Public right of fishery.

vessel lay conveniently near, he might place a plank across it to the land; and, therefore, the rule of law is that the owner of the adjoining land, or those whom he permits to go thereon, have a right of access to and from their vessels either by walking, or wading, or walking over a plank, but that they have no right to disturb the soil covered with water, as by permanently fixing anchors" (b). This right of crossing the sea shore as incident to the public right of navigation gives no right to trespass on land above high water mark, and there is no legal right for fishermen (apart from exceptional circumstances, such as stress of weather) to draw or to leave their boats above that line (c). Such a right may, however, be acquired by prescription, as it has been held that where fishermen had immemorially been used to beach their boats upon land near the sea, and the owner of such land had obtained an Act authorising him to levy a yearly sum for such boats beached, the owner could not exclude the fishermen without assigning to them other land equally suited for beaching boats (d).

The right of fishing in the sea and upon the shore between high and low water mark is primâ facie vested in all the subjects of the realm as a common right (e).

But in some cases statute law has set bounds to the exercise of this right in respect of seasons, particular kinds of fish, and the manner of fishing.

The right of the public to fish includes the right to take shell fish on the sea shore between high and low water mark (f). It seems doubtful whether it includes the taking of shells (f). It may be carried on by the use of lawful nets (g). This right is subservient to the right of navigation (h), and has been held not to include a right for fishermen apart from exceptional circumstances, such as stress of weather, to draw up or leave their boats above high water mark (i).

(b) L. R. 7 Q. B. 172. See also Lyon v. Fishmongers' Co., 1 App. Cas. 662; North Shore Rly. v. Pion, 14 App. Cas. 612; Eastern Counties Rly. v. Dorling, 5 C. B. (N.s.) 821; Att.-Gen. v. Conservators of the Thames, 1 Hem. & M. p. 32, per Wood, V.-C.; Mellor v. Walmsley, ante, p. 49; Coppinger v. Shehan, ibid.

(c) Ilchester v. Rashleigh, (1889) 5 T. L. R. 739, 61 L. T. 477, 33 W. R. 104. (d) Aiton v. Stephen, 1 App. Cas. 456, H. L. Sc.

(e) Fitzwalter's Case, 1 Mod. 105; Anonymous, 6 Mod. 73; Warren v. Matthews, 1 Salk. 357, 6 Mod. 73; Smith v. Kemp, 2 Salk. 637; Ward v. Cresswell, Willes, 265; Bagot v. Orr, 2 Bos. & Pul. 472, 5 R. R. 668; Carter v. Murcott, 4 Burr. 2163; Mayor of Orford v. Richardson, 4 T. R. 437, 3 R. R.

579.

See as to oyster fishery,

(f) Bagot v. Orr, 2 Bos. & Pul. 472, 5 R. R. 668. Goodman v. Saltash Corporation, 7 App. Cas. 633. (g) Warren v. Matthews, 6 Mod. 73, 1 Salk. 357. (h) Att.-Gen. v. Parmeter, 10 Price, 378, 24 R. R. 723-745; Att.-Gen. v. Johnson, 2 Wils. 87, 18 R. R. 156.

(i) Ilchester v. Rashleigh, 5 T. L. R. 739. An immemorial custom for fishermen inhabitants of a parish to spread their nets to dry on private land

Prior to Magna Charta the Crown had power to exclude the public from this right, and to grant a several and exclusive right of fishing to individual subjects. This right cannot now be granted by the Crown, and a several fishery in the sea can now only be claimed by prescription, or ancient usage presupposing a grant, or by express grant from the Crown prior to Magna Charta (k) or by statute (1). Where an immemorial usage is proved, a lawful origin for the usage ought to be presumed where reasonably possible (m). The right of several fishery is independent of the ownership of the soil of the shore by the subject, and may exist either with or without such ownership. A grant, therefore, of the shore alone will not of itself pass the fishery, which will remain in the public (n); nor will a grant of a several fishery necessarily pass the soil (o), though it is evidence that the soil was intended to pass, because the presumption is that the soil belongs to the owner of the several fishery (p).

fowl.

