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sequence 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 or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty.' Although their Lordships agree with Lord Blackburn in his approval of this citation from De Jure Maris their Lordships must not be understood as assenting to all the expressions used by Lord Hale, and more especially to his assumption that the Crown is owner of the solum of what he speaks of as the narrow seas. In Lord Hale's time the conception even of the three-mile limit did not exist, and it is clear that Lord Hale meant to include in the dominion of the Crown something much wider even than this. Nor do they think Lord Blackburn's approval was intended by him to relate to this point, it being quite irrelevant to the case which he had under his consideration at the time. But their Lordships are in entire agreement on his main proposition, namely: that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if indeed, it did not in fact first take rise in them. The right into which this practice has crystallized resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patriæ no doubt regarded itself bound to protect its subjects in exercising it, and the origin and extent of the right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts.

"But to the practice and the rights there were and indeed still are limits, or perhaps one should rather say exceptions. The King,' says Lord Hale in another passage (De Jure Maris, printed at p. 373 of Stuart Moore's History and Law of the Foreshore and Seashore, 3rd ed.), used to put as well fresh as salt rivers in defenso for his recreation, that is, to bar fishing or fowling in a river till the King had taken his pleasure or advantage of the writ or precept de defensione riparia, which anciently was directed to the sheriff to prohibit riviation in any rivers in his bailiwick. But by that statute it is enacted" quod nullæ ripariæ defendantur de

cætero, nisi illæ quæ fuerunt in defenso tempore Henrici regis. avi nostri, et per eadem loca et per eosdem terminos, sicut esse consueverunt tempore sue."'. The words of Magna Charta quoted by Lord Hale are of a very general character, and are not confined to tidal waters. If they had remained unconstrued by the Courts doubts might well have been entertained, as pointed out by Lord Blackburn in Neill v. Duke of Devonshire (e), whether the 16th chapter, which contains the words cited, did more than restrain the writ de defensione ripariæ, by which, when the King was about to come into a county, all persons might be forbidden from approaching the banks of the rivers, whether tidal or not, in order that the King might have his pleasure in fowling and fishing. If this were the true interpretation of the words of Magna Charta it would indicate that the general right of the public to fish in the sea and in tidal waters had been established at an earlier date than Magna Charta, so that it was only necessary at that date to guard the subject from the temporary infractions of that right by the Crown in the rivers, as well tidal as non-tidal, which were covered by the writ de defensione ripariæ. But this is a matter of

historical and antiquarian interest only. Since the decision of the House of Lords in Malcolmson v. O'Dea (f), it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation. This is now part of the law of England, and their Lordships entertain no doubt that it is part of the law of British Columbia.

"Such, therefore, is undoubtedly the general law as to the public right of fishing in tidal waters. But it does not apply universally. To the general principle that the public have a liberty of fishing in the sea or creeks or arms thereof,' Lord Hale makes the exception, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty.' This passage refers to certain special cases, of which instances are to be found in well-known English decisions, where separate and exclusive rights of fishing in tidal waters have been recognised as the property of the owner of the soil. In all such cases the proof of the existence and enjoyment of the right has of necessity gone further back than the date of Magna Charta. The origin of these rare exceptions to the public right is lost in the darkness of the past as completely as is the origin of the right itself. . . . It will, of course be understood that in speaking of this public right of fishing in tidal waters their Lordships do not refer in any way to fishing by kiddles, weirs, or (e) 8 A. C. 135, at p. 177. See note (i), p. 396. (f) 10 H. L. C. 593.

Public right to shell-fish.

other engines fixed to the soil. Such methods of fishing involve a use of the solum which, according to English law, cannot be vested in the public, but must belong either to the Crown or to some private owner."

This public right includes the right of fishing on the shore between high and low water mark, and of taking shell-fish there, though it appears doubtful whether the public have a right to take fish shells (g).

Whether the right includes the right of depositing oysters and other shell-fish on any part of the foreshore has been considered in two cases. In Truro Corporation v. Rowe (h), the defendant dredged oysters in deep water and deposited them on the foreshore, indicated by sufficient boundary marks, partly for the purpose of cleansing, partly for fattening and partly to be ready for distant markets. The plaintiffs were lessees of the foreshore, and brought an action for trespass against the defendant. The Court of Appeal declared that the defendant, in common with the rest of the public, was entitled to enter on the foreshore and on every part thereof for the purpose of fishing for and taking and carrying away oysters and other shell fish, and also for the purpose of depositing oysters and other shell-fish thereon, but was not entitled to the exclusive occupation of any part of the foreshore and was not entitled to any such oysters or other shell-fish so long as the same should continue so deposited. Cozens-Hardy, L.J., in giving the judgment of the Court, said: "It seems to us plain that the parties intended to try, and did try, the important question whether the defendant has a right to appropriate a section of the foreshore for his own purposes, for storing his own oysters, to the exclusion of the rest of the public. In our opinion such a claim cannot be supported as a common law right. No authority has been produced in favour of it. Unless interrupted, the defendant might acquire a title against the plaintiffs." The effect of this judgment seems to be that the public have a right to occupy the foreshore temporarily for the storage of oysters, but by so doing they lose their property in the oysters and that anybody can come and take them away. This subject of oyster beds has been further considered by Fletcher Moulton, L.J., in Foster v.

