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OF DIVIDED FISHERIES AND THE ROYAL DRAUGHT.
INSTANCES Occur where the ownership of the profits of fisheries has become divided; e.g. the oyster fishery being in one owner, the fishery for floating fish in another. The fishery for salmon or red fish in one, the fishery for other fish, as trout or herring, or white fish, in another. Such cases are exceptional, but it would seem that the division of the profits of the fishery does not in any way invalidate the claims of the respective owners to the exclusive fishery. They simply hold their respective shares as against all other persons. In Seymour v. Courtenay (a), in 1771, the plaintiff proved a grant from Lord Clifford, the owner of the several fishery, with the exception of an oystery and a reservation of a right to take fish for the supply of his own table. It was objected that this was not a grant of a several fishery, which must be exclusive of the right of all other persons. The plaintiff was nonsuited on this objection, but on a rule for a new trial Lord Mansfield held "that in order to constitute a several fishery it is requisite that the party claiming it should so far have the right of fishing independent of all others, as that no person should have a co-extensive right with him in the subject claimed (for where any person has such co-extensive right there is only a free fishery) (b). But we think a partial independent right in another or a limited liberty does not derogate from the right of the general owner. Here Lord Clifford, being the general owner, demised to the plaintiff, reserving a particular species of fishing, viz., the oystery, which in its nature is to be exercised in a particular mode. A reservation is equal to a grant, therefore it brings it to the same question as if the plaintiff, being the general owner, had granted the sole right of fishing for oysters to Lord Clifford. And taking that to be the case, we think the plaintiff would still have a several fishery to all intents and purposes, except as to the taking oysters. As to the liberty reserved to Lord Clifford of taking fish for his own table, that is a mere limited liberty, and not co-extensive with the right of the plaintiff, who can take fish at all times and for all purposes."
(a) (1771) 5 Burr. 2815.
(6) Evidently meaning common of fishery.
It was decided that the fishery was a several fishery, and the rule for a new trial was granted.
It would therefore appear that the owner of a fishery may grant the right to take any particular kind of fish to another without destroying or injuring his right to the other fish as against all persons (c).
In the case of Rogers v. Allen (d), in 1808, the action was for taking oysters in the river Crouch and in a fishery belonging to the manor of Burnham. The title and user was proved by leases and licenses and acts of ownership. It was held by Heath, J., that the fishery might well pass as an appurtenance to a manor. The defendant proved that the public fished for floating fish and argued that this disproved the exclusive right claimed. It was argued that a fishery must be entire; and it appeared from the licenses and leases that the lords of the manor set up exactly the same pretension to the floating fish as they did to the ground fish, and that as it was lawful for the King's subject to catch the former so they might lawfully dredge for the latter. This was like the right of free warren. If that were claimed in a particular place, and it appeared that hares and partridges (but not pheasants) had always been killed there in the same manner as over the rest of the country, it seems impossible that the claim could be sustained. But Heath, J., said: "A right of fishing and a right of warren are not at all like each other. The one is divisible, the other is not. Part of a fishery may be abandoned and another part of more value may be preserved. The public may be entitled to catch floating fish in the river Burnham; but it by no means follows that they are justified in dredging for oysters which may still remain private property."
It is interesting to note that the title to this fishery as an exclusive fishery for all fish appears to have been established in Lord Fitzwalter's Case (e), in the King's Bench, in 25-26 Charles II., A.D. 1672, before Lord Hale, and the records relating to the manor show that the several fishery was parcel of the manor (ƒ), and was a fishery with the soil, the oyster layings being demised as pieces of ooze (wagessum) by copy of Court roll, as the fisheries in the case of Att.-Gen. v. Emerson were. On a quo warranto against Lord Fitzwalter, the lord of the manor of Burnham, the fishery was proved to be parcel of the manor. The fishermen petitioned
(e) Lord Fitzwalter's Case, (1674) 1 Mod. 105; Rogers v. Allen, (1808) 1 Camp. 309; Mayor of Orford v. Richardson, (1791) 4 T. R. 437; 2 H. Bl. 182.
(d) (1808) 1 Camp. 309.
(e) (1674) 1 Mod. 105.
(ƒ) Bailiff's account in possession of the lord of the manor. See Hale, De Jure Maris, p. 388.
the King to establish the right of public fishing; but on reference to the judges of the King's Bench the petition was dismissed (g). It is difficult to understand in what manner the public acquired the right to fish for floating fish except by tacit license of the lord of the manor. The river had clearly been put in defence in a lawful manner. Mr. Justice Heath, in using the word "abandoned," could not have meant to imply that when the owner of a several fishery permits the public to fish for floating fish which were of no great value, but reserves his right to oysters, he, therefore, established the right of the public to fish. Such a thing as abandonment of a right of fishery cannot in law take place, nor can the public acquire the right once the fishery has been lawfully put in defence (h), and the public right to fish excluded. He must have meant that the lord had a perfect right to allow the public to fish, and that his doing so could not affect his right to the exclusive fishery for oysters. It would seem, therefore, that the right of the public to fish for floating fish in the river Crouch is exceedingly doubtful, notwithstanding the long user; but after enjoyment for so long a period a legal origin may be presumed to support it. There is also
a portion of the Helford river in Cornwall where the oyster fishery is private, although the public freely fish for all other kinds of fish over it (i).
