It was at one time argued that a several fishery in tidal water, being supposed to be in the nature of a franchise, would merge in the Crown on a forfeiture or attainder of the owner, and could not be regranted. This contention was displaced in the case of Duke of Northumberland v. Houghton (k), in 1870, and was finally disposed of by Lord Blackburn's judgment in 1882, in Neill v. Duke of Devonshire (1).

Title to a fishery in non-tidal waters need not be proved back to ancient times any more than title to any other kind of property. Still it is often desirable to show the earlier history, and the descent of the title and condition of the fishery, in order to prove that it is a fishery with the soil, or to show its boundaries, and to prove and connect with the owners of it acts of possession and instances of preventing trespasses, &c. It is always desirable to show cases of turning off trespassers or taking proceedings against them, the absence of such evidence in a recent case (m) in the Court of Appeal being strongly remarked upon by Rigby, L.J., as negative evidence to show that the right claimed did not exist (n).

(k) L. R. 5 Exch. 127. See also Malcolmson v. O'Dea, 10 H. L. Cas. 594.

(7) (1882) 8 A. C. at pp. 179, 180.

(m) Calcraft v. Guest, [1898] 1 Q. B. 759.

(n) See Edgar v. Special Commissioners of Fisheries, (1871) 23 L. T. N. S. 733.

CHAPTER XXIV.

OF EVIDENCE OF POSSESSION OF FISHERIES IN PROVING TITLE.

MERE evidence of title to a fishery, or what has been called "a paper title," is not sufficient to maintain an action against a trespasser or a person claiming an adverse right when the title is in issue without proof of possession (a). What amount of possession it is necessary to prove must depend upon the circumstances of each particular case; but some general principles as to the manner in which the evidence of possession is to be considered have been laid down. In the case of Lord Advocate v. Lord Lovat (b) the defendant claimed the salmon fishings in a Scotch river under a barony title. The river was divided by certain falls called the Falls of Kilmarnock. The defendant and his predecessors had fished the river principally below the falls by means of "cruives," and had practically taken the whole crop of salmon there. He had also occasionally fished above the falls and watched the river, and bound the tenants of lands in the upper part to protect the fishing. The question was whether he was entitled to the fishings above the falls, and whether the evidence of possession below the falls was sufficient to support his barony title to the whole of the river within that part of the barony. Lord O'Hagan, discussing the question of possession, said: "As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts implying possession in one case may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests-all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession. The dealing with a river, requiring activity and vigilance for the realisation of profit from its fisheries, may fail to give reliable evidence of this, which might be satisfactory if the stream were

(a) Neill v. Duke of Devonshire, (1882) 8 App. Cas. at pp. 143 and 161; Priest v. Archer, (1887) 51 J. P. 725; Greenbank v. Sanderson, (1884) 49 J. P. 40; Blount v. Layard, [1891] 2 Ch. 678.

(b) (1879) 5 App. Cas. 273.

unproductive and incapable of compensating for larger effort and expenditure.

Again, in a case like the present, it is not necessary, for the purpose of proving possession of a fishery, that the claimant of a baronial title should show the exercise of his right in every portion of the river capable of yielding fish. I adopt the opinion of the Lord Ordinary on this point: 'I do not,' he says, 'mean to express or indicate any opinion to the effect that where a right to fish salmon depends on a barony title, followed by possession, it is necessary that the party pleading prescription should prove that he has regularly fished in the proper manner every part and stream in the river in which a salmon might be expected to be caught. It would be enough, in my opinion, were it proved that he substantially fished over the whole of the river within his bounds in the appropriate manner, and regularly and continually within the year throughout the prescriptive period. I would be slow to hold that if he fished certain parts regularly and others only occasionally, or not at all, he had failed to establish a right to fish in the whole.' I differ from the Lord Ordinary as to the conclusion to which he arrived but it seems to me that these reasonable and just observations have material value when we come to consider the evidence of the acts on which the respondent relies."

In the case of Neill v. The Duke of Devonshire (c), Lord Selborne, dealing with the question of evidence of possession, says: "If the fishery of the whole river was what has been sometimes called a 'unum quid,' there can be no doubt that evidence of acts of ownership and enjoyment in any part of it would be applicable to the whole." Lord O'Hagan, at p. 165, says: "The proof of possession of an extensive tract of land or a great river such as this, must, of course, vary according to circumstances. What may demonstrate it, in one case, may be quite inadequate for that purpose, in another. The ordinary mode of user of properties of the kind-the circumstances requiring or excusing particular modes of action with reference to it, the courses which its owner, conscious of his rights, might be reasonably expected to pursue in the assertion and protection of them-may be indefinitely various, and must all be considered according to their nature when the fact of his possession, as proved by his conduct, comes to be ascertained. The proprietor of a river or a waste cannot be expected to prove proceedings indicative of his ownership on every portion of the one or the other. He can only show his exercise of dominion over certain parts in accordance with a claim of title to the whole; and whether as to the whole, evidence

(c) (1882) 8 App. Cas. at pp. 151 and 165.

F.

L

as to the parts can justly found the desired inference, must be determined by its character and extent and the effect which can be fairly given to it by an informed tribunal. And if a river can be taken to be, as described in not very elegant jargon, a unum quid, a connected and unbroken entirety, such evidence, as none other of the fact of possession throughout is possible, may be in the highest degree satisfactory and decisive" (d).

Acts of ownership in one part of a fishery are evidence of ownership of the whole when the fishery is " unum quid” (e).

With regard to the documentary evidence of possession, as distinguished from documentary evidence merely deducing and tracing the title step by step, the authorities will show the nature of the documents which may be used. In the case of tidal fisheries, evidence of reputation is admissible, and this lets in a wider range of documents than are admissible to prove possession in the case of non-tidal fisheries, where evidence of reputation is not admissible (ƒ).

