Disturbance of franchise. Statutory authority over ports. prescription, without any other formality appearing, though presumed; ex diuturnitate temporis omnia præsumuntur rite acta" (x). And a grant of a port within time of legal memory may be presumed from long possession and the taking of dues, though the deed or charter, which should be matter of record, cannot be directly proved (y). "No subject may institute or erect a common port without the charter of the king, or a lawful prescription." The use of any place, not being a lawfully appointed port, for the arrival and unloading of ships is a disturbance of the franchise. "Yet further it seems that a subject cannot, neither could by law at any time after customs were settled, arrive with customable goods and ships of his own at his own land; for this were to defeat the king of his duty." "But any man might bring and unlade his own private goods which are not customable upon his own land; for this was no accroachment of a port at common law." And "in case of necessity, either of stress of weather, assault of pirates, or want of provisions, any ship might put into any creek or haven; all places are as to that purpose and end ports" (~). The prerogative right of ports is now superseded by statutory authority. The statute 9 & 10 Vict. c. 102, repealed and re-enacted by "The Customs Consolidation Act, 1853," 16 & 17 Vict. c. 107, and by "The Customs Consolidation Act, 1876," 39 & 40 Vict. c. 36, vested the appointment of ports in the Commissioners of the Treasury. By the last mentioned Act, s. 11, "The Commissioners of the Treasury may, by their warrant, appoint any port, subport, haven or creek in the United Kingdom or in the Channel Islands, and declare the limits thereof, and appoint proper places within the same to be legal quays for the lading and unlading of goods, and declare the bounds and extent of any such quays, and annul the terall, 5 B. & Ald. 309; Exeter v. (x) Hale, De Port, Hargr. Tracts, (y) Hull v. Horner, Cowp. 102. (z) Hale, De Port, Hargr. Tracts, 51, 53. limits of any port, already appointed or to be hereafter set out and appointed, and declare the same to be no longer a port, or alter or vary the names, bounds and limits thereof." It is further provided, "that any port so appointed shall be deemed to be a port within the meaning and for the purposes of any other public Act for the protection of the ports, harbours, shores and navigable rivers of the United Kingdom or any part thereof" (a). There is commonly incident to public ports the right to Port dues. take tolls or duties for the use of the port, as for anchorage, wharfage and the like; which cannot be taken without a lawful title by charter or prescription (b). The right to take dues may be proved by long usage, though the grant was within time of legal memory and the charter, which ought to be matter of record, cannot be produced (c). For the validity of tolls some consideration is necessary; but "the mere creation of the port, with the consequent right in all subjects to use the range within the limits as a port, to bring their ships there for safety, and to trade there, and unload customable goods would be consideration sufficient in law to support the grant of the duties" (d). There may be other considerations incident to the franchise of a port, as the obligation of repairing, clearing and maintaining the port; of furnishing capstans, cranes, wharfs, warehouses and other conveniences for harbouring and lading and unlading ships; and of measuring or providing the means of measuring goods imported. The nonperformance of these obligations may render the owner liable to proceedings against him; but it is no answer to a demand of port-dues, unless they are claimed as charges for specific services (e). (a) Nicholson v. Williams, L. R. 6 Q B. 632; 40 L. J. M. 159. (c) Hull v. Horner, Cowp. 102. Mayor of Exeter v. Warren, 5 Q. B. (e) Per cur. Mayor of Exeter v. Wreck of the sea. Crown. Wreck of the sea, as to the property therein, is of two kinds namely, goods cast upon the land or sea shore; and goods found in the sea. Goods cast upon the shore by shipwreck (which is the strict legal meaning of the term wreck), are within the jurisdiction of common law, and Prerogative of by prerogative right belong to the Crown. Goods cast upon the shore which are not legally wreck, may be taken by the Crown, subject to the owner claiming them within a year and a day (e). Wreck found in the sea is described by the legal terms of jetsam, flotsam and lagan, meaning respectively goods cast into the sea, goods floating, and goods fastened to a buoy for recovery. This kind of wreck, if found in the sea between high and low water mark, or in any haven, port, creek, or arm of the sea, or tidal river, which belongs to the Crown, also primá facie belongs to the Crown; but subject to the claim of the owner of the goods if he can be known, and subject to the payment of salvage to him who recovers the wreck. Wreck found in the open sea beyond the limits of the prerogative of the Crown becomes the property of the taker, subject to the rights of the original owner if he can be ascertained; in which case the taker becomes entitled Franchise of only to be paid for salvage (ƒ).—The prerogative right of the Crown to take wreck of the sea, both wreck cast on land and floating wreck, may be granted to a subject to be held as a franchise; and it may be vested in a subject by prescription, or as appurtenant to a manor. But the term "wreck of the sea" is construed strictly to pass such goods only as are cast on land by the sea, and not to include floating wreck (g). wreck. Receivers of wreck. By the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, s. 439, "The Board of Trade shall throughout the (e) Stat. West. 3 Ed. I. c. iv, declaratory of common land, 2 Co. Inst. 166; Stat. Prerog. Regis, c. xiii, Statutes, Revised ed., p. 132; Hale, De J. Maris, Hargr. Tracts, 37; Constable's Case, 5 Co. 106. (f) Hale, De J. Maris, Hargr. Tracts, 41; 5 Co. 107, 108, Constable's Case. (g) Hale, De J. Maris, Hargr. Tracts, 41; Constable's Case, 5 Co. 106. United Kingdom have the general superintendence of all matters relating to wreck," and it is empowered to appoint certain officers to be "receivers of wreck," to perform the duties prescribed in the Act relating to the receiving and disposal of wreck. By s. 474, "The Board of Trade shall have power, with the consent of the Treasury, for and on behalf of her Majesty, to purchase all such rights to wreck as may be possessed by any person or body corporate, other than her Majesty"; and for the purpose of facilitating such purchases, the provisions of the Lands Clauses Consolidation Act, 1815, are incorporated. By the interpretation clause, s. 2, "in the construction and for the purposes of this Act, the term wreck' shall include jetsam, flotsam, lagan, and derelict, found in or on the shores of the sea or any tidal water.” Fishery in inland waters. Non-tidal rivers. CHAPTER XII. INLAND AND SEA FISHERIES. Fishery in inland waters-non-tidal rivers. Fishery in land of another—several fishery-free fishery and common of fishery-qualified fishery. Fishery in the open sea- -Sea Fisheries Acts. Fishery in arms of the sea and tidal waters-Crown grants of fishery— prescriptive fishery-non-tidal waters. Fishing weirs-in navigable rivers-in private rivers. Royal fish-salmon-oysters and shell fish. The right of fishing in inland water which is private property, as a lake or pond, is an ordinary incident of the ownership of the land and water. It is sometimes called a "several fishery," but only in the same sense that the ownership of the land is a "several" ownership, and not as being a separate subject of property (a). Hence the possession and exercise of a several or exclusive right of fishing, in the absence of other evidence respecting the title, is referable to the ownership of the land, and affords presumptive evidence of a title in fee (b). And the term "fishery" in a deed of conveyance, as descriptive of the property conveyed, may pass the land itself covered with water, if apparently used with that intention (c). The right of fishing in non-tidal rivers and inland streams is presumptively in the riparian owners ad medium filum aquæ. If one person be the owner of both banks, he has the entire fishing to the extent of his land in length. (a) Per cur. Holford v. Bailey, 13 Q. B. 444. (b) Duke of Somerset v. Fogwell, 5 B. & C. 875; post, p. 176. (c) Marshall v. Ulleswater Nav., 3 B. & S. 732; 32 L. J. Q. B. 139. |