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OF FISHERIES IN PONDS AND LAKES, AND THE OWNERSHIP OF
THE Ownership of the soil, and the right of fishery arising from it in ponds and the smaller lakes, is primâ facie vested in the owner of the property or the manor in which they are situate (a). When the pond or lake lies between two manors or two properties, the medium filum is usually the dividing line of the soil, and the right of fishery will follow this boundary line (b), but this is not always the case.
Doubts, however, have arisen with regard to the larger lakes, which are navigable, and are public highways, as to whether the soil of them is vested in the Crown or in the riparian proprietors, and also as to whether the public have a right to fish in them (c). There appears to be no authority which in any way decides what are small and what large lakes in this respect. The doubt appears first to have arisen in the case of Marshall v. Ulleswater Co. in 1863 (d), where Mr. Justice Wightman says: "Whether the soil of lakes, like that of fresh waters, prima facie belongs to the owners of the land or of the manors on either side ad medium filum aquæ, or whether it belongs primâ facie to the King in right of his prerogative (Com. Dig. Prerogative, D. 50, Hale, De Jure Maris, c. 1), it is not in this case necessary to determine; for it is clear upon the authorities that the soil of land covered with water may, together with the water and the right of fishing therein, be specially appropriated to a third person whether he have land or not on the borders thereof or adjacent thereto " (e). In this case the plaintiff claimed to be owner of a several fishery in part of Ulleswater Lake, and tried his title to it as belonging to the barony of Barton and its
(a) Paterson's Fishery Laws, p. 2; Clarke v. Mercer, (1859) 1 F. & F. 492; Cornwell v. Saunders, (1862) 32 L. J. M. C. 6.
(b) Phear, p. 1; Woolrych, p. 121; Bristow v. Cormican, (1877) 3 App. Cas. 648; Ir. R. 10 C. L. 398, 412.
(c) Reg. v. Burrow, (1870) 34 J. P. 53; Bloomfield v. Johnston, (1868) 8 Ir. L. R. C. L. 68; Pery v. Thornton, (1888) 23 L. R. Ir. 402.
(d) (1863) 3 B. & S. 732.
(e) This dictum was disapproved of by Lord Blackburn in Bristow v. Cormican, (1877) App. Cas. 661.
sub-manors, showing that the barony extended to and included part of the lake, and by virtue of his ownership of the fishery he claimed the soil on which a pier had been built by the defendant. The jury found for him, and an application to enter the verdict for the defendant was refused, the Court deciding that the ownership of the fishery prima facie imported the ownership of the soil. The fishery was held by a grant together with livery of seizin, reserving a quit rent of 4d. a year to the lord, and the Court held that in the absence of evidence to the contrary, such a grant must be taken to convey a corporeal and not an incorporeal inheritance, as feoffments with livery of seizin and the reservation of a quit rent are not appropriate to an incorporeal estate. See also Att.-Gen. v. Emerson, (1891) A. C. at p. 654.
The question arose again in Bloomfield v. Johnston (ƒ), in 1867, with regard to the large lake of Lough Erne in Ireland. In this case it was decided that the public have not of common right the right of fishery in large inland lakes in which the tide does not flow and reflow, although they are navigable (g), and the Court declined to extend the presumption that the bed and soil of the stream belongs to the riparian proprietors ad medium filum aquæ to a large inland lake like Lough Erne. The soil of the lough was clearly in the Crown, and the King granted to the plaintiff's predecessors "libera piscaria" in Lough Erne, making at and about the same date several other similar grants to other persons, showing clearly that the Crown was granting as owner of the soil rights of commnon of fishery of an incorporeal nature only (h).
