CHAPTER VI. OF FISHERY. right of fishing. The various Rights of Fishery. Definition of THE right of fishing is a right which may exist either in connexion with or independent of the ownership of the soil over which water flows. When this right is connected with the ownership of the soil, it is a right of property, one of the profits of the land, and has been called a territorial fishery. When it is independent of the ownership of the soil, it is either a common right-like the public right of fishery in the sea and tidal waters or it is a profit or easement over the soil of another, founded on grant or prescription from the owner of the soil, or from the Crown as owner of the bed of tidal waters. When unconnected with the ownership of the soil, a right of fishery is an estate of inheritance, which will pass by a grant of all other estates of inheritance, an incorporeal hereditament, which can only be granted by a deed, and which cannot be the subject of an exception in a deed.1 It is, moreover, not, strictly speaking, an easement, but it is a profit à prendre in the soil of another. As such, it may exist either in gross, or as appurtenant to a manor,5 and, in some cases, as appurtenant to a house or to land." 1 See Woolrych on Waters, p. 110; Schultes' Aquatic Rights, p. 87; Angell on Watercourses, p. 80. 2 Cooper v. Phibbs, L. R., 2 H. L. 150. 3 Duke of Somerset v. Fogwell, 5 B. & C. 875: Bird v. Higgenson, 2 A. & E. 696. 4 Corker v. Payne, 18 W. R. 436; Wickham v. Hawker, 7 M. & W. 63. 5 Rogers v. Allen, 1 Camp. 305; Shuttleworth v. Le Fleming, 19 C. B., N. S. 702, per Willes, J.; Wickham v. Hawker, 7 M. & W. 63. Hayes v. Bridges, 1 R. L. & S. 390; see Edgar v. Fishery Commissioners, 23 L. T., N. S. 737. A right of fishery in gross is not within the Prescription A right of fishery would appear not to be a sufficient interest in land to give a claim to compensation under the Lands Clauses Consolidation Act.2 Much difficulty arises, especially in the interpretation. of old cases, from the confusion of the terms used to express the various kinds of fishery recognized by the law, from sufficient attention not having been paid to the fact that nearly all the kinds of fishery may exist either in the owner of the soil, or in a stranger,-in which two cases the law, as to trespass particularly, will materially differ.3 It will be the most convenient course here to attempt, in the first place, to define and explain the various kinds of fishery and their incidents, and then to proceed to consider how and where such rights of fishery may be enjoyed. Finally, we shall enumerate and discuss the various statutory regulations of and restrictions on the rights of fishery, with regard to the kinds of fish which may be caught, and the means which may be used to catch them, and the seasons during which they may be caught. The kinds of fishery mentioned in our books are, according to the best authorities, four in number,1-viz. (1) A common fishery; (2) A several fishery; (3) A free fishery; (4) A common of fishery. A fishery in gross is also sometimes mentioned; but such a fishery is merely any of the last three kinds when enjoyed apart from the ownership of the soil over which the water flows. We shall make use of the words territorial fishery to define that kind of several and exclusive fishery arising from and connected with the ownership of the soil in non-tidal waters. 1 Shuttleworth V. Le Fleming, supra; Bland v. Lipscombe, 4 E. & B. 713. 2 Bird v. Great Eastern Rail. Co., 19 C. B., N. S. 268. 3 See Paterson's Fishery Laws, p. 4, and per Fitzgerald, B., in Bloomfield v. Johnson, Ir. R., 8 C. L. 107. 4 See Paterson's Fishery Laws, pp. 4, 45; Woolrych on Waters, p. 75; Houck on Navigable Rivers, p. 138. The various kinds of fishery. C. Common fishery. Several fishery. Free fishery. A common fishery is that kind of right which all the public have to fish in the sea and in tidal navigable rivers, as far as the flux and reflux of the tide. This right cannot, it would seem, exist in non-tidal waters, whether they be navigable or not.1 A several fishery is a right of fishing in a particular place exclusive of all others. This right may exist, as will be seen hereafter, in tidal waters as a royal franchise to the exclusion of the public,-in which case it is sometimes called a free fishery. It exists primâ facie in the owner of the soil of non-tidal waters,-in which case it may be called a territorial fishery. Finally, it may be enjoyed in non-tidal waters by a stranger by grant or prescription to the exclusion of the owner of the soil. The owner of a several fishery, whether owner of the soil or not, can maintain trespass for breaking his several fishery and taking his fish,3 and has a privileged property in the fish before they are caught.1 A several fishery or exclusive right to take all the fish at a certain place, when