The public have no right at common law to kill and carry away Right to wild fowl on the foreshore, either when the shore is covered by the shoot wild tide, or when uncovered. The only rights the public have are those of fishing and navigation and the rights ancillary thereto (q).

was held to be valid in Mercer v. Denne, [1905] 2 Ch. 538, 74 L. J. Ch. 723; as to the right of herring fishermen to use waste land near the sea, see 11 Geo. 3. c. 31; see post, pp. 369 et seq.

(k) Magna Charta did not relate to fisheries in terms. See Stuart Moore on Fisheries, ch. 2; Carter v. Murcott, 4 Burr. 2163; Hale, ch. 5; Warren v. Matthews, 1 Salk. 357; Malcolmson v. O'Dea, 10 H. L. 593; Allen v. Donelly, 5 Ir. C. L. R. 292; O'Neill v. Allen, 9 Ir. C. L. R. 132; Kent's Com. 489; Stuart Moore's History of the Foreshore, 715; Woolrych on Waters, c. 5, p. 75. Sea Fisheries Acts, 1868 and 1884, 31 & 32 Vict. c. 45; 47 & 48 Vict. c. 27, and Salmon and Freshwater Fisheries Act, 1923, 13 & 14 Geo. 5. c. 16,

5 38.

(m) Goodman v. Saltash Corporation, 7 App. Cas. 633.

(n) Per Hale, C.J., Fitzwalter's Case, 1 Mod. 105.

(0) Att. Gen. v. Emerson, [1891] A. C. 649; Duke of Somerset v.

5 B. & C. 875; 29 R. R. 449.

Fogwell,

(P) For a full account of the right of fishery and the incidents thereto, see post, Chap. VI.

(9) Fitzhardinge (Lord) v. Purcell, [1908] 2 Ch. 139; 77 L. J. Ch. 519. This was an action brought by Lord Fitzhardinge, lord of the manors of the Severn, a tidal and navigable river, for trespass on the foreshore, parcel Slimbridge, Hinton, and Ham, parts of the great manor of Berkeley, adjoining of the manors, in a boat and on foot for the purpose of shooting wild duck. Defendant denied that the foreshore was parcel of the manors, and, even if away wild duck on the ground of immemorial user in four alternative ways: (1) As a member of the public in exercise of a general right of all the king's subjects in and over the foreshore of a tidal navigable river; (2) as one of the inhabitants of the manors by virtue of a trust or reservation in their favour the manors to the plaintiff's predecessors in title; (3) as an inhabitant of the which the Court would presume to have been created by the original grant of (4) by a prescription as a right in gross enjoyed by him and his ancestors -Held, manors, being a wild-fowler by occupation, by virtue of a custom of the manors; the manors, and also to a several fishery in the Severn. The public have no on the evidence, that the plaintiff had proved his title to the foreshore as part of rights over the foreshore of a tidal navigable river when not covered by the

tide, except such as

the sea. When covered by the tide the foreshore is part of the sea, and the

are ancillary to their rights of fishing and navigation in

Wreck.

The right to all unclaimed wreck found in any part of His Majesty's dominions, except in places where the right has been granted to other persons, belongs to the Crown, not as part of or appurtenant to the ownership of the sea shore, but in virtue of the royal prerogative (r). The right to take wreck on the shore is a franchise and may be granted to a subject apart from the shore itself, but it frequently exists as a franchise attached to a manor on the sea coast by grant. It may also be claimed as parcel of or belonging to a hundred, manor or town, or as included in a grant of liberties and may also be claimed by prescription. This may be evidenced by showing the taking of wreck, the receipt. of the proceeds after it has been sold by the Crown, allowance of the right by justices in eyre, judgments in actions in respect of the right, and payment made for the burial of dead bodies found on the shore (s).

A grant of the shore alone does not, therefore, pass the right of wreck, nor does a grant of wreck alone pass the shore, though

only rights of the public in and over it are the rights of navigation and fishing and rights ancillary thereto. The right claimed to kill and carry away wild duck is whether wild fowl are birds of warren or mere wild birds in which there is no property-a profit à prendre, and cannot be claimed by custom, but semble wild duck are birds of warren. Held, also, that there was not sufficient evidence of user to enable the Court to presume the existence of a trust, or to establish a prescriptive right.

