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animal, ratione soli (a), yet it is clear that such right would be subservient to the franchise of free warren (6), and it should certainly seem that a free warren over the lands of another person, may exist by prescription (c).

a

in the first mentioned act, did not tenure, as between the lord and the extend to a hundred or Wapentake, owner of land within his manor. (See which would have been expressed, if ante, p. 794, as to the extinction of the legislature had meant the act to free warren.) But it is probable that apply to royalties of a higher nature on an extinguishment of the right of than a lordship or manor.

the grantee of the Crown, the pre[But N.B. The provisions of the rogative right, to the extent of that act of 1st & 2d W. 4. c. 32. have formerly exercised by the lord under somewhat extended the powers of the particular grant, would revive. lords of manors over game. The act (a) The case of Sutlon f; Moody, not only authorises the lord to ap- Salk. 556; 1 Lord Raym. 250 ; point game-keepers to preserve or Comb. 458; 5 Mod. 375; 12 Mod. kill game within the limits of the 144, is an authority that the courts manor for the lord's use ; but by the will presume a right of property to 10th sect. the lord may pursue and game in the owner of the land on kill game upon the wastes and com- which it is killed, ratione soli, as mons, and give authority to any cer- against a perfect stranger ; but it is tificated person to enter upon such a possessory property only. F. N. B. wastes and commons, for the pur- 87 A. And see 12 H. 8. 10. 11 Co. pose of pursuing and killing game. 87 b. 4 Inst. 320. 2 Bl. Com. 419. And by the 15th sect. the owner of Post. p. 798. n. (a). land, in Wales, of the clear annual (6) Sulton v. Moody, sup. The value of £500, not being within the frequency of these grants is urged by bounds of any manor, may appoint a Sir William Blackstone in favour of game-keeper, to preserve or kill his position, that the exclusive right the game thereupon.]

of taking and destroying game beI would further submit, that the longed to the King. 2 Com. 417. franchise of sporting over the grounds (c) Br. Warren. pl. 2, cites 34 H. of another, under a grant to the lord 6. 28. Ib. pl. 3. And see Davies's of a manor, may be lost, as well by case, ante, p. 795. n. (c). Rex v. a conveyance of the demesnes of the Talbot, Cro. Car. 311. Fowler v. manor without reserving the fran- Seagrave, Bulst. 254.

Sullon v. chise, as by non-user, such discon- Moody, sup. But an alienation of tinuance of the exercise of the right, the land without reserving the warinducing the presumption of a re- ren would extinguish the right. Br. lease and extinguishment of it, which Warren, pl. 3, cites 35 H. 6. 55. extinction seems to be perfectly con- Dy. 306. Ante, p. 794. sistent with established principles of 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 (6), or navigable river (c) being an

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seem to give a right to appoint a nexed to certain tenements, such right warrener to preserve the game, who being common to all the king's subis justified by ancient usage in kill- jects. Ward v. Creswell, Willes 265. ing dogs, cats, and vermin. Wad- Kitch. 45, cites 8 E. 4. 10. "If the hurst v. Dainme, Cro. Jac. 45. water ebb and flow upon my land, (a) 2 Bl. Com. 419. The learned

every one

may fish there ;' per judge there also states, (and so the Choke, ib. law clearly seems to be,) that “ if a Fishing with stake nets on the “ man starts game on another's pri- sea coast near the mouth of a river, vate grounds and kills it there, the is not prohibited either by the statute

property belongs to him on whose or the common law of Scotland. “ground it was killed, because it Earl of Kintore Appel., Forbes

was also started there, the property others Resp. 4 Bli. N. S. 485. In

arising ratione soli : whereas if which case it was held that proprie“ after being started there it is killed tors of fisheries on the sea coast in" in the ground of a third person, titled only by the terms of their “ the property belongs not to the grant to fish with a net and coble,

owner of the first ground, because cannot be restrained from fishing “the property is local, nor yet to with stake nets on the suit of owners “ the owner of the second, because it of fisheries in a river,

was not started in his soil; but it (c) Some of the books seem to ex« vests in the

person

who started and tend the term free fishery to public “ killed it, though guilty of a tres- rivers, though not arms of the sea.

pass against both the owners.” See 2 Bl. Com. 39. Per Lord Mans. And see Churchwarden v. Studdy, field, in Carter v. Murcot, 4 Burr. 14 East 249.

2164. Per Holt, C. J., in. Warren v. (6) There can be no prescription Matthews, 1 Salk. 357. for a right to fish in the sea, as an

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 tható a franchise of free fishery ought now to be at least as old as the reign of Henry the 2d.' (e)

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 (8); 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 sereral fishery of the grantor (i), and to

312 n.

(a) River Bann case, Sir John (c) 2 Bl. Com. 39. Davis's Rep. 55.

(d) See the case of Weld v. Horn(6) The right must be clearly by, 7 East 195. proved, and cannot be presumed. (e) 2 Bl. Com. 39, 417. 1 Campb. Carter v. Murcot, ubi sup.

