Fishing rights

“ As fishing rights have been treated traditionally as a natural resource, in the absence of federal regulation, California as a sovereign state has power to regulate the taking and handling of fish in the waters bordering its shores. ”

“ There is a growing feeling in many pleasant places, such as Jacquet River, that individual fishing 138 rights retard the growth of a place, and it is likely that here and in other districts leading men of the neighborhood will buy in the fishing rights, not for their own use, but to charge a reasonable fee by the day or week for those who would then come to fish. ”

“ It is understood that the above-mentioned liberty applies solely to the sea-fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen." Article 19 secures to British subjects the corresponding rights of fishing, &c., on the eastern sea-coasts and shores of the United States north of the 39th parallel of north latitude. Article 20 reserves from these stipulations the places that were reserved from the common right of fishing under the first article of the treaty of June 5, 1854. ”

“ The owner of an exclusive fishery, whether in tidal or fresh waters, has the right to take as many fish as he can, and may do so by means of fixed engines or dredging, provided that in navigable waters he does not interfere with the right of navigation, and that in navigable and other waters he does not interfere with the fishing rights of his neighbours or infringe the provisions made by old or modern statutes as to the methods of taking the fish, e.g. ”

“ Whenever brought into competition with the like industries of other countries, our fishermen, as well as our manufacturers of fishing appliances and preparers of fish products, have maintained a foremost place. I suggest that Congress create a commission to consider the general question of our rights in the fisheries and the means of opening to our citizens, under just and enduring conditions, the richly stocked fishing waters and sealing grounds of British North America. ”

“ When men under a different government, men who do not own a foot of land in Canada, men who do not pay specific taxes for Canadian rights, when these men slaughter seals on inshore ice, use land and inlets for cleaning fish and foul the water with their "gurry", and when they also "egg" on other peoples' islands in defiance of the law, then the analogy is perfect. It does not hold good, of course, in ordinary fishing, which is conducted under Dominion licence and vigilantly watched by Commander Wakeham. ”

“ Right of public to hunt, fish and trap wildlife. The people have the right to hunt, fish and trap, including by the use of traditional methods, subject to reasonable laws and regulations that promote wildlife conservation and management and that preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. This section shall not be construed to modify any provision of law relating to trespass, property rights or water resources. ”

“ 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. ”

“ And he concludes his discussion of the subject, in § 2373, by affirming the exemption of the coast fishery, and pointing out the distinction in this regard between the coast fishery and what he calls the great fishery, for cod, whales, or seals, as follows: 'The privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry near the coasts, is not extended in any country to ships employed on the high sea in what is called the great fishery, such as that for the cod, for the whale or the sperm whale, or for the seal or sea calf. ”

“ The seventh section of the compact refers, so far as fishing is concerned, only to the Potomac river, and provides 'that the right of fishery therein shall be common to and equally enjoyed by the citizens of both states,' with the proviso that such common right shall not be exercised by the citizens of one state to the hindrance of the fisheries on the shores of the other state, and that the citizens of neither state shall have a right to fish with nets or seines on the shores of the other. ”

“ Commercial fishing is forbidden within the great extent of water referred to unless by vessels entered on the official list (matricula nacional) , and foreigners are thus excluded. A novel feature, but one in complete harmony with the results of modern fishery investigations, is the reservation of the right to close any area within the limit claimed, so that such area or areas may act as reserves to replenish neighbouring grounds and increase the multiplication of the fish. ”

“ The duty of preserving the fisheries of a state from extinction by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish, is as clear as its power to secure to its citizens, as far as possible, a supply of any other wholesome food. ”

“ Statistics are dry reading, and so they are not given here, but there are some curious things with regard to the laws regulating the offshore and deep-sea fisheries of France, just as there are with respect to the line fishing, by which method one can legally take fish only if he actually hold his rod or line in his hand: he may not lay it on the ground beside him and doze until an unusually frisky gudgeon wakes him up. ”

“ That our knowledge of the habits, time, and place of spawning, food peculiarities of the young, migrations, &c, of the fish which form the basis of British fisheries is lamentably deficient, and that without further knowledge any legislation or attempts to improve our fisheries by better modes of fishing, or protection, or culture, must be dangerous and indeed unreasonable. ”

“ At present I believe the law does not require a free passage for the fish (at least in English rivers) except from Saturday night to Monday morning; in many of them I believe this is not insisted upon; whereas the law ought to prohibit fishing for or obstructing the passage of the fish every night from sunset to sunrise, and this regulation ought to be rigorously enforced. This would give the upper proprietors a chance of having good fish, and a corresponding inducement to take care of them. Nobody would be so much benefited as the owners of fisheries at the mouths of rivers ”

“ There is a large school of quasi economists, who clamor for the complete prohibition of fishing during spawning time. This demand demonstrates their ignorance. Deer, game birds, and other land animals may easily be protected in the breeding season, so may trout and other fishes of strictly local habits. ”

