frequently was made before Magna Charta by the Crown to a subject. A grant of the foreshore between high and low water mark will not of itself convey the right to a several fishery over it (f). In general it will be a question of construction of the ancient grants under which the claim is made, explained by user subsequent to their date, what is the measure of the right (g). As a fact an exclusive fishery in tidal waters is generally, though not always, coupled with the exclusive ownership of the soil, as in the case of private streams, and though primâ facie the Crown is entitled to every part of the shore and bed of tidal waters, proof (at any rate by the lord of an adjoining manor) of the ownership of a several fishery raises a presumption that the soil is in the owner of the several fishery (h).

In the case of The Duke of Somerset v. Fogwell (i), a grant by the Crown of lands, and all waters, fisheries, &c., to the aforesaid manors, castles, and premises belonging and appendant, was held to pass a several fishery in a tidal navigable river as an incorporeal hereditament only and not to pass the soil, Bayley, J., remarking,Considering the nature of the franchise and the law as to rights of fishery in other rivers, I have no difficulty in saying that in my judginent this was not a territorial but an incorporeal franchise." Subsequent cases show that this reasoning is not

now to be followed.

A grant of sea-grounds, oyster layings, shores, and fisheries has been held to pass the soil also (k), as has a grant of all those fishings of the halves and halvendoles, with the appurtenants. to the halves due and accustomed within the river Severn within

(f) Att.-Gen. v. Emerson, [1891] A. C. 649, see post, p. 386.

(g) See Duke of Beaufort v. Swansea, 3 Ex. 413. In Scotland where salmon fisheries prima facie belong to the Crown, a grant of fishings merely is not a grant of salmon fishings; but, if followed by the requisite possession, will establish a right of salmon fishing, even against the Crown. A party claiming a right of salmon fishings must either show a grant of salmon fishings, or a grant of fishings generally, followed, for the requisite period, by the exercise of the right of salmon fishing: Lord Advocate v. Sinclair, L. R. 1 H. L. Sc. 176; see McDouall v. Lord Advocate, L. R. 2 H. L. Sc. 431, per Cairns, C. Proproprietors on the sea coast having grants from the Crown with right of fishing limited to fishing with net and coble, cannot, on the suit of owners of fisheries in a river, be restrained from fishing with stake nets: Kintore v. Forbes, 4 Bli. (N.S.) 485; 33 R. R. 50; see also McDouall v. Lord Advocate, L. R. 2 H. L. Sc. 431; Stuart v. McBarnet, L. R. 1 H. L. Sc. 387; as to Scotch barony titles to fishery, see Lord Advocate v. Lovat, 5 A. C. 773.

(h) Att.-Gen. v. Emerson, [1891] A. C. 649; Hanbury v. Jenkins, [1901] 2 Ch. 401, and cases ante, pp. 34 et seq.

(i) 5 B. & C. 875; 29 R. R. 449. If the facts relating to this fishery had been fully before the Court the decision must have been different see Att.-Gen. V. Emerson, [1891] A. C. 655, which practically overrules this case by deciding that the ownership of a several fishery raises the presumption of ownership of the soil: see Stuart Moore on Fisheries, pp. 53-55. As to private streams, see post, pp. 400 et seq.

(k) Scratton v. Brown, 4 B. & C. 485; 28 R. R. 344.

L.W.

25

Att.-Gen. v.
Emerson.

a manor, and of all royal fishes, under an annual rent (1). The words used in these two cases quite admit of the larger construction, Lord Ellenborough, in the latter case, saying, "I think it appears distinctly that these halves and halvendoles are of the nature of land. I cannot consider it otherwise than the grant of something territorial."

If the existence of a several right of fishery is proved, and the owner of the several fishery can also prove that he has so used the soil over which his fishery extends as to give rise to the inference that he is owner of the soil as well as of the fishery, he will establish his ownership of both. This was the case in Att.Gen. v. Emerson (m), when a several fishery was established over the foreshore of the Maplin Sands in the estuary of the Thames. In that case a claim was made by the Crown to part of the foreshore of the sea against the lord of the adjoining manor, who was also in possession of a several fishery exercised inter alia by "kiddles"; the House of Lords held that such a right raised the presumption that the freehold of the soil was in the owner of the several fishery. Lord Herschell, in delivering the judgment of the House, says, "It is not now in dispute that the defendants are possessed of a several fishery over a part of the foreshore; but it is said, and truly, that this is not inconsistent with the foreshore over which this right is possessed being still in the Crown. A grant of the foreshore between high and low water mark admittedly would not of itself convey the right to a several fishery over it. On the other hand, a several fishery might be granted independently of the ownership of the soil. But it is said that the possession of a right of several fishery is evidence of the ownership of the soil over which it is exercised. It has undoubtedly been laid down in more than one case, that the ownership of a several fishery raises a presumption that the freehold is in the grantee of the several fishery. And Parke, B., in delivering the judgment of the Exchequer Chamber in Holford v. Bailey (n), said, 'A several fishery is, no doubt, prima facie to be assumed to be in the soil of the defendant." And, although in Marshall v. Ulleswater Steam Navigation Co. (0), Cockburn, C.J., stated, That apart from authority, he should have come to a different conclusion,' the Court adopted the law laid down in Holford v. Bailey." After discussing Duke

(1) R. v. Ellis, 1 M. & S. 652; see also Gray v. Bond, 5 Moore, 527; 23 R. R. 530; Hale de Jure Maris, 1 Harg. 34.