The case of Bristow v. Cormican (i), in 1878, was an action of trespass for taking fish in Lough Neagh, a fresh-water lake in Ireland, over the whole of which the plaintiff claimed a several fishery under a grant of a fishery and of islands in the lake from King Charles II. The fishery described in this grant did not clearly include the whole lake, and no evidence was produced as to the title of the Crown to the soil and fishing of the lake. The issue was not whether a lake in which the tides of the sea had never flowed was a public navigable inland sea in which the right of fishing was common, but whether upon the royal grant, coupled with evidence of certain subsequent acts of possession in other parts of the lake, and in the absence of evidence of the extent of the Crown's ownership or possession at the time of the
grant, the jury were properly directed to find for the plaintiffs, or whether the case should have been submitted to them on the evidence as to the plaintiffs' title and right to maintain the action. The Lord Chancellor said: "The Crown has no de jure right to the soil or fisheries of a lough like Lough Neagh. Lough Neagh is, as your Lordships are aware, the longest inland lake in the United Kingdom, and one of the largest in Europe. It is from fourteen to sixteen miles long, and from six to eight miles broad. It contains nearly 100,000 acres; but though it is so large, I am not aware of any rule which would, primâ facie, connect the soil or fishings with the Crown, or disconnect them from the private ownership. either of the riparian proprietors or other persons. Charles II., or some of his predecessors, may have become possessed of the lough and its fishings, either by grant, forfeiture or otherwise; but it would be a legitimate and necessary subject of inquiry how and from whom, and subject to what conditions or qualifications this possession or proprietorship was obtained." Lord Hatherley, referring to the difficulties attending the case, because of the lack of information as to the manner in which the Crown acquired title to the property and the extent of that title, said: "It is of very great importance in this case to have all the circumstances of the case before us, and to see how it was that the property became vested in the Crown, of which we have no history at all. Clearly no one has a right to say that it became vested in the Crown because it belonged to nobody else. This is an inland lake, and, therefore, it is not a portion of land belonging to the Crown by reason of its being on the shore of the sea, or a navigable strait or river." Lord Blackburn said: "The property in the soil of the sea and of estuaries, and of rivers in which the tide ebbs and flows, is prima facie of common right vested in the Crown, but the property of dry land is not of right in the Crown. It is clearly and uniformly laid down in our books, that where the soil is covered by the water, forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land; and there is no case or book of authority to show that the Crown is of common right entitled to land covered by water, where the water is not running water forming a river, but still forming a lake." Referring to the decision in Marshall v. Ulleswater Steam Navigation Co., the learned Judge further said: "This is the only case cited, and, as far as I can find, the only case which exists, where there is even a suggestion that the Crown of common right is entitled to the soil of lakes. Neither the passage in Comyns, nor that in Hale De Jure Maris, cited by Mr. Justice Wightman, gives any countenance to such a doctrine. But it does appear that the learned Judge did not
think that the law as to land covered by still water was so clearly settled to be the same as the law as to land covered by running water, as to justify him in unnecessarily deciding that it was the I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad medium filum aquæ should apply to a lake is a different question. It does not seem convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough, many miles in length, tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors amongst themselves, for no title is made by either party through any one as riparian owner. . . . It is, however, necessary to decide whether the Crown has of common right a prima facie title to the lake; I think it has not. I know of no authority for saying it has, and I see no reason why it should have it."
This case is not a decision that the Crown was not possessed of the soil of Lough Neagh. That was not decided, because the facts were not before the Court, and a new trial was ordered. “All that was decided was that a mere general grant by the Crown of all the lough called Lough Neagh and Toone, together with the fishings and soil thereof," without proof of a sufficient possession of the fishing of the entire lough, would not suffice to establish the title thereto, and when there is no evidence of acts of possession by the grantee at the particular part of the lake which is the place in dispute, can have no effect.
There is no primâ facie presumption that the Crown is the owner of the soil of inland lakes in the same manner that it is supposed in law to be owner of the foreshore; because the legal fiction of the Crown's title to foreshore was not invented till the time of Elizabeth, and was at first based upon the right which the Crown was held to have in the sea and its bed when affected by the tidal influence; but afterwards the foreshore was claimed as being "part of the waste dominions of the Crown not granted out." Nevertheless, the Crown must in the origin of things have been the owner of the soil and fishery of all lakes, large and small, and it may well have been that it had never granted out the soil of Lough Neagh or any portion of it, which would account for there having been no history of the Crown's title. It is a question of fact in every case whether or not the Crown in granting out the fisheries in lakes has conveyed the soil or not. In the case of Lough Erne the soil was not conveyed, but only certain rights of common of fishery. In the cases of
Windermere, Ulleswater, Hornsea Mere, Bassenthwaite Lake, Derwentwater, Brecon Mere, Alresford Pond (k), and numerous other lakes, small and large, fisheries exist which are clearly traceable to grants by the Crown, and the soil goes with the fisheries (1). That there is no public right of fishing in lakes which are navigable is clearly settled (m). The presumption that the riparian owners on the sides of lakes have the fishing to the middle of the lake can hardly be said, after the decision of Bristow v. Cormican, to exist. When we find a riparian owner proving the exercise of the right of fishery in a lake, such right is more probably referable to a grant from the owner of the lake of a right of common of fishery, as in Bloomfield v. Johnston; for it is improbable to the last degree that the owner of a lake, who was also owner of the riparian land, would have intended to grant the soil to the mid-stream and to create a very inconvenient fishery in his lake; but he might, and probably often did, grant the riparian land, together with a right to fish in the lake in common with him (n). The presumption of a grant of such a right upon evidence of user would be natural and reasonable.
(k) R. v. Alresford, (1786) 1 T. R. 358.
The abbot of Ramsey
(2) In Wittlesea Mere the rights of fishing were held in common. held a right of fishing with three boats, the abbot of Thorney with two and a half, the abbot of Peterborough with two, and the Earl of Cornwall with three and a half, the soil probably remaining in the Crown (Hundred Rolls, II. 646).
(m) Bloomfield v. Johnston, (1868) 8 Ir. L. R. C. L. 68; Pery v. Thornton, (1888) 23 L. R. Ir. 402.
(n) There are several instances of grants by the lord of the barony of Kendal of rights to fish with boats and nets in Lake Windermere.