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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 489   View pdf image (33K)
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CHAPMAN VS. HOSKINS. 489
are sufficiently stated in the opinion of the Chancellor, delivered
on the 30th of December, 1851.]
THE CHANCELLOR :
This case, which comes before the court upon a caveat to the
certificate of "Hoskin's Island" filed by Pearson Chapman,
having been argued orally, and in writing, with learning and
ability by the counsel of the respective parties, has been very
carefully considered by the court, and I proceed now, briefly,
to state the grounds upon which my opinion is formed.
Since the decision of the Court of Appeals of this state in the
case of Browne vs. Kennedy, 5 Har. & Johns., 195, it appears to
me quite impossible to deny that it is competent to the state
to grant land covered by navigable waters, subject to the right
of the public to fish in and navigate them. The point, not
only as I understand it, arose in that case, but every judge
who sat in the cause, concurred in the opinion so far as this
question is concerned, though upon the other points, some dis-
agreement seems to have existed, and I strongly incline to
think, that the doubts which have been expressed upon various
occasions, and the apparent conflict, and difficulties which em-
barrass the subject proceed from the cause referred to by the
judge who delivered the majority opinion; that is, inattention
to the distinction between the power to grant the exclusive
privilege of fishing in navigable water, in violation of the
common piscatorial right, and the power of granting the soil,
aqua cooperta, subject to the common user.
It is one thing to grant the soil covered by the navigable
waters of a river, subject to the right of the public to fish in,
and navigate them, and another, and a very different thing to
grant to an individual the exclusive right of fishing therein;
and it was against the authority of the crown, to grant this
latter right, that the provision in magna charta, to which refer-
ence has been made, was directed. 3 Kent Com., 409 (note
C.) 5 Har. & Johns., 203.
A passage from the opinion of the Chief Justice of the
United States in the case of Martin et al. vs. Waddell, 16,

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 489   View pdf image (33K)
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