CHAPTER IV.

OF THE PRESUMPTION OF OWNERSHIP OF THE SOIL BY THE OWNER OF THE FISHERY.

PRESUMPTIONS of this nature, commonly described as presumptions of law, are in truth presumptions of fact-a convenient means, in the absence of actual evidence of the true facts of the case, of jumping to a conclusion as to what is probably the truth, having regard to the nature of fisheries, in the majority of cases. The presumption now established is that the owner of the fishery, whether in tidal or non-tidal water, is the owner of the soil (a). An examination of the general history of fisheries points strongly to the conclusion that this presumption is sound, and in accordance with the facts so far as we know them. In the first place, it is established, and has been held from the earliest times, that fishery is a profit of the soil (b). The owner of a fishery must either be, or must derive his right from, the owner of the soil (c). Originally all fisheries and the soil thereof were parcel of manors, baronies, honours, either held by (d) or granted out by the Crown by ambits of land comprising the site of the fishery as parcel thereof. Ancient records from Domesday downwards show us that the most ancient and usual mode of enjoying the profit of fisheries, both in tidal and non-tidal waters, was by weirs, kiddels, fishgarths, stake nets, bucks, and other engines fixed into and permanently erected in the soil of the fishery. The existence of such fixed engines was held by Lord Hale (De Jure Maris, cap. v.) to show that in fisheries of this kind the soil was held with the fishery. "Such are gurgites, weirs,

(a) Hanbury v. Jenkins, [1901] 2 Ch. 401; Att.-Gen. v. Emerson, [1891] A. C. 649; Hindson v. Ashby, [1896] 2 Ch. 1; 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 v. Bailey, (1846) 8 Q. B. 1000; 13 Q. B. 426.

(b) Y. B. Trin. 10 Hen. VII. pl. 1; Neill v. Duke of Devonshire, (1877) 2 L. R. Ir. 132.

(c) Opinion of Wood, B.; Chitty on Game Laws, p. 295; Blackstone, ii. 39; Marshall v. Ulleswater, (1863) 3 B. & S. 732; Mayor of Carlisle v. Graham, (1869) L. R. 4 Exch. at p. 371, per Bramwell, B.: "I think the right to grant a several fishery arises from the ownership of the soil"; Cooper v. Phibbs, (1867) L. R. 2 H. L. 149, Lord Cranworth. (d) See case of The Banne, (1610) Dav. 55.

fishing places, borachiæ, stachiæ, &c., which are the very soil itself, and so frequently agreed in our books," and, in the case of The Abbot of St. Benet Hulme (e), he says that the fishery "was not a bare liberty or profit à prendre, but the right of the very water and soil itself, for he made weirs in it." Lord Hale's dictum has been upheld by the House of Lords in the case of Att.-Gen. v. Emerson.

The returns on the Hundred Rolls in 7 Edward I. (ƒ) show that many of the fisheries were fished with weirs, e.g. "libera piscaria sua cum tribus gurgitibus"; "piscaria in riparia de Thames in longitu dine quantum terra sua durat et duos gurgites ad eandem piscariam pertinentes"; "et tenet dimidiam Thamisiam in dominico"; "et sunt in eadem villa xxvij quarentinæ aquæ Thamisiæ in longitudine "(g). The Abbot of Furness had a weir in the water of Ulverston "in proprio solo ipsius Abbatis." In non-navigable rivers weirs and fishing mill dams almost always existed. In navigable rivers they became so numerous and such a nuisance to navigation that they were ordered to be cut down by Magna Charta, and subsequent statutes set out by Hale (De Jure Maris, cap. v.), who observes upon them: "But in all these statutes, though they prohibit the thing, yet they do admit that there may be such an interest lodged in a subject, not only in navigable rivers, but even in the ports of the sea itself contiguous to the shore, though below the low water mark, whereby a subject may not only have a liberty but also a right or propriety of soil. But yet this, that I have said, must be taken with this allay, which I have in part premised" (h).

Commissions were frequently issued to survey navigable rivers and to restrict the weirs (i); and ultimately, under the law of sewers, 31 Henry VIII., almost all the weirs in navigable rivers were destroyed. It must, therefore, be taken as decided that in the case of a fishery worked by fixed engines, whether in tidal or non-tidal water, the fishery is held with the soil.

In the cases of fisheries which have always remained parcel of manors, it is clear that the fishery and the soil remain in unity. of possession. Nothing has occurred to separate the right of fishing from the ownership of the soil. In the case of fisheries severed

(e) De Jure Maris, c. v.