(g) Bagott v. Orr, 2 B. & B. 472; Blundell v. Catteral, 5 B. & A. 299, 24 R. R. 353, per Holroyd, J.

(h) [1902] 2 K. B. 709. The declaration made by the Appeal Court was : "Declare that the defendant in common with the rest of His Majesty's subjects is entitled to enter on the hereditaments demised by the indenture of lease in the Statement of Claim mentioned and on every part thereof for the purpose of fishing for and taking and carrying away oysters and other shell-fish, and also for the purpose of depositing oysters and other shell-fish thereon, but is not entitled to the exclusive occupation of any part of the said hereditaments, and is not entitled to any such oysters or other shell fish so long as the same shall continue so deposited."

Warblington Urban Council (i). In that case an oyster bed had been damaged by pollution. He said: "For a long series of years the plaintiff and his predecessors have been the occupiers of certain oyster beds, which are constructions of the nature of artificial ponds, high up on the foreshore of the locality, into which beds or ponds oysters that have been dredged elsewhere are brought to be laid down in order to fatten, and to be taken from those beds to the market. The plaintiff complains that this property of his, that is to say, which either belongs to him, or of which he is lawfully the occupier, has been injured by the defendants trespassing on it by sending sewage into the beds, rendering the oysters unfit for food. Now the first question to decide is whether the plaintiff has an occupation or a possession of these beds in the legal sense. . . . I am satisfied that in this case there has been actual possession of a sufficiently long duration. . . . The only question, therefore, that it is necessary to decide on this part of the case is the following: Are oyster beds (using the words in the sense I have described) a property capable of legal recognition? Now the contrary of this is scarcely argued, and could not possibly be successfully maintained. It will be sufficient for me to refer for this purpose to the section of the Larceny Act which relates to oysters (24 & 25 Vict. c 96, s. 26). That section, which is only one of a large number of similar provisions that I could cite from various Acts of Parliament, is a statutory recognition that oyster beds of this kind can be the property of a private person. Anyone who has had experience of copyhold cases knows perfectly well that nothing is a more common incident in such cases than oyster layings' which are held by copy of court roll of the manor. Oyster beds are, therefore, capable of being private property. . . . I find that the property is proved to be rightfully in the plaintiff. It may be a property in the nature of occupation, that is to say, that the plaintiff is the rightful occupier of the soil for that special purpose: it may be that the plaintiff is the rightful owner of the soil, and has a right to use it for that purpose. The defendants' counsel sought to attack the plaintiff's title by saying that it was impossible, according to English law, to have oyster beds apart from the existence of a several oyster fishery. . . I have come to the conclusion that an oyster bed of this kind, which I prefer to call by the older and unambiguous term of an oyster laying, has nothing whatever to do with a several oyster fishery and can exist quite independently of the existence of such a fishery. If we consider what is the purpose of such a bed, one sees it has nothing in common with rights of fishing. Rights of fishing

(i) [1906] 1 K. B., p. 678.

an

signify the right to catch that species of creatures known as feræ naturæ which exist in the sea, and there is no doubt that when, as in a several oyster fishery, or in a public oyster fishery, you dredge oysters from their natural beds, you are fishing, you are taking things in respect of which, in the case of a public fishery, nothing in the nature of a proprietary right exists in anyone, and are appropriating them and making them your own property. But oyster laying does not come into operation until an act of appropriation is finished. It exists only for the purpose of being used in connection with chattels the property of which is in some individual. The oysters are first caught or purchased by the owner, they are then laid down in the oyste: laying' for the purpose of improving, and, unless the owner by so laying them down has committed an act of abandonment, the property still remains in him. Now it would be contrary to common sense to suggest that an owner by laying down his oysters in an oyster bed, marked out and constructed for the purpose, in order that they may get into a state fitter for consumption, indicates an intention to abandon them. The act in itself points to a desire to keep them and retain them as private property, and, therefore, unless here be some principle of law by which this act must be taken to be an abandonment, there is nothing in the act itself to lead us to conclude that it is so.

"I wish to point out that this form of cultivating oysters has got nothing to do with the origin of the oysters. It is just as necessary that oyster layings' should exist for the purpose of oysters which are dredged in a public fishery as those which are dredged in a several fishery. . . It cannot be said that their existence de facto limits any rights of taking oysters from their natural beds they are usually put in places on ground belonging to some individual, that is to say, on parts of the waste of the manor, quite away from those places in which the fishing, for what I may call wild oysters, would take place. In my mind, oysters in an oyster laying do not differ substantially, as regards legal status, from lobsters in a lobster pot. Everyone has the right to take lobsters in the sea, unless he is thereby interfering with the rights of a several fishery: but, if a lobster is in a lobster pot, and a stranger takes it out, that is not fishing, but taking something the property in which has passed to some individual. If we go a little further, and consider the practice which exists on some parts of the coast, I believe, of placing lobsters that have been captured in large wicker cages, where a considerable number of them can be kept till it is convenient to send them to market, we see a still closer analogy to these oyster layings.' It is quite true that in such cages the lobsters are wholly enclosed, but that is because it is