a re-grant by the tenant to the landlord, provided the tenant executes the lease (z).

lords of

manors.

The presumption that the owner of the soil of the bed of a Claims by non-tidal river is also owner of an exclusive right of fishing therein may be rebutted, but if not rebutted it is the legal presumption (a). If therefore, the lord of a manor, or the owner of the fishery, would intrude his claim, he must make it out by evidence of his own, as by deed or user, for the presumption is that the fishery belongs to the riparian owner, and the onus is on the owner of the fishery to rebut this by the contents of the title deeds or by the surrounding circumstances at the date of the conveyances of one or both of the properties (b). Directly it is established that there is a several fishery opposite riparian land and not owned by the riparian owner the presumption of the riparian owner's ownership to the mid-stream is at once displaced, because the presumption is that the owner of a several fishery is owner of the soil (c).

lands.

The lord of a manor, being primâ facie the owner of the waste In waste lands of the manor, will be prima facie entitled to the right of fishing in the waters adjoining the waste (d). But a several fishery vested in the lord as owner of the soil of the bed of a river is a territorial right, and is not, on an allotment of waste, reserved to him by the usual clause in an inclosure Act reserving to him. all his royalties, franchises, &c. For this purpose there is no difference between rights of fishing and rights of shooting (e). The words "common or waste land," however, mean only those commonable lands of which the soil is in the lord, and not open fields where owners had rights in severalty (f). A lord of a manor is not justified in making such a store place for fish so as to disturb the commonable rights of his tenants (g).

(z) Graham v. Ewart, 7 H. L. 331; Seymour v. Courtenay, 5 Burr. 2817; see Stuart Moore on Fisheries, pp. 162 et seq.

(a) See Wishart v. Wyllie, 1 Macq. H. L. 389; Hanbury v. Jenkins, [1901] 2 Ch. 401.

(b) Chesterfield v. Harris, [1908] 2 Ch., at p. 406; Duke of Devonshire v. Pattinson, 20 Q. B. D. 263; Lamb v. Newbiggen, 1 Car. & K. 549; see also Priest v. Archer, 51 J. P. 725.

(e) Hindson v. Ashby, [1896] 2 Ch. 1; Hanbury v. Jenkins, [1901] 2 Ch. 401; 70 L. J. Ch. 730.

(d) See Paterson, Fishery Laws, p. 54; Cornwell v. Saunders, 32 L. J. (N.S.) M. C. 6; Graham v. Ewart, 26 L. J. (N.S.) Ex. 97; 7 H. L. Cas. 331; as to this question with regard to a pond on the waste of a manor, see Clarke v. Mercer, 1 F. & F. 492.

(e) Ecroyd v. Coulthard, [1898] 2 Ch. 258; 67 L. J. Ch. 458; 78 L. T. 702, C. A.: Devonshire (Duke) v. O'Connor, 59 L. J. Q. B. 206; 24 Q. B. D. 463, followed.

(f) Grand Union Canal v. Ashby, 6 H. & N. 394; 30 L. J. Ex. 203; 3 L. T. 673.

(g) Cro. Car. 495; Reeve v. Digby. See also as to manors, Williams's Real Property, 119; Doe d. Barrett v. Kemp, 2 Bing. N. C. 102; 33 R. R. 492; Grose v. West, 7 Taunt. 39; 17 R. R. 437; Smith v. Earl Brownlow, L. R. 9 Eq. 241; Warrick v. Queen's College, L. R. 6 Ch. 716.

Crown.

No prerogative right to fisheries in non-tidal waters.

Thus, if any one claims a right of fishery in water opposite another's land, the onus of proof is on him in the first instance.

