CHAPTER XVIII.

OF FISHING-PATHS.

THE Owner of a fishery has not of necessity a right to land nets or walk upon the bank of the river for the purpose of fishing without the assent of the owner of the freehold (a). In cases of grants of fisheries and of grants of land adjoining fisheries it will be a question of construction whether the right to use the banks for a fishing-path has been actually or impliedly granted or actually or impliedly reserved. In cases of claims by prescription it will depend upon the evidence of user (b).

If the fishery in respect of which the path is claimed is a fishery with the soil, the right of fishing-paths may be prescribed for as appurtenant; but if the fishery is an incorporeal fishery there appears to be difficulty in so prescribing. In a recent case of Hanbury v. Jenkins, respecting a fishery in the river Wye (c), Mr. Justice Buckley found for a fishing-path as appurtenant because he thought that the soil went with the fishery; but assuming he was wrong on that point, and the fishery was incorporeal, he thought that on the construction he put on a somewhat obscurely worded passage in Coke upon Littleton (d), the case appeared to come within the exception to that authority that an incorporeal hereditament could not be appurtenant to another incorporeal hereditament, because the right of way for the purpose of fishing itself so agreed in nature and quality as to be capable of union without incongruity. The evidence of user of the path was strong.

Where a right of way for the purpose of fishing has existed over land afterwards inclosed under the power of an Inclosure Act, it would seem that it will be held to have been extinguished by the operation of the Inclosure Act, unless the way is set out in the award of the commissioners (e).

(a) Woolrych on Waters, pp. 163, 167; Ipswich v. Brown, (1581) Savil. 11.

(b) Gray v. Bond, (1821) 2 B. & B. 667; 5 Moore, 527; Paterson, Fishery Laws, p. 30; R. v. Ellis, (1813) 1 M. & S. 665 ; Blundell v. Catterall, (1821) 5 B. & Ald. 268, per Holroyd, J.; Gould on Waters, sect. 100; Shuttleworth v. Le Fleming, (1865) 19 C. B. N. S. 687. See also Lewknor and Ford, (1586) Godb. 114, per Ashurst, J.

(c) [1901] 2 Ch. 401.

(d) Co. Litt. 121 b, 122 a.

(e) Ecroyd v. Coulthard, [1897] 2 Ch. at p. 572.

In tidal waters fishermen may go upon the foreshore to fish and may draw their nets upon the beach above ordinary high water mark; but in the absence of prescription or grant may not fix stakes to dry nets or do any act upon land above the ordinary high water mark (f).

The public have no right to go upon the banks of rivers which are private property to fish, although they may have the right to fish in the river (g). If the public have gone upon the banks this has been by sufferance of the landowner, not by virtue of any right, and there would seem to be no length of time by which the public could acquire this right. At any time the landowner may forbid it and proceed against the persons as trespassers (h). They may have the right of way to pass and repass, but not for the purpose of fishing (i).

In the counties of Devon, Somerset, and Cornwall, by statute 1 James I. c. 23, herring, pilchard, and seine fishers have the right to land and go upon the lands adjoining the coasts to direct the operations of fishing and manage the nets and seines.

In letting lands adjoining a fishery care must be taken to reserve a right of path for the purpose of fishing and preserving the fishery, for if there be no such reservation the owner of the fishery will have no right to go upon the land (k).

(f) Gray v. Bond, (1821) 2 B. & B. 667; 5 Moore, 527; Blundell v. Catterall, (1821) 5 B. & Ald. 268; Woolrych, p. 163, 164, 167. As to herring fishing see 11 Geo. III. c. 31, post, p. 97.

(g) Y. B. Trin. 15 Edw. IV. f. 29, pl. 7; Ball v. Herbert, (1789) 3 T. R. 253.

(h) Oke's Fishery Laws, p. 6.

(i) See Harrison v. Duke of Rutland, [1893] 1 Q. B. 142.

(k) Paterson's Fishery Laws, p. 67; Davies v. Jones, (1902) 18 T. L. R. 367 ; Oke's Game Laws, p. 118.

CHAPTER XIX.

