Page images


within the exclusive fishery limits, are liable to be forfeited (r),
the master or person in charge is liable to a fine of 10l. for the
first offence, and 201. for any subsequent offence (s).
Further as to Sea Fisheries see Part II.

[merged small][ocr errors][merged small]



As a general rule, boundaries of fisheries will be found to have been in ancient times co-extensive with the boundaries of manors where those manors included within their ambit the rivers in which the fisheries existed. Manors were usually granted as terræ or territoria, and for the most part consisted of tracts of land lying in a ring fence (a). Sometimes this "terra" would comprise a number of manors, and was called an honour, and the fishery in the river passing through the honour would sometimes remain annexed to the honour, and in possession of its lord, to the exclusion of the lords of subinfeudated manors lying on the banks within the ambit of the honour. In other cases the lord of the honour frequently granted portions of the river as within the ambit of the manors he subinfeudated to his tenants, retaining only so much of the river as lay next the principal manor or caput honoris, or retaining a portion opposite some of the subinfeudated manors, while granting out other portions in other parts. This was the case in the river Arun.

Where the river ran through the manor the fishery of the whole river was parcel of the manor. Where a manor lay wholly on one bank, as a general rule it extended to the mid-stream all along the extent of the manor. This rule, however, was not invariable, as numerous cases of manors situate wholly on one bank can be shown to comprise the river and fishery of the whole stream to the exclusion of the manors on the opposite bank (b), and even to include a narrow strip of such opposite bank, as the manor of Cookham, on the south side of the Thames, which included eighteen feet in width of the bank on the north side of the river. Sometimes a fishery will be found to extend over a river running through several lordships or manors. The fishery in the Ouse near Huntingdon extended over the manor of Staunton, and the manors belonging to the abbots of Romsey, St. Ives, and Halliwell (c).

(a) Madox Bar. Anglica, chapter i.; Duke of Beaufort v. Swansea, (1849) 3 Exch. 413. (b) Blount v. Layard; Smith v. Andrews, [1891] 2 Ch. 678.

(c) Inq. post mortem, 11 Hen. VI. No. 43.

It has been laid down by Manwood (d), in a chapter headed "That all the meeres and bounds of the Forest do belong to the King only," that no man may fish in a river which is the boundary of a forest without license. The passage is as follows: "In the Assizes of Pickering it was adjudged that no man may fish in any river that is a boundarie or meere of a Forest, unlesse he have warrant so to doe, for the same is parcell of the Forest, and is also the Kinges because it is a meere of the Forest"; and he cites the "Assisa Forestæ de Pickering," 8 Edward III., A.D. 1334. There is no judgment on the record to that effect; but there is a judgment there (e), from the perusal of which no doubt Manwood constructed the dictum above cited, making, however, a serious omission from the text to suit the heading of his chapter. This omission has led to the unqualified statement that the King is entitled to the exclusive fishing in all rivers which are bounds of a forest. The case is one in which the abbot of Rievaulx is presented for fishing in rivers which happened to be meers of the forest, but were claimed also to be dominicæ aquæ of the forest. The entry runs "Juratores presentant quod Abbas de Ryevall piscatus est sepissime in aquis de Derwent Costa et Rya que sunt dominicæ aquæ et bunda forestæ de Pickering ad dampnum Domini Comitis" (the Earl of Lancaster, who was owner of the forest). The abbot defends, and shows that the waters and the fisheries in them were granted to his predecessors in the time of King Henry the Second, and claims the fisheries and the soil of the rivers, and he succeeds. In the following Eyre of the Forest, in 12 Edward III., A.D. 1338, the abbot claims the fisheries, and his claim is allowed. Hence it is clear that when a river lies within the demesne of the forest, not granted out, it is of course the King's, who is the owner of the soil, and entitled to the exclusive fishery; but when the river has been granted out, as in the abbot's case, the grantee has the fishery; and Manwood's dictum ought to have stated that no man may fish in a river that is the demesne water and a bound of the forest. It seems probable that when the demesne land of a forest is bounded by a river, the entire river, and not the half stream only, belongs to the King; for we find several cases of whole stream fisheries in manors of ancient demesne, especially those lying on the edge of a forest, e.g. Cookham and Bray were on the outer bound of Windsor Forest, and the fisheries embrace the whole stream. Yet in those manors the profit of the fisheries is from the earliest times returned as a profit of the manor and not of the forest. Manwood's erroneous dictum has been followed. We find in the charge of the Chief Justice in Eyre

(l) Forest Laws, cap. 7, p. 39.