(m) [1891] A. C. 649; see Hindson v. Ashby, [1896] 2 Ch., at p. 10. See also Beaufort (Duke) v. Aird (1906), 20 T. L. R. 602; Hough v. Clark (1907), 5 L. G. R. 1195; 23 T. L. R. 682.

(n) 13 Q. B., at p. 444.

(0) 3 B. & S. 732; 32 L. J. Q. B. 139.

46

of Somerset v. Fogwell (p) he states that it is unnecessary to inquire whether the conclusion arrived at in that case, that the terms of the grant were known, was correct; the presumption, so far from being denied, appears to me to be recognised." And, he adds, "Finding, then, such high authority for the proposition that the ownership of a several fishery is evidence of the ownership of the soil, I am not disposed to depart from it" (q).

In that case the respondents exercised their right partly by kiddles-a series of stakes forced into the ground, occupying some 700 feet in length, and a similar row approaching them at an angle, the stakes being connected by network, and remaining in the soil for long periods. As to this Lord Herschell quotes Lord Hale as to the difference between the several kinds of fishery, viz. (1) with the net (which may be either a liberty without the soil or a liberty arising in concomitance with it); or (2) "a local fishing. that ariseth by and from the propriety of the soil. Such are gurgites, weares, fishing places, borachiæ, stachiæ, &c., which are the very soil itself, and so frequently agreed in our books" (r).

After stating that it is unnecessary on the present occasion to determine whether the right to maintain such structures as Lord Hale refers to necessarily imports in all cases the ownership of the soil, nor whether a kiddle such as has been proved to be in lawful use on the foreshore in question falls within the class specified by Lord Hale," he concludes that "it is impossible, I think, to deny that the right to maintain such a kiddle affords cogent evidence that the person possessing this right is owner of the soil" (s).

course.

Where a tidal river changes its course and flows in a new Where a river channel the owner of a several fishery in the old channel does not changes its acquire any right of fishing in the new channel (t), but where the channel of the river changes gradually the locus of the fishery follows the change. Thus, in Miller v. Little (u), the plaintiff and defendant and their respective predecessors in title had respectively exercised the exclusive right of fishing in an estuary, each to the middle thread of a river flowing through it. No grant from the Crown of the fisheries was proved, but it was the common case of both parties that the right of fishing in the entire estuary was vested in them to the exclusion of the public.

(p) Ante, p. 385.

(q) [1891] A. C., at pp. 654, 655.

The

(r) Hale de Jur. Mar. Pars. Prima. cap. 5, p. 18, Hargreaves' Tracts. (s) [1891] A. C., at pp. 656, 657; see also Lord Donegal v. Lord Templemore, 9 Ir. C. L. R. 374, and judgment of Lindley, L.J., in Hindson v. Ashby, ante, p. 84.

(t) Mayor of Carlisle v. Graham, L. R. 4 Ex. 361; Murphy v. Ryan, Ir. R. 2 C. L. 143.

(u) 4 L. R. Ir. 302, C. A.

User of fisheries.

river changed its course and formed a new channel, still passing through the estuary; and the Court held that the local limit. of each fishery was the middle of the new channel of the river, and not a landmark corresponding to what had been the medium filum aquæ of its former course. Semble, per May, C.J., the grantee from the Crown of the fishery in such a river would not be deprived of his right to the fishery by any change in the course of the river over the foreshore, but, notwithstanding such change, would be entitled to the fishery of the river wherever its course might be found, so far as the channel traversed ground the property of the Crown, the grantor (x).

In O'Neil v. M'Erlaine (y), by letters patent of Jac. I. and Car. II., the Crown granted a several fishery within certain limits in the river Bann in Ireland. A channel, called the New Cut, divides the river within the limits of the fishery into two branches. It was found by a verdict on an issue directed by the Court, that the New Cut is now part of the river Bann, but that there was no evidence to show whether it existed at the time of the grant, or whether it was a natural or an artificial channel. Held, that the letters patent did not give the right to a several fishery in the New Cut unless it was a branch of the river Bann at the time of the grant (z).

