CHAPTER IV. STATUTE LAW AFFECTING FISHERIES. THE heading of the Salmon and Freshwater Fisheries Act, 1923 (a), describes it as an Act to consolidate and amend the enactments relating to Salmon and Freshwater Fisheries in England and Wales." It repeals eighteen Acts which represented sixty years of legislative efforts directed towards the preservation and control of inland fisheries. It constitutes, taken with sect. 13 of the Fisheries Act, 1891 (b), a complete code of the statute law specially relating to these fisheries. Apart from alterations in language designed to remove obscurities or to reconcile apparent contradictions in the repealed Acts, or to bring the phraseology employed into clearer accord with the effect of the decisions of the courts, there are many amendments of a substantial character made. These amendments are discussed in the notes on the Act (c). The subject of pollution is dealt with separately in Chapter V. The arrangement of the Act is sufficiently clear to make unnecessary any attempt at a summary of its provisions. It may, however, be useful to set out the restrictions it contains: (1) as to the time when fish may be taken; (2) as to the modes whereby they may be taken. It must, however, be borne in mind that the general law on both these heads is subject to variations made by bye-laws (d). (1) Salmon. (a) Annual close season. As the law now stands no one may fish for salmon in any water, public or private, between the 31st August and the 1st February, both inclusive, except that it is lawful to fish with a rod and line between the 31st August and the 31st October following, both inclusive. The annual close time as regards putts and putchers (e) (a) 13 & 14 Geo. 5, c. 16. (b) 54 & 55 Vict. c. 37. Section 13 is set out, infra, p. 165. (c) Chap. VI., infra, p. 27. 14 (d) s. 59. (e) For a description of a "putcher " see Holford v. George (1868), L. R. 3 Q. B. 639, at p. 643, commences on the 31st August and terminates on the 1st day of May following, both inclusive (ƒ). (b) Weekly close time. Between 6 a.m. on Saturday and 6 a.m. on Monday no one may fish for salmon except with a rod and line or putts and putchers (ff). (2) Trout other than rainbow trout. (a) Annual close season. No one may fish for trout other than rainbow trout in any waters, public or private, between the 31st August and the 1st March, except that it is lawful to fish with a rod and line between the 31st August and the 30th September (g). (b) Weekly close time. Between 6 a.m. on Saturday and 6 a.m. on Monday no one may fish for trout, other than rainbow trout, in any waters, public or private, except with a rod and line (g). (3) Freshwater fish. No one may fish for freshwater fish between the 14th March and the 16th June, subject to certain exceptions in the case of certain private fisheries (h). There is no weekly close time for freshwater fish. (4) Eels, elvers, and lamperns. There are no general close seasons for these fish. In the Severn Fishery District no instrument may be used for the purpose of taking elvers or the fry of eels between the 31st December and the 1st March, both days inclusive, or between the 25th April and the 25th June, both days inclusive (i). A measure of protection is, however, afforded them by the prohibition of certain modes of fishing for them during certain seasons. These prohibitions are as follows: (a) Eels may not be fished for with rod and line during the freshwater fish close season (k). (b) In waters frequented by salmon or migratory trout, no person may fix any baskets, nets, traps, or devices for taking eels between the 31st December and the 25th June, both inclusive (1). (c) No person may place any wheels or leaps for taking lamperns between the 1st March and the 1st August (1). Prohibited Modes of taking Fish.-With regard to the modes of taking fish there are various restrictions (1) In the case of salmon, trout and freshwater fish: (a) No one may use any light, otter lath, jack, wire, or snare, (f) s. 26. (h) s. 35. (k) s. 35. (2) 8. 36. spear, strokehall or snatch, or other like instrument, except a gaff or tailer used as an auxiliary to a rod and line, or have in his possession any of the things mentioned in such circumstances as to make it appear that he intended to use it for the taking of these fish (m). (b) No one may use any fish roe for fishing for these fish (n). (c) No one may use dynamite, or any other explosive substance, or put any noxious materials in any waters, or unlawfully or maliciously cut through, break through, or otherwise destroy a dam, floodgate, or sluice with intent to take or destroy fish (0). (2) In the case of salmon and trout: (d) No one may throw or discharge any stone or other missile into any water for the purpose of taking or killing or facilitating the taking or killing of these fish (m). (e) No person may, in a fishery district, fish for these fish except with rod and line within fifty yards above, and one hundred yards below certain obstructions, natural and artificial (p). (3) In the case of salmon and migratory trout: (f) No one may in a fishery district shoot or work a seine or draft net across more than three-fourths of the width of any waters