prima facie right of the Crown to the land underlying the tidal waters. A right of public fishery can be established only on proof of immemorial user and not by grant or prescription. The public, as such, cannot prescribe for a profit à prendre in alieno solo (d). No length of time during which the public has been permitted to fish will confer a right of fishery (e) and the permission is revocable at any moment without reason assigned (ƒ). Extent of Public Fisheries.-A public fishery exists at any place where all the King's subjects as such and without any other qualification are legally entitled to fish. The rule is that this right can only exist in tidal navigable waters (g) which are not, and have never been, comprised within the limits of a several fishery (h). In such waters the soil is presumed to belong to the Crown and the fishery to the public (¿). A series of unsuccessful attempts has been made to claim public fisheries in waters not covered by the rule just stated-in navigable non-tidal rivers (k), in rivers made navigable by Act of Parliament (1) and in lakes and inland seas (m). It was thought at one time that where the public might navigate, there it might also fish; but it has now been laid down that a right to fish is no more conferred by a right to navigate than by a right to use a public towpath or highway running beside a river or a public bridge that crosses it (n). (d) Gateward's Case (1606), 6 Rep. 596; Boteler v. Bristow (1475), Y. B. Trin. 15 Edw. 4, f. 29 b, pl. 7; White v. Coleman (1673), 1 Freem. 134; Clayton v. Corby (1843), 5 Q. B. 415; Bland v. Lipscombe (1854), 4 El. & Bl. 713 n.; Constable V. Nicholson (1863), 14 C. B. N. S. 230; Chilton v. Corporation of London (1878), 7 Ch. D. 735; Lord Rivers v. Adams (1878), 3 Ex. Div. 361 ; Goodman v. Mayor of Saltash (1882), 7 App. Cas. 633; Tilbury v. Silva (1890), 45 Ch. D. 98 (C. A.); Fitzgerald v. Firbank, [1897] 2 Ch. 96 (C. A.). (e) Hudson v. MacRae (1863), 4 B. & S. 585; Hargreaves v. Diddams (1875), L. R. 10 Q. B. 582; Neill v. Duke of Devonshire (1882), 8 App. Cas. Pearce v. Scotcher (1882), 9 Q. B. D. 162; Pery v. Thornton (1888), 23 L. R. Ir. 402; Smith v. Andrews, [1891] 2 Ch. D. 678. 135; (f) Holford v. Bailey (1849), 13 Q. B. 426. (g) See cases cited infra (k), (l), (m); A.-G. for British Columbia v. A.-G. for Canada, [1914] A. C. 153. (h) Neill v. Duke of Devonshire (1882), 8 App. Cas. 135 and infra, p. 7. (i) 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; A.-G. for British Columbia v. A.-G. for Canada, [1914] A. C. 153. And see supra, p. 3. (k) Hudson v. MacRae (1863), 4 B. & S. 585; Murphy v. Ryan (1868), 2 I. R. C. L. 143; Reece v. Miller (1882), 8 Q. B. D. 626; Blount v. Layard, [1891] 2 Ch. 681 n.; Smith v. Andrews, [1891] 2 Ch. 678. v. Diddams (1875), Ulleswater Steam (1) Hargreaves L. R. 10 Q. B. 582; (1876), 35 L. T. 486. (m) Marshall v. Navigation Co. (1863), 3 B. & S. 732; Bloomfield v. Johnston (1868), 8 Ir. L. R. C. L. 68; Reg. v. Burrow (1870), 34 J. P. 53; Bristow v. Cormican (1878), L. R. 3 App. Cas. 641; Pery v. Thornton (1888), 23 Ir. L. R. 402; Johnston v. O'Neill, [1911] A. C. 552. (n) Smith v. Andrews, [1891] 2 Ch. 678. In the Salmon Fishery Act, 1861, now repealed, " tidal waters " were defined as including the sea, and all rivers, creeks, streams and other water as far as the tide flows and reflows (o). This last phrase has given rise to some difficulty, as it is not always easy to determine the precise point at which waters cease to be tidal and become non-tidal. Apparently the line is to be drawn across the river at the point on the banks which marks the high-water mark of ordinary tides (p). Right to use Shore and Banks.-Except by statute or by special custom in particular localities (q) members of the public have no right to go on to private land in order to exercise their right to fish. They are not entitled to draw their nets (r) or leave them to dry above high-water mark (s), and they may not beach their boats there (1) except in case of danger (u). This limits the right of the public to use a public fishery most materially. In a great many localities the public use the banks of the river as if they were their own, but this is usually by sufferance of the landowner and not by virtue of any right. No Right to use Solum.-Public fisheries are always incorporeal(x). In Attorney-General for British Columbia v. Attorney-General for Canada, Lord Haldane said (y): "It will, of course, be understood that in speaking of this public right of fishing in tidal waters their Lordships do not refer in any way to fishing by kiddles, weirs or other engines fixed to the soil. Such methods of fishing involve a use of the solum which, according to English law, cannot be vested in the public, but must belong either to the Crown or to some private owner." Small Extent of Public Fisheries.-Although public fisheries may and do exist in law, yet it is only in very few localities that the public have any right of fishing, and in the majority of instances (0) 24 & 25 Vict. c. 109, s. 4. (p) See Hale, de Jure Maris, c. 4 p. 376, and Moore on Fisheries, p. 98; R. v. Smith (1780), 2 Dougl. 441; Horne v. Mackenzie (1839), 6 Cl. & Fin. 628; A.