And if a person having a manor in which there is a free warren should enfeoff another of the manor, with the appurtenances, the warren would not pass (a), for a warren is not necessarily appurtenant to a manor, though it may be so by prescription (b). The franchise of free warren implies a sole and exclusive (c) power of killing game within the ambit of the grant, on condition of preventing others from doing so, and therefore, as Sir William Blackstone says (d), “ A man that has the franchise of warren is in reality no more than a royal game-keeper." Whether or not a person may have a property, ratione soli, in such feræ naturæ as are denominated game, or how far such possible right may be affected by any manorial privileges in lords of manors, emanating from the King and founded on principles of feudal tenure, does not appear to be a question so immediately connected with the subject of the present treatise, as to call for particular animadversion in this place (e); but (a) Br. Warren, pl. 7. And see ib. pl. 5, citing 14 H. 4. 6. (b) Bowlston v. Hardy, Cro. Eliz. 547. S. C. 5 Co. 104 a. By prescription a person may have a warren in a forest, but there must be an allowance of it in eyre, that is in the court of the forest. Sir Richard Harrison's case, W. Jones 280. (c) But a free warren is not necessarily an exclusive right, for in one case a prescription for the lord of the manor, his tenants and farmers, to fowl in the warren of another, was held good upon demurrer. Davies's case, 3 Mod. 246. (d) 2 vol. Com. 39. (e) I have pleasure, however, in referring the reader for much useful information on the character of the game laws of this country, and for the means of forming his own judgment on the controverted right of lords of manors, to sport over the grounds of others within their respective seigniories, to Mr. Chitty's treatise on the game laws, and to Professor Christian's notes to the commentary of Mr. Justice Blackstone, [2 vol. Com. c. 27,] on the right of property in such animals feræ naturæ, as come under the denomination of game, in which the learned Professor opposes the doctrine advanced by Sir W. Blackstone, that the sole property of all the game in England, and, as a consequence, the exclusive right of taking and destroying it, is vested in the King, as the ultimate proprietor of the soil. The reader's particular attention is also called to a useful work published a few years since, intitled "A "treatise on the rights of manors as assuming that a right of property may exist in this species of "deduced from the most ancient and "best authorities, with a report on "the game laws, and comment," the author of which wholly dissents from the arguments of Professor Christian. I am induced to express my assent to Sir Wm. Blackstone's position, that the sole right of property in all wild animals became vested in the King, from the period, at least, of the establishment of the feudal system in this country; and I conceive that the right of the lord of a manor or other royalty, to take and kill game within the confines of his seigniory, either as an exclusive right, or concurrently with the owners of the soil, is founded on the prerogative title of the King. Whether the right be exclusive or concurrent must depend on the words of the grant, or evidence of usage, for the right may exist by prescription, which presupposes a grant. But an exercise for several years of the right of sporting, which might be referrible to the tenant's acquiescence, will not induce the presumption of an ancient grant. Pickering v. Noyes, 4 Barn. & Cress. 639. It is clear that an ancient grant from the Crown of the franchise of taking and killing game within a limited district, would give the grantee the power of going over the grounds of others, without being considered a trespasser. Such a grant would in fact vest the franchise of a free warren in the grantee, which alone can justify a person's sporting on other's soil, or, indeed, even on his an own. 2 Bl. Com. 39. Vide also the above case of Pickering v. Noyes, in which the court of B. R. held that it was for the defendant, upon the issue joined, to prove first that he had such a royalty, and secondly that at the time in question he was in the due exercise of it. It does not appear to me that the lord of a manor can claim any right of sporting over grounds not in his own possession, under the provisions of the several acts of parliament authorising lords of manors to appoint game-keepers, and empowering such keepers, for the preservation of game, to search for noxious animals and engines of destruction, and also to kill game for the use of the lord; I apprehend, indeed, that the powers of game-keepers appointed under the acts of parliament alluded to, would be held to extend only (as far as they may be protected by the provisions of those acts against an action of trespass,) to such lands as should be in the lord's immediate possession, and those perhaps belonging to others, over which the lord had a right to sport under an ancient grant from the Crown, or by prescription. The case of the Earl of Ailesbury v. Pattison, Dougl. 28, clearly shows that the Courts of Law are disposed to circumscribe, as much as possible, the powers of the acts of 22 and 23 Car. 2, and the 5th of Anne, and other subsequent statutes, authorising lords and ladies of manors to appoint game-keepers; for in that case Lord Mansfield held, that the words "manors or other royalties,” animal, ratione soli (a), yet it is clear that such right would be subservient to the franchise of free warren (b), and it should certainly seem that a free warren over the lands of another person, may exist by prescription (c). in the first mentioned act, did not extend to a hundred or Wapentake, which would have been expressed, if the legislature had meant the act to apply to royalties of a higher nature than a lordship or manor. [But N.B. The provisions of the act of 1st & 2d W. 4. c. 32. have somewhat extended the powers of lords of manors over game. The act not only authorises the lord to appoint game-keepers to preserve or kill game within the limits of the manor for the lord's use; but by the 10th sect. the lord may pursue and kill game upon the wastes and commons, and give authority to any certificated person to enter upon such wastes and commons, for the purpose of pursuing and killing game. And by the 15th sect. the owner of land, in Wales, of the clear annual value of £500, not being within