In the case of Manuel v. Fisher (k), in 1859, an attempt was made to set up the public right to trawl and take floating fish in Orford Haven, Suffolk, as against the corporation, who were owners of the fishery. At the trial the corporation proved their documentary title to the fishery. In 1792 the corporation had brought an action against certain persons for dredging oysters, and had established their right (). In these proceedings they had not set up a right to floating fish; but subsequent to this they had asserted that right and had granted licenses to persons to take floating fish and had turned people off. Nevertheless there was a considerable body of evidence that the inhabitants of Orford and the public had fished without license and in the exercise of a claim of right. The jury found for the plaintiff, the lessee of the Corporation, and a motion for a new trial was refused.
At Hauxley, in Northumberland, there is a case of a divided fishery, the Duke of Northumberland is entitled to the salmon. fishery, and a Mr. Widdrington has what is called the "Hauxley
(g) Privy Council Register, 19th Sept., 1675.
(h) See Neill v. Duke of Devonshire, (1882) 8 App. Cas. 135. (i) Reg. v. Downing, (1870) 11 C. C. C. 580.
(k) (1859) 5 C. B. N. S. 856.
(1) Mayor of Orford v. Richardson, (1791) 1 Anstr. 231; 4 T. R. 437; 2 H. Bl. 182.
White Fishery" and the right of taking bait from the shores. The Widdrington title was established in a suit in Chancery in 1737 (m).
In a fishery in the Leven in Lancashire in 25 Edward III., A.D. 1351, the prior of Conishead owned the fishery, but the tenants of the vill of Ulverston had the right to fish with "haues," and also to fish in all the sands for flounders and other fish except salmon. The prior sued them for taking salmon, and succeeded (n).
In the Colne the right to take floating fish has been leased separately from the right to take oysters by the corporation as owners of the fishery. Such cases are common, and there is no reason why the owner of a fishery, who clearly may subdivide it locally by grant to different persons, may not also subdivide the profit of it by granting or leasing the different species of fish within it without derogating in any way from his general title to the fishery (o).
Of the Royal Draught.
Lord Hale (p) points out that the King by his prerogative has another interest in rivers tidal and non-tidal, viz., an interest of jurisdiction, in reference to common nuisances in or by riversin short, a jurisdiction of conservancy. It is not within the scope of this work to treat of conservancy generally, but there appears to have been a further reservation upon grants of some fisheries, viz., a right to take a limited kind of fishing throughout the whole of a river by the officer of the King as conservator, or the officer of the grantee of such conservancy, who in some rivers appears to have had and exercised a right to take a net down the river through all the private fisheries in it at stated periods, generally once or twice a year. We find this right exercised upon the Thames, the Arun in Sussex, and the Frome in Dorsetshire. Possibly it may have existed in other rivers. When this right was claimed as a profit to be taken in respect of the exercise of the jurisdiction of conservator, or whether it was a right reserved by the owner of the fisheries in the entire river upon the granting out of separate fisheries to individuals, seems questionable. On the Thames the right was claimed by the King's water bailiff and conservator as a fee draught (q). He had what was called a fee draught once a year in
(m) Cha. Pro. 1714-1758, Winter Ble. 932; Widdrington v. Kirton, Chancery Decree Book, 1737.
(n) D. of L. Assize Roll, No. 1 (xxv. s. 1).
(0) Seymour v. Courtney, (1771) 5 Burr. 2815; Powell v. Hoffernan, (1881) 8 L. R. Ir. 132.
(p) De Jure Maris, cap. ii.
(9) Exch. Dep. Miscell. No. 1143, 930, 2184, 17 Jas. I.; Q. R. Exch. Dep. Hil. 17 Jas. I. No. 74; Exch. D. & O. Series III. vol. 28, f. 237.
every man's water and fishing, being an ancient annual and certain profit that cometh to him by reason of his office. In the Arun the Earl of Arundel, who was originally owner of the entire river before portions of its fisheries were granted out by him with various manors on the banks, claimed and exercised the right to fish the whole river through all the manorial fisheries in it as lord paramount. On the Frome in Dorsetshire a right to a royal draught is said to have been held by the abbot of Bindon, which extended down the non-tidal portion of the river. It was subsequently held by the family of Weld. In the tidal part of the Frome the corporation of Wareham formerly claimed and exercised a similar right, also called a "royal draught," though the fishery belonged to the Crown, and subsequently to the reign of Queen Elizabeth to the Crown's grantees (r).
In the manor of Long Parish, in Hampshire, the lord of the manor was entitled to three royal draughts, in case the lord should come to the said river in person (s). There existed a similar right
in the manor of Ringwood on the Avon (Hampshire).
A right of this nature is probably either a relic of the right of conservancy or a mere reservation by the lord of the fishery for his own use and enjoyment. Of late years such rights have fallen into disuse.
(r) Exch. B. & A. Dorset, Car. I. No. 56; Exch. Dep. Mich. 13 Car. I. No. 20; Exchequer Decree Books.
(s) Exch. Dep. E. 13 Will. III. 27.