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CHAPTER XII.

OF COPYHOLD FISHERIES.

In many manors fisheries in both tidal and non-tidal waters have been demised by copy of Court roll. Sometimes they are so demised in the regular course of copyhold "according to the custom of the manor," and descend according to the custom (a); in other cases, they are demised by lease entered on the Court rolls and are not copyhold. A question sometimes arises as to whether the demise is a granting of the soil with the fishery, or merely a demise of the incorporeal right of fishing. The decision of this question must depend upon the evidence in every case. The question was very fully discussed in the case of Att.-Gen. v. Emerson (b), and, although it was not definitely decided that only corporeal hereditaments could be so demised, it was decided that, although it may be that an incorporeal right is demisable by copy (c), yet nothing can be demised by Court roll which is not parcel of the manor; and, therefore, when we find fisheries demised by copy, that fact is evidence that the fishery, and the soil on which it exists, is situate within the bounds. of the manor.

Rights of common of fishery are frequently found annexed to copyhold tenements in a manor (d), and are held according to the custom (e). As to the effect of enfranchisement of these tenements upon the fishing rights, see Elton on Copyholds, pp. 357, 364, 416.

In some manors the right of fishery is limited to the use of particular nets (f), or to particular seasons for fishing, or by the fish being used only on the copyhold estate, and it would seem that where this kind of common of fishery exists, the lord of the manor may not use the water where his tenants have a common of fishery

(a) Att.-Gen. v. Emerson, [1891] A. C. 648.

(b) [1891] A. C. 648.

(c) Watkins on Copyhold, I. 41, 42; Hoe v. Taylor, (1595) Cro. Eliz. 413; 4 Rep. 306; Co. Copyholder, s. 42; Viner, Copyhold (E.); Elton on Copyholds, pp. 14-16; Musgrave v. Cave, (1741) Willes, 319.

(d) Tilbury v. Silva, (1890) 45 Ch. Div. 98.

(e) Lloyd v. Jones, (1848) 6 C. B. 81; Bland v. Lipscombe, (1854) 4 E. & B. 713 n. See Elton on Copyholds, 14, 250, 307, 364, 416.

(f) Tilbury v. Silva, (1890) 45 Ch. D. 98.

to so large an extent as to deprive them of their privilege, because such an act would be in derogation of his original grant (g).

Mr. Justice Kay, in Tilbury v. Silva (h), held that a copyhold grant prima facie passes the soil of a river ad medium filum in the same manner as a freehold grant. This, however, is doubtful. The presumption in the case of a freehold rests on the assumption that the lord of the manor granted the riparian land with the fishery and soil opposite to it, and such a presumption might well be made, as such a grant is highly probable; but as a copyhold must have been created before the statute of 18 Edward I., it would seem highly unlikely that the lord of a manor in times when rights of fishery were very valuable would, in granting out land to his base tenant, intend to grant him part of his valuable manorial fishery, and thereby to destroy the continuity of his fishing rights.

(9) Gould on Waters, sect. 186; Woolrych on Waters, 127, 166, 167, 237.
(h) (1890) 45 Ch. D. at p. 108.

CHAPTER XIII.

OF FISHERIES IN GROSS.

WOOLRYCH, treating of a fishery in gross says: "A fishery in gross is mentioned in some of our books as a distinct right, yet it does not seem very difficult to refer this privilege also to the more general sorts, either of several fishery or common of fishery. For if it be granted to a person exclusively of others, what is it but a several fishery? and if in common with other individuals, how does it differ from a common in gross, which is attached to the person in contradistinction to appendancy?"

Hale (a) states that fisheries, whether incorporeal or arising from the ownership of the soil, "may be granted in gross, as many religious houses had, or as parcel of or appendant to their manors, as both corporations and others have had." There exist many examples of this class of fishery. It is always a question of fact in every case, depending on the language of the original grant, or upon the evidence of user, from which the nature of that grant is to be inferred, whether the fishery in question is a fishery with the soil or an incorporeal hereditament, or whether it is an exclusive fishery or a mere right of common. Having, however, regard to the fact that in ancient times fisheries in tidal waters were almost always fished by means of weirs and fixed engines erected in the soil, it is to the last degree unlikely that a fishery in tidal waters. granted in gross should be an incorporeal hereditament, a right which would not give the grantee power to fix his engines in the soil to obtain the profit of the fishery. If the grant or the user shows that the fishery in question is a fishery with the soil, then it is, although severed from the manor of which it may have been parcel, a several fishery in the ordinary sense, held in gross severed from the manor of which it was originally parcel. If it is a fishery without the soil, then it will be an incorporeal fishery in gross, a, profit to be taken in alieno solo.