OF THE PUBLIC RIGHT OF FISHERY AND ITS LIMITS.

ALL British subjects have the right to fish in the high seas outside the territorial limits of a country for all kinds of fish, in common with the rest of the world, unless their right has been restricted by statute (a), or by convention or treaty with foreign states. When disputes arise between fishermen as to the mode of fishing in the high seas, they are, if the locality is not the subject of legislation or treaty, regulated by the custom which is in vogue at the place of the dispute (b). Such custom, to be binding, must be clearly understood by all those who frequent the locality in question (c).

There are at present conventions in force with regard to the North Sea (d), the English Channel (e), Newfoundland (f), the North Pacific seal fisheries (g), and Greenland seal fisheries (h).

In tidal waters, estuaries, and arms of the sea below the high water mark of ordinary tides situate within the limit of the kingdom, as fixed by the Territorial Waters Jurisdiction Act, 1878, the public, as subjects of the realm, have the right to fish to the exclusion of the subjects of all foreign powers, except in such parts of those tidal waters as have been legally appropriated as private fisheries. In such parts, so legally appropriated and granted to a subject, no public right exists, or can exist, or can be acquired by the public by user, however long existing; and such parts being put in defence as against the public are in the same condition as regards any public right of fishing as the non-tidal waters.

(a) British subjects may be forbidden to trawl within thirteen miles of the coast of Scotland: Sea Fisheries Regulation (Scotland) Act, 1895, s. 10; Fennings v. Lord Grenville, (1808) 1 Taunt. 241.

(b) See Paterson's Fishery Laws, pp. 6 et seq.; Aberdeen Arctic Co. v. Sutter, (1862) 4 Macq. App. Cas. 355; Fennings v. Lord Grenville, (1808) 1 Taunt. 241; 9 R. R. 760; Young v. Hichens, (1844) 6 Q. B. 606; D. & M. 592; Littledale v. Scaith, (1788) 1 Taunt. 243 a; 9 R. R. 762; Hogarth v. Jackson, (1827) M. & M. 58; Skinner v. Chapman, (1827) M. & M. 59, n.

(c) Aberdeen Arctic Co. v. Sutter, ubi supra. (d) Sea Fisheries Acts, 1883, 1891, 1893.

(e) Sea Fisheries Acts, 1843, 1868, 1883.

(f) Treaty of Washington Act, 1872.

(g) Behring Sea Award Act, 1894; Seal Fisheries (North Pacific) Act, 1895.

(h) Seal Fisheries Act, 1875.

The public right of fishing in tidal waters has been regulated and limited in many particulars by statute with regard to the methods of capture of fish, the seasons of fishing, the use of particular engines, &c., as will appear later.

As incident to the right of public fishery in tidal waters there exists the right of fishing over the foreshore when it is not within the limits of a several fishery, and of laying lines, drawing nets (not being of the nature of fixed engines) over it, and presumably of drawing nets on the beach above ordinary high water mark in the act of fishing. It does not extend to the right of fixing stakes or fixed engines on the foreshore nor of drawing up boats above high water mark (except in case of peril and necessity), and leaving them there for future use (i). Such rights would be inconsistent with the right of private property. They may, however, be gained by custom by fishermen of a particular locality (k). It has been held that where there exists no several fishery, prima facie every subject may take shell-fish found upon the foreshore in the possession of a subject; but, semble, there is no such right to take fish shells (). This case is not clearly reported, and is of doubtful authority. There is considerable doubt as to whether mussels, which have been held in Scotland to be partes soli (m), are or are not subject to the right of public fishery. It is also questionable whether cockles, which can only be taken by digging in the soil, are within the definition of fish which the public have the right to take from foreshore in the possession of a subject.

The public right of fishing must be exercised reasonably, and in accordance with the law and the provisions of the statutes with respect to it. A person duly licensed to fish in the upper waters of a tidal river may maintain an action against a person who, by unlawfully fishing in the lower waters of the river within limits prohibited by statute, had caused damage to him in the exercise of his right to fish (n).

