Weirs, &c., obstructing navigation.

Weirs obstructing fishery in

public rivers.

affected, even though the vessel grounding might be liable to compensation for the injury done (i).

Weirs (kiddles or gurgites) were one of the means used in ancient times for appropriating and enjoying several fisheries in tidal waters, (j), and when on the coast they were legalised by Magna Charta, c. 26; but in navigable rivers they were from early times considered a nuisance and have been the subject of many Acts of Parliament (k).

The right to maintain a weir in a public navigable river came into question in the year 1839 as to the river Severn (1). The weir in question was proved to have existed since the time of the Domesday Book, and the question was whether the Crown had the right before Magna Charta to authorise the erection of weirs. interfering with the public right of navigation. The Court held, that the common law right was and always had been paramount to the power of the Crown to interfere by grant, but that the statute of 25 Edw. 3. c. 4 which directed the destruction of all gorces (m), mills, weirs, stanks, stakes, and kiddles (n) which had been set up in the time of Edward I. and subsequently legalised by implication all those erected before that time, though in strictness they were illegal at common law. It, therefore, follows that if a weir obstructing the navigation can be shown to have existed before the time of Edward I., it must be held to be legal, but if the weir was at a place where the Crown had no right to obstruct the whole passage of a navigable river, there is no right to erect a weir obstructing a part, except subject to the rights of the public, and as soon as the weir becomes a nuisance to the public, as it may do by a change in the course of a river, it becomes an illegal obstruction (o).

The question whether weirs and fixed engines for taking fish in public navigable rivers, but which do not interfere with the navigation, are illegal and a nuisance, is not quite so clear. So far as salmon and migratory trout are concerned, the question was practically provided for by the Salmon Fishery Acts (p); but as regards other fish, and where the Salmon Acts did not apply, the

(i) Mayor of Colchester v. Brooke, 7 Q. B., at p. 373, and per Coltman, J., at p. 355; see also Gann v. Free Fishers of Whitstable, 11 H. L. 192; Dimes v. Petley, 15 Q. B. 329.

(j) Neill v. Duke of Devonshire, 8 A. C. at p. 144.

(k) See Chester Mill Case, Co. Rep., pt. 10, p. 138, and Stuart Moore on Fisheries, pp. 171 et seq., and post, p. 422.

(1) Williams v. Wilcox, 8 A. & E. 314; 47 R. R. 595.

(m) A deep pit of water or gulf; Co. Litt. 5 (a).

(n) Open weirs, whereby fish are caught; 2 Inst. 38.

(0) Williams v. Wilcox (1838), 8 A. & E. 344. As to what evidence is necessary to prove the existence of this immemorial right, see ante, p. 375, and Holford v. George, L. R. 3 Q. B. 639; Rawstorne v. Backhouse, L. R. 3 C. P. 67.

(p) Now the Salmon and Freshwater Fisheries Act, 1923 (13 & 14 Geo. 5. c. 16), ss. 11-25.

question is still of some importance (q). It would appear, as has been before stated, that the public have a right in the sea and tidal rivers to catch all the fish they can by all means which are not inconsistent with the rights of others (r). This authorises them to use lawful nets, but could not authorise the erection by them of weirs or the fixing to the soil of fixed engines (s). Moreover, though the early statutes from Magna Charta to 1 Hen. 4. c. 12, which order the destruction of all weirs throughout the kingdom with the exception of those existing prior to the reign of Edward I., and forbid the erection of new weirs, and the enhancement or enlarging of ancient ones, have been held (t) to refer to navigable rivers only, and to the obstruction of the navigation, as the sole ground for putting them down; yet it appeared to be the opinion of the Court of Queen's Bench, that the later statutes 4 Hen. 4. c. 11, 2 Hen. 6. c. 19, and 12 Edw. 4. c. 7, which recite the earlier statutes, and expressly refer to the protection of the young fry of fish as one of the objects for enforcing them, made such weirs and fixed engines as facilitate the destruction of young fish, illegal and a nuisance (u).

The right of the owner of a several fishery in a public navigable river to maintain a weir as appurtenant thereto requires that its existence before the reign of Edward I. must be proved or presumed (x).

Where a right to an ancient weir has been established, the weir must not be enhanced, straitened, or enlarged, so as to be a public nuisance.

In addition to a liability to indictment for a public nuisance Obstructions to fishery or to punishment under the Salmon and Freshwater Fisheries actionable. Act, 1923, interference with the free passage of fish up a river is a wrong against the proprietors of the upper fisheries, and if it materially obstructs the passage of fish will be the subject of an action for damages and can be restrained by injunction (y). Thus, in the case of Marquis of Donegal v. Hamilton (z), where the

(q) Fishing with stake nets on the sea coast, near the mouth of a river, is not prohibited either by the statute or the common law of Scotland: Kintore (Earl) v. Forbes, 4 Bli. (N.s.) 485; 33 R. R. 50; as to fishery with close cruives, net and coble, see Lord Advocate v. Lovat, 5 A. C. 273.