Per Parker, J., at p. 168: "It seems to me reasonably clear that, unless the defendant in this case can establish a substantive common law right to shoot wild fowls on the lands in question, he cannot justify what he has done on the ground that he has a right of navigation any more than a person with a right to pass along a highway could, under the shadow of such a right, justify a claim to shoot wild fowl as he passed along. What was said by Holroyd, J., in Blundell v. Catteral (5 B. & A. 300) with regard to the alleged right of bathing on the foreshore may, I think, be said with equal truth of the alleged right to kill wild fowl in the channel of navigable rivers: Where the soil remains the king's, and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is not to be supposed that an unnecessary and injurious restraint upon the subjects would in this case be enforced by the king, the parens patria and I think what is thus said of the King may with equal truth be said of those subjects of the king to whom beds of navigable rivers have been granted.' See also Harrison v. Duke of Rutland [1893] 1 Q. B. 142.

(r) Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 523. By Stat. de Prerogativa Regis (17 Edw. 2, st. 2, c. 11), which was in fact passed in the reign of Edward I., the King is entitled to wreck of the sea throughout the realm, whales and sturgeons taken in the sea, or elsewhere within the realm, except in certain places privileged by the King. The Crown may also have a title by purchase, because the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 528, empowers the Board of Trade to purchase for the Crown any right to wreck possessed by any person other than the Crown. The Crown's right to wreck in the County of Cornwall was, by Charter 11 Edw. 3, granted to Edward Earl of Chester, except in places where it had already been granted to a subject. In the counties Palatine it belonged to the Earls Palatine as part of the jura regalia (Hale de Jure Maris, c. 7; Hargrave Law Tracts, p. 41; Durham (County Palatine) Act, 1836 (6 & 7 Will. 4. c. 19)). In Wales the Lords Marchers, who had wreck of the sea within their lordships before the English common law was extended to that country, have the right by statute (27 Hen. 8. c. 26, s. 30; 1 & 2 P. & M. c. 15, s. 6).

(s) Biddulph v. Ather, 2 Wils. 23; R. v. Shirland, Eyre of Kent, vol. 3, p. 181, Selden Society Publications.

it may be called in as evidence in support of a claim to the shore (t). The right to wreck will not pass by the general words of a grant (u). Wreck appurtenant to a manor by prescription does not pass under a grant of the office of admiral with wreck and profits appertaining to the office, though the manor is in the king's hands at date of the grant (x). Whenever the manor or property in respect of which the right is enjoyed comes into the hands of the Crown, the right to wreck merges in the Crown and does not come out again on a fresh grant of the manor or property, unless there are apt words in the grant to regrant the right to the grantee (y). The right to take wreck implies a right of crossing the shore for the purpose of taking it (z).

.

wreck.

By the stat. of West. I. c. 4 (3 Edward 1.), it is provided that What is no ship or anything in it shall be adjudged wreck where any man, a dog, or a cat escaped alive out of the ship (a). In such cases the wreck was to be saved and kept by the coroner, sheriff, or king's bailiff so that the owner might claim it within a year and a day: if he did not so claim it, it was to be delivered to the officers of the Crown or to the grantee of the Crown's right (r). No doubt this statute was the origin of the saying on some part of the coast that it is unlucky to save a drowning man": for if you saved him and the ship or goods came ashore it was not wreck. In 1771 Lord Mansfield in Hamilton v. Davis held that the statute was not to be construed literally, but as meaning that if the property could be identified by its owner it was not wreck (b). Wreck of the sea may be defined as property which is a ship or her cargo or has formed a portion thereof and has been cast ashore and for which the owner cannot be found (c). Such pro

(r) See note (r), p. 52.

(t) As to this, see Dickens v. Shaw, Moore's History of Foreshore, (3rd ed.), 454, 889. By a grant of wreck infra manerium there is a great presumption that the foreshore was parcel of the manor. Hale de Jure Maris, c. 6; Le Strange v. Rowe, 4 F. & F. 1048.

(u) Alcock v. Cooke, 2 M. & P. 625; 30 R. R. 625.

(z) Wiggin v. Branthwaite, 1 Ld. Raymond, 473; Holt, 758; 12 Mod. 259. (y) Duke of Northumberland v. Houghton, L. R. 5 Ex. 127; The Abbott of Strata Marcella's Case, 9 Coke R. 24a. (z) 6 Mod. 149, Anon.