(e) D. of L. Cowcher, vol. i. f. 260.


at New Windsor, 24th September, 1632 (ƒ), that the jurors of the forest were charged to inquire of the metes and bounds of the forest, et si ascun river est bound de ceo; car lou un river est bound del forest, le roy ceo avera et tout la proffitt de ceo." It is matter of history that the proceedings of the Justices in Eyre in the Forests in the time of Charles the First were most arbitrary and oppressive, and held with intent to wring compositions from the landowners within the forest, and to stretch the rights of the Crown as far as possible. These proceedings were complained against in the Great Remonstrance of 1st December, 1641, and such a statement as that above cited can scarcely be evidence of the truth; for here again we have the omission of the qualification that the river must be a demesne water as well as a bound of the forest. In all waters lying within the demesne of the forest which has not been granted out, and in all rivers adjacent to the demesnes of the forest which form its bounds, no doubt the King has the fishery, and it is only in that sense that Manwood's dictum can be read. Where the river has been granted out as parcel of a manor or lands, or where it was parcel of a manor before the district was afforested, the King will have no right-the fishery will belong to the owner of the soil or his grantee. In Driver's map of the New Forest (g) it is stated that the Avon on the entrance north-west of the forest forms the bound there for about a mile and a quarter, and this portion of the river is from time to time fished with nets by the Crown. Probably here the Avon bounds the demesne lands of the forest not granted out. The water in the rest of the river Avon which runs through the forest is private property.

In tidal estuaries situate inter fauces terræ it is usual to find that the riparian manors extend to the mid-stream, and comprehend the fisheries in the river. This is the case in the Tyne, the Severn, the Trent, the Yorkshire Ouse, Derwent, Mersey, Dee, and all comparatively narrow estuarial rivers. In the wider estuaries, as the lower Thames and the Humber, the manors appear to have been limited to their respective foreshores, and do not extend to the mid-stream.

On the coast of the open sea the fisheries are usually confined to the foreshores of the manors, although we have several instances of deep-sea fisheries extending below low water mark, but not lying inter fauces terræ, as the oyster beds parcel of the manor of Whitstable (h),

(f) M. S. Harl. 1330, f. 81.

(g) Made under statute 26 Geo. III. c. 87.

(h) Gann v. Free Fishers of Whitstable, (1865) 11 H. L. Cas. 192; Foreman v. Free Fisheries of Whitstable, (1869) L. R. 4 H. L. 266.

the oyster grounds belonging to Faversham, in Kent, and similar fisheries at Tollesbury and other places in Essex.

Many of these ancient boundaries still subsist, especially where the fisheries have been valuable ones and the lords of the manors have been careful not to derogate from their rights by cutting up the fisheries and granting them in portions to riparian owners. But in very many cases the fisheries have been split up by grants made by the owners of them to riparian owners, or to owners in gross; and where the fisheries in the rivers have been of little or no real value, especially in modern times, it will be found, on examination of the evidence of user, that the manorial owner has been careless of his strict rights and has allowed riparian proprietors of land to acquire rights against him by user, the evidence of the exercise of which is sufficiently strong to oust his claim as lord of the manor and vest the fishery and soil in them; for the presumption of law being, in non-tidal water, that the riparian owner has the right to the soil and fishery to mid-stream (i) ; if the lord of the manor will intrude his claim he must make out his title by evidence (k). Thus we find in the smaller rivers, where the fishery is of little value, that it is most frequently owned by the riparian owners on the banks rather than by the lord of the manor, in whom it was formerly vested. The true conclusion as to the extent of the fishery in such cases can only be decided on an examination of the language of the respective titles of the lord or his grantee and the riparian owner, and the balance of the user by either party.

In other cases it may happen that the riparian owner may be able to show evidence of fishing, as of right, opposite his land, and the lord also may show evidence of fishing in the same stretch of water; in such a case, although the riparian owner may not be able to set up the ordinary riparian right of exclusive ownership of the soil and fishery to the mid-stream, he may be able to raise a presumption of a grant of common of fishery from the predecessors of the lord of the manor, to be exercised in respect of the riparian land which must have been granted him by a former lord of the manor. In other cases the riparian owner may prove exercise of fishing over all the water within the manor in common with the lord and get a

(i) Waterford Conservators v. Connolly, (1889) 24 Ir. L. T. R. Exch. 7. The riparian owner is the owner of the soil of half the stream and is entitled to fish half the river, just as he is entitled to take game on the land portion of his property. His right is not an easement nor an incorporeal hereditament, per Palles, C. B., [unless, semble, his evidence only shows a common of fishery], and see Beauman v. Kinsella, (1859) 11 Ir. C. L. R.


(k) Lamb v. Newbiggin, (1844) 1 C. & K. 549.

« EelmineJätka »