(r) Ante, p. 376.

(s) Warren v. Mathews, 6 Mod. 73; see ante, p. 376.

(t) Rolle v. Whyte, L. R. 3 Q. B. 286; 37 L. J. Q. B. 105; 17 L. T. 560; Leconfield v. Lonsdale, L. R. 5 Č. P. 657; 39 L. J. C. P. 305; 23 L. T. 155. (u) Rolle v. Whyte, per Cockburn, C.J., L. R. 3 Q. B. 301; Holford v. George, L. R. 3 Q. B. 639.

(x) Holford v. George, L. R. 3 Q. B. 639.

(y) Pirie v. Kintore (Earl), [1906] A. C. 478, H. L. Sc.; 78 L. J. P. C. 96; Weld v. Hornby, 7 East, 195; 8 R. R. 608, per Lord Ellenborough, C.J.; Leconfield v. Lonsdale, L. R. 5 C. P. 726, per Bovill, C.J.; Lib. assiz. 246; see also O'Hagan, J., in Murphy v. Ryan, Ir. R. 2 C. L. 148; Co., 2 Inst. 30; Woolrych, p. 197.

(z) 3 Ridg., P. C. 267.

owner of a lower fishery on the Bann made weirs, cuts and traps, by means of which the current of the stream was altered, and so the passage of trout, salmon and other fish was prevented, it was held that the plaintiff, an upper proprietor on the river, had a right of action. Fitzgibbon, L.C., in the case says (a): "It is clear that the plaintiff, as proprietor of the upper fishery, has a right to the full possession of the water, the element of his fishery, in the same plight and condition in which he enjoyed it when the corporation, under whom the defendant derives, obtained their grant from the Crown; he has a right to a free passage for fish from the sea into his fishery, and he has a right to catch as many fish as he can catch by his industry and art which find their way into his fishery. It is clear that the defendant has the same rights as proprietress of the lower fishery. She has a right to the same full possession of the water, to a free passage of fish from the sea into her fishery. And she has a right abstractedly to catch every fish, which finds its way into her fishery, which she can lay hold of by her art or by her industry. But in the exercise of this right, she cannot alter the state, plight, or condition of the water of the plaintiff's fishery from the state, plight, and condition in which she enjoyed it at the time when the corporation, under whom she derives, obtained their grant to the injury of plaintiff's fishery; nor can she stop or obstruct the passage of fish from the sea into the plaintiff's fishery in any manner not essentially necessary to enable her to exercise her right of catching fish in their passage up the river (b).”

In Weld v. Horby (c), the conversion of an ancient brushwood weir, through which fish could pass, into an impenetrable stone weir was held actionable at the suit of another owner prejudiced thereby. In this case the locus in quo was thought by Lord Ellenborough to be a navigable river, and he expressed an opinion that the weir was a public nuisance. This, however, turned out not to be the case, and it is thus alluded to by Bovill, C.J., in Leconfield v. Lonsdale (d): "It was an action for a private nuisance, and unquestionably maintainable in respect of the plaintiff's right of property, which was injured by the act of the defendant in making his weir impervious to fish, and so preventing them from arriving at the plaintiff's fishery, a grievance long recognised as giving a right of action, independent of any question of public nuisance. See the precedent in the last case of year 46 Lib. Assiz." In fact, any unauthorised interference with the passage

(a) 3 Ridg., P. C., at p. 323.

(b) As to obstruction of fishery by a weir in a trout stream, see Barker v. Faulkner, 79 L. T. 26, and post, p. 402.

(c) 7 East, 195; 3 Sm. 244; 5 R. R. 608. (d) L. R. 5 C. P. 726.

of fish up a river would appear to be actionable at the suit of the owner of a fishery who suffers damage thereby (e), and this principle possibly applies to a weir obstructing the passage of other fish than salmon, e.g., trout (f). Where the upper proprietor cannot prove that he has suffered damage by reason of an act which was punishable under statute, the proper mode of precedure is to enforce the statute and not proceed for an injunction (g).

Fishery in Non-tidal Waters.

to owners of

the bed as a

territorial

right.

By "non-tidal " is meant that the water is not affected by the Belongs action of the ordinary tides-that there is no horizontal rise prima facie and fall or vertical flow of the water caused by the tidal influence (h). Thus it has been held in Reece v. Miller (i) that the public have no right to fish in a part of a navigable river where the water was not salt and by ordinary tides unaffected, though upon the occasion of very high tides the fresh water in the river was dammed back and caused to rise and fall with the flow and ebb of the tides. In Blower v. Ellis (k), it was held that Wroxham Broad, thirty-five miles from the sea, was non-tidal, the evidence being that the fresh water was backed up so as to rise three or four inches only when there was a high tide, and a similar finding was made in Micklethwait v. Vincent (1), as to Hickling Broad.

