non-tidal water was a franchise arising by grant of the Crown, but this was reversed by the Court of Appeal. It must, therefore, be taken as settled law, that a fishery in tidal water exercised over land belonging to the owner of the fishery is not a franchise, but a profit of the soil as held by Chief Baron Palles, and now that it has been settled that the ownership of a several fishery in tidal water raises the presumption of ownership of the soil (m), there would seem to be but little chance of showing that a several fishery in tidal water ever had its origin in a grant of an incorporeal right of fishery by the Crown. No such case is known to exist, although of course it is a possible condition of things. Of course, a fishery originally coming into existence by a grant of the soil may have been severed from the soil and granted as an incorporeal hereditament by the owner of the soil, and a few of such cases may be shown; but when a fishery is traced back to an ancient grant, the presumption will be that the soil passes with the fishery, and this presumption can only be rebutted by showing clear evidence of acts of ownership in the soil adverse to the right of the owners of the fishery.

(m) Att.-Gen. v. Emerson, [1891] A. C. 649.

CHAPTER IX.

INCORPOREAL FISHERIES IN NON-TIDAL Water.

To decide

OCCASIONALLY lawyers and conveyancers, misled by conflicting dicta of Coke and others as to the meaning of the words "free" and "several," have looked upon fisheries as being always incorporeal hereditaments, and have frequently dealt with and conveyed them as such, when in truth they were what has been called "territorial " fisheries, i.e. fisheries with the soil, e.g. manorial fisheries, where the right to the soil of the water and the right to its profits have never been severed the one from the other. The owners of incorporeal fisheries in non-tidal water must have originally derived their right from the owner of the soil, for "fishery is a profit of the soil, as the grass of other lands" (a). whether a particular fishery is incorporeal or not is often an extremely difficult question. It is, as Bowen, L.J. said, a question of fact in every case, and must depend more upon the evidence of the user than upon the description in the parcels of the title deeds. Where there has been user of the soil, as cutting weeds, getting sand and gravel, using fixed engines, &c., and especially paying of rates before the Rating Act of 1874, the fishery will be shown not to be incorporeal. Fisheries were frequently conveyed by ambiguous and uncertain descriptions as "all that free fishery or right of fishing," "all those our fishings," &c., "all that the fishery and right of fishing," and such like descriptions. These descriptions must not be taken to show definitely that the right conveyed is only incorporeal. The evidence of user and the circumstances surrounding the conveyance may be looked to to explain the intention of the grantor of the deed (b); and it may be taken as a general rule that all manorial fisheries which have remained parcel of and in unity of possession with the manor are territorial fisheries with the soil, and that primâ facie, when they have been severed from the manors, the soil has been conveyed with them to the

(a) Y. B. Trin. 10 Hen. VII. pl. 1; 2 Bl. Com. 39; Chitty, Game Laws, 295; opinion of Wood, B., Marshall v. Ulleswater, (1866) 3 B. & S. 732; Duke of Devonshire v. Neill, (1877) 2 L. R. Ir. 132.

(b) Duke of Devonshire v. Pattinson, (1887) 20 Q. B. D. 263.

grantee of the fishery (c), and it is established now that this presumption stands until the contrary be proved (d). An incorporeal fishery is therefore now looked upon as the exception rather than the rule.

An incorporeal fishery can only be granted by deed (e). It will pass by a grant of all other estates of inheritance (f). It is not an easement but an interest, and is a profit à prendre in the soil of another, and may exist in gross (g). It may be appurtenant to a house or land (h). is not within the Prescription Act, 2 & 3 Will. IV. c. 71 (i). But it would not appear to be a sufficient interest in land to give a claim to compensation under the Lands Clauses Act (k).

It

A fishery may be let by verbal agreement, and even when no rent is agreed upon the landlord is entitled to sue the tenant for a reasonable rent for use and occupation (1). A deed granting an exclusive right of fishing for a term of years gives a right to fish and carry away the fish caught, and entitles the grantee to a right of action against any one who injures the fishery (m).

A fishery is so far real estate that it is subject to dower (n).

It will merge in the soil if acquired by the owner of the soil. "A way or common shall be extinguished by unity of possession, because they are part of the profits of the land, and the same law as of fishings also " (o).

(c) Aldermen of London v. Hastings, (1657) 2 Sid. 8.

(d) Partheriche v. Mason, (1774) 2 Chitty, 258; Hindson v. Ashby, [1896] 2 Ch. 1, and cases cited.

(e) Duke of Somerset v. Fogwell, (1826) 5 B. & C. 875; Bird v. Higginson, (1835) 2 A. & E. 696.

(f) Cooper v. Phibbs, (1867) L. R. 2 H. L. 149.

(g) Hardres, 407; Rogers v. Allen, (1808) 1 Campb. 309; Shuttleworth v. Le Fleming, (1865) 19 C. B. N. S. 687; Neill v. Duke of Devonshire, (1882) 8 App. Cas. 135; Wickham v. Hawker, (1840) 7 M. & W. 63.

(h) Hayes v. Bridges, (1795) 1 R. L. & S. 390. See Edgar v. Special Fishery Commissioners, (1871) 23 L. T. N. S. 733.

