This action is brought by the widow of Philemon R. Russell to recover of the defendant compensation accord • ing to contract for the use of her fish right in Somerville, formerly part of Charlestown. It is found that this fishing in Alewive Brook is part of the herring fishery of Mystic River and Little River, as regulated by Sts. 1788, c. 68, and 1820, c. 67; being a salt water stream, in which the sea ebbs and flows. If so, it may be questionable whether a several fishery can be had in it, unless where it has been conferred by statute. But we have not thought this important; because it seems to have been assumed by the widow and heirs that Philemon R. Russell, the husband and ancestor, as riparian proprietor or otherwise, had a right of fishery there; it was recognized in the assignment of dower, and in the partition of real estate amongst the heirs, of whom the defendant was one, taking a share in his own right and purchasing the right of several others.

The right of fishery being regarded as real estate, it was assumed by the commissioners that the widow was dowable of it, and they set it off as part of her dower. If this setting off was invalid and not well assigned, because the commissioners did not designate on what days in special she should have a right to fish — it not being set off to the other heirs — then the entire fishery was left in common to the widow and heirs; and then by the Rev. Sts. c. 60, § 6, until assignment, she was entitled to *162one third of the rents and profits, or annual value, so that she had an undivided aliquot part of the fishery.

Under these circumstances, it appears to us that , the defendant having acknowledged the plaintiff’s title, negotiated with her for it, and used and enjoyed it, he was estopped from denying her title. If he had thus hired and enjoyed this right, an 1 there was no express stipulation what sum he should pay annually for it, the law implied a promise on his part to pay what it was reasonably worth.

We think there was evidence proper to go to a jury, upon which they might find that he so acknowledged her title, and did hire and use her right, and became bound to pay a reasonable compensation for it. The direction of the court, therefore, that, as matter of law, the plaintiff had no fish right and could not recover, was incorrect. Exceptions sustained.