. actionable to disturb a rookery. Some of the judges intimated that rooks were not valuable, but the case was chiefly made to turn on the better reason that it was not shown that there was a prescription or fixed right to maintain it. If the Pickwick Papers had then been published, perhaps some of the bench would have been better informed concerning the character of the rook, which is known among naturalists as frugivorous; and it is understood that an estate is more valuable in the market which has a rookery. Encvl. “Bookery.”
It is not strange that courts should differ in their construction and application of fie game laws. No one has yet held them to be in affirmance of the common law; but some judges have evidently regarded them as of great value in furthering the landed interests, and have stretched them beyond reason, while others have more correctly treated them as-entitled to no expansion. The modern decisions are the worst in many respects; but, with few exceptions, they have not favored holding acts to be actionable trespasses where there was no substantial injury. Cowell, in his definition of a park and its incidents, says that “ the owner cannot have *517an action against such as hunt in his park if it lie open.” “Park.” There are very few precedents of actions for fowling or angling except under statutes, and it has generally been held that these actions will not lie unless the place of the trespass was inclosed. Wickes v. Clutterbuck, 2 Bing. 483; Rex v. Daman, 2 Barn. & Ald. 378. The eases have not been uniform on the question whether it is a trespass to shoot from a highway and kill game on private land. In Mayhew v. Wardley, 14 C. B. (N. S.) 550, it was held to be a trespass, but in Kenyon v. Hart, 6 Best & S. 249, this doctrine was disapproved, and shooting from a highway at a bird in the air, and killing it, and picking it up in a private close, was held not within the law. There is one case where a person standing in the highway, and sending his dog inside of the fence after game, was held to have entered the land, and, among other things, the highway was said to be part of the estate. In Churchward v. Studdy, 14 East, 249, however, it was held that where A. started a hare on B.’s ground, and captured it on C.’s ground, he had an action against C. for seizing it.
It would be useless to try to reconcile all of the English decisions, and we are not concerned in reconciling or distinguishing them. The whole law is more or less tinged with the policy of the squirearchy. But this gives special importance to the silence of the law as to angling or fowling on public waters. The fen countries of England are famous, and the only way to reach water fowl is by the use of boats. Our attention has not been called- to any case where it has been held actionable to shoot or angle from a boat in any class of public streams. There is no case that has been found holding that a person may not kill birds or beasts actually in the highway. If such conduct were regarded as illegal, it is very strange that, in the great multitude of prosecutions, nothing of this sort has been brought forward.
*518The American cases do not favor any doctrine which would restrict rights on public waters, and we cannot shut our eyes to the uniform usages in our own waters, which we are bound to respect. If the present action will lie, it must follow that there is not any stream or water in the State open to public fowling or fishing. There is no difference, in principle or authority, between fish and fowl. The English statutes, and such American statutes as we have, must necessarily differ in the nature of their regulations, but the questions of locality and ownership must be analogous. It was declared by the majority opinion of this Court in Lincoln v. Davis, that angling from a boat in navigable streams is lawful. There was never any principle or practice which confined rights of travel on highways by land or by water to commercial purposes.. Boats and vehicles are as lawfully used for pleasure and recreation as for any other purposes. Both in England and in the United States the fisheries are always brought under the navigation-laws. In all pursuit of animals, the vehicle must conform to the occasion, and boats are as commonly used for fowling as for fishing, and small boats are oftener used for one or the other than for business. If a person who has a right to be where he is cannot lawfully take there what any of the public owns when captured, and not before, the reason is beyond the common understanding. It is no concern of the borderer on a highway what any other person does upon it if he neither encroaches on the soil, nor is guilty of a public or private nuisance. Even a riparian proprietor does not own the water which flows over his land. His soil, if he has any, is where no bosft can injure it. It is not as a riparian owner that plaintiff complains here. He claims the bed, without owning very much of the banks. But no harm is pretended to any of his upland interests. There is nothing which can sustain trespass.
It is not decisive of this case, perhaps, but it is of some significance, that our Legislature has attempted to regulate *519both sporting and fishing, and has made provision by money and by other means for propagating fish. It is at least questionable whether this can lawfully be done in aid of interests which, on the theory of this case, are all private. We cannot attribute to them any such purpose, and it would not be tolerated. There has been some legislation that is capable of oppressive application, and it was probably got through in some cases for sinister purposes; but the ostensible objects were no doubt honestly regarded.
In my opinion, this case is not sustainable on any theory of the common law, or of any other law, and the judgment, should be reversed.