CHAPTER XXI.

FISHERY.

I. Of the Right of Fishery in the Sea, and in the Creeks and Arms thereof, and in fresh Rivers, p. 834.

II. Of the different Kinds of Fishery, p. 836; Several Fishery, p. 836; Free Fishery, p. 837; Common of Fishery, p. 839.

I. Of the Right of Fishery in the Sea, and in the Creeks
and Arms thereof, and in fresh Rivers.

"THE right of fishing in the sea (a), and the creeks and arms thereof, is originally lodged in the crown, in like manner as the right of fishing in a private or inland river is originally lodged in the owner thereof. But although the king is the owner, and, as a consequence of his property hath the primary right of fishing in the sea, or creeks or arms thereof, yet all the king's subjects in England have regularly a liberty of fishing in the sea, and the creeks and arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where the king, or some particular subject, hath gained a propriety exclusive of that common liberty, either by the king's charter or grant, or by custom and usage, or prescription." It appears from this passage, that Lord Hale thought an exclusive right of fishery in an arm of the sea might belong to a subject (b). And of this opinion were the Court of B. R. in Carter and another v. Murcot and another, 4 Burr. 2162, where it was decided, that a plea which prescribed for a several fishery in an arm of the sea, was good; but it was there said, that, as the presumption in such case was in favour of the king and public, it was incumbent on the plaintiff to prove his exclusive right, agreeably to the rule laid down by Lord Hale, in 1 Mod. 105, that if any one will appropriate a privilege to himself, the proof lies on his side. In Ward v. Cresswell, Willes' Rep. 265, and 16 Vin. Abr. 354, tit.

(a) Lord Hale, De Jure Maris, p. 1, c. 4; Hargrave's Tracts, vol. 1, p. 11. See also the case of The Royal Fishery of the Banne, Dav. R. 55.

(b) See also 8 Edw. IV. 19, a.; 4 T. R. 439, S. P., admitted by Kenyon, C. J., and Ashhurst, J.

66

Piscary" (B.) S. C., the court held, that all the subjects of England, of common right, might fish in the sea, it being for the good of the commonwealth, and for the sustenance of the people of the realm, and that therefore a prescription for it, as appurtenant to a particular township, was void, and as absurd as a prescription would be for travelling the king's highway, or for the use of the air as appurtenant to a particular estate. To trespass for fishing in the plaintiff's fishery (c), defendant pleaded, that the place is an arm of the sea, in which every subject has a right to fish; the plaintiff in his replication claimed an exclusive right by prescription, traversing the general right. It was holden, that this was a bad and immaterial traverse, and might be passed over by the defendant, and that it was competent to him to traverse the prescriptive right of the plaintiff stated in the replication. The preservation of the spawn, fry, or brood of fish, has been, for centuries, a favourite object of legislation, and the statutes passed for the purpose are extremely numerous; thus dredging for oyster spat in a common navigable river is illegal under the stat. 13 Ric. II. stat. 1, c. 19, which has never been repealed, but frequently recognized (d). In Bagott v. Orr, 2 Bos. & Pul. 472, the court seem to have been of opinion, that primâ facie every subject has a right to take fish found on the sea shore between high and low water mark, but that such general right might be restrained by an exclusive right in an individual.

Fresh rivers, of what kind soever, of common right belong to the owners of the soil adjacent (e); so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquæ, and the owners of the other side the right of soil or ownership, and fishing unto the filum aquæ on their side. And if a man be owner of land on both sides, in common presumption he is owner of the whole river and hath the right of fishing according to the extent of his land in length. But special usage may alter that common presumption; for one may have the river, and others the soil adjacent; or one may have the river and soil thereof, and another the free or several fishery in that river. "Where a private river is the boundary of two persons' lands, the soil ad filum aquæ belongs to the owners of the lands on each side ad filum aquæ, unless there have been immemorially acts of ownership exercised by one or the other" (f).

(c) Richardson v. The Mayor, &c. of Orford, 2 H. Bl. 182.