The classes of documents that have been admitted on various grounds in various cases to prove possession of fisheries by predecessors in title of the claimants to them are as follows:

Inquisitions taken by competent authority (g).
Proceedings in suits relating to the fishery (h).

:

Leases and counterpart leases coming from proper custody. These are perhaps the best evidence of possession (i).

Licenses to fish. Old licenses are admissible to prove possession, and it is not necessary to prove payment under the license; but to give weight to them it should be shown that in later times payment had been made under similar licenses, or that the owner of the fishery had exercised other acts of ownership (k). As

(d) See also Lord Advocate v. Young, (1887) 12 A. C. 544, per Lord Watson.

(e) Jones v. Williams, (1837) 2 M. & W. 326; Neill v. Duke of Devonshire, (1882) 8 A. C. at p. 151; Duke of Devonshire v. Hodnett, (1827) Hud. & B. 332; Ashworth v. Browne, (1860) 10 Ir. Ch. R. 421.

(f) Neill v. Duke of Devonshire, (1882) 8 App. Cas. at pp. 185 and 186, per Lord Blackburn.

(g) Rogers v. Allen, (1808) 1 Camp. at p. 310; Neill v. Duke of Devonshire, (1882) 8 App. Cas. at p. 144; Tooker v. Duke of Beaufort, (1758) 1 Burr. 146; Irish Society v. Derry, (1846) 12 Cl. & F. 641; Foster v. Wright, (1878) 4 C. P. D. 438.

(h) Neill v. Duke of Devonshire, (1882) 8 App. Cas. 152; Rogers v. Allen, (1808) 1 Camp. p. 310; Malcolmson v. O'Dea, (1862) 10 H. L. C. 594; Calcraft v. Guest, [1898] 1 Q. B. 759. In Blount v. Layard, Smith v. Andrews and in Att.-Gen. v. Emerson this class of documents was admitted, though it does not appear in the reports. (i) Bristow v. Cormican, (1877) 3 App. Cas. at pp. 653, 657, 668, per Lord Cairns ; Rogers v. Allen, (1808) 1 Camp. at p. 311; Neill v. Duke of Devonshire, (1882) 8 A. C. pp. 148-150. In Blount v. Layard many old leases were proved. Hale, De Jure Maris, p. 404.

(k) Rogers v. Allen, (1808) 1 Camp. p. 311; Neill v. Duke of Devonshire, 8 A. C. at pp. 148-150, 162, 167; Musgrave v. Inclosure Commissioners, (1874) L. R. 9 Q. B. 162.

to the distinction between license and lease, see Fitzgerald v. Firbank (1).

Entries in old corporation books showing rent due from a fishery (m).

Demises by copy of Court roll (n).

Ancient surveys of manors (0).

Declarations of deceased persons in the case of a tidal fishery (p). Ministers, bailiffs, and collectors' accounts showing receipt of rent or profit from fisheries. Ancient documents of this character need not be signed by the accountant (q).

Convictions (r).

Presentments on Court rolls of unlawful fishing (s).

Land tax assessinent books to show the assessment of the fishery (t).

Poor's rate assessments to show the occupation and ownership of the fishery (u). If a fishery be found to have been assessed to a rate before the Rating Act, 1874 (37 & 38 Vict. c. 54), it will be evidence that the fishery was a corporeal hereditament, as the incorporeal right of fishing was not rateable before that Act.

Tithe assessment and the tithe map and award, and the payment of tithe on fisheries, are evidence of possession, and, in the case of tidal fisheries, go to show that the foreshore and fishery are within the parish and not extra-parochial, as is the case when the foreshore is deemed to be vested in the Crown (x). In the case of Palmer v. Andrews (y), in 1902, relating to the identification of a fishery at Cookham, on the Thames, Mr. Justice Swinfen Eady said: "Of course the tithe map shows the exact position, and although, as Sir George Jessel said (z), a tithe map is not conclusive evidence-I think that is his expression on the question of disputed boundaries between parties, and, in fact, in the case

(7) [1897] 2 Ch. 96.

(m) Malcolmson v. O'Dea, (1862) 10 H. L. Cas. 594.

(n) Att.-Gen. v. Emerson, [1891] A. C. 648. It was argued before the Court of Appeal that these entries were not admissible against the Crown on a question of title to fishery and foreshore, but the argument was rejected by Lord Esher (not reported). (0) Edgar v. Special Fishery Commissioners, (1871) 23 L. T. 733.

(p) Calcraft v. Guest, [1898] 1 Q. B. 759.

(q) Roscoe, p. 56; Mayor of Exeter v. Warren, (1844) 5 Q. B. 1773; Percival v. Nanson, (1851) 7 Exch. 1.

(r) Smith v. Andrews, [1891] 2 Ch. 678.

(s) Mildmay v. Newton. See Roscoe, p. 198; Kitchen on Courts, p. 112.

(t) Doe d. Strode v. Seaton, (1834) 2 A. & E. 171; Doe d. Stansbury v. Arkwright, (1833) Ibid. 182, n.; Buchanan v. Poppleton, (1858) 4 C. B. N. S. 20; 27 L. J. C. P. 210. (u) Smith v. Andrews; Blount v. Layard, [1891] 2 Ch. 678; Palmer v. Andrews, before Swinfen Eady, J. (not reported).

(x) Palmer v. Andrews, per Swinfen Eady, J. (not reported).

(y) [1902], not reported.

(z) Wilberforce v. Hearfield, (1877) 5 Ch. D. 709.