Non-tidal waters. grant from the Crown, upon the principle of presuming everything to be rightfully done in favour of an established usage (r). Accordingly the grant may be presumed to have been made subject to exceptive rights or conditions in favour of the public or of certain classes of the public, in accordance with the evidence of prescriptive enjoyment (y); but such presumption cannot be made to displace a title to an absolute several fishery founded upon documents and possession, and in such case exceptive enjoyments will be presumed to have been either with licence or by sufferance (z). A several fishery may also be claimed as prescriptively appurtenant to a manor (a). But the general presumption is against a several fishery and in favour of the public; therefore if the claimant prosecutes for unlawful fishing and his claim is disputed a question of title arises sufficient to oust the summary jurisdiction of justices (b). The public in general have no right of fishing in nontidal waters and rivers; for such waters, with the fisheries therein, are presumptively private property; nor can any public right of fishing in non-tidal waters be acquired by custom, such right being a profit à prendre in alieno solo which cannot be founded on custom (c). Nor has the Crown any prerogative right of fishing in a non-tidal river, the property of a subject, nor of granting a franchise of fishery in such river to a subject (d).—A public right of navigation in a navigable non-tidal river is limited to the purposes of navigation and does not carry with it any right of fishing (e). (x) Hale, De J. Maris, Hargr. (y) Goodman v. Saltash, L. R. 7 (a) Rogers v. Allen, 1 Camp. 309. (c) Lloyd v. Jones, 6 C. B. 81; Bland v. Lipscombe, 24 L. J. Q. B. 155, n.; Hudson v. Macrae, 4 B. & S. 585; 33 L. J. M. 65; Hargreaves v. Diddams, L. R. 10 Q. B. 582; 44 L. J. M. 178; ante, p. 162; see post, p. 562. (d) Devonshire v. Pattinson, L. R. 20 Q. B. D. 263; 57 L. J. Q. B. 189. (e) Reece v. Miller, L. R. 8 Q. B. D. 626; 51 L. J. M. 64; Pearce v. weirs. The Crown also in early times exercised a prerogative Fishing right of erecting weirs or dams for fishing in arms of the sea and tidal rivers, which are Crown property, to the exclusion of public rights of fishing and of navigation; and of granting such weirs, which are part of the soil itself, in private ownership to individuals or corporate bodies. But by the Charter of 25 Ed. I. c. 23, confirming the Public naviMagna Charta of John, it was enacted that "All weirs gable rivers. from henceforth shall be utterly put down by Thames and Medway, and through all England, except by the sea coast." This statute being general in its terms would prima facie apply to all rivers public or private, but the generality of the statute was held to be restrained by later statutes to public navigable rivers only (f). And by the statute 25 Ed. III. st. 4, c. 4, reciting that the common passage of ships and boats in the great rivers of England is often disturbed by the levying of weirs to the damage of the people, provided that "all such weirs which were levied and set up in the time of Edward I. and after, till now, in such rivers, whereby the said ships and boats shall be disturbed, shall be put out and utterly pulled down without being renewed." This and subsequent statutes in similar terms, 1 Hen. IV. c. 12, 4 Hen. IV. c. 11, 12 Ed. IV. c. 7, have been recently repealed by the Statute Law Revision Act, 1863, but with express saving of past operations and existing rights. This statute, in expressly restricting the operation to weirs set up in the time of Edward I. and after, was construed as impliedly legalising all weirs set up before that time, notwithstanding that they obstructed the channels of public navigable rivers, whatever doubt there might be as to the original authority of the Crown to grant Scotcher, L. R. 9 Q. B. D. 162; V. Matthews, 6 Mod. 73; 1 Salk. 357, and in Carter v. Murcot, 4 Burr. 2164, that in navigable (f) Callis on Sewers, p. 259, cited Weirs in private rivers. Royal fish. them (g). Accordingly it is stated as law that "a subject may have weirs, fishing