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citizens of York as to the effect of Magna Charta was a true statement of the law as regards putting rivers in defence, more especially since we see that they were unsuccessful in getting the rivers thrown open to public fishing, which would hardly have been the case if the interpretation they sought to put on the sixteenth chapter of the Great Charter was accurate; though of course it may have been that the lord of the manor may have been able to show that the rivers were put in defence before the date of the charter, as probably they were. These petitions are the only records that we have found that in any way suggest that the construction now put upon the charter (e) was the true construction.

(1) Malcolmson v. O'Dea, (1862) 10 H. of L. Cas. 593.



In the consideration of the evidence relating to a claim to a several fishery there is often considerable difficulty in accounting for the possession of the right and in arriving at a just conclusion as to the true legal origin of the title under which the several fishery has descended, and ascertaining whether the particular fishery in question is a fishery including the ownership of the soil or is a mere incorporeal hereditament. Lord Justice Bowen, during the argument of the case of Duke of Devonshire v. Pattinson (a), put the state of the case pointedly by the question, "Is it not always a question of evidence in every case, whether a several fishery carries the soil or not?"

The ascertained facts of a case not unfrequently conflict with the well-settled presumptions of law, namely, the presumption of riparian ownership of the soil, water and fishery to the mid-stream in nontidal waters, and the presumption of ownership of the soil by the Crown in tidal waters, and also with the more modern dictum that ownership of a several fishery, whether in non-tidal or tidal waters, raises a “primâ facie" presumption, in the absence of the evidence to the contrary, of ownership of the soil.

This question of the ownership of the soil of a fishery, which so frequently arises between the owner of a fishery and the riparian proprietors, makes it very material to ascertain, by a careful investigation of the history of the fishery, in whom the soil of the water is vested.

For a long period before and down to quite modern times, the general tendency of legal opinion has always been to regard a fishery, whether in tidal or non-tidal waters, as an incorporeal hereditament. This was no doubt largely due to the erroneous dictum of Lord Coke (Co. Lit. 4 b, 122 b), that "if a man be seized of a river and by deed do grant seperalem piscariam in the same, the soile doth not pass." This dictum has, however, been overruled (b).

(a) (1887) 20 Q. B. D. 265.

(b) See Partheriche v. Mason, (1774) 2 Chitty, 258; Lofft, 364; Marshall v. Ulleswater, (1863) 3 B. & S. 732; Duke of Somerset v. Fogwell, (1826) 5 B. & C. 875; Holford

As regards fisheries in tidal waters, they were, until the decision of Att.-Gen. v. Emerson in 1891, always deemed to be incorporeal. This no doubt was largely owing to the suggestion of Blackstone (c), that a fishery in tidal waters was always an incorporeal "free fishery" in the nature of a franchise, and also arose from the natural result of the undue weight given to the theory of the "prima facie" presumption of ownership of the soil of tidal waters by the Crown. This theory, by frequent assertion and iteration, has come to be considered rather as a presumption of fact. than merely a presumption of law capable of being rebutted by evidence. It has, however, of late years been much shaken, and although it is a true presumption of law and a true theory, it has been demonstrated that in the great majority of cases it is not true as a presumption of fact. Although no doubt there may be fisheries in tidal waters which are incorporeal hereditaments, a careful examination of the facts in very many cases will show that such fisheries are the exception and not the rule, and that the conclusion of Chief Baron Palles in the case of Duke of Devonshire v. Neill (d), will be found to be a correct deduction from known facts. He says: "It appears to me to be beyond dispute that the exclusive right of fishing in tidal waters vested in the hands of the Crown is no more than an incident of the soil over which the waters flowed as affected by the exercise of the Crown's prerogative of excluding the public, and that right can and generally does exist in the subject as an incident of the soil and not as an incorporeal hereditament."