the bounds of any manor, may appoint a game-keeper, to preserve or kill the game thereupon.] I would further submit, that the franchise of sporting over the grounds of another, under a grant to the lord of a manor, may be lost, as well by a conveyance of the demesnes of the manor without reserving the franchise, as by non-user, such discontinuance of the exercise of the right, inducing the presumption of a release and extinguishment of it, which extinction seems to be perfectly consistent with established principles of tenure, as between the lord and the owner of land within his manor. (See ante, p. 794, as to the extinction of a free warren.) But it is probable that on an extinguishment of the right of the grantee of the Crown, the prerogative right, to the extent of that formerly exercised by the lord under the particular grant, would revive. (a) The case of Sutton & Moody, Salk. 556; 1 Lord Raym. 250; Comb. 458; 5 Mod. 375; 12 Mod. 144, is an authority that the courts will presume a right of property to game in the owner of the land on which it is killed, ratione soli, as against a perfect stranger; but it is a possessory property only. F. N. B. 87 A. And see 12 H. 8. 10. 11 Co. 87 b. 4 Inst. 320. 2 Bl. Com. 419. Post. p. 798. n. (a). (b) Sutton v. Moody, sup. The frequency of these grants is urged by Sir William Blackstone in favour of his position, that the exclusive right of taking and destroying game belonged to the King. 2 Com. 417. (c) Br. Warren. pl. 2, cites 34 H. 6. 28. Ib. pl. 3. And see Davies's case, ante, p. 795. n. (c). Rex v. Talbot, Cro. Car. 311. Fowler v. Seagrave, Bulst. 254. Sulton v. Moody, sup. But an alienation of the land without reserving the warren would extinguish the right. Br. Warren, pl. 3, cites 35 H. 6. 55. Dy. 306. Ante, p. 794. The grant of free warren would When the right of property in wild animals can be claimed ratione privilegii, it nevertheless continues only so long as they remain within the limits of the particular franchise, except, indeed, that the property would not be changed by being hunted by the owner, or even by a stranger, out of the free chase or warren, and killed in the grounds of another person (a). FREE FISHERY, &c.-A free fishery in its more ordinary acceptation, means an exclusive right of taking and killing fish in an arm of the sea (b), or navigable river (c) being an seem to give a right to appoint a warrener to preserve the game, who is justified by ancient usage in killing dogs, cats, and vermin. Wadhurst v. Damme, Cro. Jac. 45. (a) 2 Bl. Com. 419. The learned judge there also states, (and so the law clearly seems to be,) that "if a "man starts game on another's pri"vate grounds and kills it there, the property belongs to him on whose ground it was killed, because it "was also started there, the property arising ratione soli: whereas if "after being started there it is killed "in the ground of a third person, "the property belongs not to the "owner of the first ground, because "the property is local, nor yet to "the owner of the second, because it "was not started in his soil; but it "vests in the person who started and "killed it, though guilty of a trespass against both the owners." And see Churchwarden v. Studdy, 14 East 249. (b) There can be no prescription for a right to fish in the sea, as an nexed to certain tenements, such right being common to all the king's subjects. Ward v. Creswell, Willes 265. Kitch. 45, cites 8 E. 4. 10. If the water ebb and flow upon my land, every one may fish there;' per Choke, ib. Fishing with stake nets on the sea coast near the mouth of a river, is not prohibited either by the statute or the common law of Scotland. Earl of Kintore Appel., Forbes & others Resp. 4 Bli. N. S. 485. In which case it was held that proprietors of fisheries on the sea coast intitled only by the terms of their grant to fish with a net and coble, cannot be restrained from fishing with stake nets on the suit of owners of fisheries in a river. (c) Some of the books seem to extend the term free fishery to public rivers, though not arms of the sea. See 2 Bl. Com. 39. Per Lord Mansfield, in Carter v. Murcot, 4 Burr. 2164. Per Holt, C. J., in. Warren v. Matthews, 1 Salk. 357. arm of the sea (a), under a grant from the crown (b), and is therefore considered as a royal franchise (c); and as the jealousy with which this privilege was viewed by the people led to a declaration in King John's charter, [c. 47,] that where the banks of rivers had been first defended in his time, they should be laid open; and in the charter of 9 Hen. 3. c. 16, that no banks should thenceforth be defended, but such as were so in the time of Henry his grandfather (d), it has been suggested that a franchise of free fishery ought now to be at least as old as the reign of Henry the 2d.' (e) 6 Although it has been supposed that a several fishery is a perfectly distinct franchise from a free fishery, in that the owner of a several fishery must be, or at least derives his right from, the owner of the soil'(f), which is not requisite in a free fishery, for that term imports the right to fish in the waters of another (g); and from a common of piscary, in that the latter does not imply an exclusive right (h); yet others have slighted these distinctions, and considered a free fishery merely as a liberty to fish in the several fishery of the grantor (i), and to (a) River Bann case, Sir John Davis's Rep. 55. (b) The right must be clearly proved, and cannot be presumed. Carter v. Murcot, ubi sup. In a late case where the lord claimed the exclusive privilege of cutting sea-weed (vraic) from rocks covered at ordinary tides by the sea, and which right, in the absence of any grant from the crown, could only be sustained by evidence of long and undisturbed enjoyment, the evidence being of a continued adverse claim without resistance, followed up by suit, the court of appeal (privy council) set aside the judgment in favour of the lord. Benest v. Pipon, 1 Knapp. (P. C.) 60. (c) 2 Bl. Com. 39. (d) See the case of Weld v. Hornby, 7 East 195. (e) 2 Bl. Com. 39, 417. 1 Campb. 312 n. (f)2 Bl. Com. 39. And see Kitch. 46, cites 17 E. 4. 6. Ib. 47, cites 22 E. 4. 116. (g) Kitch. 46, cites 4 E. 3. Trespass 222. 7 H. 7. 13. 18 E. 4. 5, (h) Free fishery held to import an exclusive right, equally with a several piscary. Smith v. Kemp, Salk. 637. S. C. Carth. 285. Common of piscary may be prescribed for as appendant to land. Kitch. 46. 40. (i) 2 Sid. 8, cited 2 Bl, Com. |