(d) Mayor, &c. of Maldon, v. Woolvet, 4 P. & D. 26; 12 A. & E. 13.

(e) Ld. Hale, De Jure Maris, p. 1, c. 1; Hargrave's Tracts, vol. 1, p. 5; Davis's

R. 57, a. b. See as to the evidence of ownership of rivers, Jones v. Williams, 2 M. & W. 326.

(f) Per Wilmot, J., Sparks v. Lloyd, Worcester Spring Ass. 1757, MSS.

VOL. II.

L

II. Of the different Kinds of Fishery, p. 836; Several Fishery, p. 836; Free Fishery, p. 837; Common of Fishery, p. 839.

A several fishery is where a person has an exclusive right of fishery, either in his own soil or in the soil of another (g). "In order to constitute a several fishery, it is requisite that the party claiming it should so far have the right of fishing independently of all others, as that no person should have a co-extensive right with him in the object claimed. But a partial independent right in another, or a limited liberty, does not derogate from the right of the general owner" (h). He who has a several fishery is not necessarily the owner of the soil (i); but as the exclusive right of fishing is an incident to the ownership of the soil, it will be presumed (k), until the contrary be shown, that such right resides in the owner of the soil. Hence, to an action of trespass for an injury to a right of several fishery, it is a good plea that the soil and freehold belong to the defendant (7) (1). To this, however, the plaintiff may reply title to the several fishery, either by prescription or grant, thereby rebutting the presumption of the right of several fishery being still vested in the owner of the soil. Where a subject was owner of a several fishery in a navigable river, where the tide flows and reflows, which fishery had been granted to him before Magna Charta, by the description of separalis piscaria; it was holden (m), that it was an incorporeal and not a territorial hereditament, and that a term for years in it could not be created without deed.

If a person be seised of a river (n), and by deed grant a several fishery in the same, and makes livery of seisin secundum formam carta, the soil does not pass; and if the river becomes dry, the grantor may take the benefit of the soil, for a particular right only passed to the grantee. A prescriptive right to a several fishery in a navigable river may pass as appurtenant to a manor (o). A right of fishery is divisible, and may be abandoned as to part, while another part is preserved. Hence, an exclusive right to dredge for

(g) Fitz. Abr. Barre, pl. 27, cites M. 20 Hen. VI. 4.

(h) Per Ld. Mansfield, C. J., delivering the resolution of the court, Seymour and others v. Ld. Courtenay and others, 5 Burr. 2814.

(i) Hargrave's Note, Co. Litt. 122, a. n.

(7).

(k) See 5 B. & C. 886.

(1) 17 Edw. IV. 6, b; 18 Edw. IV. b. Per Paston, J., 18 Hen. VI. 30, a.; Fitz. Abr. Barre, pl. 20, S. C.

(m) D. of Somerset v. Fogwell, 5 B. & C. 875.

(n) 1 Inst, 4, b. But see Hargrave's note.

(0) Rogers v. Allen, 1 Campb. 309.

(1) See also 10 Hen. VII. 24, b., 28, b., a case very clearly reported; but it is said there, that the plea is not good, unless it conclude with praying, whether plaintiff shall have his action without showing title. Per Brian, J.; but in 20 Hen. VI. 4, a., Newton, C. J. C. B., was of opinion, that the plea might be concluded either way.

oysters may subsist as appurtenant to a manor, although it be lawful for all the king's subjects to catch floating fish therein. Trespass for breaking and entering his close, and fishing in separali piscariâ suâ, and for taking pisces suos (p). After verdict, exception was taken to the declaration in arrest of judgment, because it is said pisces suos. But the court were of opinion, that being in separali piscaria, it might well be said pisces suos, because they could not be taken by any other person. In Fontleroy v. Aylmer, Lord Raym. 239, where the declaration stated that defendant, in separali suâ piscariâ piscatus fuit, et pisces cepit, after verdict for plaintiff, an exception in arrest of judgment, directly the reverse of that in the foregoing case, was taken, viz. that the declaration had omitted the word suos; but the court thought the objection entitled to very little weight; because the plaintiff having alleged that it was his fishery, the fish there should be intended primâ facie to be his fish. A., being seised of a mill, and having a sole fishery in the waters of the mill, granted the mill, with all waters, streams, &c. necessary in working the same, "except, and always reserving, the right and privilege of fishing in the waters of the said mill." It was holden (q), that this was an exception of the sole fishery, and not a reservation of a new easement.

