INTRODUCTION.

In considering the law relating to fisheries in this kingdom, it has been found necessary first to study the history of fisheries in order to ascertain, as far as may be possible, the origin of such private rights and the circumstances under which they came into existence as private property. This has been found necessary because at various periods lawyers have attempted to divide fisheries into various classes, and have given them various denominations with a view of distinguishing one class from another. Theories have been set up as to the nature and attributes of these various kinds. Many of these theories, evolved from the dicta and decisions of Judges and text-writers, appear to have been founded on erroneous or imperfect knowledge of the facts and an almost complete ignorance of the origin and nature of the fisheries themselves. Theories as to the distinction to be drawn between what have been called sometimes "several" fisheries, sometimes "free fisheries," sometimes" common fisheries" and "common of fishery," attributing various conditions of existence to each of the various kinds and attempting to so classify them nominatim, that the mere description of each species should be held to denote the nature of its condition and attributes, and to settle what shall pass by such description, have grown up from the time of Lord Coke downwards, and may be found in all text-books and in numerous fully argued and decided cases throughout our books. These theories have led to endless confusion (a). A study, however, of the history of fisheries and the facts relating to them shows that some of these theories have no foundation in fact. They are for the most part mere guesses at what the facts might have been, made by persons who were ignorant of the true facts.

Putting aside these theories, and studying the history of fisheries with a mind unprejudiced by ancient dicta and ancient decisions, we are driven to the conclusion that fisheries in their origin were profits of the soil over which the water flowed in which the fish were taken, whether in tidal or non-tidal waters. This conclusion has in these

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(a) Malcolmson v. O'Dea, (1862) 10 H. of L. Cas. 593, per Willes, J.

latter days come to be recognised in the form of a settled presumption that in the absence of evidence to the contrary the owner of a several fishery is presumed to be the owner of the soil (b). If, therefore, a fishery can be shown to have existed from ancient times unaltered in its nature by any act of its owners, as is frequently the case of a fishery parcel of a manor, it is certain that the ownership of the fishery is accompanied by the ownership of the soil, or, to put the case more accurately, the ownership of the soil covered with water having become vested in the owner thereof, he is entitled to the profit of that soil, viz. the fish, as he would be of the grass of other lands (c). Where, however, a fishery has been dealt with by the owner of the soil, and has not remained in its original condition, it may have become an incorporeal right. The owner of the soil may grant the right to take the fish entirely, but reserving the soil, or he may grant a partial right; and instances of incorporeal fisheries do exist, although they are of infrequent occurrence (d). Where they do exist, they must have had their origin in a grant from the owner of the soil; and Blackstone lays it down, quite accurately, that "the owner of a several fishery must be, or must derive his right from, the owner of the soil" (e). Fisheries, whether in tidal or non-tidal waters, must therefore be regarded primâ facie as profits of the soil over which the waters flow.

Hitherto in all works upon the law of fisheries, from Bracton and the celebrated treatise of Lord Hale downwards, the facts as to the origin, nature and ownership of fisheries have been gathered by the text-writers from experience of reported cases and records, so far as they were known to the writers of those works. Propositions of law deduced from this knowledge, or from examples taken from old records relating to the disputes as to the titles of fisheries, have been laid down; dicta have been set up and followed in case after case; presumptions of law and presumptions of fact have been made and established, and the law of the fisheries has thus been arrived at by a deductive process. The deduction has not always been made from a complete knowledge of the true facts. Except by Lord Hale, whose knowledge of ancient records was marvellous, no serious attempt appears to have been made to set up any theory of, or to ascertain the true origin of, the rights of fishery, or to deduce from the study of such origin the various legal processes by which such rights have either come into existence or become varied in their

(b) Att.-Gen. v. Emerson, [1891] A. C. 649; Hindson v. Ashby, [1896] 2 Ch. 1; Neill v. Duke of Devonshire, (1882) 8 A. C. 152.

(c) Y. B. (1495), Trin. 10 Hen. VII. pl. 1.

(d) Att.-Gen. v. Emerson, [1891] A. C. p. 654.

(e) Blackstone, II. 39; Chitty, Game Laws, p. 295.

nature and extent by the acts of the owners of them or the operation of law.

It may therefore be of use and advantage to consider the ancient evidence which we have relating to fishery rights, with a view of deducing therefrom the probable origin and the true nature of the various rights of fishery which now exist. A consideration of the earlier evidence from this point of view may lead to a clearer understanding of the nature of the fishery rights in question in the particular case under consideration, and assist us in difficult cases in arriving at the true conclusion to be deduced from the evidence of the facts, whether it be a fishery in tidal or non-tidal waters.

It will be well to first consider the propositions of law which have been laid down by the older authorities, Bracton, and Lord Hale, who comments upon the passages in Bracton, and adds his own conclusions, derived from his knowledge of ancient records relating to fisheries.

With regard to tidal waters, Bracton copies directly from the "Institutes of Azo" (f). "Publica sunt omnia flumina et portus ideoque jus piscandi omnibus commune est in portu et in flumine." By the word "flumen," as appears from the context, tidal water is intended. Here Bracton is stating only a prima facie case, as he was, of course, well aware that there existed in his time several fisheries in many tidal waters. Hale (g), referring to this passage, says: "It must be taken rivers that are arms of the sea and primo intuito; for, de facto, there doth fall out in many ports and arms of the sea an exclusion of public fishing by prescription or custom." Hale (h) ascribes the origin of the public right of fishing in tidal waters to the King's ownership of the soil of the sea. He says: "The King's right of propriety or ownership of the sea and soil thereof is evidence principally in these things that follow."