“ Its law denying fishing licenses to aliens ineligible for citizenship, so the state's contention goes, tends to reduce the number of commercial fishermen and therefore is a proper fish conservation measure; in the exercise of its power to decide what groups will be denied licenses, the State has a right if not a duty, to bar first of all aliens, who have no community interest in the fish owned by the State. ”

“ Private fisheries, with some few exceptions such as the Imperial preserves, apparently were not allowed, or seem not to have existed. All waters were free and open to all citizens of ancient China. In modern times fishing belongs to the State, and licenses to fish, which are strictly limited in each canton, are obligatory. District magistrates are bound to care for and police the rivers: to put down fry in suitable streams: to enforce the laws, especially those dealing [Pg 465] with a close time, and to permit no cutting of weeds in the waters during the spawning season. ”

“ The limits within which you will, if necessary, exercise the power to exclude United States’ fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional.... Her Majesty’s Government are clearly of opinion that, by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek. ”

“ The Committee thought that it was proved beyond all doubt that there was a serious diminution of flat-fishes, particularly in the North Sea; that the ancient fishing-grounds were much depleted; that the evil was a growing one, and that in default of a remedy the consequences would be disastrous to the industry.1294 One of the causes of the diminution was found to be the vast destruction of immature 710 fish, the direct remedy for which, the Committee said, was either the prohibition of the taking and killing of such fish, or the prohibition of fishing within areas where small fish abound. ”

“ It seems, however, that at common law any fixed structures put up by the owner of a fishery in his part of a river, which at all prevent the free passage of fish to the waters above or below, give the owners of fisheries therein a right of action against him. So the grantee of an exclusive fishery with rod and line in an unnavigable river can prevent any person from polluting the river higher up and so damaging the fishery. At common law there is no property in fish when enjoying their natural liberty; the taker is entitled to keep them unless they are caught from a tank or small pond ”

“ The right claimed is a right within certain metes and bounds to set apart one species of fish to the owner's sole use, or, alternatively, to put a taboo on all fishing within the limits for certain months, and to receive from all fishermen one third of the fish taken upon the fishing grounds. ”

“ However, the game fish of the old days are still all there and will never become scarce, if good fish and game laws are wisely administered.
In the days of Barker and Tatanka, fishing with any kind of net or tackle was lawful, but to-day both commercial fishermen and anglers have to observe the laws, or our lakes and streams will become fished out; for the resources and gifts of nature are not inexhaustible, and the number of men and boys who go fishing increases each year. ”

“ Herrings and other sea fish taken by Englishmen in English ships were to be freely exported without paying custom; no tax, toll, or restraint was to be imposed on fish taken and landed by subjects; it was made illegal to buy from strangers any herrings unless they were “sufficiently salted, packed, and casked”; only English vessels were to be allowed to carry coastwise any fish, victuals, or other goods; the cultivation of flax for fishing-nets was to be encouraged ”

“ In Great Britain the right of fishing within the territorial seas and navigable streams belongs prima facie to all British subjects. If any person claims an exclusive right in such waters the burden of proof is upon him to establish that right, by royal or Parliamentary grant, or prescription. In this country the same presumption obtains in favor of public fishing in territorial seas and navigable waters, but it is the State and not the National Government which ordinarily possesses the power of granting or regulating this right. ”

“ Such water-power is everywhere regarded as a public right, and fisheries of the kind, even in waters not navigable, are also so far public rights that the legislature of the State may ordain and establish regulations to prevent obstructions to the passage of the fish, and to promote the usual and uninterrupted enjoyment of the right by the riparian owners. ”

“ While in other States shore property extends only to mean high water, in Massachusetts, Maine and Virginia, the earliest States to enact colonial laws, the riparian property holders own to mean low-water mark. But by specific exception and according to further provisions of this same ancient law the right of fishing (which includes the shellfisheries) below high-water mark is free to any inhabitant of the Commonwealth. The act reads as follows:—
Section 2. ”

“ The enforcement of penalties for unlawfully fishing or preparing to fish within the inshore and exclusive waters of Canada and Newfoundland is to be accomplished under safeguards against oppressive or arbitrary action, thus protecting the defendant fishermen from punishment in advance of trial, delays, and inconvenience and unnecessary expense. ”

“ Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to market fresh fish, no instance has been found in which the exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry has been denied by England or by any other nation. ”

“ Not only so as to the owners, but as to the masters and crews. The principle which exempts the husbandman and his instruments of labor exempts the industry in which he is engaged, and is not applicable in protection of the continuance of transactions of such character and extent as these.
In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is extended or denied as the exigency is believed to demand. ”

“ For the most part the operations of fishing have been comparable with those of primitive hunting rather than with agriculture; they have taken the least possible account of considerations affecting the supply; when one locality has been fished out, another has been resorted to. The increasing pressure on every source of food, and the enormous improvements in the catching power of the engines involved, has made some kind of regulation and control inevitable, with the result that in practically every civilized country there exists some authority for the investigation and regulation of fisheries. ”