by the making of any cut, sluice, bridge, road, or other work, was to be compensated. The company pulled down certain houses and made a cut which intercepted several thoroughfares, and the tenants of a neighbouring public-house demanded compensation for the loss of custom-not for loss of value as a private house. It was held that they were not entitled to such compensation, Lord Denman, C.J., saying, "It is the necessary consequence of the lawful act done by the company" (n).

By a section of a statute empowering commissioners to maintain a sluice, any person who, after the commissioners or any person authorised by them had begun to carry the statute into execution, should sustain any injury thereby, was to be compensated, and the damage or injury was to be ascertained by a jury before the sheriff. The sluice having burst and injured the property of the plaintiff, it was held that the section only applied to damage resulting from acts authorised by the statute; but, if not, yet as the cause of action was for an omission or non-feasance, it was not within the subject of compensation (0).

For other cases relating to the liability of statutory authorities with regard to navigation, see Chapter VII., post, pp. 492 et seq.

(n) R. v. London Dock Co., 5 A. & E. 163; 44 R. R. 387.

(0) Coe v. Wise, L. R. 1 Q. B. 711; 37 L. J. Q. B. 262; 14 L. T. 891; see as to compensation, ante, p. 301.

CHAPTER VI.

OF FISHERY.

Of Fisheries and Rights of Fishing.

It is also

fisheries and right of fishing.

The term "fishery" has been defined as being the liberty Definition of of fishing in another man's water, or in one's own. used to describe a place or district where fish are caught, or a particular class of fishing, as the herring fishery, the whale fishery.

In legal parlance, especially with regard to private fisheries, it means a hereditament corporeal or incorporeal in respect of which some one or more persons have the right to fish therein.

Thus a corporeal, or as it is sometimes called a territorial fishery, means that the soil under the water and a right to take fish found over that soil are in one ownership and form one property, whilst an incorporeal fishery means that a right to fish in the water over land has been severed from the ownership of such land. Such a fishery may be in respect of all fish found in such water or only for a particular class of fish; for one may own the soil and the oyster fishery and another the fishery for floating fish (a), or one may have the right to eels, others having the right to all other fish (b).

Lord Haldane in Att.-Gen. for British Columbia v. Att.-Gen. for Canada (c), in discussing fisheries and their attributes, said: The general principle is that fisheries are in their nature mere profits of the soil over which the water flows, and that the title to a fishery arises from the right to the solum. A fishery may of course be severed from the solum, and then it becomes a profit à prendre in alieno solo and an incorporeal hereditament. The severance may be effected by grant or by prescription, but it cannot be brought about by custom, for the origin of such a custom would

(a) Termes de la Ley.

(b) See Seymour v. Courtney (Lord), 5 Burr. 2814; Rogers v. Allen, 1 Camp. 309: Orford Corporation v. Richardson, 4 T. R. 437 ; Johnston v. O'Neill, [1911]

A. C. 552.

(c) [1914] A. C., at p. 169. See also Year Book Trin. 10 Hen. 7, pl. 1; Pallas, C.B., in Duke of Devonshire v. Neill, 2 L. R. Ir. 173.

Different sorts of fisheries.

be an unlawful act (d). But apart from the existence of such severance by grant or prescription the fishing rights go with the property in the solum.

"The authorities treat this broad principle as being of general application. They do not regard it as restricted to inland or nontidal waters. They recognise it as giving to the owners of lands on the foreshore or within an estuary or elsewhere where the tide flows and re-flows a title to fish in the water over such lands, and this is equally the case whether the owner be the Crown or a private individual. But in the case of tidal waters (whether on the foreshore or in estuaries or tidal rivers) the exclusive character of the title is qualified by another and paramount title which is prima facie in the public," i.e. the public right of fishing in tidal waters.

The right to fish is a right which may exist either in connection with or independent of the ownership of the soil over which water flows. When this right is connected with the ownership of the soil, it is a right of property, one of the profits of the land, and has been called a territorial fishery (e). When it is independent of the ownership of the soil, it is either a common right— like the public right of fishery in the sea and tidal waters-or it is a profit over the soil of another, founded on the grant or prescription from the owner of the soil, or from the Crown as owner of the bed of tidal waters.