In the case of Devonshire v. Pattinson (h), the question arose whether the Crown ever could have as part of its prerogative an exclusive right of fishery in a non-tidal river flowing over the soil of a subject, and whether if the Crown could have such right it could be granted to a subject as a franchise. As in this case the Court of Appeal was of opinion that the Crown was also owner of the bed of the river as lord of the manor, they did not actually decide this question, but they did not adopt the view of the Divisional Court on the point. Lord Justice Fry, delivering the judgment of the Court (Lord Esher, M.R., and Bowen and Fry, L.JJ.), says: "Such having been the ancient and modern user of the fishery, it is plainly incumbent on the Court to find a legal origin for it if such can be found. The defendants say that no such legal origin can be found. A. L. Smith, J., has come to the conclusion that the fishery enjoyed by the Duke and his predecessors entitles it to be regarded as a franchise, i.e., a right in the hands of a subject derived by a grant from the Crown of a prerogative. If the Crown were both owner of the bed of the river and of the right of fishing, it is obvious that the right of fishing would be a proprietary and not a prerogative right, and consequently the view of the learned judge gives rise to the inquiry whether the Crown could, as part of its prerogative, have an exclusive right of fishing in the water flowing over the soil of a subject; and, secondly, whether such a right could be granted to a subject so as to be a franchise in his hands. The third chapter of the first part of Hale's Treatise de Jure Maris, and the forms of writ there given in relation to the defence of rivers, appears to us to establish that prior to the Great Charter of Henry III., the king had exercised as part of his prerogative a right to cause various rivers, including fresh rivers above the flow of the tide, to be put in defence, i.e., to be kept close in anticipation of a visit of the king for the purpose of fishing (i) the river; and further, that he required certain men, who were anciently liable to perform the duty, to make preparations for his arrival by the construction of bridges; that this prerogative was exercised by means of a writ addressed to the sheriff requiring him to put the river in defence; and that after Magna Charta the prerogative was still exercised, but only in regard to rivers which had been put in defence in the reign of Henry II (k). But, assuming this (h) 20 Q. B. D. 263; 57 L. J. Q. B. 189; 58 L. T. 392.

(i) Subsequent investigations have established that it was for the purpose of fowling, not fishing: see Stuart Moore on Fisheries, pp. 6 et seq.

(k) As to

putting rivers in defence," which had nothing to do with fishing, see ibid. and Att.-Gen. for British Columbia v. Att.-Gen. for Canada, [1914] A. C., at p. 169.

prerogative to have existed, we entertain serious doubts on the following questions: first, whether the prerogative would have authorised the king to close the river against the owner of the soil, or to assert any right in the river, except in preparation for a royal visit; secondly, whether the prerogative was not of a purely personal character, existing only for the pleasure of the king and his court, and consequently whether the prerogative could be granted by the king so as to become a franchise in the hands of a subject; and, thirdly, if it could be held by a subject as a franchise, whether it would confer on the subject a permanent right to fish to the continued exclusion of the owner of the soil. The case of the king's prerogative of Saltpetre (12 Reports, page 12), shows that the prerogative of purveyance being vested in the Crown for purposes of defence, cannot be granted or transferred to any other; and it is possible that the prerogative of putting rivers in defence may have existed for the royal pleasure only, and so could not be granted to a subject. No authority has been cited or come to our knowledge which tends to dispel the doubts we have stated; moreover, it does not appear that in any one of the numerous cases with regard to fisheries to be found in the books, a right to an exclusive fishery has been maintained either by proof or presumption of the existence of such a franchise as that in question. For these reasons, we feel a hesitation in adopting the view entertained by the learned judge.

"In our opinion, the true conclusion to be drawn from the user and the documentary evidence is that in 1629, when King Charles I. granted the manor of the socage to trustees for his queen, and again in 1696, when King William III. granted the reversion expectant on this term to the Duke of Portland, the river bed throughout the manor and the fishery in the river flowing over the same were parcel of the manor of the socage, that they passed as such to the grantees of the Crown, and that the enjoyment of the fishery by the Earl of Carlisle and the Dukes of Portland and Devonshire down to the present time is attributable to this title."

A claim by the public to

Since this case, it has been decided by the House of Lords, in Johnson v. O'Neill, that the Crown is not of common right fish in private entitled to the soil of non-tidal waters (1). The public as such have waters cannot no right to fish in non-tidal waters, even though they be navigable exist at law, or made navigable by Act of Parliament (m). With regard to this ciaim of the public to fish in non-tidal waters, Bowen, L.J., in

(l) [1911] A. C. 552, at pp. 573, 577.

(m) Hargreaves v. Diddams, L. R. 10 Q. B. 587; 44 L. J. M. C. 78; Musset v. Burch, 35 L. T. (N.S.) 486; Hudson v. McRae, 4 B. & S. 585: Murphy v. Ryan, Ir. R. 2 C. L. 143; Pearce v. Scotcher, 9 Q. B. D. 162; Reece v. Miller, 8 Q. B. D. 626; Smith v. Andrews, [1891] 2 Ch. 678.

or by custom.

