Definition
A fishery is either (1) a place where fish are customarily caught, typically by net or seine, or (2) a right or liberty to take fish, recognized as a species of incorporeal hereditament — that is, a property right that exists independently of ownership of the land or water in which the fishing occurs. The second meaning is the distinctively legal one and carries the greater weight in legal research.
As a property right, a fishery is not merely a practice but a legally cognizable interest that can be granted, prescribed, inherited, and litigated. It descends from the ancient common law concept of piscary and attaches significant doctrinal consequences depending on its type. The classification of a fishery as free, several, or common determines who holds the right, against whom it is exclusive, and what remedies are available for its disturbance.
Common Language
Modern common usage (Wiktionary): The business of catching, processing, and marketing fish or seafood; a place where fish are caught, farmed, or processed.
Historical common usage (Webster's 1913): The business or practice of catching fish; a place for catching fish; the right to take fish at a certain place or in particular waters.
The everyday and legal meanings overlap at the surface — both refer to fishing places and fishing rights — but diverge fundamentally in legal consequence. In ordinary usage, a "fishery" is a geographic or commercial concept. In law, it is a classificatory term for a specific type of property interest with distinct rules of creation, exclusivity, and inheritance. A researcher who treats "fishery" as simply meaning "a fishing place" will miss the doctrinal architecture entirely.
Recognized Forms
/SUBTYPES
English and American law recognize three principal types:
FREE FISHERY: A franchise held by a subject by grant or royal prescription, distinct from ownership of the soil. It is an exclusive right to fish in public or another's waters, derived from sovereign grant. Bouvier describes it as existing "by grant or prescription, distinct from an ownership in the soil."
SEVERAL FISHERY: The most complete form of private fishing right. The holder has the exclusive right to fish in particular waters and typically holds either ownership of the bed or a right so long established as to imply such ownership. Rapalje notes that "primarily fishery seems to have meant a several fishery," suggesting this was the original and most fundamental form.
COMMON OF FISHERY (COMMON FISHERY): A non-exclusive right to fish in waters shared with others — either the public or a defined group. Bouvier states plainly: "A common of fishery is not an exclusive right, but one enjoyed in common with certain other persons." This is distinguished from a public right of fishing, which belongs to all and is not a private incorporeal hereditament at all.
Why It Matters in Research
The primary research trap is conflating the three subtypes. Historical sources use "fishery" without always specifying which type is meant, and the legal consequences differ sharply. A free fishery excludes the public; a common of fishery does not. Confusing them in a historical property dispute will produce the wrong legal analysis.
The relationship between fishery rights and navigability is a persistent doctrinal intersection. In navigable waters, public fishing rights typically override or coexist uneasily with private fishery claims. Bouvier notes that the public right of fishing in tidal waters includes shellfish and creatures between high and low water mark — a point that generated significant American litigation, particularly in New England states. Massachusetts and Maine operated under the colony ordinance of 1641, which gave riparian owners unusual rights in tidal flats, distinguishing them from the English common law baseline. Researchers working with 19th-century American materials must be attentive to this deviation.
The term also connects to water rights doctrine more broadly. Whether a watercourse is navigable, tidal, or private determines which fishery framework applies, and the definitions of navigability varied considerably by state. Rapalje's cross-references to navigable river definitions signal that these concepts traveled together in the case law.
Over time, "fishery" in American legal and regulatory usage migrated toward its commercial and administrative sense — fishing industries, fishing grounds, federal fisheries regulation — while the incorporeal hereditament framework became less litigated but remained relevant in waterfront property disputes, riparian rights cases, and Native American treaty fishing rights, where the older classificatory language resurfaces explicitly.
Researchers using the historical dictionaries should note that none of them fully addresses the treaty fishing rights context, which is a major modern domain where the ancient vocabulary of exclusive versus common fishing rights has acquired new constitutional significance.
Historical Dictionary Support
The historical dictionaries are in strong agreement on the basic structure. Black's (both editions), Bouvier, and Burrill all trace the incorporeal hereditament definition to Blackstone's Commentaries (2 Bl. Comm. 34, 39) and Kent's Commentaries (3 Kent, Comm. 409–418), treating these as the foundational authorities. Burrill adds Angell on Water-Courses and Angell on Tide-Waters as secondary treatise support — useful leads for 19th-century American elaboration.
Rapalje offers the most nuanced historical observation, noting that the popular meaning (a place where fish are caught) and the legal meaning (a liberty of fishing) have coexisted with some tension, and that "primarily fishery seems to have meant a several fishery" — a point the other dictionaries do not highlight. This evolutionary note is useful for understanding why early sources sometimes use "fishery" where a more precise writer would say "several fishery."
What the historical dictionaries collectively underserve is the American public rights dimension. Bouvier gestures at it — noting the colonial ordinance exception in Massachusetts and Maine and the public right in tidal shrimping and shellfishing — but none of the sources synthesizes the divergence between English common law (where the Crown owns tidal beds and the public right is broadly recognized) and American state law (where the public trust doctrine, state ownership rules, and colonial variations produced a more fragmented picture). For research into 19th-century American fishery disputes, the historical dictionaries are a starting point, not a finishing point.
Jurisdictional Note
American states diverged significantly from English common law on public fishing rights in tidal and navigable waters. New England states in particular inherited colonial ordinances that altered the baseline rules for riparian and littoral owners. Western states developed fishery law largely through water rights frameworks rather than incorporeal hereditament doctrine. Federal law — including treaty obligations with Native American nations — introduced a separate layer of exclusive and shared fishing rights that does not map cleanly onto the free/several/common classification.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Water Rights; Public Trust Doctrine; Incorporeal Hereditaments; Riparian Rights