The other presumption, namely, that of riparian ownership to mid-stream, has also in the same way gradually come to be considered a presumption of fact rather than of law, and fisheries in non-tidal water have been described and dealt with as if they were always incorporeal rights, and not, as in most cases they are, profits of the soil (e). The fact that originally fisheries were, all of them, parcels of manors, separate hereditaments comprising the land and the water, has, in these later days, when manors have ceased to be the important units which in former days they were, been lost sight of. The language of Bracton and Lord Hale stating the presumption of the right of riparian ownership as being in the owner of the riparian land has led to an idea that the immediate ownership of the riparian land necessarily gave the right to the soil and fishery

v. Bailey, (1846) 8 Q. B. 1000; 13 Q. B. 426; Att.-Gen. v. Emerson, [1891] A. C. 649; Hindson v. Ashby, [1896] 2 Ch. 1.

(c) 2 Comm. 39. See Rowe v. Brenton, (1828) 8 B. & C. 737.

(d) (1877) 2 L. R. Ir. 132.

(e) See Waterford Conservators v. Connolly, (1889) 24 Ir. L. T. R. Ex. 7. Riparian owner is owner of the soil of half the stream and entitled to fish half the river, just as he is entitled to take game on the land portion of his property, per Palles, C.B.

to mid-stream; whereas in most cases the fact is that the original ownership of the land within the manor gave the right to the midstream as parcel of the manor, and the river within the manor (especially where the fishery has been a valuable one) has been retained by the lord of the manor, notwithstanding that he has parted with various pieces of riparian lands to his tenants. Where, therefore, there is evidence that the fishery was in its origin manorial and parcel of the manor, the true presumption of fact should be that "primâ facie” the soil and water and fishery was parcel of the manor; and the evidence should be scrutinised to see whether the lord of the manor has remained in possession of the fishery together with the soil, or whether the riparian owner can show such evidence of exclusive user opposite his land as to raise the presumption that by the grant of the riparian land, which must have been originally made by the lord of the manor, the soil and fishery opposite it was intended to pass to the grantee, or was retained by the lord at the time of the grant.

The burden of the proof of possession and title is on the lord of the manor or the owner of the fishery claiming against the riparian proprietor (ƒ), and until the decision of the case of Duke of Devonshire v. Pattinson in 1887 (g) the weight of the presumption of riparian ownership to the mid-stream made it very difficult for the fishery owner to succeed. Down to that time it had been held that by a conveyance describing the land thereby conveyed as bounded by a river, it was intended that the bed of the river to the mid-stream should pass, unless there was a distinct reservation of the river and the fishery in the conveyance itself. This presumption was held, in the case of Duke of Devonshire v. Pattinson, to be rebutted by evidence of possession of the fishery by the grantor at and subsequent to the date of the conveyance. It was held that the fishery within the manor was a manorial fishery, and was a separate close and hereditament, parcel of the manor and distinct from the riparian land; and that, although the grant of the riparian land was made without reservation, it was shown by the circumstances of the case that the grantor did not intend to grant any rights in the river to the grantee. This principle of construction has been followed and approved by subsequent cases.

Since this case, a further presumption of law has been established (or rather an old presumption has been reaffirmed), which favours and assists the claim of the fishery owner. It is that the possession of a several fishery raises the presumption of ownership of the soil,

(f) Lamb v. Newbiggin, (1844) 1 Car. & K. 549.

(g) (1887) 20 Q. B. D. 263.

whether in tidal or non-tidal waters. This presumption, in the great majority of cases, will be found to be true upon the facts. The claim of the riparian owner to fish in right of his possession of the bank rests solely on the assumption that he has had a grant of the soil of the river, and is therefore entitled to the profits of it. This is the only ground upon which he can claim it; although, of course, he may claim a right to fish from his land in the nature of a right of common of fishery, to fish concurrently with the owner of the river by grant or prescription; but if he rests his claim solely on riparian ownership, the question as to whether he can show possession of the soil becomes the important question in the case.

Seeing, therefore, that these presumptions as to fisheries conflict with one another, it has been thought that a careful consideration of the origin and nature of fisheries, and of the manner in which they came into existence and have been described and dealt with by the owners of them in past times, as shown by ancient records and decided cases, may help in determining many of the difficulties which so frequently present themselves with regard to titles to fisheries.

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