(a) Flotsam is where the ship sinks and the goods float; jetsam, where the goods are thrown overboard to lighten the ship and the ship perishes; ligan, where heavy goods are cast into the sea and are buoyed (5 Coke 106). Derelict is where a ship or cargo is abandoned at sea without any intention of returning to it or any hope of recovering it. Cossman v. West, 13 A. C. 160, 180, 181; R. v. Property Derelict, 1 Hag. Adm. 383; The Aquila, 1 Ch. Rob. 37; The Gertrude, 30 L. J. P. M. & A. 130; The Coromandel, Sw. 205.

(b) 5 Burr. 2732. When making this decision the Court had not before it the various entries on the charter and patent rolls showing that formerly this statute was construed literally by the Crown.

(c) Sir Henry Constable's Case, 5 Co. Rep. 100; Palmer v. Rouse, 3 H. & N. 505; R. v. 49 Casks of Brandy, 3 Hagg. 270: The Rebeckah, 1 C. Rob. 227; Cargo Ex Schiller, 2 P. D. 145; The Gas Float Whitton (No. 2) [1896] P. 42; as to fishing gear being wreck, see Sea Fisheries Act, 1883 (46 & 47 Vict. c. 22), s. 10.

Jurisdiction

of Courts of Admiralty

and Common Law.

Salvage of wreck.

perty before it is cast ashore is either flotsam, jetsam, ligan or derelict, which are droits of the Admiralty and belong to the King in his office of Lord High Admiral (a).

To constitute property wreck of the sea it must be touching the land and not floating at the time it is seised for wreck (d). Thus a log of wood floating in the sea near the shore, and drawn. on a rock by a person wading, and another log which having been cast on the beach and marked by the grantee of wreck, and then carried out to sea again and taken the second time while floating, were both held in a late case to be droits of the Admiralty, and not to belong to the grantee of wreck on the coast (e). The grantee of wreck has, however, a special property in all goods stranded in his liberty, and may maintain trespass against a wrongdoer for taking them away, though such goods were part of a cargo of a ship from which some persons had escaped alive, and though the owners within the prescribed time identified them, and before any seizure had been made by the grantee (f).

It has been held that between high and low water mark when the tide is high the Court of Admiralty has jurisidiction over wreck, and when it is low the Courts of Common Law; Sir J. Nicholls thus stating the law: "Above high water mark it [wreck] belongs to the lord of the manor as grantee of the Crown; beyond low water mark he can have no claim; it is on the high seas, and belongs to the Admiralty. It is equally clear that between high and low water mark it is divisum imperium; when the tide covers this space it is sea, when it recedes again it is land, and within the jurisdiction of the manor " (g).

Spanish dollars one hundred years old found on the shore must be presumed to have come from a vessel which had been wrecked, though no part of the vessel is found (h).

The general superintendence throughout the United Kingdom of all matters relating to wreck, which term includes jetsam, flotsam, ligan and derelict, found in or on the shores of the sea

(a) See note (a), p. 53. There are many instances where the right to these rights have been granted to lords of manors.

(d) R. v. 49 Casks of Brandy, 3 Hagg. 257; 1 Hen. 4. c. 16; The Rebeckah, 1 C. Rob. 227; The Pauline, 2 Rob. Adm. 358.

(e) Stackpoole v. The Queen, Ir. R. 9 Eq. 119.

(f) Bailiff of Dunwich v. Sterry, 1 B. & A. 831; 35 R. R. 471.

(g) R. v. Two Casks of Tallow, 2 Hagg. 294; The Pauline, 2 Rob. Ad. 358; see, however, R. v. 49 Casks of Brandy, 3 Hagg. 270, as to rights of Crown grantees to wreck inter fauces terræ and within the county. The right of a Crown grantee to flotsam, &c., within the body of the county on the sea coast, was in the above case, by the Admiralty Court, decided adversely to the grantee, but the question does not seem ever to have been considered by a superior court. See Embleton v. Brown, 3 E. & E. 234; and Reg. v. Musson, 3 E. & B. 800, as to criminal jurisdiction, and 31 & 32 Vict. c. 122.

(h) Talbot v. Lewis, 6 C. & P. 630.