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the grant, and finding that the lessor has previously demised a cellar to a third person, who was in occupation under that lease at the date of the lease of the surface: Doe d. Freeland v. Burt (a). There is, in our opinion, no doubt that in the grant of a set of chambers in our Inns of Court, a flat in a house constructed in flats, or of a seam of coal in the earth, the presumption that the grant extended infinitely upwards and downwards would be repelled by the nature of the subject-matter of the grant, and without any express words in the conveyance."
"What, then, were the circumstances surrounding the grant made by the duke of the Castle Saucery in 1846? At that date the fishery throughout the reach of the Eden now in question was in the tenancy of one George Relph, who was a partner in or trustee for a company; it had been in that tenancy for some thirteen years, and the company and their servants had openly, with boats and nets, fished the river. Looking at the usage under this deed (as we are bound to do in the construction of a deed now several years old) we find that from its date down to immediately before this action, neither the grantees under the deed of 1846, nor the corporation as their assigns, ever fished the stream by virtue of any right of soil or otherwise. These circumstances seem to us strong to show that the duke did not by the deed in question intend to grant a right in the river inconsistent with his previous demise to Relph, and consequently are sufficient to rebut the presumption which would have given half the bed of the river to the grantees of the duke."
"With regard to the deed by which the duke granted the Far Saucery to the corporation in 1846, and which bears the same date as the conveyance of Castle Saucery to Messrs. Dixon, all the observations just made with regard to that deed apply."
"With regard to the conveyance by the Duke of Portland to the corporation of the Hole Meadow in 1767, similar observations apply so far as the facts of the case are or can be in evidence. We do not know whether the fishery was at that date in the hands of the duke or of a tenant; but we know that for many years previous it had been let as a fishery, and we feel bound to presume that the modern user, which has been proved with regard to the fishery, existed in 1767, that the fishery was then, as now, known and treated as a tenement distinct from the closes adjoining the river; and the fact that the corporation had never, for more than a century after the grant of 1767, set up any title to fish under this deed or exercised any such right, is a strong confirmation of our conclusion. All ancient documents,' as
(a) (1787) 1 T. R. 701.
was rightly said by Lord Wensleydale in Duke of Beaufort v. Mayor of Swansea (b), 'where a question arises as to what passed by a particular grant, can be explained by modern usage.'
This principle of construction has been followed in later cases (c). It appears, therefore, that the question as to whether the soil to the mid-stream passes by the conveyance of riparian land made by the person who is owner of the riparian land and also of the fishery, is a question of what was the true intention of the parties to the deed, and that the existence or non-existence of this intention may be ascertained by considering the circumstances under which the deed was executed, if it be a modern deed, and also the subsequent user if the deed be an old one. If from the circumstances no intention to pass the fishery and soil to the mid-stream can be inferred, the presumption will be rebutted.
In some cases, however, it may appear that the owner of the riparian land has fished concurrently with the owner of the fishery to the mid-stream opposite his land. Then the riparian owner can claim, not the exclusive fishery in the half river, but a fishery in common with the owner of the fishery, and for this he must either show a grant of the land with the right to fish, or show evidence to raise the presumption of a grant of common of fishery from the predecessors of the owner of the fishery. Such grants are not uncommon. In 14 Edward I. (d), Nicholas Fermeland claims. common of fishery in Rollesham, against William le Grant and others, from Rollesham Mill to Suthcote Mill. The parties came to an agreement whereby William le Grant grants to Nicholas and his heirs "quod decætero habeant communiam piscarie in aquam prædictam cum omnimodis ingeniis ad capiendos pisces exceptos gurgites imperpetuum"; and Nicholas releases to William all his claim to fish in the mill pools of Rollesham and Suthcote. In some of the earlier cases in the records we find the riparian owner claiming in this way not the exclusive fishery opposite his land, but a common of fishery with the fishery owner. See the case in Bracton's Note Book, No. 835, ante, p. 37; the case of Oliver de Isenny, ante, p. 38; the case of Nicholas de Emberlin, ante, p. 38; the case of The Prior of Tickford, ante, p. 47.
