Hayden v. Noyes

Hosmer, Ch. J. Towns having clams and oysters within their respective limits, or in the waters and flats to them adjoining and belonging, have power to make by-laws to regulate the fisheries of such clams and oysters, and to preserve the same. Stat. p. 227. That the place where the clams and oysters were taken by Hayden, was within the political jurisdiction of the town of Lyme, if not within the limits of its charter, is indisputable. Every part of Connecticut river, so far as relates to jurisdiction, is within some town in the state ; or these waters would be a sanctuary for debtors and criminals. Such has been the invariable usage, from a period probably coeval with the first settlement of the towns on the river ; certainly, beyond the memory of man. As the place where the oysters were taken, is not within the chartered limits of Saybrook, but on the East side of the centre of the river, it is within the jurisdiction of the town of Lyme. The question, then, arises with respect to the legal validity of the by-law. By the act concerning towns, (Stat. p. 457.) the mode of warning town meetings, is specially prescribed. There is to be a notification in writing, “ specifying the objects for [396] which they are to be held,” signed by the select-men, and set upon the public sign-post or posts in the town, at least five days before the meeting. A meeting not warned agreeably to the mode designated, is no legal congregation of the town; and its acts in that capacity, are void. If the object be to regulate the clam and oyster fisheries, that object must be specified in the warning, in an intelligible manner. A notification to assemble a town meeting for a lawful purpose, duly specified, and to do other town business, is, except as to the specification, as entirely exceptionable, as if the town were warned to meet and do any business they should think proper. It is the purpose of the law, not to prescribe a frivolous form, but to give substantial information. If the object of the meeting is specified, it will present a motive to the inhabitants to be present, and they will leave business, even if it be pressing, provided they feel an interest in the subject to be determined. On the other hand, if the subject is unimportant, and any of the inhabitants should feel no concern in the result, they may, with safety, pursue their ordinary business ; and this certainly is matter of convenience. A warning, designating the object of the meeting, is fair, and in prevention of those little artifices, which sometimes endanger the public peace, and throw communities into animosities and divisions. There may be occasions when a town is assembled for some lawful purpose, that an unexpected proposition, quite unexceptionable and promotive of the public good, and unthought of, at the time of the warning, may be made. But these will not happen often, and small inconveniences must be submitted to, as the price of almost every valuable privilege. The warning, in the case before us, neither conforms to the words nor spirit of the law, and, if sanctioned, would repeal the statute. Besides, it would give an opening for conduct the most unfair and inequitable. If it were the object of a few individuals, against the general sense of the community, to regulate the fisheries, it would be easy for them to procure a town meeting warned, to restrain cattle and geese, which the inhabitants in general were known to approve of, with a general clause of other business, and then to pursue successfully their silent purpose. I do not intimate, that there was the least unfairness in procuring the meeting of the town of Lyme, or in any of their proceedings ; but the proper notice was not given to the people, so far as relates to the by-law ia question; and therefore, it is void [397] It is unnecessary to speculate on the matter of a by-law, that has no legal existence. So far as it is a regulation, had the meeting been duly assembled, it would have been lawful. But so far as it transcends this point, and prohibits the inhabitants of another town, from the use of a common fishery, it is unwarrantable. Every person has a common law right, to fish in a navigable river or arm of the sea, until, by some legal mode of appropriation, this common right is extinguished. Peck v. Lockwood, 5 Day 22. Peters, J. was of the same opinion, Brainard and Bristol, Js. dissented. Judgment to be reversed.