In all rivers and streams above the flow and reflow of the tide, whether such rivers are navigable or not, the proprietors of the land abutting on the stream are primâ facie owners of the soil of the alveus or channel ad medium filum aquæ, and as such have prima facie the right of fishing in front of their land (m). According to the well-established principles of the common law," says O'Hagan, J., "the proprietors on either side of the river are presumed to be possessed of the bed and soil of it moietively to a supposed line in the middle, constituting their legal boundary, and being so possessed, have an exclusive right

(e) See Marquis of Donegal v. Hamilton, 3 Ridg. P. C. 267; Murphy v. Ryan, Ir. R. 2 C. L. 148.

(f) Barker v. Faulkner, 79 L. T. 26.

(g) Fraser v. Fear (1912), W. N. 227; 107 L. T. 423.

(h) See Calcraft v. Guest, Stuart Moore on Fisheries, pp. 102 et seq.; West Riding of Yorkshire Rivers Board v. Tadcaster Rural District Council (1907),

97 L. T. 436.

(i) 4 Q. B. D. 626.

(k) 50 J. P. 826.

(1) 67 L. T. 225.

(m) Bickett v. Morris, L. R. 1 Sc. App. 47; 14 L. T. 835; Wishart v. Wyllie, 1 Macq. H. L. 389; Mayor of Carlisle v. Graham, L. R. 4 Ex. 361; Murphy v. Ryan, Ir. R. 2 C. L. 143; Lamb v. Newbiggen, 1 Car. & K. 549; Partheriche v. Mason, 2 Rep. 658; Fitzwalter's Case, 1 Mod. 106; Hale de Jure Maris, p. 1; Bracton, lib. 1. c. 28, 31; see also Cooper v. Phibbs, L. R. 2 H. L. 165, per Lord Cranworth.

Is vested in the occupier of the lands.

to the fishery in the water which flows above their respective territories (n). ́ Where a man possesses land on both sides of the water, he has primâ facie the sole right of fishing therein.

This presumption in favour of the riparian owners may, however, as is pointed out hereafter, be rebutted (0).

This right is a right of property, one of the profits of the land, and has been called a territorial fishery (p). It is not, strictly speaking, a riparian right arising from the right of access to the water (q), but is a profit of the land over which the water flows, and as such may be transferred or appropriated either with or without the property in the bed or banks to another person, whether he has land or not on the borders of, or adjacent to, the stream (r).

As this right, in the case of opposite proprietors, only extends prima facie to the middle line of the water, each can only fish, whether with rods or nets, up to that boundary; and if either casts his net or line beyond that boundary, he is liable to an action of trespass, unless he can prove a right to the whole fishery (8). The presumption that the riparian owner owns the bed and fishery to mid-stream applies equally to freehold, leasehold and copyhold land (t). Thus the rights of shooting and fowling and fishing, unless specially reserved in a lease, are vested in the occupier or tenant of the lands, and not in the landlord (u). In an ordinary lease of lands, including waters or streams, the right of fishing is necessarily implied as part of the general right to the soil and water unless the lessor specially reserves it. If, therefore, there is no special reservation of the right of fishery, the tenant and not the landlord will be the party entitled to the fishery (x). Unless there is such a reservation the landlord cannot go on the banks of a stream for the purpose of fishing (y).

Properly speaking, the right cannot be reserved by a lease, but, what is practically the same thing, the reservation is construed as

(n) Murphy v. Ryan, Ir. R. 2 C. L. 148; Pearce v. Scotcher, and cases cited pp. 377 et seq.

569.

(0) See post, p. 395.

(p) Ante, p. 362.

(q) See Lyon v. Fishmongers' Co., 1 A. C. 662; 45 L. J. Ch. 68; 35 L. T.

(r) Marshall v. Ulleswater Co., 3 B. & S. 732; 41 L. J. Q. B. 41; 25 L. T. 793; Bristowe v. Cormican, 3 A. C. 665.

(s) Beauman v. Kinsella, Ir. R. 11 C. L. 249; Zetland v. Glover Incorporation, L. R. 2 H. L. Sc. 70; Paterson, p. 109.

(t) Tilbury v. Silva, 45 Ch. D., at p. 109: see ante, p. 91.

(u) See 1 & 2 Will. 4. c. 32, s. 7.

(x) Paterson's Fishery Laws, p. 67, approved and adopted in Davies v. Jones (1902), 86 L. T. 447; 66 J. P. 439; 20 Cox C. C. 184; 18 T. L. R. 367; Oke's Game Laws, p. 118.

(y) Davies v. Jones, supra. In making leases of riparian land, it is advisable to retain a right of way along the banks, and to do all things necessary for the preservation of the fishery.