or within one hundred yards from the nearest point of any other seine or draft net then being worked (q). (g) No one may use any net other than a landing-net with a mesh of less than two inches (r). (h) No one may use any fixed engine, fishing weir, or fishing mill dam which was not lawfully in use in 1861 (s), or any fishing weir which has not a proper free gap (t), or any fishing mill dam which has not a proper fish pass (u), or any fishing weir or fishing mill dam fitted with boxes or cribs which are not in conformity with the statutory requirements (x). The Salmon and Freshwater Fisheries Act is not, of course, concerned with the protection of the rights of the owners of exclusive fisheries in respect of the fish therein. At common law fish are animals feræ naturæ, and unless they have been reclaimed in possession, as e.g. in a tank or stew, or in any other place where they may be taken at will by the owner thereof, they are not therefore capable of being the subject of a common law larceny. Dead fish can be the subject of a common law larceny. A very wide measure of protection has, however, been provided by the Larceny Act, 1861 (y). The material provisions thereof are as follows: Taking Fish in any Water situate in Land belonging to a Dwellinghouse, or in a Private Fishery elsewhere." Whosoever shall unlawfully and wilfully take or destroy any fish in any water which shall run through or be in any land adjoining or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, shall be guilty of a misdemeanor ;and whosoever shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as herein before mentioned, but which shall be private property, or in which there shall be any private right of fishery, shall, on conviction thereof before a justice of the peace, forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money, not exceeding five pounds, as to the justice shall seem meet: Provision respecting Anglers.-" Provided, that nothing hereinbefore contained shall extend to any person angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset ;-but whosoever shall by angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset unlawfully and wilfully take or destroy, -or attempt to take or destroy,-any fish in any such water as first mentioned, shall, on conviction before a justice of the peace, forfeit and pay any sum not exceeding five pounds,—and if in any such water as last mentioned, he shall, on the like conviction, forfeit and pay any sum, not exceeding two pounds, as to the justices shall seem meet: Provision as to Boundaries of Parishes." And if the boundary of any parish, township or vill shall happen to be in or by the side of any such water as is in this section before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto " (z). (y) 24 & 25 Vict. c. 96. (z) 24 & 25 Vict. c. 96, s. 24. F.L. By this clause there are four offences enacted : (1) Taking or destroying fish in water adjoining or belonging to the dwelling-house [which means actual contact and not separated by walk or fence (a)] of the owner of the water, or to any one having a right of fishery therein, which is an indictable misdemeanor. The word "fish" includes freshwater crayfish (b). In Leavett v. Clark (c) it was held that winkles, although incapable of being taken by angling, were "fish,” and that when they were taken within an exclusive fishery from rills and pools left by the receding tide, the justices were entitled to find that these rills and pools fell within the word "water" as used in this section. (2) Taking or destroying fish in water not belonging to a dwelling-house but merely private water, for which a fine not exceeding 5l., besides the value of the fish, is imposed; (3) Angling in the day-time in water belonging to a dwellinghouse, &c., as in the 1st case, for which the offender is liable to a fine not exceeding 51.; (4) Angling in the day-time in private water, as in the 2nd case, which is punishable by a fine of not exceeding 21. The word "angling" must be construed strictly. Fishing with night lines fastened to pegs in the ground is not included therein (d). Meaning of "Unlawfully."-The word "unlawfully," as used here, implies without any claim of right or title in the offender. If the offender sets up a claim of right and does so bond fide and with some show of reason, the jurisdiction of the justices is ousted. This point is discussed in Chapter VIII. (e). The Tackle of Fishers may be seized." If any person shall at any time be found fishing against the provisions of this Act, the owner of the ground, water, or fishery where such offender shall be so found, his servant, or any person authorized by him, may demand from such offender any rod, line, hook, net, or other implement for taking or destroying fish which shall then be in his possession, and, in case such offender shall not immediately deliver up the same, may seize and take the same from him for the use of such owner:-provided, that any person angling against the provisions (a) Reg. v. Hodges (1829), M. & M. 341. (b) Caygill v. Thwaite (1885), 33 W. R. 581; 49 J. P. 614. (c) [1915] 3 K. B. 9. (d) Barnard v. Roberts (1907), 71 J. P. 277. (e) Infra, p. 164, at p. 166. |