In the case of Foster v. Wright, where a river had formerly flowed wholly within the lands of the plaintiff and had by gradual and imperceptible degrees worn away its banks and encroached upon the lands of the defendant, it was held that the ownership of the soil of the bed still remained in the plaintiff and that he could maintain an action of trespass against the defendant for fishing on a strip of the bed which, before the encroachment, had been his, defendant's, property. Lindley, J., after finding that the ordinary doctrine of accretion applied, expressed the opinion that even if the plaintiff's right to fish was only an incorporeal right to fish over the whole bed of the river, the same rule would apply (a).

The owner of a fishery has not of necessity a right to land on the shore above high water mark without the assent of the owners of the freehold (b). In cases of grants to individuals it is often a question of construction whether the right to use the banks for

(x) See also Donegal v. Templemore, 9 Ir. C. L. R. 374.
(y) 16 Ir. Ch. R. 280.

(z) Where a piece of land on the banks of a tidal river is exchanged, the right of salmon fishing therein being expressly reserved, a grant in 1873 of that salmon fishing, though from the Crown, will not deprive the prior owner of his right Richardson v. Gray, 3 A. C. H. L. Sc. 1.

(a) (1878), 4 C. P. D. 438; 49 L. J. C. P. 97. See ante, p. 82.

(b) Ecroyd v. Coulthard, [1898] 2 Ch. 258; 67 L. J. Ch. 458; 78 L. T. 702, Woolrych on Waters, p. 167; Ipswich v. Browne, Savil. 2. See also Ilchester v. Rashleigh, 5 T. L. R. 739; 61 L. T. 477; ante, pp. 375, 376.

the purpose of the fishery is impliedly granted, and this appears to depend on whether it is necessary to the exercise of the fishery that such banks should be used (c). The open enjoyment of a right of landing and drawing nets, and of occasionally sloping and levelling the shore for twenty years, has been held sufficient to warrant a judge in directing a jury to presume a grant of such right (d).

The right of fishery in the sea and navigable rivers is subordinate to the right of navigation, and cannot be used in any way so as to derogate from or interfere with such right (e). A grantee of the Crown takes subject to this right, and cannot, in respect of the ownership of the soil, make any demand, even if expressly granted to him, which in any way interferes with enjoyment of this public right.

Thus a claim to take toll from all vessels anchoring within the limits of an oyster fishery cannot exist merely in respect of the use of the soil (f).

Where both the rights of navigation and of fishery are incompatible, the fisherman must give way to the navigation of vessels (g), but the navigator must do the least possible injury to the fisherman, for he is in the exercise of a lawful right. Thus where oysters were placed in a public navigable river, so as to be a nuisance to the navigation, it was held that the liberty of passage on a public navigable river is not suspended when the tide is too low for vessels to float, and consequently it is no excess of the right if a vessel, which cannot reach her destination in a single tide, grounds on the oyster bed till the tide serves, but that a person navigating is not justified in damaging such property by running his vessel against it if he has room to pass without so doing; for an individual cannot abate a nuisance if he is not otherwise injured by it than as one of the public, and therefore the fact that such property is a nuisance is no excuse for running against it negligently (h). The nature of the right was not (c) Paterson's Fishery Laws, p. 30.

See R. v. Ellis, 1 M. & S. 666; Co. Litt. 59 b; Lifford's Case, 11 Rep. 52; 1 Wms. Saund. 323, n. 6; Shep. Touch, 89: Shuttleworth v. Le Fleming, 19 C. B. (N.s.) 683. Semble, an incorporeal right of way along both banks of a river may be appended to an incorporeal right of fishing: Hanbury v. Jenkins, [1901] 2 Ch. 401; see also Co. Litt. 121 b, Hargraves and Butler's ed., note 7.

(d) Gray v. Bond, 2 B. & B. 667; 23 R. R. 530; see ante, p. 376.

(e) Gann v. Free Fishers of Whitstable, 11 H. L. 192; 35 L. J. C. P. 29; 12 L. T. 150; Foreman v. Free Fishers of Whitstable, L. R. 4 H. L. 285; 21 L. T. 804; Mayor of Colchester v. Brooke, 7 Q. B. 339.

(f) Gann v. Free Fishers of Whitstable, 11 H. L. 192.

(g) Anon.. 1 Camp. 516, n.; see Collision Regulations, Arts. 9, 26, 27, post, Appendix, and Stuart Moore, Rules of the Road at Sea (4th ed.).

(h) Mayor of Colchester v. Brooke, 7 Q. B. 339; 15 L. J. Q. B. 59; see also Petrie v. Rostrevor (owners), [1898] 2 Ir. R. 556, C. A.; The Swift, [1901] P. 168; 70 L. J. P. 47; The Bien, [1911] P. 40, where the harbour authority were held liable for damage done by a wreck-placed by them on an oyster fishery.