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such right would be subservient to the franchise of free warren (h); and it should certainly seem that free warren over the lands of another person may exist by prescription (i).
When the right of property in wild animals can be claimed ratione privilegii, it nevertheless continues only so long as they remain within the limits of the particular franchise, except, indeed, that the property would not be changed by being hunted by the owner, or even by a stranger, out of the free chase or warren, and killed in the grounds of another person (k).
FREE FISHERY, &c. (1).—A free fishery, in its more ordinary acceptation, means an exclusive right of taking and killing fish in an
serving the franchise, as by non-user, such discontinuance of the exercise of the right inducing the presumption of a release and extinguishment of it, which extinction seems to be perfectly consistent with established principles of tenure, as between the lord and the owner of land within his manor. (See ante, p. 661, as to the extinction of a free warren.) But it is probable that on an extinguishment of the right of the grantee of the crown, the prerogative right to the extent of that formerly exercised by the lord under the particular grant would revive.
In a recent case relief was refused in equity to a cestui que trust, against whom an action of trespass had been brought for sporting over the manor, the title not being sufficiently established, the court observing that, even if it had, all that the cestui que trust could claim was, to have a rateable proportion of the rents and profits derivable from letting the privilege; Hutchinson v. Morritt, 3 You. & Coll. (Ex. Eq.) 547.
(g) The case of Sutton & Moody, Salk. 556, 1 Lord Raym. 250, Comb. 458, 5 Mod. 375, 12 Mod. 144, is an authority that the courts will presume a right of property to game in the owner of the land on which it is killed, ratione soli, as against a perfect stranger; but it is a possessory property only; F. N. B. 87 A. And see 12 Hen. 8, 10; 11 Co. 87 b; 4 Inst. 320; 2 Bl. Com. 419; post, n. (k).
(h) Sutton v. Moody, sup. The frequency of these grants is urged by Sir
William Blackstone in favour of his position, that the exclusive right of taking and destroying game belonged to the king; 2 Com. 417.
(i) Br. Warren, pl. 2, cites 34 Hen. 6, 28; ib. pl. 3. And see Davies' case, ante, p. 662, n. (d); Rex v. Talbot, Cro. Car. 311; Fowler v. Seagrave, Bulst. 254; Sutton v. Moody, sup. But an alienation of the land without reserving the warren would extinguish the right; Br. Warren, pl. 3, cites 35 Hen. 6, 55; Dy. 306; ante, p. 661.
The grant of free warren would seem to give a right to appoint a warrener to preserve the game, who is justified by ancient usage in killing dogs, cats and vermin; Wadhurst v. Damme, Cro. Jac. 45.
(k) 2 Bl. Com. 419. The learned judge there also states (and so the law clearly seems to be) that "if a man starts game on another's private grounds and kills it there, the property belongs to him on whose ground it was killed, because it was also started there, the property arising ratione soli: whereas if after being started there it is killed in the ground of a third person, the property belongs not to the owner of the first ground, because the property is local, nor yet to the owner of the second, because it was not started in his soil; but it vests in the person who started and killed it, though guilty of a trespass against both the owners." And see Churchward. v. Studdy, 14 East, 249. (1) Ante, p. 660. n. (p).
arm of the sea (m), or navigable river (n) being an arm of the sea (0), under a grant from the crown (p), and is therefore considered as a royal franchise (q); and as the jealousy with which this privilege was viewed by the people led to a declaration in King John's Charter (c. 47), that where the banks of rivers had been first defended in his time they should be laid open, and in the charter of 9 Hen. III. c. 16, that no banks should thenceforth be defended but such as were so in the time of Henry his grandfather (r), it has been suggested that "a franchise of free fishery ought now to be at least as old as the reign of Henry II. (s)."
Although it has been supposed that a several fishery is a perfectly distinct franchise from a free fishery, in that the owner of a several fishery "must be, or at least derive his right from, the owner of the soil (t)," which is not requisite in a free fishery, for that term imports the right to fish in the waters of another (u); and from a common of piscary, in that the latter does not
(m) There can be no prescription for a right to fish in the sea, as annexed to certain tenements, such right being common to all the king's subjects; Ward v. Cresswell, Willes, 265; Kitch. 45, cites 8 Ed. 4, 10. "If the water ebb and flow upon my land every one may fish there;" per Choke, ib.
