Definition
Common of piscary is the right of one person to fish in waters owned by another. It is one of the four classical commons recognized in English common law — alongside common of pasture, common of estovers, and common of turbary — and belongs to the broader category of profits à prendre: incorporeal hereditaments that entitle the holder to take something from another's land.
The right attaches as either appurtenant or in gross. When appurtenant, it runs with a dominant tenement and benefits successive owners of that land. When in gross, it belongs to a named individual and does not transfer with land ownership. The scope of a common of piscary — which waters, which species, which methods, how much — is defined by the grant or by prescriptive use, and the right is limited to what is reasonable and consistent with the servient owner's continued enjoyment.
The right does not convey ownership of the water or the bed. It is a licensed taking, not a title claim.
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Common Language
Modern common usage (Wiktionary): "Piscary" is defined as the right or privilege of fishing in another's waters, or a place where fishing is permitted.
Historical common usage (Webster's 1913): Webster's defines piscary as "the right or privilege of fishing in another man's waters."
The common and legal definitions align more closely here than with many legal terms, but the gap that matters is structural: ordinary usage treats piscary as a general privilege or informal entitlement, while the legal doctrine is a formal incorporeal hereditament carrying defined incidents of creation, transfer, scope, and extinguishment. A fisherman's "right to fish" by permission is not a common of piscary; the legal right requires grant or prescription and binds successors.
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Recognized Forms
/SUBTYPES
Common of piscary appurtenant: The fishing right benefits a particular parcel of land and passes automatically with title to that parcel. The dominant and servient tenements must be in proximity and the right must accommodate the dominant estate.
Common of piscary in gross: The right belongs to a specific person rather than to land. It does not run with any estate and terminates at the holder's death unless expressly made assignable.
Free fishery: A distinct but related right — an exclusive right to fish in a particular body of water, typically tracing to royal grant. Distinguished from common of piscary in that free fishery excludes others entirely, whereas a common of piscary coexists with the servient owner's own right to fish.
Several fishery: Ownership of the fishery itself, tied to ownership of the soil beneath. Not a common; included here because historical sources frequently discuss it alongside common of piscary and researchers routinely need to distinguish the three.
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Why It Matters in Research
This term is almost entirely a historical research matter. Common of piscary as a live doctrinal category in American law largely died with the reception of English common law, and even in England it has been substantially overtaken by statutory regulation of fishing rights and riparian access. Researchers will encounter it primarily in:
Chain-of-title disputes involving colonial-era grants or early state land patents, particularly in New England and Mid-Atlantic states where grants sometimes expressly reserved or conveyed fishing rights tracking common law forms.
Riparian rights litigation, where courts distinguishing between public fishing rights, private fishing rights, and prescriptive easements sometimes reach back to the common law classification system. The distinction between a profit appurtenant and a personal right in gross is outcome-determinative for whether a right transfers with land.
Native American treaty rights research, where reserved fishing rights are sometimes analyzed against the background of common law fishery concepts, though the treaty framework supersedes the common law.
English legal history and property law scholarship, where the four commons appear together in feudal land tenure discussions.
Trap for historical researchers: Black's Law Dictionary entries across editions treat this term inconsistently in depth. The source fragment available here is garbled and unhelpful — the entry in the corpus does not provide a clean definition. Researchers relying solely on Black's may miss critical distinctions between common of piscary, free fishery, and several fishery that are drawn clearly in Blackstone's Commentaries (Book II, Chapter 3) and in English real property treatises. Cross-check against primary treatise sources rather than relying on the dictionary entry alone.
Jurisdictional variation matters: several American states have converted traditional riparian fishing rights into statutory frameworks that do not use this terminology at all, while others (particularly in the East) have case law that explicitly applies the common law categories.
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Historical Dictionary Support
The Black's Law Dictionary source fragment available in this corpus is not usable for this entry — it appears to be a corrupt or misassigned passage concerning fines and penalties, not common of piscary. This is flagged so researchers do not assume the corpus provides direct dictionary support for this term.
The classical authority is Blackstone, who places common of piscary within the taxonomy of commons as profits à prendre and distinguishes it from the three types of private fishery. Coke on Littleton also addresses the incorporeal hereditaments framework within which piscary sits. Later English treatises — including Joshua Williams's treatise on real property — develop the appurtenant/in gross distinction. American authorities following the reception of common law generally accepted this classification but applied it infrequently, and most American cases involving fishing rights pivoted quickly to riparian doctrine or statutory frameworks rather than working through the common law commons analysis.
Historical dictionaries that do carry this term (including earlier editions of Black's and Bouvier's Law Dictionary) agree on the core definition — a right to fish in another's waters — and agree on the appurtenant/in gross distinction. Where they diverge is in depth of treatment of the free fishery and several fishery distinctions, which some editions collapse or conflate.
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Jurisdictional Note
In the United States, the legal vitality of common of piscary as a distinct doctrine varies by state. Eastern states with colonial-era land grants are most likely to have case law engaging the term. Western states generally resolve fishing rights under prior appropriation or public trust frameworks that do not use this vocabulary. In England, the Countryside and Rights of Way Act 2000 and earlier fisheries legislation have substantially displaced the common law framework for practical purposes, though the doctrinal structure remains legally cognizable.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia — Concurrent Ownership — Tenancy in Common: Background on shared property rights and the distinction between rights running with land and rights held personally.
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