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This dictum of Coke is inaccurate, and has been overruled (ƒ). It was put forward for the Crown in Att.-Gen. v. Emerson (g), but was treated as overruled. Coke, in declaring that the fishery so granted must be incorporeal, seems to have overlooked the fact that livery of seizin is inapplicable to an incorporeal hereditament (h). He also fails to note that there can be no property in the water of a river (i). In the case of Marshall v. Ulleswater Company (k), on a discussion of the question whether a grant of a fishery passed the soil, the majority of the Court, Wightman and Mellor, JJ., held that a grant of a several fishery, together with livery of seizin, reserving a quit rent of 4d. a year to the then lord of the manor, must, in the absence of evidence to the contrary, be taken to convey a corporeal, and not an incorporeal, inheritance, as a feoffment with livery of seizin and the reservation of a quit rent are not appropriate to an incorporeal estate, and that, therefore, the soil passed by the grant. Cockburn, C.J., though holding himself bound by the case of Holford v. Bailey, was of a different opinion. After citing the opinion of Lord Coke, to the effect that a grant of a several fishery does not pass the soil, he proceeds (1): "Now, independently of the high authority of Lord Coke on such a matter, I must say that this doctrine appears to me the only one which is reconcileable with principle or reason. It is admitted on all hands that a several fishery may exist independently of the ownership of the soil in the bed of the water. Why, then, should such a fishery be considered as carrying with it, in the absence of negative proof, the property in the soil? On the contrary, it seems to me that there is every reason for holding the opposite way. The use of the water for the purposes of fishing is, when the fishery is united with the ownership of the soil, a right incidental and accessory to the latter; on a grant of the land, the water and the incidental and accessory right of fishery would necessarily pass with it. If, then, the intention be to convey the soil, why not convey the land at once, leaving the accessory to follow? Why grant the accessory that the principal may pass incidentally? Surely such a proceeding would be at once illogical and unlawyerlike."

The answer to the Chief Justice's observations is that in common

(f) Partheriche v. Mason, (1774) 2 Chitty, 258; Lofft, 364; Smith v. Kemp, (1692) 2 Salk. 637; Sheppard's Touchstone, Ed. 1820, f. 97; Holford v. Bailey, (1848) 8 Q. B. 1000, at p. 1016; 13 Q. B. 426 ; Marshall v. Ulleswater, (1863) 3 B. & S. 732; 41 L. J. Q. B. 41; 25 L. T. 793.

(g) [1891] A. C. 649; Hindson v. Ashby, [1896] 2 Ch. 1.

(4) See Sheppard's Touchstone, Ed. 1820, p. 97.

(i) Embrey v. Owen, (1851) 6 Exch. 369.

(k) (1863), ubi supra.

(7) 3 B. & S. at p. 747.

and ordinary parlance a man, holding a river in his manor, would speak of it as his "fishery," not as his "land covered with water," and by his fishery he would mean the river and the weirs and engines situate in it, and therefore his soil covered with water and the profits of it; and this he would intend to grant by describing it very naturally as "piscariam suam," just as he might grant "his forest," "forestam suam," meaning to convey the soil and the trees and the deer therein and all things belonging to it as a forest. He would not describe it as his "land covered with trees."

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In An Alderman of London v. Hastings (m), it was decided that "if a man grant liberam piscariam the grantee has free fishing with the grantor; but if he grant piscariam suam without saying more the whole fishery shall pass.' Therefore, if the grantor was seized of the river and the fishery the soil will pass by the grant of the fishery, and all subsequent authorities agree with this. We may, therefore, conclude that by the grant of a fishery the soil primâ facie passes. Whether the grantor in each particular case had a fishery including the soil or not may be a question of evidence to be determined by the user; but it is now well settled that the owner of a fishery, in the absence of evidence to the contrary, is presumed to be the owner of the soil (n).

Coke's erroneous dictum has been reproduced by all text-writers (except Lord Hale), and the constant reiteration of it no doubt accounts for the common opinion current amongst lawyers until quite recently that a fishery is generally an incorporeal hereditament. If his dictum had been accurate no doubt there would have been a good foundation for such general opinion, because only such fisheries as had remained in their original state and condition as parcels of the manors within which they were situate could now be fisheries with the soil; for the moment the lord of the manor granted out his fishery as his "several fishery," the right of fishing would, according to Coke, have been severed from the ownership of the soil and have become an incorporeal hereditament, unless the grant had been a grant of his "several fishery and the soil and water thereof," a form of grant scarcely ever met with except in modern documents where the conveyancer, conscious of the doubt raised by Coke's dictum, has inserted the reference to the soil and water pro majori cautela. Grants of fisheries by the Crown usually describe the fishery as "all that our fishery" or "all that our several fishery," &c., and a long experience of such documents does not present an example of a grant of a "river," or of "land covered

(m) (1657) 2 Sid. 8.

(n) Att.-Gen. v. Emerson, [1891] A. C. 643; Hindson v. Ashby, [1896] 2 Ch. 1.

with water," or of "a fishery with the soil and water thereof," or any such similar expression, in any royal grant. These grants have been constantly construed as passing the soil upon showing evidence of user of the soil as well as the right of fishing under them.