The case of The Royal Piscarie of the Banne (b), is an instance of a fishery in tidal water held in gross. It was an ancient fishery, which had never passed out of the possession of the Crown,

(a) De Jure Maris, p. 385.

(b) (1610) Davies, 55.

and was therefore a corporeal fishery with the soil, the soil of the river never having been granted to the lords of the riparian manors. It was a separate hereditament, soil and water, which had been in the possession of the Crown from the earliest times, and the attempt to show that the soil was in the lords of the riparian manors, and that the fishery therefore belonged to them, failed (c). Fisheries in gross in non-tidal waters unconnected with any land or tenement were in ancient times rare, though examples of them can be shown.

In Minster Lovell in Oxfordshire the fishery belonged to the lord, except" quod Willelmus Faber de le Legh debet piscari per cartas suas in prædicta aqua quando voluerit sine impedimento alicujus" (d).

William de Valence, in 14 Edward I., A.D. 1286, confirmed to the prior of Rochester a right to fish in his fishery in the water of Tame whenever the prior or his successors or any of their monks were at their manor of Hadenham, and also on Wednesday in every week, with all nets and engines as they had in previous times done (e).

William le Graunt, in 14 Edward I., A.D. 1286, granted to Nicholas Ferembaud and his heirs common of fishery in his fishery of Rollesham with all engines for all kinds of fish except weirs (f).

The abbot of Furness, in 20 Edward I., A.D. 1292 (g), and the prior of Lancaster had a right of fishing in the King's water of Lone, the abbot having a right to two draughts and the prior

to one.

The above are grants of common of fishery in gross.

By a deed dated September 14th, 28 Edward I., A.D. 1300 (h), the Earl of Cornwall, lord of the manor of Shillingford, granted to William de Bereford and his wife the whole of his free fishery in the whole of the Thames below Shillingford Bridge opposite to the grantee's lands there, setting out the bounds of it. This is a grant of a several fishery in gross, the whole interest being conveyed.

William de Lancaster, the lord of Kendall, gave to the prior of Coningshead the water of Ulverston and the fishery on both sides as far as the same flowed and reflowed, and the prior claimed the soil. That also is a grant of a several fishery in gross (i).

(c) See remarks on this case, Stuart Moore on Foreshore, p. 247.

(d) Hundred Rolls, II. 737, 3 Edw. II., A.D. 1274.

(c) Assize Rolls, No. 63, m. 6.

(f) Ibid., m. 16 d.

(g) Placita de Quo Warranto, p. 386.

(h) Patent Roll, 29 Edw. I. m. 26.

(i) Coram Rege Roll, E., 34 Edw. I. ro. 40, A.D. 1306.

There is a grant by Gilbert Hammond to the abbot of Rivaulx, lord of the manor of Wirkeshale (k), of " totam partem piscariæ de Tese quantum terra sua durat," with power to take stone "per totam aquam de Wirkeshale" for the repair of the fishery.

This is a case of an incorporeal fishery in gross.

There are many cases of grants to monasteries and ecclesiastical bodies of fisheries in gross. In modern times, since fisheries have been eagerly sought after for purposes of sport rather than profit, very many fisheries are so held, having been purchased from the lords of manors; e.g. the fisheries in the Thames in the manor of Cookham and Bray (1), the fishery at Wraysbury (m), the fishery in the Eden (n), the fishery in Wakering (0), and many others.

The Prescription Act, 2 & 3 Will. IV. c. 71, does not apply to a claim of fishery in gross in the waters of another (p). A claim to such a fishery in the waters of another, which is usually a claim to a common of fishery, cannot be established by showing user under the Act, though of course the evidence of user may be sufficient to raise the presumption of a grant, in accordance with the evidence.

(k) County Placita, York, No. 81, Y. B. 34 Edw. III. pl. 11, f. 207 b, A.D. 1360. (1) Smith v. Andrews, [1891] 2 Ch. 678.

(m) Hindson v. Ashby, [1896] 2 Ch. 1.

(n) Ecroyd v. Coulthard, [1897] 2 Ch. 554.

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

(p) Shuttleworth v. Le Fleming, (1865) 19 C. B. N. S. 687.

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