of this Act, between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, from whom any implement used by anglers shall be taken, or by whom the same shall be so delivered up, shall, by the taking or delivering thereof, be exempted from the payment of any damages or penalty for such angling" (f). Under this section a summary and very useful power is given to owners of lands, water, or fisheries, to stop trespassers angling in the day-time. Care should be taken in exercising this power, for if it is irregularly done, or more taken than the law allows, the angler would have an action against the person who seized his tackle. It will be observed, therefore : (1) That only the owner, his servant or some person authorized by him can seize; therefore no occupier or tenant of the fishery for a term of years however long, unless authorized by the owner, can do it or authorize any other person to do it; (2) The seizure must be made on the owner's ground. If a man is fishing in one field, and on the owner's keeper coming up goes into another, not the property of the same owner, no seizure can be made (g); (3) It is only the implements used for taking or destroying fishrod, line, hook, net or other implement-that can be taken; not the basket or the fish caught. With regard to angling, the seizure exempts the angler from any further penalty, civil or criminal. It is not so, however, with a person fishing in any other way; his nets or instruments may be seized, and he is liable to be prosecuted under sect. 24. Arrest of Angler.—An angler in the day-time—that is, between the beginning of the last hour before sunrise and the expiration of the last hour after sunset (h)-cannot be arrested (i); but a person angling at night, or fishing by any other means than angling either by day or night, may be arrested there and then without warrant by any person, and taken at once before a magistrate. The words of the Act are any person," so that he may be either owner, occupier, or any person appointed by them, or a mere stranger (k). In addition to these remedies, an angler, if his tackle is not seized, is liable to criminal proceedings or an action. If it is a case (f) 24 & 25 Vict. c. 96, s. 25. (g) Cf. Hughes v. Buckland (1846), 15 M. & W. 346. (h) Cf. Salmon and Freshwater Fisheries Act, 1923 (13 & 14 Geo. 5, (i) 24 & 25 Vict. c. 96, s. 24. of disputed right, and the right be bond fide asserted, and one that may have a legal existence, such as a dispute as to ownership between individuals, then the only remedy the owner of a fishery has is an action, as the magistrate's jurisdiction is ousted. As very often happens, the persons who contest the owner's right are men of straw; and he may have to bring a series of actions against paupers, thereby incurring enormous expense. But each action he brings strengthens his title (l); and having established his title he can get an injunction to restrain any class of persons fishing in his fishery under an alleged claim of right. This was done by Lord Hardwicke in the well-known case of The Mayor of York v. Pilkington (m), where the plaintiff, who, though he had not established his title at law, had been in possession for a considerable time, was held to be entitled to an injunction to restrain various persons from fishing who claimed a right to fish either as lords of manors or occupiers of adjacent lands. But an injunction would not be granted against an indefinite class, such as the public; but only against definite persons claiming under the same title as the defendant. In Paley v. Birch (n), it was held that a person illegally fishing in a several fishery in tidal water was liable to be punished in exactly the same way as if he had fished in a several fishery in fresh water, the Larceny Act applying to taking fish in a private fishery wherever such fishery may be situated. Property in Fish caught. If a person illegally take fish, it appears, that he, not the owner of the fishery, is entitled to them; and if they are taken by angling, the owner would seem to have no remedy to recover them or their value, except in those cases where the offender is made by statute liable to forfeit the fish. If, however, they are taken by any means other than angling, then the owner can recover their value in proceedings under the Larceny Act. The property, however, in the fish seems to belong to the person taking them. (1) Reg. v. Stimpson (1863), 4 B. & S. 301. (m) (1737), 1 Atk. 282. CHAPTER V. POLLUTION. Changes in the Law. The 1923 Act introduces important changes in the law of pollution and gives a substantially increased measure of protection to fisheries. In view of the new importance of this branch of the law it is thought desirable to give a somewhat fuller account of it than was attempted in the earlier editions of this work. The Common Law.-This Act, like earlier Acts, does not touch the Common Law remedies for pollution, viz. proceedings for public nuisance, and actions for trespass or nuisance, brought by the person aggrieved (a). These remedies are still available and are a useful, if sometimes an expensive, way of preventing pollution. History of Legislation as to Pollution.