-G. v. Chambers (1854), 4 De G. & J. 55; Murphy v. Ryan (1868), 2 I. R. C. L. 143; Mussett v. Burch (1876), 35 L. T. 486; Reece v. Miller (1882), 8 Q. B. D. 626; Blower v. Ellis (1886), 50 J. P. 326; Micklethwait v. Vincent (1892), 67 L. T. 225; Calcraft v. Guest (1897), reported in Moore on Fisheries, p. 102. (q) Mercer v. Denne, [1905] 2 Ch. 538, C. A. (r) Ipswich (Inhabitants) v. Browne (1581), Sav. 11, Ex. Ch. (8) Mercer v. Denne, [1905] 2 Ch. 538, C. A. (t) Ward v. Creswell (1741), Willes 265; Aiton v. Stephen (1876), L. R. 1 App. Cas. 456; Ilchester (Earl) v. Raishleigh (1889), 61 L. T. 477. (u) Blundell v. Catterall (1821), 5 B. & Ald. 268; Brinckman v. Matley, [1904] 2 Ch. 313, C. A. (x) Supra, p. 2. (y) [1914] A. C. 153, at p. 171. when persons angle they do so on sufferance, and are in law liable to be proceeded against. Even where the public has a right to fish it is often practically useless, as it can only be exercised from a boat, the public having no right on the banks. Every year the quantity of water in which the public is allowed to fish becomes less as more owners withdraw their permission; and in a few years' time the public will probably be confined to places where a legal right exists. It will then be seen how small the extent of public water is, and how difficult it is for members of the public to exercise their rights over it. CHAPTER III. PRIVATE FISHERIES. Where Private Fisheries Exist.-Private fisheries may exist (1) in tidal waters by virtue of grant, charter or immemorial user ; and (2) in non-tidal waters, including pools and lakes and navigable and non-navigable rivers above the ebb and flow of the tide. Origin of Private Fisheries in Tidal Waters.-Before the time of Magna Carta the Crown had power to appropriate fisheries or to grant them to individuals in tidal, as well as in non-tidal, waters (a). This power was freely exercised and the extent of public fisheries was thereby considerably curtailed. A provision of Magna Carta (b) was understood to forbid the creation by the Crown of new several fisheries in tidal waters, and to recognize only those which were in existence in the reign of Henry II. (c). There is reason to think that this reading of Magna Carta is incorrect (d), but whether this be so or not, it is the unquestioned law at the present day that no new private fishery in tidal waters can come into existence by royal grant or otherwise than by competent legislation (e). A number of several fisheries of this kind which were granted before 1189 are still found, and it is to them that the name of free fisheries is sometimes-it is submitted erroneously-given (f). Origin of Private Fisheries in Non-tidal Waters.-According to legal theory all fisheries in non-tidal waters were at one time vested in the Crown as profits of the soil of which the Crown was A.-G. for British Columbia v. A.-G. for Canada, [1914] A. C. 153, at pp. 169, 170. (f) Malcomson v. O'Dea (1862), 10 H. of L. Cas. 593; and supra, p. 1, notes (a) and (b). For a modern exposition of the view that a free fishery differs from a several fishery and is a franchise, see Jenks' Digest, pp. 700, 701. But see Duke of Northumberland v. Houghton (1870), L. R. 5 Exch. 127, and cases there cited. owner (g). Some of them the Crown has retained (h), others it has granted to individuals either as a separate hereditament or more often as parcel of a manor. The grantees and their successors have dealt with their fisheries in a variety of ways, and the result is that different kinds of fisheries are in existence (i). THE DIFFERENT KINDS OF PRIVATE FISHERIES. A. EXCLUSIVE OR SEVERAL FISHERIES. Definition of Several Fishery.-In order to constitute a several fishery "it is requisite that the party claiming it should so far have the right of fishing independent of all others, as that no person should have a co-extensive right with him in the subject claimed" (k). A fishery has been held not to be deprived of its several character by reason of the fact that some other person is entitled to fish therein either for a particular kind of fish (1), or by way of common of fishery (m), or at a certain season of the year under a presumed trust in his favour (n). Where a fishery is divided, so that, for instance, one person is exclusively entitled to take shellfish and another to take floating fish, each has a several fishery though of a limited character (o). Corporeal and Incorporeal Several Fisheries.-All fisheries are either vested in the owner of the soil, in which case they are corporeal, or derived, though perhaps remotely, from him, in which case they are incorporeal (p). At one time it was thought that most fisheries were incorporeal and that it was the exception for fisheries to be corporeal. This belief was due to an erroneous dictum of Lord Coke (q), and survived even after that dictum was overruled (r). In fact the contrary is the case. The owner of a fishery, whether (g) Tilbury v. Silva (1890), 45 Ch. D. 98, C. A. (h) Royal Fishery of Banne Case (1610), Dav. Ir. 55. V. (i) See Moore on Fisheries, chap. (k) Seymour v. Courtenay (1771), 5 Burr. 2815, at p. 2817. (1) Lord Fitzwalter's Case, (1674) 1 Mod. 105; Richardson v. Orford Corporation (1793), 1 Anst. 231, Ex. Ch. ; Rogers v. Allen (1808), 1 Camp. 309; Ecroyd v. Coulthard, [1897] 2 Ch. 554; affirmed [1898] 2 Ch. 358. (m) Tilbury v. Silva (1890), 45 Ch. D. 98, C. A. (n) Goodman v. Mayor of Saltash (1882), L. R. 7 App. Cas. 633. (0) Seymour v. Courtenay (1771), 5 Burr. 2815, and cases cited supra (1). (p) Holford v. Bailey (1849), 13 Q. B. 426, Ex. Ch.; Carlisle Corporation v. Graham (1869), L. R. 4 Exch. 361; Hanbury v. Jenkins, [1901] 2 Ch. 401. (q) Co. Litt. 4 b, 122 b. (r) Partheriche v. Mason (1774), 2 Chitty, 658. |