From these cases it would seem that in early times, when fisheries were valuable, it was not the practice for the lord of the manor and owner of the fishery to grant out the riparian land with the exclusive
(b) (1849) 3 Exch. 413.
(c) Pryor v. Petre,  2 Ch. 11. See also Beckett v. Leeds, (1871) L. R. 7 Ch. 421; Marquis of Salisbury v. G. N. Railway, (1858) 5 C. B. N. S. 174; Leigh v. Jack, (1879) 5 Exch. D. 264; Mappin v. Liberty, (1903) 1 Ch. 118.
(d) Assize Roll, No. 63, Bucks, m. 16 d.
right of fishing to the mid-stream, thus excluding his own right, and, as it were, cutting a hole in and breaking up the continuity of his fishery; but to grant a right of common of fishery merely to the riparian owner, so that he and his grantee might fish concurrently. This would be a course of action which we might naturally expect. It is hardly to be conceived that the lord would break up his fishery by granting any exclusive right to his tenant, and so make it practically impossible to draw his nets down the river without trespassing on the rights of his free tenant. This was undoubtedly the usual practice in early times, so far as we can gather from ancient records, and it seems more than probable that ancient riparian rights to fish were all rights of common of fishery, and not exclusive rights, but have come to be looked upon as exclusive rights solely by the form of and constant reiteration of the riparian presumption to the midstream, and from the fact that that presumption has been stated in the books as applying to the owners of the "land" abutting on the river, when "land," in the days when the dictum was laid down, must have invariably meant "manor." It has also been held that the presumption applies to a copyhold as well as to a freehold (e). It is difficult to suppose that the lord of a manor who was owner of the several fishery would, in granting land to his bond tenants, also cut up his valuable fishery, and deprive himself of part of it in favour of his tenant. It is impossible to suppose that such could have been his intention at the time of the grant. As copyholds must have been granted before the Statute of Quia Emptores, 18 Edward I., and in most manors the greater part of the lands were held by copy at that date, we should hardly expect to find manorial fisheries extending the whole length of the manor, as we do in the instances taken from the Hundred Rolls in 7 Edward I. See ante, Chap. VII. The present existence of very many manorial fisheries extending over stretches of river, the riparian lands of which are copyhold, is cogent evidence that the lords of manors in granting out copyholds never intended to grant them to the mid-stream, and as the grant of the copyhold tenement must have been made. anterior to 18 Edward I., it is submitted that when there is no evidence of fishing by the copyhold tenant there can be no presumption that the lord intended to grant to him the ownership of the soil and fishery of the river to the mid-stream.
Moreover, whenever we find a claim by a copyhold tenant to a right to fish, it is invariably a claim by the custom of the manor, and is a claim to common of fishery, limited either to the use of the fish for his sustenance in his tenement, or limited to the use of
(e) Tilbury v. Silva, (1890) 45 Ch. Div. 99, per Kay, J.
some particular kind of net or particular kind of fish only (f). It would seem therefore to be doubtful whether the presumption of riparian ownership to the mid-stream, where there is a fishery, can apply to a copyhold tenement. No instance of such a case has been met with.
Claims have been made by inhabitants of a particular town, manor, and township to fish in fisheries, but have (with one exception) been defeated on the ground that fishing is a profit à prendre in alieno solo, and cannot be claimed by an uncertain and fluctuating body of persons who cannot be incorporated so as to receive a grant. A custom for all the inhabitants of Bala to fish was held bad (g). The dredgermen on the Colne were held not to be a corporation to take a profit à prendre (h). In Allgood v. Gibson (i) a custom for the commoners, copyholders, and ancient freeholders of a manor and their tenants and the dwellers in the parish and manor to fish in the waste waters of a manor was held bad and unreasonable.