"First, the right of fishing in the sea and the creeks and arms thereof is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or, as the right of fishing belongs to him that is owner of a private or an inland river." "But though the King is owner of this great waste, and as a consequent of his propriety, hath the primary right of fishing in the sea and the creeks and arms thereof, yet the common people of England have regularly a liberty of fishing in the sea or creeks and arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, or creeks, or navigable rivers where either the King or some particular subject hath gained

(ƒ) Lib. ii. c. 12. Moore on Foreshore, p. 32.
(g) De Jure Maris, p. 378.

(h) P. 376.

a propriety exclusive of that common liberty" (i). In Chapter 5 Hale points out how the subject may acquire a right of fishing in the sea by grant or prescription. "The King may grant fishing within a creek of the sea or in some known precinct that hath known bounds that are within the main sea. He may also grant that very interest itself, viz., a navigable river that is an arm of the sea, the water and the soil thereof." "A subject may by prescription have the interest of fishing in an arm of the sea, in a creek or port of the sea, or in a certain precinct or extent lying within the sea, and these not only free fishing but several fishing" (k). "Fishing may be of two kinds ordinarily, viz., the fishing with the net, which may be either as a liberty without the soil, or as a liberty arising by reason of and in concomitance with the soil or interest or propriety of it; or otherwise it is a local fishing as ariseth by and from the propriety of the soil. Such are gurgites, weirs, fishing places, borachiæ, stachiæ, &c., which are the very soil itself, and so frequently agreed in our books. And such as these a subject may have by usage either in gross, as many religious houses had; or as parcel of or appendant to their manors, as both corporations and others have had; and this not only in navigable rivers and arms of the sea but in creeks and ports and havens, yea and in certain known limits in the open sea contiguous to the shore." "Now for precedents touching such rights of fishing in the sea and arms and creeks thereof belonging by usage to subjects, the most whereof will appear to be by reason of the propriety of the very water and soil wherein the fishing is, and some of them even within the ports of the sea (1). And here Lord Hale sets out divers instances from records to prove his proposition, and says that infinite more of this kind might be produced (m).

With regard to non-tidal water Bracton refers to the right of fishing in the chapter dealing with "Liberum tenementum "(n) as follows: "Item dici poterit liberum tenementum alicujus per se vel in communi piscare in feodo proprio: ut si quis terram possideat prope ripam ex utraque parte aquæ, per totum licebit ei piscare sicut in libero tenemento suo sine impedimento alicujus, et si quis eum impediverit, facit ei disseisinam, nec competit ei hoc facere in proprio ex aliqua impositione servitutis, cum nemini serviet, fundus proprius. Item si tantum ex altera parte prædia possideat prope ripam, tenementum suum erit usque ad filum aquæ, et sua

erit piscaria et jus piscandi sine alio, nisi forte ita sit quod servitutem imponat fundo suo quod quis possit piscare cum eo, et ita in communi, vel quod alius per se ex toto; et quod quis sibi servitutem imposuerit quod ipse non possit. In communi autem piscare poterit vicinus cum vicinis ex vicinitate vel pro certo pretio vel ex longo usu ad similitudinem juris pascendi in alieno."

Lord Hale (ch. 1) follows Bracton: "Fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing usque filum aque; and the owners of the other side the right of soil or ownership and fishing unto the filum aque on their side. And if a man be owner of the land on both sides in common presumption he is owner of the whole river and hath the right of fishing according to the extent of his land in length. With this agrees the common experience"-" but special usage may alter that common presumption; for one man may have the river and others the soil adjacent; or one man may have the river and soil thereof, and another the free or several fishing in the river" (0).

Thus we see that Lord Hale, referring to non-tidal waters, sets out a general statement, which is no doubt the result of the examination of cases within his extensive knowledge. That result is that, in the majority of cases, the presumption of the riparian ownership of the soil and fishery to the mid-stream is the rule, but to this rule he is careful to state that there are exceptions, and experience of the history of fisheries shows that these exceptions are numerous.

As regards fisheries in tidal waters, Lord Hale states that they may be fisheries with the soil or fisheries without the soil; and he gives examples of such fisheries belonging to subjects, observing that they are all fisheries with the soil, but he gives no example of an incorporeal fishery, and he shows that the ownership of a fishery worked with fixed engines implies the ownership of the soil.

Except as regards royal fish (whales, porpoises, sturgeons, &c.), we find nowhere any suggestion that there existed any prerogative right in fish either in tidal or non-tidal waters, as in the nature of fera naturæ or game under the English law; not even in salmon (as there is in Scotland), and Hale points out that salmon is not a royal fish (p). Bracton (q) lays it down as common law that fishes generally are animals which are born in the sea, which when they are taken belong to the captor; but he distinguishes royal fish and wild. beasts and undomesticated birds as belonging to the King by his

(0) Hale, De Jure Maris, p. 370.

(p) Hale, Ibid., p. 412.

(g) Lib. 1, cap. 12, sect. 60; lib. 2, cap. 1, sect. 2.