-Until the middle of the nineteenth century little attention was paid to the subject of pollution whether as affecting fishery or other interests. At that time, however, the increase of industrialism brought about an acute conflict between manufacturing interests on the one hand and the interests of public health, navigation, and fisheries on the other, a conflict that continues to the present day. At the same time a new degree of attention began to be given to the question of public health, and pollution came to be considered a more serious evil than had been supposed. The result of these tendencies was a series of statutes (b), intended to suppress or reduce pollution, but (a) Fitzgerald v. Firbank, [1897] 2 Ch. 96, C. A. For the measure of damages, see Marquis of Granby v. Bakewell U. D. C. (1923), 21 L. G. R. 329; 87 J. P. 105, and cases there cited. (b) The Gas Works Clauses Act, 1847 (10 & 11 Vict. c. 15, ss. 21-29), contains stringent provisions relating to pollution. It provides that if any gas company cause any gas washings or substances produced in making or too often failing of their effect owing to clauses put in by representatives of industrial interests. Much of this legislation was passed primarily in the interests of public health or to prevent obstruction to navigation, and only incidentally, if at all, affords protection to fisheries. The most important Acts of this kind are the Rivers Pollution Prevention Acts, 1876 to 1893 (c). The Rivers Pollution Prevention Acts.-These Acts create a fairly comprehensive series of offences of pollution, together with a method of dealing with them which has proved, on the whole, disappointingly ineffective. Proceedings to enforce the Acts are to be brought by a sanitary authority or by a person aggrieved (d), i.e. (apparently) by a person who could institute an action in respect of any interference with the stream (e), but in the case of manufacturing and mining pollution proceedings can only be brought by a sanitary authority with the consent or on the direction of the Local Government Board-now the Ministry of Health. Further, this consent is to be withheld unless the Board is satisfied after due inquiry that means for rendering harmless the polluting matter are reasonably practicable and available in all the circumstances of the case, and that no material injury will be inflicted by such proceedings on the interests of the industry (ƒ). The Local Government Act, 1888 (g), confers the powers of a sanitary authority on county councils for the purpose of enforcing these Acts within the limits of the county, and also empowers the Local Government Board-now the Ministry of Health-to set up joint committees representing all the counties through which a river flows, and to confer on them the same powers. a day, to be recovered in the same way, for every day during which such pollution lasts. If any water is fouled by gas, the gas company are liable to pay to the person whose water is fouled a penalty of 201., and 101. a day after notice has been given. But none of these penalties extend to exempt the gas company being indicted for a nuisance. It will be observed that under this Act the board of conservators as such have no power, the remedy in all cases being given to the person injured. Further provisions in relation to gas washings are contained in the Public Health Act, 1875. Other statutes are the Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17, ss. 61-67); the Cemeteries Clauses Act, 1847 (10 & 11 Vict. c. 65, ss. 2022); the Land Drainage Act, 1861 (24 & 25 Vict. c. 133, s. 58); the Public Health Acts, 1875 and 1890 (38 & 39 Vict. c. 55, ss. 13-22, 68, 69; 53 & 54 Vict. c. 59, s. 47). (c) 39 & 40 Vict. c. 75; 56 & 57 Vict. c. 31. The Rivers Pollution Prevention (Border Councils) Act, 1898 (61 & 62 Vict. c. 34), enables the county councils on either side of the border to act together for the prevention of pollution. (d) Act of 1876, s. 8. (e) See notes to s. 55, infra, p. 97. (f) Act of 1876, s. 6. (g) 51 & 52 Vict. c. 41, s. 14. It has in practice proved difficult to use the Rivers Pollution Prevention Acts for the protection of fish, partly because of their careful safeguarding of industrial interests, and partly because the sanitary authorities, on whom the enforcement of the Acts principally depends, are frequently themselves directly interested in pollution detrimental to fish. Section 55.-Sect. 55 of this Act (h) is intended to render the Rivers Pollution Prevention Acts of more service to fisheries. It gives to fishery boards the powers in this respect possessed by a sanitary authority, and also the power to aid any person or local authority in instituting such proceedings. This is set out with the other powers of fishery boards in sect. 54 (1) (b) of the Act. Sub-sect. (2) extends the operation of the Acts for the purpose of protection of fisheries to the sea and tidal waters so far as may be determined by order after inquiry as provided by sub-sects. (2), (3), (4), and (5). In proceedings respecting waters so included the consent of the Minister of Health is necessary. The Sea Fisheries Acts.-The only provisions passed specifically for the protection of fish which have not been repealed by the new Act are (i.) The Sea Fisheries Act, 1868 (i), which prohibits the deposit of ballast, rubbish or other substance and the disturbance or injury of defined oyster-beds (k); and (ii.) The Sea Fisheries Regulation Act, 1888 (1), which empowers local committees by byelaw to prohibit or regulate the deposit or discharge of any solid or liquid substance detrimental to sea fish or sea fishing (sect. 2), saving, however, the right of a sanitary or other local authority to discharge sewage in pursuance of powers given by statute or provisional order (sect. 13). Section 59 (1) (p) (m).—Similar powers to those given to local committees by the Act of 1888 just mentioned are given to fishery boards for the protection of freshwater fish by sect. 59 (1) (p) of the new Act. Fishery boards may now by byelaw regulate the deposit or discharge in any waters containing fish of any liquid or solid matter detrimental to salmon, trout, or freshwater fish, or the spawn or food of fish, subject to a saving clause in the same words as sect. 13 of the Act of 1888. (h) Infra, p. 97. (i) 31 & 32 Vict. c. 45, ss. 53, 54. (k) For a recent case on these sections, see Smith v. Cooke (1914), 84 L. J. K. B. 959. (l) 51 & 52 Vict. c. 54. |