In a late case where the lord (f) 2 Bl. Com. 39. And see Kitch. claimed the exclusive privilege of 46, cites 17 E. 4. 6. Ib. 47, cites 22 cutting sea-weed (vraic) from rocks E. 4. 116. covered at ordinary tides by the sea, (g) Kitch. 46, cites 4 E. 3. Tresand which right, in the absence of pass 222. 7 H. 7. 13. 18 E. 4. 5. any grant from the crown, could only (1) Free fishery held to import an be sustained by evidence of long and exclusive right, equally with a seveundisturbed enjoyment, the evidence ral piscary. Smith v. Kemp, Salk, . being of a continued adverse claim 637. S. C. Carth. 285, without resistance, followed up by Common of piscary may be presuit, the court of appeal (privy coun- scribed for as appendant to land. cil) set aside the judgment in favour Kitch. 46. of the lord. Benest v. Pipon, 1 (i) 2 Sid. 8, cited 2 Bl, Com. Knapp (P. C.) 60.

40.

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be synonymous with common of piscary (a); and others again have denied that ownership of the soil is necessarily included in a several fishery (6).—These conflicting opinions are ably digested by Mr. Hargrave in his learned note above referred to, but that very distinguished lawyer thought proper to leave the question open to future discussion. It would seem, however, to be settled that a fishery in a navigable river described in an ancient grant 'separalem piscariam' is an incorporeal and not a territorial hereditament, but that where the terms of the grant are unknown, the owner of a several fishery, would be presumed to be owner of the soil (c). And the case of The King v. Ellis (d), shows that particular privileges in the grantee, are inconsistent with a mere incorporeal fishery.

It was decided in the case of Scratton v. Brown (e) that a grant by the lord of a manor, (possessing the franchise of a fishery,) of a messuage, &c., and certain sea-grounds, oyster-layings, shores, and fisheries, with full and

free liberty to fish, dredge, and lay oysters thereon, did not convey a mere privilege and easement only, leaving in the grantor the general property in the soil, but the soil itself, and that the operation of the words * sea-grounds' was not qualified and restricted by the superadded words ' oyster-layings,”' liberty to fish,' &c.

The grant in the last-mentioned case described the seagrounds, &c. to be bounded by the high and low water

(a) See 2 Bl. Com. 40. Upton v. of King's Bench considered that some Dawkin, 3 Mod. 97. Comb. ll. territorial right passed by the grant, Peak v. Tucker, cited Carth. 286, and that the party was therefore marg. But see Salk. 637.

rateable under 43 Eliz., but

express(6) Co. Lit. 122 a. Bract. f. 208 b. ed a clear opinion that a mere incorAnd see Mr. Hargrave's note [7] to poreal fishery was not within that Co. Lit. 122 b. Where a person exer- statute. The King v. Ellis, 1 Mau. cising the right of fishing in the river & Selw. 652. Severn, between certain limits within (c) The Duke of Somerset v. Foga manor bordering on the river, under well, 5 Barn. & Cress. 875. a grant from the Crown, also exercised (d) Sup. n. (b). the privilege of landing nets on the (e) 4 Barn. & Cress. 485. beach, and driving stakes, the court

marks, and the court of B. R. held that those words were to be construed with reference to the rule of common law upon the subject of accretion (a), and that as the high and low water marks shift, the property conveyed also shifts, for that land between high and low water marks can only vest in a subject as the grantee of the crown, and that the crown by a grant of the sea-shore would convey not that which at the time of the grant was between the high and low water marks, but that which from time to time should lie between those two termini.

It has been adjudged that every subject may fish in navigable rivers, the king's prerogative right being confined to whale and sturgeon (6); and that the rule extends even to arms of the sea (c), unless an exclusive right exists by prescription (d).

The reader is reminded that in the case of The Mayor & Commonalty of Orford v. Richardson, Lord Kenyon (the other three judges of the court of B. R. concurring) held, that there may be a prescriptive right in a subject to a several fishery in an arm of the sea (e); and that in the case of Rogers v. Allen (f), Heath, J., held, that a several fishery in a navigable river, may pass as appurtenant to a manor.

(a) This case is therefore confirm- 105. Ante, p. 798. atory of the decision of The King v. (d) Carter v. Murcot, 4 Burr. Lord Yarborough, 3 Barn. & Cress. 2162. 4 T. R. 439, in The Mayor, 91, 4 Dow. & Ry. 790, ante, pt. l. fc. of Orford v. Richardson. And p. 40, that land gradually and im- see Bagott v. Orr, 2 Bos. & Pul. 472. perceptibly added to the demesnes of In the case of Chad & Tilsed, 2 Brod. a manor by the alluvion of oose, sand, & Bing. 406, (ante, p. 785,) Dallas, &c., belongs to the lord, and not to C. J., observed that if the usage the King, and so distinguishable had been only of forty years' duration, from the case of large spaces of land and had been applied to establish an left by the sudden retirement of the exclusive right over an arm of the

sea, that could not destroy the right (6) Ante, p. 785. n. (a). And see

of the subject.' stat. 17 Edw. 2. c. 11, de

preroga

(e) 4 T. R. 439. Hargr. Tr. 19. tivá regis.

(f) 1 Campb. 312. See this case (c) Warren v. Matthews, 6 Mod. on a point of evidence, anle, pt. 1. p. 73. S. C. 1 Salk. 357. Anon. I Mod. 600.

sea.

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