referred to, Sir George Jessel rejected it as evidence between two adjoining owners as to the particular boundary, where a ditch was; it does not preclude the tithe map being referred to for any purpose whatever. In fact, the statute (a) itself makes it satis

factory."

Of course many documents of other kinds may appear, and may be admissible on the principles of evidence; but the above indicate generally the nature of the proofs which will be accepted as documentary evidence of possession.

Modern possession is, of course, proved by oral evidence of acts of ownership, and the nature of them must depend on the circumstances of each case.

In some cases title need not be proved. Where the defendant is a mere trespasser having no right, e.g. the case of fishing in a non-tidal fishery by a member of the public, it would seem that possession only need be proved; but the fact of possession must be clearly shown (b). The object of a defendant, who wishes to raise a question of the right to a several fishery, is always to put the owner to proof of his title on the chance that he may be able to pick a hole in it. See Blount v. Layard and Smith v. Andrews (c). In such a case care should be taken in drawing the pleadings to avoid the necessity of proving the title, and by demand for particulars and by interrogatories to show that the defendant has no title to oppose the plaintiff's possession, or put him to proof of his title, which is, in most cases, a laborious and expensive process. It is, however, sometimes desirable to prove the title in order to establish it, and to get an injunction and a declaration of title which may probably deter other persons from trespassing on the fishery, and especially where there has been neglect by the plaintiff or his predecessors in turning off trespassers and asserting their rights strictly against persons who have been tacitly allowed to fish for a long period of time. The cases of Blount v. Layard and Smith v. Andrews are examples of this.

In considering the evidence of possession to support the title to a fishery, it is to be remembered that evidence of netting is of the highest value. Netting was the ancient and usual mode of taking the profits of fisheries, and is cogent evidence of ownership. The use of fixed engines, as weirs, kiddels, stake nets, bucks, &c., is also of high value as showing that the fishery was a fishery with the soil, especially in the case of tidal waters.

(a) Tithe Commutation Act, 6 & 7 Will. IV. c. 71.

(b) Bristow v. Cormican, (1877) 3 App. Cas. 648, and cases cited, and p. 657, per Lord Hatherley; Fitzgerald v. Firbank, [1897] 2 Ch. 96.

(c) [1891] 2 Ch. 678

Evidence of the ownership of eyots and islands in a river raises a strong presumption of the ownership of the soil and fishery (d).

Proof of the ownership of a fishing weir in a fishery, and the taking of fish by means of this or any similar engine, is evidence of the ownership of the entire fishery (e).

Evidence of acts of ownership in the soil, as fixing stakes, building piers or boathouses, taking gravel, cutting weeds, &c., are important as acts of ownership showing a right in the soil (ƒ).

(d) 2 Black. Com. ii. 261; Hale, De Jure Maris; Moore on Foreshore, p. 405. (e) Gabbett v. Clancy, (1845) 8 Ir. L. R. 299; Malcolmson v. O'Dea, (1862) 10 H. L. Cas. 594; Neill v. Duke of Devonshire, (1882) 8 App. Cas. 156; Att.-Gen. v. Emerson, [1891] A. C. 648; Lord Advocate v. Lord Lovat, (1879) 5 A. C. 273; Powell v. Heffernan, (1881) 8 L. R. Ir. 132.

(f) Partheriche v. Mason, (1774) 2 Chitty, 258; R. v. Alresford, (1786) 1 T. R. 358.

CHAPTER XXV.

OF THE EFFECT OF USER BY THE PUBLIC AND OTHERS ADVERSE TO THE OWNER OF A FISHERY.

THE defence to a claim of several fishery is always to deny its existence, and to put the plaintiff to proof of his title, and the defendant usually calls as much evidence of adverse user as he can procure. In cases of tidal water this is generally evidence of fishing by members of the public claiming the common right (a); in nontidal waters it is usually evidence of fishing by members of the public or by owners of riparian lands and their licensees. Most frequently it is the evidence of poachers.

With regard to a fishery in tidal waters, it seems clear that once the title to the fishery is established, viz., that the river was, or must be presumed to have been, lawfully put in defence before the time of Henry II., no fishing by the public can have any effect to displace the title or to set up a right in the public. The moment the fishery is put in defence and made several it becomes, as regards the public, a place from which they are excluded, and is at once in the same state and condition as a several fishery in non-tidal water, in which the public never had or could have a right to fish. In the case of Neill v. Duke of Devonshire (b), the duke had proved a documentary title and possession of a several fishery in the river Blackwater. The defendant, disputing the title and claiming as a member of the public to fish, proved that a kind of fishing by "cots," small engines for taking salmon, had been carried on by members of the public as far back as living memory extended, and it was contended that this evidence displaced the title to the several fishery, or was evidence that it had been abandoned. Lord Selborne's judgment on the point is as follows: "Nothing now remains for me but to deal with the last question, on which your Lordships heard the respondent's counsel, viz., whether Mr. Justice Lawson's manner of leaving the evidence as to cot-fishing to the jury, was right, and what was the proper effect of that evidence. Shortly stated, the applicant's evidence as to cot-fishing was, that it had

(a) See Wyse v. Leahy, (1875) 9 Ir. R. C. L. 384, per Morris, J.

