Lee v. Mallard

Fish, J. 1. The owner of water in a stream or pond not navigable, or of all the privileges therein, has the exclusive right of fishing in the same, though the land lying under the water may belong to another. Accordingly, a conveyance of land lying upon the natural bank of an unnavigable stream, upon which is located a mill standing on other land of the grantor and across which is a dam, causing a pond a portion of which covers a part of the land conveyed, does not pass to the grantee any right to fish in such pond at any point below the then existing high-water mark thereof, when by the terms of the conveyance an exception is made in the grantor’s favor as to “ all water privileges up to high-water mark, and all other privileges in going to his mill.” Turner v. Selectmen. 61 Conn. 175, s. c. 14 L. R. A. 386; Coke, Litt. 4, b; [19] Wash. Eas. Serv. *416. See also Jackson v. Halstead, 5 Cowen (N. Y.), 216. Submitted May 1, Decided July 23, 1902. Equitable petition. Before Judge Evans. Bulloch superior court. December 5, 1901. Moore & Deal, for plaintiffs in error. J. A. Brannen, contra. 2. Applying what is laid down above to the undisputed facts of the present case, the court did not err in directing the verdict which the jury rendered. Judgment affirmed. All the Justices concurring, except Lewis, J., absent.