(f) Hundred Rolls, II. pp. 691, 705, 720, 749, 776.

(g) Coram Rege Roll, E., 34 Edw. I. roll 40.

(h) The Statutes of Weirs, 21 Rich. II. c. 19, and 1 Hen. IV. c. 12, empowering justices to correct and remove weirs, stakes, kiddels, &c., enact that if the order of the justices be disobeyed he who has the freehold of those structures shall pull them down at his own cost.

(i) Ing. p. m. 20 Edw. I. 77, weirs in the Trent; Hundred Rolls, weirs in the Tyne. The Hundred Rolls show numerous presentments of weirs existing in rivers, e.g. in the Colne, I. 103; Assize Rolls, Essex, 13 Edw. I. 49 b; Coram Rege Roll, 229, T. 10 Edw. II. roll 83, weir at Wroxham.

from manors, but worked with fixed engines, it is clear that the soil and the fishing remain in unity of possession. In the case of fisheries severed from manors, but not worked by fixed engines, it will be a question of evidence whether the soil has or has not passed with the fishery. If the fishery owner shows user of the soil as by erecting buildings, taking ballast, cutting weeds, &c. (k), the case is clear. If no user by the fishery owner is shown, and no user by the grantor of the fishery or his successors in title, the presumption of ownership of the soil remains in favour of the fishery owner. If there is user of the soil adverse to the fishery owner, then that presumption will probably be rebutted.

It has been suggested that there might be such a thing as an incorporeal right of fishing including the right to make such use of the soil as was necessary to fix engines in it for the purpose of taking the profit of the fishery, rather in the nature of an easement than as evidence of the ownership of the soil. In the case of The King v. Ellis, in 1813 (1), which involved the question of the rating of a fishery in the Severn, Bayley, J., says: "I should doubt very much if the grant of a fishery could convey the soil and everything underneath it, such as all the minerals; though I can conceive that it may pass so much of the soil as is connected with the fishery"; but on evidence being given of fishing with fixed engines, he and the rest of the Court held that it was a fishery with the soil and upheld the rate. This speculation of Mr. Justice Bayley has received no confirmation, nor is there any known case which supports his suggestion. The presumption that the soil passes with the fishery stands, and the history of fisheries shows clearly that it is presumption of powerful inference, and is probably a true presumption of fact in the great majority of cases.

We have seen that the exercise of a several fishery by fixed engines, as in the case of Att.-Gen. v. Emerson, has been held to raise the presumption of ownership of the soil. There is another circumstance which appears equally to raise such a presumption, viz. the existence of a fishery for oysters, mussels, cockles, &c. Mussels which adhere to the soil have been held in Scotland to be partes soli (m), and in Free Fishers of Whitstable v. Gann (n), it was considered that a grant of the soil was necessary to the possession of an oyster fishery. Cockles are taken by digging in the soil.

(k) See Partheriche v. Mason, (1774) 2 Chitty, 258.

(1) (1813) 1 M. & S. 652.

(m) Duchess of Sutherland v. Watson, (1868) 6 Court Sess. Ca., 3rd Ser. 199; Duke of Portland v. Gray, (1832) 11 Court Sess. Ca., 1st Ser. 14; Lindsay v. Robertson, (1867) 5 Ibid., 3rd Ser. 864.

(n) (1861) 11 C. B. N. S. 387. See Scratton v. Brown, (1825) 4 B. & C. 485.

CHAPTER V.

OF THE ORIGIN AND SUBDIVISION OF FISHERIES.

THE result of a careful examination of the more ancient evidence relating to fisheries leads to the conclusion (above expressed) that in the origin of things fisheries, whether in tidal or non-tidal waters, were in their nature mere profits of the soil over which those waters flowed, the right to the fishery being dependent upon and an incident of the ownership of the soil (a). Fisheries, both in tidal and non-tidal waters, were originally vested in the Crown as owner of the soil of the whole kingdom. As regards tidal waters very many fisheries were before the reign of King Henry II. granted out to subjects by the Crown, while others were retained by the Crown and dealt with as parcels of manors still remaining part of the Crown estates (b); the right of the public to fish in such waters having been supposed to be excluded by some prerogative action of the nature of which we are ignorant. As regards non-tidal waters we see that the fisheries in them were granted by the Crown as parcel of the manors in which the waters or rivers were situate; and the soil of the river and the profit of the fishery in it was dealt with as parcel of the manor, the river being in fact a separate close and hereditament, parcel of the manor within the bounds of which it was situate; the ownership of the river by the lord of the manor not depending upon or being consequent upon his ownership of the riparian land, but being his property as land covered with water lying within the ambit of the territory granted to him by his original grant of the manor (c). Such being the condition of things. with regard to the original ownership of fisheries in early ages, it may be useful to consider the various ways in which the Crown

