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"Quant le soil est al defendant donques de common droit il doit aver tiels profits queux surdant sur la terre, et touts les profites et revenues comme est al primier entendement, et auxi quant le plaintiff monstre que est pischarie, donque nest auter profit forsque pischary a prendre la, quel de comme droit convient apperteyner a luy sicomme grasse des autres terres."Year Book, Trin. 10 Henry VII., pl. 1, A.D. 1495.
It appears then to me to be beyond dispute that the exclusive right of fishing in tidal waters vested in the hands of the Crown is no more than an incident of the soil over which the waters flowed, as affected by the exercise of the King's franchise of excluding the public; and that that right can, and generally does, exist in the subject as an incident of the soil, and not as an incorporeal hereditament.-Judgment of PALLES, C.B., Duke of Devonshire v. Neill, 2 L. R. Ir. 173, A.D. 1877.
In this work the Authors have endeavoured to collect all available information relating to the law of fishery, applicable to fisheries in England, Wales, and (as regards the common law) Ireland. The common law of Scotland has not been dealt with; that must be left to learned gentlemen of the Scotch Bar. The subject has been exhaustively and admirably dealt with by Mr. Tait in his "Law of Scotland Applied to the Laws of Trout and Salmon Fishing." The statutory law relating to Ireland has not been dealt with. It will be found in Mr. Conner's book on "Fishing Laws."
The first part of the work relates to the history and law of fisheries at common law. The second part reviews historically the ancient legislation with regard to fisheries, and deals generally with modern statutory provisions now in force and the powers of owners of fisheries, boards of conservators, the powers and jurisdiction of magistrates, and the restrictions upon and regulation of fisheries, both as to salmon and migratory fish, sea fish, and freshwater fish other than salmon. In the Appendices will be found the statutes relating to fisheries in England, so far as they remain unrepealed, with notes of decided cases relating to them.
The special provisions of local Acts have not been set out as these Acts are numerous and local practitioners will be well acquainted with their provisions. A list of them, which it is hoped is complete, will be found in the Table of Statutes arranged chronologically. There is also given a list of places where fisheries existed and are referred to in the Domesday Book; and a list of fisheries in various places in the Kingdom, reference to which in ancient records has been found by the Authors in collecting materials for this work.
The object of the Authors has been to collect everything relating to fisheries that may be useful to practitioners and owners of fisheries and the public, so as to make the work a complete conspectus of the law as regards both inland and sea fisheries in every respect, and it is hoped that this endeavour has not been unsuccessful.
The extensive examination of ancient records and authorities which has been made in the preparation of this work shows that
misconceptions and errors as to facts relating to fisheries have from time to time arisen. To these we wish to call attention, because we think that the pointing out of these errors may have considerable effect upon the construction which may hereafter be placed upon the documents of title and the evidence which may be put forth in support of titles to fisheries. The undue weight attributed to the ingeniously constructed dicta of ancient text writers, endeavouring, in their ignorance very often of true facts, to lay down the law in general propositions, has led to the enunciation of principles very often inconsistent with the true facts as to the existence, nature and attributes of fisheries. The theory as to the manner in which fisheries in tidal water were established, and public right to fish in them excluded, and the prevention of the further putting tidal waters in defence by the sixteenth chapter of Magna Charta, is shown in Chapter II. to be extremely doubtful; and we appear to be ignorant altogether of the process by which several fisheries in tidal water were established. We venture to submit that the truth probably is that the exclusive ownership of fisheries in tidal water arose simply from the possession by the subject of the soil of the tidal water which imported the natural result, viz., the right to take the profits of that soil; and that the exclusion of any public right of fishing, if such existed in ancient times otherwise than by tacit licence of the Crown before the soil of the water was granted out, was effected by the grantee of the soil excluding such public fishing in the same manner that the grantee of waste land on coming into possession of the soil would exclude the people of the country from pasturing their cattle there, although they may have previously been allowed to do so by the tacit licence of the Crown during the period that such land was in the Crown's possession. We think that there is no evidence in existence to show that the exclusion of the public right of fishing was effected by any exercise of any prerogative right other than the right of the Crown to grant the soil of the tidal water to a subject.
The erroneous dictum of Lord Coke, that by the grant of a fishery with livery of seisin the soil does not pass, which has been repeated again and again by text writers, and by judges, has doubtless led to the general idea which has prevailed amongst lawyers for centuries that an exclusive fishery must always, or almost always, be an incorporeal hereditament, which certainly is not the case, is dealt with in Chapter III. Blackstone's ingenious but unsound suggestion, that a "free fishery" is an incorporeal fishery in tidal water in the nature of a franchise to be exercised over the soil of the Crown, has doubtless greatly helped to uphold the notion that fisheries in the sea are of necessity incorporeal; whereas it appears from the