The kinds of fisheries mentioned in our books and records are common fishery, common of fishery, several fishery and free fishery.

Common fishery and a common of fishery are not properly described as fisheries; they are really, in their nature, rights of fishing exerciseable and enjoyable in fisheries similar to rights of common enjoyable in the soil of another.

Several fishery and free fishery, though formerly considered to be different things, and at times so treated, must now, since the case of Malcolmson v. O'Dea (f) be considered as the same thing. In that case Willes, J., discussing the meaning of these terms, said: "This is more of the confusion which the ambiguous

(d) It must be remembered that Lord Haldane here is referring to fisheries and not rights of fishing. A right of fishing can be acquired by custom by copyholders of a manor in the same way as other rights of common are acquired see Tilbury v. Silva; 45 Ch. D. 98; 62 L. T. 254; Chesterfield (Earl) v. Harris, [1908] 2 Ch. 397; 77 L. J. Ch. 688; Goodman v. Mayor of Saltash, 7 A. C. 633. (e) See Woolrych on Waters, p. 110; Schultes' Aquatic Rights, p. 87; Angell on Watercourses, p. 80; Ecroyd v. Coulthard, [1898] 2 Ch. 248; 67 L. J. Ch. 458; 78 L. T. 702; Devonshire v. O'Connor, 24 Q. B. D. 468; 59 L. J. Q. B. 206; Bennett v. Coster, 8 Taunt. 183; 2 Moore, 83; 19 R. R. 491. (f) 10 H. L. 593. See Stuart Moore on Fisheries, Ch. VI., VII., where instances in old records show the term "free fishery" sometimes meant a several fishery and sometimes a common of fishery.

use of the word free' has occasioned, from as early as the Year Book 7 Henry 7, 13, down to the case of Holford v. Bailey (g), where it was clearly shown that the only substantial distinction is between an exclusive fishery, usually called several' sometimes 'free' (used as in free warren) and a right in common with others, usually called common of fishery,' sometimes 'free' (used as in free port).".

Besides the royal right to whales and sturgeons, belonging to the Crown by the prerogative, there is, therefore, only one sort of fishery, viz., a several fishery, and two rights of fishing, viz., the common law right of the public to fish in the sea and tidal waters, called the common fishery, and rights of common of fishery to be enjoyed in a several fishery.

A several fishery is the exclusive right of fishing in a particular place, a fishery in which no other person has an equal right with the owner. It is usually a corporeal hereditament, the owner being entitled to the soil under the fishery, but it may be an incorporeal right because the owner may part with the soil reserving to himself the fishery (h). Prima facie the owner of the soil in non-tidal waters is the owner of the fishery there. Thus the riparian owner is presumed to have the fishery opposite his land to the mid-stream (i), but in very many cases when the riparian land was first granted, the fishery opposite thereto was reserved. Thus you have several fisheries belonging to manors either as parcel or appurtenant, or held as separate hereditaments. Once the existence of a several fishery in the ownership of a person who is not the riparian owner is established, then the presumption that the riparian owner owns the fishery opposite to his land is rebutted (k). It is not necessary to use the word "several "to create an exclusive fishery; any apt words will be sufficient (1).

A fishery does not necessarily give the owner the right to all the fish over a given locality, because there may be a corporeal and incorporeal fishery existing over the same locality, as where one owns the fishery for floating fish and another the soil and oyster fishery; each has thus a separate fishery, a separate and

(g) 13 Q. B. 426; 18 L. J. Q. B. 109; Neill v. Devonshire (Duke), 8 A. C. 135; Chesterfield v. Harris, [1908] 2 Ch. 397, 413; 77 L. J. Ch. 688.

