... PAGE Welcome v. Upton (1840), 6 M. & W. 536; 9 L. J. Ex. 154 ... ... ... ... ... ... 12 44 4 40 43 11 20 v. Wilcox (1838), 8 Ad. & El. 314; 3 Nev. & P. K. B. 606; 1 Will. Woll. & H. 477; 7 L. J. Q. B. 229 Wood v. Leadbitter (1845), 13 M. & W. 838; 14 L. J. Ex. 161; 9 Jur. 187 ... ... YORK CORPN. v. Pilkington (1737), 1 Atk. 282; 9 Mod. Rep. 273 THE FISHERY LAWS. CHAPTER I. CLASSIFICATION OF FISHERIES. Definition of Fishery.-The term "fishery" is used in law in two different senses: first, as expressing the right an individual or individuals may have to fish at a particular place; secondly, as referring to the place where such a right is exercised. The former is the use which we have to consider. 66 Classification of Fisheries.-From the days of Coke and Hale until comparatively recent times, a controversy existed as to the correct classification of fisheries, and as to the meaning to be attached to such terms as common of fishery," and free," common," and ," and "several" fisheries (a). In the records (b) the terms were used loosely and often interchangeably with most confusing results. The question was fully considered in the case of Malcomson v. O'Dea (c), where the opinion of Willes, J., practically put an end to the controversy. The principles laid down by him are accepted by modern opinion, and the old controversy has become a matter of merely historical interest. Exclusive and Non-exclusive Fisheries. The classification suggested in Malcomson v. O'Dea (c) is into exclusive and nonexclusive fisheries. Exclusive fisheries are also called several (a) For full discussion, see Moore on Fisheries, chap. iv. Y. B. 17 Edw. 4, pl. 6; 18 Edw. 4, pl. 4; 7 Hen. 7, pl. 3, fol. 13 b; 10 Hen. 7, fol. 24 b, 26 b ; Alderman of London v. Hastings (1657), 2 Sid. 8; Lord Fitzwalter's Case (1674), 1 Mod. 105; Upton v. Dawkin (1685), 3 Mod. 97; Gibbs v. Woolliscott (1691), 3 Salk. 291; Skin. 677; Holt, 323; Smith v. Kemp (1692), Holt 322; 4 Mod. 187; 2 Salk. 637; Seymour v. F.L. Courtenay (1771), 5 Burr. 2814; Kinnersley v. Orpe (1779), 1 Doug. 56; Paget v. Milles (1781), 3 Doug. 43; Holford v. Bailey (1846), 8 Q. B. 1000; 13 Q. B. 426; Malcomson v. O'Dea (1862), 10 H. of L. Cas. 593; Shuttleworth v. Le Fleming (1865), 19 C. B. N. S. 687. (b) See Moore on Fisheries, chap. vii. (c) (1862) 10 H. of L. Cas. 593. B fisheries (d), a term which includes several fisheries in tidal waters (sometimes called free fisheries) (e). Non-exclusive fisheries are public fisheries (f) and commons of fishery (g). Public and Private Fisheries.-A second classification distinguishes between public fisheries on the one hand and private fisheries, i.e. several fisheries and commons of fishery, on the other. It is perhaps less logical than the first classification, but it is convenient because in their incidents there is a broad difference between public and private fisheries, and they are therefore more easily treated separately. For this reason it is retained here. Corporeal and Incorporeal Fisheries.-A fishery is said to be corporeal or territorial when the right of fishery is in the same hands as the right of ownership of the soil underlying the fishery. It is incorporeal when the right of fishery is severed from the right of ownership of the soil. The general principle is that fisheries are in their nature mere profits of the soil over which the water flows, and that the title to a fishery arises from the right to the solum. A fishery may, of course, be severed from the solum, and it then becomes a profit à prendre in alieno solo and an incorporeal hereditament. The severance may be effected by grant or by prescription, but it cannot be brought about by custom, for the origin of such a custom would be an unlawful act. But apart from the existence of such severance by grant or prescription the fishery rights go with the property in the solum " (h). (d) Infra, p. 8. (h) A.-G. for British Columbia V. A.-G. for Canada, [1914] A. C. 153, at P. 167. CHAPTER II. PUBLIC FISHERIES. Origin of Public Fisheries.-The right of the public to fish on the high seas and in tidal waters is of great antiquity. "The subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallized resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity, the Crown as parens patria no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognized as establishing a legal right enforceable in the Courts " (a). The right of public fishery was formerly thought to depend in theory on a presumed right of ownership in the Crown of the subjacent lands (b). Apparently this view was not accepted by the Privy Council in Attorney-General for British Columbia v. Attorney-General for Canada, where it is laid down that "the right of fishing in the sea is a right of the public in general which does not depend on any proprietary title" (c). In determining at least the inland limits of public fisheries it is, however, probably correct to assume that the right of the public is co-extensive with the (a) A.-G. for British Columbia v. A.-G. for Canada, [1914] A. C. 153, at p. 169. (b) A.-G. V. Chambers (1854), 4 De G. M. & G. 206; 4 De G. & J. 55; Malcomson v. O'Dea (1862), 10 H. of L. Cas. 593; Smith v. Andrews, [1891] 2 Ch. 678. (c) [1914] A. C. 153, at p. 173. |