(i) Shuttleworth v. Le Fleming, supra; Bland v. Lipscombe, (1854) 4 E. & B. 713, n (k) Bird v. G. E. Railway, (1865) 19 C. B. N. S. 268.

(1) Holford v. Pritchard, (1849) 3 Exch. 793; Bird v. Higginson, (1835) 2 A. & E. 696 (m) Fitzgerald v. Firbank, [1897] 2 Ch. 96.

(n) Bacon's Abr. Dower; Park on Dower; Greyes' Case, (1594) Owen, 20.

(0) Sury v. Pigot, (1625) Popham, 166.

F.

F

CHAPTER X.

OF FISHERY APPURTENANT TO OR PARCEL OF A MANOR.

WHEN We speak of a fishery as "appurtenant," we of course mean an incorporeal right of fishery unconnected with the ownership of the soil. Of course, it is possible that there may be such an incorporeal right appurtenant to a manor where the water is tidal. If such a right exists in any manor it must have arisen by a grant from the Crown of the manor limited to the high water mark, and a grant of the incorporeal right of fishery over the soil of the foreshore and bed of the river adjoining the manor. No instance of such a grant has ever been produced, and speaking from a large experience the authors decline to believe that such a grant was ever made. Now that the case of Att.-Gen. v. Emerson (a) has decided that the ownership of a several fishery is evidence of the ownership of the soil, and raises a presumption against the Crown that the freehold of the soil is in the owner of the fishery, it would seem to be incorrect to speak of a manorial fishery owned by the lord of the manor as being "appurtenant" to the manor. It is rather parcel of the manor, a separate close and hereditament, including the soil and the exclusive profit of that soil, viz., the right of fishery.

The case is the same as to a manorial fishery in non-tidal water. So long as it remains in the hands of the lord of the manor it cannot be an incorporeal hereditament, for nothing has been done to sever the possession of the soil from the right of fishing. It is parcel of the manor, a separate close and hereditament, including the soil and its profit, viz., the right of fishing (b). Of course, as soon as the lord of the manor has parted with the right of fishing, the fishery may become incorporeal, because by his grant he may not have intended to divest himself of the soil; but the fishery in this case is no longer either parcel of or appurtenant to the manor. Therefore

(a) [1891] A. C. 643. See Duke of Devonshire v. Neill, (1877) L. R. Ir. 132, per Palles, C. B.

(b) Duke of Devonshire v. Pattinson, (1887) 20 Q. B. D. 263; Y. B. 10 Hen. VII. Trin. pl. 1. The owner of the soil ought of common right to have such profits as arise upon the land, and all profits and revenues, and when it is shown that it is fishery, then there is no other profit except fishery to be taken there which of common right ought to belong to the owner, as the grass of other lands.

it would seem that a fishery in non-tidal water cannot be rightly spoken of as being appurtenant to a manor. In old cases we find it so spoken of, probably because in old times fisheries were generally considered to be incorporeal hereditaments. Confusion has arisen from the technical value which has been given the word "pertinens." This word formerly meant "belong," in the sense that the thing belonging was parcel of the manor. In the Hundred Rolls (d) the manorial fisheries are described by boundaries and extent, e.g. Newton in Huntingdonshire," piscaria separales in aqua de Nene," extending, &c., "et continet unam leucam et dimidiam que pertinet ad manerium." Chebenhurst (e) (Oxfordshire), "Dominus habet in eadem villa piscariam in riparia de Thame in longitudine que durat quantum terre sue durat et duos gurgites ad eandem piscariam pertinentes." The bishop of Winchester held the manor of Alberbury "in quo idem episcopus habet separalem piscariam tanquam pertinentem ad manerium prædictum," and sues for a trespass in building a weir on his soil (f). Robert de Chaundos, lord of the manor of Fougehop (Herefordshire), claims his fishery "per terras suas de Fougehop usque ad medium aque de Waye tanquam pertinentem ad manerium suum de Fugehop " (g). The jury find that he was seized of the fishery tanquam pertinentem ad manerium. The abbot of Battle claims a several fishery in his manor of Wye because he had a grant from the Conqueror of the manor "cum appendiciis suis " (h). These were all cases of manorial fisheries in non-tidal waters, whence it is obvious that the water and soil were parcel of the manor, yet they are described as "pertinentes," which must be used in the sense of parcel of, not appurtenant or appendant to the manors. The lord of Carleton, near Snaith, had "medietatem aque de Ayr et proficuum ejusdem aquæ as parcel of his manor" (i). The lord of the manor of Dorchester on the Thames had the water of Thames and the free fishery as parcel of his manor (j). The lord of Wystowe (Yorkshire), having been presented for having weirs in the river Ouse, claimed that he had the moiety of the Ouse within and parcel of his manor, and that the weirs were "in solo et dominio suo" (k). The abbot of Waltham claims to have free fishing in the water of Luye in his demesne and to make pools and erect weirs and dams in the same, and

(d) Hundred Rolls, II. 646.

(e) Ibid., II. 720.

(f) Coram Rege Roll, No. 260, m. 21 and 32, East. 18 Edw. II.

(g) Assize Roll, 302, m. 56, 20 Edw. I.

(h) Assize Roll, 384 a, m. 10.

(1) Pat. 38 Edw. III. p. 1, m. 46 d.

Hen. VI. 11 b, pl. 7.

(j) Y. B. Hill.