Definition
A common fishery is a fishing ground or body of water in which all members of the public hold an equal right to take fish. The right belongs to everyone by virtue of the public nature of the water itself — typically the open sea or a navigable river — rather than by grant, custom, or ownership of adjacent land. No individual or group holds a superior or exclusive entitlement; the fishery is open to all.
Common fishery is a right of public access, not a property right held by any particular person. It arises where the water itself is public in character. The classic examples are tidal waters, the sea, and navigable rivers over which no private ownership of the fishery bed has been established.
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Common Language
Modern common usage (Wiktionary): Not separately defined. "Fishery" in common usage refers to a place where fish are caught or bred, or to the industry of catching fish.
Historical common usage (Webster's 1913): "Fishery" is defined as the business of catching fish; a place for catching fish; or a right to take fish in certain waters.
The legal term "common fishery" adds a layer that ordinary usage does not carry: it is specifically a public right — a right shared equally by all persons — as distinguished from a private right held by one individual or a defined class. The word "common" here is doing legal work, not merely descriptive work. A reader encountering this term in a historical document should not read it as simply "a fishery that is shared" in any informal sense.
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Common Confusion
COMMON FISHERY is frequently conflated with two related but legally distinct terms:
COMMON OF FISHERY: A private right, typically acquired by grant or prescription, allowing a defined person or class of persons to fish in waters belonging to another. This is a profit à prendre — a right to take something from another's land or water. It is not a public right; it is a limited private right attached to specific parties.
FREE FISHERY: An exclusive private right to fish in a particular water, generally held by a single owner to the exclusion of all others, including the public. It is closer to ownership of the fishery itself than to any shared or public right.
All three terms appear in historical sources — often on the same page — and all three are discussed under the broader head of FISHERY. The distinctions collapsed frequently in older writing, and courts occasionally used the terms loosely. Researchers working in pre-twentieth-century sources should treat any use of "common fishery," "common of fishery," or "free fishery" as potentially imprecise until the context is examined carefully.
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Why It Matters in Research
The primary research trap with common fishery is the conflation problem. Historical legal writers — including some judges — used "common fishery," "common of fishery," and "free fishery" interchangeably or carelessly. Burrill flags this directly, noting the terms are "sometimes confounded." Black's cross-references the confusion. Any historical source using one of these terms may actually be addressing the rights associated with another. The researcher must attend to context: Is the right being described a public right? A private right against a landowner? An exclusive private right? The label alone is not reliable.
Jurisdictional variation matters here as well. In English common law, the tripartite distinction among common fishery, common of fishery, and free fishery developed with some precision through treatise writers and case law. In American jurisdictions, the public trust doctrine absorbed much of what English law called "common fishery" — the right of the public to fish in navigable and tidal waters — but the terminology was not always carried over. American cases and statutes are more likely to speak of "public fishing rights," "navigable waters," or "public trust" than to use the phrase "common fishery." Researchers searching American sources by the English label may miss relevant material.
Chronologically, the term is most alive in sources from roughly 1600 through the nineteenth century. It appears in English treatises, early American property law writing drawing on English sources, and in cases involving riparian rights and navigable waters. By the mid-twentieth century it had largely receded from American legal vocabulary, replaced by regulatory and public trust frameworks. In historical corpus research, the term signals an inquiry into water access rights, public vs. private fishery claims, and the early development of what would become public trust doctrine.
The connection to property law is significant: common fishery sits at the intersection of water law, public rights, and the older English law of profits and incorporeal hereditaments. A researcher encountering it in a property law context should be prepared to engage with all three areas.
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Historical Dictionary Support
The three shelf sources agree on the core definition: a common fishery is a public right to fish, open to all, as opposed to any private or exclusive right. All three distinguish it from common of fishery. There is no meaningful disagreement on the substance.
Bouvier states the distinction most cleanly: "A fishery to which all persons have a right... different from a common of fishery, which is the right to fish in another's pond, pool, or river."
Burrill provides the most useful research guidance, citing Crabb's Real Property and Kent's Commentaries as the leading treatise authorities, and noting that confusion with the other fishery terms is common. Burrill's citation to 3 Kent's Commentaries 409–411 is particularly useful — Kent's treatment of fishery rights in American waters is among the more systematic early American discussions of the subject.
Black's is the most compressed, doing little more than stating the definition and flagging the confusion with common of fishery. It adds nothing beyond what Bouvier and Burrill provide.
What the historical dictionaries do not address: the transition from English common law fishery terminology into American public trust doctrine. The shelf sources treat common fishery as a settled category of English property law and do not trace how (or whether) it translated into American legal frameworks. That gap is left to the researcher.
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Jurisdictional Note
In English law, common fishery as a public right in tidal and navigable waters was relatively well-settled by the nineteenth century. In American law, equivalent public rights were absorbed into the public trust doctrine, which varies by state in scope and application. Some states recognize broad public fishing rights in navigable waters by constitution or statute; others have litigated the boundaries through common law. The English term "common fishery" rarely appears in American judicial opinions after the early nineteenth century.
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