Free Fishery.

It is to be lamented, that the books do not afford materials for an accurate description of a free fishery. That this subject is involved in doubt and uncertainty, will appear from the following passages, extracted from the writings of Mr. Justice Blackstone and Mr. Hargrave :

Mr. J. Blackstone, having defined common of fishery to be a liberty of fishing in another man's water (r), states a free fishery to be an exclusive right of fishing in a public river, and adds, "that it is a royal franchise, and is considered as such in all countries where the feodal polity has prevailed; though the making such grants, and thereby appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by King John's great charter; and the rivers that were fenced in his time were directed to be laid open. This opening was extended by the second and third charters of Henry III. to those also which were fenced under Richard I., so that a franchise of free fishery ought to be as old as the reign of Henry II. This differs from a several fishery, because he that has a several fishery must also be (or at least derive his right from) the owner of the soil, which in a free fishery is not requisite. It differs from a common of piscary,

(p) Child v. Greenhill, Cro. Car. 553; Sir Wm. Jones, 440, S. C.

(q) Ld. Paget v. Milles, 3 Doug. 43. (r) 2 Bl. Com. 39, 40; Edn. 12.

in that the free fishery is an exclusive right; the common of piscary is not so; and therefore, in a free fishery, a person has a property in the fish before they are caught; in a common of piscary, not until afterwards. Some, indeed, have considered a free fishery, not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor. But the considering such right as originally a flower of the prerogative, till restrained by Magna Charta, and derived by royal grant, previously to the reign of Richard I., to such as now claim it by prescription, and to distinguish it, as we have done, from a several and a common of fishery, may remove some difficulties, in respect to this matter, with which our books are embarrassed." On this passage Mr. Hargrave made the following remark (s): “Both parts of this description of a free fishery seem disputable. With regard to the first part, although for the sake of distinction it might be more convenient to appropriate free fishery to the franchise of fishing in public rivers by derivation from the crown; and although in other countries it may be so considered, yet, from the language of our books, it seems as if, in our law, practice had extended this kind of fishery to all streams, whether private or public: neither the register nor other book professing any discrimination. Reg. 95, b. F. N. B. 88, G.; Fitz. Abr. Ass. 422; 17 Edw. IV. 6, b., 7. a.; 7 Hen. VII. 13, b. With respect to the 2nd part, it is true, that in Smith v. Kemp, 2 Salk. 637; Carth. 285, S. C., the court held free fishery to import an exclusive right equally with several fishery, chiefly relying on the writ in the Register, 95, b. and the 46 Edw. III. 11, a. But then this was only the opinion of two judges (t) against one (u), who strenuously insisted, that the word libera, ex vi termini, implied common, and that many judgments and precedents were founded on Lord Coke's so construing it. That the dissenting judge was not wholly unwarranted in the latter part of his assertion, appears from two determinations a little before the case in question, viz. Upton v. Dawkin, 3 Mod. 97, where judgment was arrested in trespass for breaking and entering a free fishery; because the declaration alleged the fish taken to be the fish of the plaintiff; and Peake v. Tucker, cited in margin, Carth. 286, where judgment was arrested on the same ground." After the preceding remarks were published, Mr. J. Blackstone, with that candour and liberality which are the inseparable companions of true learning, added the following observation, in a subsequent edition of his Commentaries : "It must be acknowledged, that the right and distinctions of the three species of fishery are very much confounded in our law books; and there are not wanting respectable authorities (see them well digested in Hargrave's notes on Co. Litt. 122 (23),) which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is Hargrave's Co. Litt. 122, a. n. 7. (u) Eyre, J. Holt, C. J., Dolben, J.