(a) The fishery originally belongs or is primarily incident to the soil, and when it becomes a separate and distinct hereditament it is by grant from the owner of the soil: opinion of Wood, B., Chitty, Game Laws, p. 295. Blackstone, ii. 39: "He that hath a several fishery must also be, or at least derive his right from, the owner of the soil"; Marshall v. Ulleswater, (1863) 3 B. & S. 732.

(b) See case of The Banne, (1610) Dav. 55; Moore on Foreshore, p. 247, where the Crown retained the soil and fishery, although it granted out the riparian lands.

(c) The Abbot of Battle claims "libera et seperalis piscaria" in the waters of Wye. The verdict is "quod tenet in seperalitatem ratione Manerii sui," Assize Roll, 384 a, Kent, 7 Edw. II. m. 10.

Robert de Chandos claims fishery in the Wye at Foghope, "per terras suas ex utraque

could or might be expected to deal with its rights and in what manner the Crown's grantees have or might have dealt with theirs.

When all the land in the kingdom was in the Crown and also all the rivers there was no question of any riparian right; the right of the Crown did not depend upon the ownership of riparian land. The Crown, therefore, might make grants in many ways, and it is desirable to consider these with a view of being enabled to ascribe to the evidence in each particular case of a title to fishery, a possible or probable legal origin for such right, especially in cases where the modern evidence of user conflicts with the common presumptions of law either as against the Crown's primâ facie claim to the soil of tidal water, or the claim of the owners of riparian lands within the ambits of original manors. The Crown, therefore, when owner of the entire kingdom and before any riparian manors had been granted out might grant as follows:

1. An entire river from the source to the sea, including the soil and fishery both in the tidal and non-tidal portions of it.

Instances of this kind of grant are few, if indeed any can now be strictly proved. The river Itchen in Hampshire was in the possession of the Bishop of Winchester from its source to the sea from before the time of King John. In 7 John, A.D. 1205 (d), the sheriff was ordered to view "totum cursum aqua [de Itchen] et piscariam inter Wintoniam et Southampton," and in the same state that Bishop Godfrey de Lucy had held it to deliver it to Peter de Rupibus, the succeeding bishop.

The river Arun in Sussex from its source to the sea was included in the grant of the honour and rape of Arundel made by the

parte aque." Verdict that he holds it "tanquam pertinentem ad Manerium suum de Foghope," Assize Roll, 302, Hereford, 20 Edw. I. m. 56.

Abr. Pat. 38 Edw. III. p. 1, m. 28 d. A writ to inquire whether the lord of the manor of Carleton had "medictatem aque de Ayr infra dominium Manerii usque ad filum aque et proficuum istius aque per fines et metas ejusdem dominii.”

Y. B. 4 Hen. VI. 11 b. Case of The Abbot of Dorchester. Free fishery "parcel of his manor."

"Dominus Manerii

Pat. 20 Hen. VI. m. 6; Coram Rege Roll, M. 37 Edw. III. roll 65. de Wystowe est dominus aque de Ouse ad medium filum," and the fishery is "in solo et dominio de Wystowe in aqua predicta." This is in the tidal waters of the Yorkshire Ouse. Rastall's Ent., p. 597 a. "Dominus ville et W. habet seperalem piscariam ratione Manerii sui quod extendit ad filum aque."

Gibbs v. Wolliscot, (1691) 3 Salk. 291, per Holt, C. J.: "A man may have a free fishery in his own soil, as, for instance, he may have a river in his manor" ; Skinn. 677. The royal fishery of the Banne, (1610) Dav. p. 57. Agreed que chescun inland river nient navigable appartient al owners del soile ou il ad son cours," 28 Ass. p. 93. "Et si tiel river courge enter 2. Mannors, et est le meare et boundarye enter aux, lun moitie del river et piscarie appient al un seignior et lanter moitie al auter et ces appiert," Lib. Intrat, fol. 666 (Rastall's Entries, f. 597).

(d) Close Roll, 7 John, m. 13, p. 52.