Cole v. Inhabitants of Eastham
Massachusetts Supreme Judicial Court
Petition for the assessment of damages for land taken under the St. of 1879, c. 45.* Trial in the Superior Court, before Brigham, C. J., who reported the case for the determination of this court, in substance as follows: It appeared in evidence that the petitioners were owners of a lot of land extending on both sides of a non-navigable stream, through which alewives were accustomed to run; that the respondent town, for the purposes and in pursuance of the St. of 1879, c. 45,…
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Petition for the assessment of damages for land taken under the St. of 1879, c. 45.* Trial in the Superior Court, before Brigham, C. J., who reported the case for the determination of this court, in substance as follows: It appeared in evidence that the petitioners were owners of a lot of land extending on both sides of a non-navigable stream, through which alewives were accustomed to run; that the respondent town, for the purposes and in pursuance of the St. of 1879, c. 45, took possession of said stream and of the land on both sides of the stream-; and that the petitioners claimed the right…
1Opinion of the CourtDevens, J.
By the common law the exclusive right to a fishery in a stream not navigable was in the proprietors of the banks, who, owning the bed of the stream ad filum aquae, thus owned the land where such fishery was carried on. It was a right of taking the fish only, and did not involve the right to prevent their passage to the portion of the stream which lay above such fishery. But this rule has been modified in this Commonwealth by successive legislative acts from the earliest settlement of the country, passed under the two governments of the Plymouth and Massachusetts Bay Colonies, as well as under…
2Cases cited3 opinions
- Commissioners on Inland Fisheries v. Holyoke Water Power Co.Massachusetts Supreme Judicial Court · 1870
- Inhabitants of Stoughton v. BakerMassachusetts Supreme Judicial Court · 1808
- Nickerson v. BrackettMassachusetts Supreme Judicial Court · 1813
3Cited by5 opinions
- Townsend v. StateIndiana Supreme Court · 1897
- Watuppa Reservoir Co. v. City of Fall RiverMassachusetts Supreme Judicial Court · 1888
- Commonwealth v. HigginsMassachusetts Supreme Judicial Court · 1931
- Commonwealth v. GilbertMassachusetts Supreme Judicial Court · 1893
- Dodge v. Inhabitants of RockportMassachusetts Supreme Judicial Court · 1908