(h) Malcolmson v. O'Dea, 10 H. L. 593; 9 L. T. 93, per Willes, J.; Bloomfield v. Johnson, Ir. R. 8 C. L. 68; Holford v. Bailey, 13 Q. B. 426; Seymour v. Courtenay, 5 Burr. 2815; Co. Litt. 122 a; Hale de Jure Maris, P. 1; Gipps v. Woollicot, Skin. 677; Smith v. Kemp, 2 Salk. 637; Kinnersley v. Orpe, 1 Doug. 56.

(i) Lamb v. Newbiggin, 1 C. & K. 549; Micklethwait v. Newlay Bridge Co., 33 Ch. D., at p. 145; Devonshire (Duke) v. Pattinson, 20 Q. B. D. 265; Tilbury v. Silva, 45 Ch. D. 98.

(k) Hindson v. Ashby, [1896] 2 Ch. 1; 65 L. J. Ch. 91.

(1) Hanbury v. Jenkins, [1901] 2 Ch. 401; 70 L. J. Ch. 730. For example, a grant in weirs is sufficient to convey a several fishery.

Common of fishery.

distinct hereditament (m). Again there may exist in the fishery rights of common of fishery, or a body of persons may have a right to fish without stint at a certain time of the year under a presumed trust in their favour, and if in the last instance the right is to take oysters the destruction of the fishery is fairly assured (n).

A fishery passes by the same means as any other corporeal or incorporeal hereditaments, it may be appurtenant to or parcel of a manor, or appurtenant to a particular tenement (o), and in the case of riparian land it may be part and parcel thereof and it may be freehold, leasehold or copyhold (p). It may also be held in gross as a separate hereditament (q).

66

A common of fishery is a right which one or more persons may have to fish in a fishery in common with the owner of the fishery This right is on the same footing as other commons, common of piscary being given for the sustenance of the tenant's family (r). A common of fishery," says Paterson (8), " is of three kinds common appendant, common appurtenant, and common in gross. A common appendant is a right inseparably annexed to the possession of a particular house, and the extent of the right is measured by the reasonable requirements of the family. It is a right of a permanent nature attached to a house, and is not available to mere inhabitants or lodgers, but is restricted to him who has an estate or interest in the house (t). Hence it is that the inhabitants of a vill or city cannot prescribe for such a right, as there would be an uncertain measure of claimants (u). A common of piscary appurtenant is a right claimed by a person in respect of a house not necessarily connected by way of tenure or otherwise with the liberty of the fishery; the right must have been granted by deed within the time of legal memory (x).

It may also

(m) Seymour v. Courtenay (Lord), 5 Burr. 2814; Fitzwalter's Case, 1 Mod. Rep. 105; Rogers v. Allen, 1 Camp. 309; Orford Corporation v. Richardson, 5 T. R. 367; Ecroyd v. Coulthard, [1897] 2 Ch. 554; Johnston v. O'Neill, [1911] A. C. 552.

(n) Tilbury v. Silva, 45 Ch. D. 98; Goodman v. Saltash Corporation, 7

A. C. 633.

(0) Hayes v. Bridges, R. L. & S. 390; Rogers v. Allen, 1 Camp. 309; Carter v. Murcot, 4 Burr. 2162; Edgar v. English Fisheries Special Commissioners, 23 L. T. 732.

(p) Att.-Gen. v. Emerson, [1891] A. C. 649; 61 L. J. Q. B. 79; Tilbury v. Silva, 45 Ch. D. 98. Where in a manor copyhold tenants have a right to fish in common in the river opposite these lands, the presumption that these lands do extend to mid-stream is rebutted, because no one can common in his own land: Tyrringham's Case, Co. Rep., pl. 4, 36.

(q) Royal Fishery of Banne Case (1610), Dav. Ir. 55.

(r) 2 Blackstone Commentaries, 35.

(s) Stuart Moore on Fisheries, p. 35.

(t) Gateward's Case, 6 Rep. 59 b; Cro. Jac. 152.

(u) Ordeway v. Orme, 1 Bulst. 183; Tinney v. Fisher, 2 Bulst. 87; English

v. Burnell, 2 Wils. 258. See ante, pp. 361 et seq.

(x) Cowlam v. Slack, 15 East, 107; 13 R. R. 401; Pretty v. Butler, 2 Sid.