Shaw, C. J.
The defendant, in virtue of the common right of fishery in the sea and on the sea shore, had no right to take the soil, or fish shells, part of the soil, except as slight portions of the soil would necessarily and ordinarily be attached to shell fish, when taken. No such public right exists, to take the soil of flats belonging to the proprietor of upland bounding on the sea, to be used as manure, although some living shell fish may be mixed in it. . Defendant defa/nlted.