not a territorial right, would appear to be always claimed in gross, or as appurtenant to a manor, as such a right is too exclusive to be claimed as appurtenant to land.6 5 A free fishery, also sometimes called a common of fishery, is a fishery in a certain place, not exclusive, but co-extensive with the rights of others. It may exist in tidal waters, to the exclusion of the public; in which case it resembles a several fishery, except that it is enjoyed by 1 Musset v. Burch, 35 L. T., N. S. 486; Hargreaves v. Diddams, L. R., 10 Q. B. 587; Bloomfield v. Johnson, Ir. R., 8 C. L. 68; see post. 2 Malcolmson v. O'Dea, 10 H. L. 593, per Willes, J.; Bloomfield v. Johnson, Ir. R., 8 C. L. 68; Holford v. Bailey, 13 Q. B. 445; Seymour V. Courtenay, 5 Burr. 2815; Co. Litt. 122 a; Hale de Jure Maris, p. 1; Gipps v. Woollicot, Skin. 677; Smith v. Kemp, 2 Salk. 637; Kin two or more persons. It may exist in the owner of the soil of non-tidal waters in conjunction with others, or it may exist in two or more strangers, to the exclusion of the owner of the soil.1 The main distinction between a several and a free fishery is, that the one is exclusive, and the other is not; 2 and that, in non-tidal waters, a several fishery implies a right to the soil, while a free fishery does not. Formerly also, when different forms of action could not be joined, there was an important distinction between the owners of a several, and of a free fishery; for the owner of a several fishery could maintain an action of trespass for the breaking of his fishery, and taking his fish, whether he was owner of the soil or not; whereas the owner of a free fishery, unless also owner of the soil, could not maintain trespass, but had only a right of action on the case for disturbance. The owner of a free fishery has not, it appears, such a property in the fish before they are caught, as to enable him to maintain trespass for taking fish, such fish not being the property till they are caught.5 A free fishery may be claimed in gross or as appurtenant to land." The term "free fishery," however, is frequently used to express a several fishery in a public river; and much confusion has arisen from the ambiguous use of the term. Willes, J., remarks in a late case, already cited," "Some "discussion took place during the argument as to the proper name of such a fishery, whether it ought not to 4 Bloomfield v. Johnson, per Fitzgerald, B., Ir. R., 8 C. L. 68; Holford v. Bailey, 13 Q. B. 426; Gipps v. Woollicot, Skin. 677, per Holt, C. J.; Upton v. Dawkins, 3 Mod. 97. 5 Bloomfield v. Johnson, supra. See per Willes, J., in Edgar v. Commissioners of Fisheries, 23 L. T., N. S. 737; Rogers v. Allen,_1 Camp. 311; Hayes v. Bridges, 1 R. L. & S. 390. 7 Malcolmson v. O'Dea, 10 H. L. 593. Effect of grant of a fishery. Common of fishery. "have been called in the pleadings, following Blackstone, "a free,' instead of a 'several' fishery. This is more of "the confusion which the ambiguous use of the word "free' has occasioned, from as early as the Year Book, 7 "Hen. VII., 13, down to the case of Holford v. Bailey 66 (13 Q. B. 444), where it was clearly shown that the "only substantial distinction is between an exclusive right "of fishery, usually called 'several,' sometimes 'free' "(used as in free warren), and a right in common with others, usually called 'common of fishery,' sometimes “'free' (used as in free port). The fishery in this case is sufficiently described as a several fishery, which means "an exclusive right to fish in a given place, either with or "without the property in the soil." 66 Where the owner of a several fishery grants a free fishery, the grantee takes a free fishery; but where he grants his fishery without specifying what kind of fishery, the whole fishery will pass.1 An exclusive fishery, it seems, may be divided, without losing its proper character; for where a grantor granted a several fishery, with the exception of an oystery, and reserving to himself to take fish for the supply of his own table, it was held that this was the grant of a several fishery; for, said the Court, "In order to constitute a "several fishery, it is requisite that the party claiming it "should have the right of fishing, independent of all 66 others, as that no person should have a co-extensive "right with him in the subject claimed; for where a person has a co-extensive right, there is only a free fishery. But we think that a partial independent right "in another, or a limited liberty, does not derogate from "the right of the several owner." 2 A common of fishery appears to be much the same as a free fishery-i. e., a right not exclusive to fish in a par 1 Alderman of London v. Hastings, 2 Sid. 8. 2 Seymour v. Courtenay, 5 Burr. 2815; see also Holford v. Pritchard, 3 Ex. 793; Bird v. Higgenson, 2 A. & E. 696, as to the right of letting part of a fishery; see also 1 Mod. 106. |