Joseph P. Bradley

“ Of course, as already stated, there is no question where the land abuts and bounds upon a fresh-water stream or river. In such cases the law is perfectly plain. Sir Matthew Hale says: 'Fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent, so that the owners of the one side have, of common right, the propriety of the soil, and consequently of the right of fishing, usque adfilum aquae; and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side. ”

“ The cases are innumerable in which actions of trespass have been sustained for fishing in a several fishery, (which is the exclusive right to fish in one's own waters, or is derived therefrom by grant;) or in which the action of trespass has been defended by the plea of common of fishery, (which is the right to fish in the waters of another.) The right of public fishery is never mentioned except in connection with tidewaters where the title to the land is in the crown. It is never said that this right exists in lakes or ponds, or in any other fresh waters. ”

“ The colonial ordinance of Massachusetts, adopted in 1641, provided that great ponds containing more than 10 acres of land, and lying in common, though within the bounds of a town, should be free for fishing and fowling. As amended by the ordinance of 1647, it prohibited the towns from granting away great ponds, but affirmed their power to regulate the fisheries therein as well as in tide-waters, and affirmed the power of the legislature to dispose of great ponds, tidal bays, coves, and rivers, or of the common rights of fishing and rowling in them. ”

“ The title of the sovereign being in trust for the benefit of the public, which includes the right of fishing and of navigation, is common. The title of the individual, being personal in him, is exclusive, subject only to a servitude to the public for purposes of navigation, if the waters are navigable in fact. ”

“ On the east side of the Mississippi, in the states of Illinois and Mississippi, a different doctrine prevails, and in those states it is held that the title of the riparian proprietor extends to the middle of the current, in conformity to the rule of the common law, that the beds of all streams above the flow of the tide, whether actually navigable or not, belong to the proprietors of the adjoining lands. ”

“ The supreme court of Michigan in a recent case (Clute v. Fisher, 65 Mich. 48, 31 N. W. Rep. 614, since followed by Stoner v. Rice, 121 Ind. 51, 22 N. E. Rep. 968) held that the riparian owner of a fractional lot bounded by a non-navigable lake only takes so much of the lake bottom as is required to fill out the section or quarter section of which he owns the fraction; in other words, that his common-law right is limited by the sectional lines of the survey. ”

“ Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce. ”

“ If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or recon veyance of the land as to individuals, and if the government is the party injured, this is the proper course.' Again, referring to the power of the secretary of the interior after patent, it is said: 'He is absolutely without authority. ”

“ Such title to the shore and lands under water is regarded as incidental to the sovereignty of the state,-a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery,-and cannot be retained or granted out to individuals by the United States. ”

“ VIII., and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force, until repealed by legislative authority.' This statute, so far as we are able to learn, has never been repealed, and no supplementary or amendatory statute relating to the subject in hand has ever been passed by the legislature. ”

“ Judgment was entered in conformity with this finding, as follows, to-wit: 'That as to the east fraction of the fractional south-east quarter of section thirty, (30,) township thirty-seven (37) north, range fifteen (15) east of the third P. M., Cook county, Ill., the defendant is not guilty. It is further adjudged and determined that the plaintiff is seised in fee of the south-east fractional quarter of section nineteen, (19,) and the north-east fractional quarter of section thirty, (30,) both in township thirty-seven (37) north, range fifteen (15) east of the third P. M., Cook county, Ill. ”