places, &c., which are the very soil itself, by usage, either in gross or as parcel of or appurtenant to manors; and this not only in navigable rivers and arms of the sea, but in creeks, ports and havens, and in certain known limits in the open sea contiguous to the shore" (h). So it was held that a fishing weir in a public navigable river, presumptively granted by the Crown before the reign of Edward I., was legal, though the weir occupied part of the navigable channel; and that it did not become illegal by the river changing its course so that the whole navigable channel was obstructed (i). In private rivers, that is to say, inland non-tidal rivers, whether navigable or not, the right to erect weirs and dams, whether for fishing or for other purposes, with the effect of penning back or diverting the water, may be acquired against other riparian proprietors by grant or by prescription or other title applicable to such rights; but no such right can be acquired against a public right of navigation (j). By the Salmon Fishery Act, 1861, 24 & 25 Vict. c. 109, s. 12, for the protection of the Salmon Fishery, the use of fishing weirs for catching salmon was prohibited generally "except such fishing weirs as are lawfully in use at the time of passing of the Act by virtue of a grant or charter or immemorial usage;" and the use of the excepted weirs is restricted by special regulations (k). By the statute Prerogativa Regis, 17 Ed. II. c. 11, which is declaratory of the common law, "the king shall have whales and sturgeons taken in the sea or elsewhere within the realm, except in certain places privileged by the king." "Royal fish are so called because of common right such (g) Chester Mill Case, 10 Co. 137 b; Williams v. Wilcox, 8 A. & E. 314. (h) Hale, De J. Maris, Hargr. Tracts, 18. (i) Williams v. Wilcox, 8 A. & E. 314. (j) Rolle v. Whyte, L. R. 3 Q. B. 286; 37 L. J. Q. B. 105; Leconfield v. Lonsdale, L. R. 5 C. P. 657; 39 L. J. C. P. 305; ante, p. 151. (k) Leconfield v. Lonsdale, supra. fish, if taken within the seas parcel of the dominion and Crown of England or in any creeks or arms thereof, belong to the Crown; but if taken in the wide sea or out of the precinct of the seas belonging to the Crown, they belong to the taker. The kinds of these royal fish seem to be but three, viz., sturgeon, porpoise, and whale." "A subject may have this franchise or royal perquisite, by grant and by prescription, within the shore between the high water and low water mark, or in a certain distinct district of the sea, or in a port or creek or arm of the sea; and this may be had in gross, or as appurtenant to a manor" (1).Salmon are not distinguished from other fish as regards Salmon. the property or right of taking; except that numerous Acts of Parliament have been passed from time to time for the special preservation of salmon, and for the regulation of the fishery. By the law of Scotland the right of salmon fishing in all rivers and in the sea round the coasts belongs to the Crown jure corona; except so far as it has been granted by the Crown to subjects. And it lies upon those who maintain the right as against the Crown to show their title by an express or constructive grant of the salmon fishery (m).—The public right of fishing in the sea Oysters and and tidal waters includes the taking of oysters and shell fish, subject to the statutes passed for the regulation of the fishery (»). It also includes the taking of fish found upon the sea shore between high and low water upon the ebbing of the tide; at least, where they can be taken without trespassing. But it seems there is no similar right to take fish shells, which in some places are a valuable commodity (o). (1) The Statutes, Revised Ed. p. 132; Hale, De J. Maris, Hargr. Tracts, 43; Mildmay v. Page, Times, 10 Nov. 1883, in which case a whale caught in the river Crouch, within the manor of Burnham, was successfully claimed by the lord of the manor. (m) Gammell's Case, 3 Macq. 419; Mc Donall v. Lord Advocate, L. R. 2 Sc. Ap. 432; Lord Advocate v. Lovat, L. R. 5 Ap. Ca. 273. (n) Mayor of Maldon v. Woolvet, 12 A. & E. 13. (0) Bagott v. Orr, 2 B. & P. 472. shell fish. |