(b) (1882) 8 App. Cas. at pp. 152 and 170.

been carried on, upon all parts of the river, from a point above the lower terminus of the bishop's fishery to one somewhat higher than the Broad of Youghal, during the present century, with the knowledge of the duke or his agents, and without interruption by them, as far back as living memory extends; that many persons have practised it, forty or fifty cots at a time being sometimes seen on the same part of the river; and that the quantities of salmon taken in that manner were very considerable and of very substantial value. This evidence is relied upon to show, not (as in the case lately before your Lordships, of Goodman v. Mayor and Burgesses of Saltash (c)) that this practice of cot-fishing is reconcileable with the existence of a several fishery in that part of the river, but for the opposite purpose, of establishing a general public right of fishing and proving that, notwithstanding all the evidence of title and possession adduced by the duke, the river Blackwater was not 'put in defence' before Magna Charta. The mode of fishing by drift nets, practised by the appellants, is of recent introduction, and is wholly different from cot-fishing, and beyond comparison more destructive to the fish and more injurious to the owner of the several fishery, if a several fishery exists. Mr. Justice Lawson was, in my opinion, quite right in telling the jury, as he did, that the duke's case, taken by itself, was one of such strength as almost (if not absolutely) to entitle his Grace to have a verdict entered for him, but for the appellants' evidence as to cot-fishing; and also that, if the jury once came to the conclusion that the duke, under the grants to his ancestors, had a several fishery in the river, the question of cot-fishing would become immaterial; 'because no exercise of cotfishing in the river, if it was really the several fishery of the duke, could take away the several fishery from him, or confer any rights on the public.' The public could not, in law, prescribe for a profit à prendre in alieno solo; they could acquire no right adversely to the owner of the several fishery under any Statute of Limitation; and abandonment,' which was suggested in the argument of the appellants' counsel, is a term which has no legal meaning as to an incorporeal hereditament, such as a several fishery, which can only pass by deed." 'Usage (d), continued during living memory, when there is nothing to the contrary, and when the question is one of prescription, may (no doubt) justify the presumption of a similar usage, as of right from time immemorial. But when it is relied upon not to establish a prescriptive right, but to displace a prescriptive right, supported by written titles and evidence of long possession for a period earlier than, and coming down to, the time of living memory, it appears to me that such a presumption would (d) (1882) 8 A. C. p. 156.

6

66

(c) (1882) 7 A. C. 633.

be neither reasonable in fact nor necessary in law. It would be extremely dangerous if titles, otherwise impregnable and supported by long enjoyment, could be overturned by evidence of that kind. It is the wise policy of the law,' said Mr. Justice Heath, in the celebrated gleaning case (Steel v. Houghton) (e), not to construe acts of charity, though continued and repeated for never so many years, in such a manner as to make them the foundation of legal obligation.'"

Lord O'Hagan's judgment is as follows (f): "There was abundant evidence that upon a great part of the river, including a portion of the bishop's fishery, and extending through the spaces in which the trespass is complained of, the practice of cot-fishing has been for a multitude of years pursued largely, continuously, and without interruption, although on the lower part of the stream towards Youghal the proof did not establish the existence of such a practice so allowed.

"That proof was submitted to the jury as bearing on the questions whether a several fishery was vested in the respondent and his predecessors, and whether the river had been appropriated to the exclusion of the public right? But it was insisted that the jury should have been further asked to consider whether the respondent and his predecessors had abandoned the right to a several fishery. I think that the appellants made no case of abandonment which should have been submitted. Without discussing the view of one of the learned Judges of the Exchequer, that 'in point of law it is not possible for an abandonment to take place of a fishery in the manner suggested,' it may be enough to say that no sufficient authority to the contrary has been adduced, and that a mere interruption of the possession under an established title in such a property cannot be held to have destroyed it. An interruption may have been permitted through the absence of the proprietor, or through his ignorance, partial or complete, of the acts relied on; or through his neglect or indifference to them as not vitally affecting, in his own case, his interest or position; or as requiring from him, for the purpose of resistance, effort or expense unjustified by the necessity of the case; or as allowed from kindly or benevolent motives to humble people for a great length of time. And it would not seem just, as it would not be legal, on the ground of such an interruption, so tolerated, to pronounce the forfeiture of his vested estate."

It would appear, therefore, that it may be said, "once a several fishery always a several fishery." Once the public right has been excluded, the public cannot in law regain the right to fish. The

(e) (1788) 1 H. Bl. 64.

(f) 8 A. C. p. 170.