But the qualified common law right of the public to use the sea and the sea shore does not extend to the right of bathing in the sea; Blundell v. Catterall, 5 Barn. & Ald. 268.
Fishing with stake nets on the sea coast near the mouth of a river is not prohibited either by the statute or the common law of Scotland; Earl of Kintore appel. Forbes and others resp. 4 Bli. N. S. 485; in which case it was held that proprietors of fisheries on the sea coast, entitled only by the terms of their grant to fish with a net and coble, cannot be restrained from fishing with stake nets on the suit of owners of fisheries in a river.
(n) Some of the books seem to extend the term free fishery to public rivers, though not arms of the sea; see 2 Bl. Com. 39; per Lord Mansfield in Carter v. Murcot, 4 Burr. 2164; per Holt, C. J. in Warren v. Matthews, 1 Salk. 357.
(0) River Bann case, Sir John Davis's Rep. 55.
imply an exclusive right (x); yet
(p) The right must be clearly proved, and cannot be presumed; Carter v. Murcot, ubi sup.
In a late case where the lord claimed the exclusive privilege of cutting seaweed (vraic) from rocks covered at ordinary tides by the sea, and which right, in the absence of any grant from the crown, could only be sustained by evidence of long and undisturbed enjoyment, the evidence being of a continued adverse claim without resistance, followed up by suit, the court of appeal (Privy Council) set aside the judgment in favour of the lord; Benest v. Pipon, 1 Knapp. (P. C.) 60.
(q) 2 Bl. Com. 39.
(r) See the case of Weld v. Hornby, 7 East, 195. Vide also Blundell v. Catterall, ubi sup.
(s) 2 Bl. Com. 39, 417; 1 Campb. 312, n.
(t) 2 Bl. Com. 39; and see Kitch. 46, cites 17 Ed. 4,6; ib. 47, cites 22 Ed. 4, 116.
(u) Kitch. 46, cites 4 Ed. 3; Trespass, 222; 7 Hen. 7, 13; 18 Ed. 4, 5.
(x) See 1 Chit. G. P. 224. Free fishery held to import an exclusive right equally with a several piscary; Smith v. Kemp, Salk. 637; S. C. Carth. 285.
Common of piscary may be prescribed for as appendant to land; Kitch. 46.
others have slighted these distinctions, and considered a free fishery merely as a liberty to fish in the several fishery of the grantor (y), and to be synonymous with common of piscary (z); and others again have denied the ownership of the soil is necessarily included in a several fishery (a). These conflicting opinions are ably digested by Mr. Hargrave in his learned note above referred to, but that very distinguished lawyer thought proper to leave the question open to future discussion. It would seem, however, to be settled, that a fishery in a navigable river, described in an ancient grant "separalem piscariam," is an incorporeal and not a territorial hereditament; but that where the terms of the grant are unknown, the owner of a several fishery would be presumed to be owner of the soil (b). And the case of The King v. Ellis (c) shows, that particular privileges in the grantee are inconsistent with a mere incorporeal fishery.
It was decided in the case of Scratton v. Brown (d), that a grant by the lord of a manor, (possessing the franchise of a fishery,) of a messuage, &c. and certain sea-grounds, oyster layings, shores, and fisheries, with full and free liberty to fish, dredge, and lay oysters thereon, did not convey a mere privilege and easement only, leaving in the grantor the general property in the soil, but the soil itself, and that the operation of the words "sea grounds" was not qualified and restricted by the superadded words "oyster layings," "liberty to fish," &c.
The grant in the last-mentioned case described the sea grounds, &c. to be bounded by the high and low water marks; and the Court of B. R. held, that those words were to be construed with reference to the rule of common law upon the subject of accretion (e); and that as
(y) 2 Sid. 8, cited 2 Bl. Com. 40. (z) See 2 Bl. Com. 40; Upton v. Dawkin, 3 Mod. 97; Comb. 11; Peak v. Tucker, cited Carth. 286, marg.; but see Salk. 637.
(u) Co. Litt. 122 a; Bract. f. 208 b. And see Mr. Hargrave's note  to Co. Litt. 122 b. Where a person exercising the right of fishing in the river Severn, between certain limits within a manor bordering on the river, under a grant from the crown, also exercised the privilege of landing nets on the beach, and driving stakes, the Court of King's Bench considered that some territorial right passed by the grant, and that the party was therefore rateable under 43 Eliz., but expressed a clear opinion that a mere incorporeal fishery was not within that statute; The King v. Ellis, 1 Mau. & Selw. 652.