66

Blount v. Layard (n), said: There is another most important matter to be recollected as regards such streams as the Thames, viz., that although the public have been in the habit, as long as we can recollect, and as long as our fathers can recollect, of fishing in the Thames, the public have no right to fish there-I mean they have no right as members of the public to fish there. That is certain law. Of course, they may fish by the licence of the lord or owner of a particular part of the bed of the river, or they may fish by the indulgence, or owing to the carelessness or good nature, of the person who is entitled to the soil, but right to fish themselves as the public they have none, and whenever the case is tried the jury ought to be told this by the judge in the most emphatic way, so as to prevent them from doing injustice under the idea that they are establishing a public right. There is no such right in law. . . . I think they ought to be solemnly told that nothing worse can happen in a free country that to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoy ment of things which, although they are matters. of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood. I can conceive nothing more unfortunate than that the owners of the right of fishing on large streams should be driven to prevent the successors and followers of Izaac Walton from dropping their lines for trout, for fear that their doing so should crystallise into a right."

Moreover, an indefinite class of persons cannot have the right to fish in alieno solo. Thus a claim by custom for all the inhabitants of a parish to angle and catch fish in private waters, and a custom for the commoners, copyholders, and ancient freeholders of a manor, and their tenants, and the dwellers in the parish and manor to fish in the waste waters of a manor, and the claim of the freeholders in riparian parishes to fish without stint and for commercial purposes, and the claim by custom for the owners and occupiers of ancient copyhold tenements and ancient tenements formerly copyhold to fish with rod and shoe net, have been held bad and unreasonable, on the ground that the right claimed was a profit à prendre on the soil of another, which might lead to the destruction of the subject-matter to which the alleged custom applied, or was a claim to a right unknown to the law (0).

(n) [1891] 2 Ch. 689.

(0) Bland v. Lipscombe, 4 E. & B. 413; Allgood v. Gibson, 84 L. T. (N.S.) 853; Tilbury v. Silva, 45 Ch. D. 99; Race v. Ward, 4 E. & B. 702; Goodman v. Mayor of Saltash, 7 A. C. 633; Chesterfield (Earl) v. Harris, 43 L. J. N. C. 417; 77 L. J. Ch. 688; [1908] 2 Ch. 397. See also Clayton v. Corby, 14 L. J. Q. B. 364; 5 Q. B. 415; Bailey v. Stevens, 31 L. J. C. P. 226; 12 C. B. (N.S.) 91; and "Common of Fishery," ante, p. 364.

In Tilbury v. Silva (p), the practice in the Manor of Chilbolton was for the lords to grant copyholds for three lives, and to renew at a fine upon the dropping of any of the lives; but there was no custom binding them to renew. The copyhold grants did not mention a right of fishing; but from time immemorial it was admitted by the parties (but was not in fact true (q)) that the copyholders had enjoyed a right of angling in the stream which formed the boundary of the manor, and of passing along the bank over the lands of other tenants of the manor for that purpose. Subject to this, the right of fishing was in the lords. In 1845 the lords enfranchised a copyhold belonging to S., which adjoined the river, and released in the most ample terms all rights of fishing and all other rights they had over the enfranchised tenement. After this various other copyholds were enfranchised, and for nearly forty years the copyholders and enfranchised copyholders exercised the same right as before of angling and going over the land of S. for that purpose. T. was the owner of several tenements formerly copyhold of the manor, which had been enfranchised since 1815. In 1885 S. set up a gate and prevented T. from passing over his land to fish. T. acquiesced in the interruption until 1889, when he commenced an action on behalf of himself and all other the owners and occupiers of copyholds or enfranchised copyholds, to establish the right of angling and of passing over the land of S. for that purpose. Kay, J., held that by the enfranchisement deed of 1845 the lords gave up all their rights over the land of S., which, though copyhold, by presumption of law extended to the mid-stream (r), and that no reservation or exception of a power to make to other tenants grants giving rights over that land could be implied, and that the lords, therefore, had no power to give to T by his subsequent enfranchisement deeds any rights over the land of S., and that T. had no title to maintain the action; also, that lost grants of the rights to the enfranchised copyholders could not be presumed. The Court of Appeal affirmed this decision.

Where the public have been allowed to fish in private waters, even from time immemorial, the permission is revocable at any time at the will of the proprietor (8).

(p) 45 Ch. D. 98; 62 L. T. 254.

(q) It is proved in Payne v. Ecclesiastical Commissioners and Landon, 30 T. L. R. 167, where a copyhold tenant in this manor claimed a right to fish by custom of the manor, that the custom originated in a permission granted by the lord of the manor in 1599, and therefore the custom was bad as not having been from time immemorial.

(r) If the copyhold tenants had in this manor a right to common of fishery opposite the copyhold lands, this would be evidence that their copyholds did not extend to the mid-stream, as one cannot have common in one's own land: Tyrringham's Case, 4 Co. Rep. 36.

(8) See Holford v. Bailey, 13 Q. B. 426.