In the case of The Truro Corporation v. Rowe (0), Mr. Justice Wills held that proof of an immemorial practice by oyster fishermen to lay oysters down, to cleanse and get rid of impurities contained in them, on part of the foreshore and bed of the river Fal,

(i) Ward v. Creswell, (1741) Willes, 265; Ilchester v. Raishleigh, (1889); 61 L. T. N. S. 477; Att. Gen. v. Wright, [1897] 2 Q. B. 318.

() Y. B. 13 Hen. VIII. 15 b; 8 Edw. IV. pl. 30; Hale de Port. p. 86; Y. B. 15 Edw. IV. f. 29, pl. 7; Padwick v. Knight, (1852) 7 Ex. 861; Blundell v. Catterall, (1821) 5 B. & Ald. 268 ; 24 R. R. 353. See also Aiton v. Stephen, (1876) 1 App. Cas. 456. (1) Bagott v. Orr, (1801) 2 B. & P. 472.

(m) Duchess of Sutherland v. Watson, (1868) 6 Ct. of Sess. Cass., 3rd Ser. 199. (n) Whelan v. Hewson, (1871) Ir. R. 6 C. L. 283.

(0) [1901] 2 Q. B. 870; [1902] 2 K. B. 709.

may be justified as against the owner of the foreshore and bed as being incidental to the enjoyment of the public right of oyster fishing both by custom and by common law; but it was held on appeal that fishermen have no right to appropriate a portion of a foreshore for the storage of oysters to the exclusion of the rest of the public, and have no property in the oysters so deposited.

In the counties of Somerset, Devon, and Cornwall seine fishers have the right to go upon private land to view the fish and direct the operations of the seine boats, &c., by a statute 1 James I. c. 23, and persons employed in white herring fisheries may land their stores, nets, fish, &c., on any waste or uncultivated ground within one hundred yards of the highest high water mark (p).

The limit seawards of the public right exclusive of subjects of foreign states is the limit of the kingdom as fixed by the Territorial Waters Jurisdiction Act, 1878; the limit landwards, where the public right ends and the private right of owners of non-tidal fisheries commences, has given rise to much discussion. In non-tidal waters, viz., in rivers and lakes, ponds, canals, and artificial watercourses, the public have not, and cannot acquire by any means, a right to fish as members of the public. The right of the public depends wholly upon the existence of tidal influence at the spot in question. Notwithstanding that the river or water may have been navigable and navigated from time immemorial, if it is not also tidal there can be no right in the public to fish, not even when it is proved that they have so fished from a period beyond the time of living memory (q).

There was formerly an erroneous impression that where a river was a public navigable river, although not tidal, the public had a prima facie right to fish. It was, in fact, contended that the navigability of the river imparted the public right, and that it was not necessary that the river should be also tidal (r). In one case, the claim of the public to fish was made as to the river Itchen, a non-tidal river made navigable by means of a canal system (s). The point has been definitely decided, and is summed up by Grove, B., and Huddleston, B., thus: "The distinction is clear upon the whole

(p) Stat. 11 Geo. III. c. 31 (1771).

(q) Murphy v. Ryan, (1868) Ir. R. 2 C. L. 143 ; Hargreaves v. Diddams, (1875) L. R. 10 Q. B. 582; Mussett v. Birch, (1876) 35 L. T. N. S. 486; Hudson v. McRae, (1863) 4 B. & S. 585; Pearce v. Scotcher, (1882) 9 Q. B. D. 162; Smith v. Andrews, [1891] 2 Ch. 678; Blount v. Layard, Ibid. ; Neill v. Duke of Devonshire, (1882) 8 A. C. 135 ; O'Neil v. M'Erlaine, (1864) 16 Ir. Ch. R. 280; Reg. v. Burrow, (1870) 34 J. P. 53; Pery v. Thornton, (1888) 23 L. R. Ir. 402; Blower v. Ellis, (1886) 50 J. P. 326; Mickelthwait v. Vincent, (1892) 67 L. T. 225.

(r) Smith v. Andrews, [1891] 2 Ch. at p. 696, per North, J. (s) Hargreaves v. Diddams, (1875) L. R. 10 Q. B. 582.

F.

H