(b) The Duke of Somerset v. Fogwell,
5 Barn. & Cress. 875.
(c) Sup. n. (a).
(d) 4 Barn. & Cress. 485.
(e) This case is therefore confirmatory of the decision of The King v. Lord Yarborough, 3 Barn. & Cress. 91,4 Dow. & Ry. 790, ante, pt. 1, pp. 32, 33, that land gradually and imperceptibly added to the demesnes of a manor by the alluvion of oose, sand, &c. belongs to the lord, and not to the king, and so is distinguishable from the case of large spaces of land left by the sudden retirement of the sea; and from that of the land of a subject rendered undistinguishable from the foreshore by the gradual encroachment of the sea; Hull and Selby Railway, in re, 5 Mee. & Wel. (Eq.) 327.
It was held, in Perrott v. Bryant, 2 You.
the high and low water marks shift, the property conveyed also shifts, for that land between high and low water marks can only vest in a subject as the grantee of the crown, and that the crown by a grant of the sea shore would convey, not that which at the time of the grant was between the high and low water marks, but that which from time to time should lie between those two termini.
It has been adjudged that every subject may fish in navigable rivers, the king's prerogative right being confined to whale and sturgeon (ƒ); and that the rule extends even to arms of the sea (g), unless an exclusive right exists by prescription (h).
The reader is reminded that in the case of The Mayor & Commonalty of Orford v. Richardson, Lord Kenyon (the other three judges of the Court of B. R. concurring) held, that there may be a prescriptive right in a subject to a several fishery in an arm of the sea (i); and that in the case of Rogers v. Allen (k), Heath, J. held, that a several fishery in a navigable river may pass as appurtenant to
When a river, not navigable, runs between two manors, and is the meer and boundary of the manors, each lord has a moiety of the river and fishery (1).
And when no manorial franchise is claimed in an inland river, not navigable, the right of fishery is in the proprietors of the land on either side, as owners of the soil or bed of the river, and generally extends ad filum medium aquæ (m).
The franchise of free chase, free warren, and free fishery may, the author apprehends, like other franchises, be lost by non-user or
& Coll. 61, (which was a suit against boatowners for tithe of oysters,) that the circumstance that property situate on the sea shore, between a sea side town and the sea, had not been assessed to the poor rates of the parish in which the town was situate, was very slender evidence of the property not being within the parish.
(ƒ) Ante, p. 653, n. (n); and see stat. 17 Ed. 2, c. 11, de prerogativá regis.
(g) Warren v. Matthews, 6 Mod. 73; S. C. 1 Salk. 357; Anon. 1 Mod. 105; ante, p. 664.
(h) Carter v. Murcot, 4 Burr. 2162; 4 T. R. 439, in The Mayor, &c. of Orford v. Richardson; and see Bagott v. Orr, 2 Bos. & Pul. 472. In the case of Chad & Tilsed, 2 Brod. & Bing. 406, (ante, p. 785,) Dallas, C. J., observed, that "if the usage had been only of forty years' dura
tion, and had been applied to establish an exclusive right over an arm of the sea, that could not destroy the right of the subject."
In the case of Williams v. Wilcox, 8 Adol. & El. 314, it was held that the paramount right of the subject to navigate public rivers extends over every part thereof; that prior to Magna Charta the crown had no power to make a valid grant in derogation of such public right, but that the 4 sect. of 25 Ed. 3, c. 4, rendered legal all weirs erected prior to Ed. 1.
(i) 4 T. R. 439; Hargr. Tr. 19. (k) 1 Campb. 312; see this case on a point of evidence, ante, pt. 1, p. 505. (7) Davis's Rep. 155; 1 Mau. & Selw. 661, in The King v. Ellis.
(m) Carter v. Murcot, ubi sup.; Davis's Rep. 155.
abuser, as well as by surrender to the crown (n); but we have seen that minor prescriptive rights exercisable by the lord of a manor will continue, notwithstanding the Court Baron should be lost (0).
(n) Cro. Jac. 155; 12 Mod. 271; 1 Chit. G. P. 224. And see as to misuser, ante, p. 660. But the misuser of one of several franchises, not dependent on each other, is not a forfeiture of the whole, but
of the one only which has been misused;