In Bland v. Lipscombe (k) a custom for all the inhabitants of a parish to angle and catch fish was held bad (1). The reasonable ground of objection to such suggested customs is that so large a right would tend to the destruction of the subject-matter (m).
In the case of Goodman v. The Mayor of Saltash (n) the free inhabitants of ancient tenements in the borough of Saltash claimed a right to take oysters in a fishery belonging to the corporation at particular seasons without stint and for sale. They proved immemorial exercise of the right, claiming as of right. The original charter granting the fishery was not in existence, but was evidently of great antiquity, probably anterior to the reign of King John. The House of Lords (Lord Blackburn dissenting), seeking for a legal origin to account for the usage, decided (per Lord Selborne) that the evidence. established a title in the corporation to a several fishery; not, however, an absolute and unqualified title for their sole benefit, but one qualified by a trust or condition in favour of the free inhabitants of ancient tenements within the borough in accordance with the usage.
(ƒ) Woolrych on Waters, pp. 127, 166, 167, Exch. Dep. E., 13 Will. III. 27; tenants have liberty to fish for eels, culls and cray fish, with "budgett" nets only. Tilbury v. Silva, (1890) 45 Ch. Div. 99; Lloyd v. Jones, (1848) 6 C. B. 81; Bland v. Lipscombe, (1854) 4 E. & B. 713.
(g) Lloyd v. Jones, (1848) 6 C. B. 81; 5 D. & L. 789; 17 L. J. C. P. 206.
(h) Mills v. Mayor of Colchester, (1864) 17 C. B. N. S. 635.
(i) (1876) 34 L. T. N. S. 883.
(k) (1854) 4 E. & B. 713.
(1) And see Ordeway v. Orme, (1612) 1 Bulst. 183; English v. Burnell, (1765) 2 Wils. 258; Tinnery v. Fisher, (1604) 2 Bulst. 87.
(m) Race v. Ward, (1855) 4 E. & B. 702; Clayton v. Corby, (1843) 5 Q. B. 415. (n) (1882) 5 C. P. D. 431 ; 7 Q. B. D. 106; 7 App. Cas. 633.
OF THE POWERS OF AN OWNER OF A FISHERY TO LEASE AND LICENSE, &c.
WHEN letting a fishery the owner of it should be very careful as to the manner and form of the instrument by which it is let. He should be careful that the instrument describes the fishery accurately, in order to avoid discussion and dispute as to the nature and extent of his rights either during the term granted or subsequently, when the instrument may have to be produced in evidence to establish his title and possession. Leases granted by the owners of fisheries are really their most important title-deeds, as showing the nature and extent of the possession of the fishery, and form the best evidence for the owner (a). Having regard to the varying kinds of fisheries and the particular conditions under which they are let, it would be only misleading to lay down or suggest any general form of a lease of a fishery. Every such instrument must be drawn in accordance with the facts of each particular case and the requirements of the lessor and lessee respectively. There are, however, some points to be observed in settling the lease of a fishery to which it may be useful to call attention.
In the first place, it is always advisable to let a fishery by a deed under seal. This prevents any question arising as to whether the fishery is a fishery with the soil or an incorporeal fishery; an incorporeal hereditament can only be conveyed by a deed (b). It is true that a fishery may be let by verbal agreement; and even where no rent has been agreed upon the landlord is entitled to sue the tenant for a reasonable rent for use and occupation (c). This course, however, is very undesirable, tending to give rise to dispute and difficulty, and the owner of the fishery loses the opportunity of putting on record the nature and extent of his possession. It is also advisable to annex a carefully made plan to the deed.
A grant by deed for a term of years of the exclusive right of fishery, with a proviso that "the right of fishery hereby granted
(a) Bristow v. Cormican, (1877) 3 A. C. at p. 668.
(b) Duke of Somerset v. Fogwell, (1826) 5 B. & C. 875; Bird v. Higginson, (1835)
2 A. & E. 696.
(c) Holford v. Pritchard, (1849) 3 Exch. 793.