Since Lord Coke's dictum is overruled, and since we have seen that the word "libera" has the same meaning as "separalis," it would appear that, on the authority of Throckmorton v. Tracy (o) and An Alderman of London v. Hastings (p), a grant or conveyance of a fishery, whether described as a "several fishery" or as a "free fishery," or simply as a "fishery," must be construed primâ facie as a grant of the fishery with the soil, unless the evidence of user by which such grant is to be interpreted shows that it is an incorporeal right.

(0) (1555) Plowden, 151.

(p) (1657) 2 Sid. 8.

CHAPTER XXIII.

OF EVIDENCE OF TITLE TO FISHERIES.

IN proving a title to a fishery in tidal water it is necessary either to show that it existed before the time of King Henry II., or to show evidence of its existence which will raise the presumption that it lawfully existed at that time. The effect of such evidence is thus stated by Willes, J., in the case of Malcolmson v. O'Dea (a). "If evidence be given of long enjoyment of a fishery to the exclusion of others of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is, not that you say, this is usurpation, for it is not traced back to Henry II., but that you presume that the fishery, being reasonably shown to have been dealt with as property, must have been created before legal memory" (b). But if it can be gathered from the evidence that the origin of the fishery claimed was modern and later than Henry II., the claim to the fishery will fail (c).

There is, and can be, no certain rule as to how far back it is necessary to show evidence of the existence and user of a several fishery in tidal waters in order to raise the presumption of a legal origin. In the case of Tighe v. Sinnott (d), the existence of a several fishery was proved by an inquisition taken in 1540, which was identified by subsequent instruments of title under which the plaintiff claimed, and it was held that he had established his right. In Malcolmson v. O'Dea (e), a Crown grant of a fishery by Queen Elizabeth was held to be evidence of legal origin. In O'Neill v. Allen (f), the existence of the fishery at the mouth of the river Banne was proved between 1659 and 1701, and was held to be sufficient to raise the presumption of a legal origin. Non-user or absence of proof of user from 1701 to 1799 did not affect the claim.

(a) (1862) 10 H. L. Cas. 593.

(b) See Neill v. Duke of Devonshire, (1882) 8 A. C. at p. 158.

(c) See Edgar v. Commissioners of Fisheries, (1871) 23 L. T. N. S. 733.

(d) [1897] 1 Ir. R. 140.

(e) (1862) 10 H. of L. Cas. 593.

(f) (1859) 9 Ir. C. L. 142.

A merely modern title would seem to be insufficient (g), but where the owner's title deeds do not go far back, a search amongst the public records will almost always produce evidence of the ancient existence of the fishery sufficient to raise the necessary presumption of a lawful origin. The existence of a weir before 1861 in a fishery in tidal waters affords very strong evidence of the antiquity of the title, because by the various statutes relating to weirs from statute 25 Edward III. c. 4, downwards, weirs have been made illegal except those legally in existence in the time of Edward I. (h).

When, however, the evidence of modern user is weak, and does not go back beyond the period of living memory, and there is no ancient evidence to show the existence of the fishery before or after the time of King Henry II., it has been held that the inference of a lawful origin may be rebutted. The case of Edgar v. The Special Commissioners of Fisheries (i), in 1871, raised the question of a title to have a "raise net" as an ancient fixed engine at Rocliffe, in the tidal water of the river Eden. The evidence of user was weak. There was no ancient evidence of the existence of a fishery, and there was a survey of Lord Dacre's lands, made in the time of Elizabeth (Lord Dacre being a predecessor in title of the claimant), which did not mention the fishery. Willes, J., confirmed the law as to presuming a lawful origin laid down in Malcolmson v. O'Dea ; "but," he said, "it will not do to prove thirty years' enjoyment of such a right, commencing at the beginning of thirty years, or commencing at any other given period later than the end of the reign of Henry II., and for this reason: because as soon as you show that the origin was later than the time of King Henry II., you negative the inference of the usage for that period, which inference is the foundation of the conclusion that there was a grant as early as Henry II.," and he remarked that the inference is rebutted. "That is ordinarily shown in cases of this description by referring to some probably true account of the state of the title during the intermediate period, omitting all mention of the right, especially when the right is of sufficient importance to have been mentioned, or the history of it had really existed at the time, and that is proved, as it appears to me, by parol evidence in this case."

(g) Holford v. George, (1867) L. R. 3 Q. B. 639, is not in point here. The several fishery was proved and the question was whether a five years' user of a particular kind of engine makes the use of the engine lawful. See also Rawstorne v. Backhouse, (1867) L. R. 8 C. P. 67.

(h) Williams v. Wilcox, (1838) 3 N. & P. 606; 8 A. & E. 314; Gann v. Free Fishers of Whitstable, (1865) 11 H. L. C. 192; 35 L. J. C. P. 29; Rawstorne v. Backhouse, (1867) L. R. 3 C. P. 67; Holford v. George, (1867) L. R. 3 Q. B. 640; Rolle v. Whyte, (1868) L. R. 3 Q. B. 286; Leconfield v. Lonsdale, (1869) L. R. 5 C. P. 657.

(i) (1871) 23 L. T. N. S. 733.

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