66

66

"assisted by the grand juries of four surrounding counties, for "the benefit of the subject,-why should not the right of fishing "in this inland sea be enjoyed and exercised by the public, as "well as the right of passage for trade, traffic and enjoyment, subject to the servitudes and prerogatives belonging to the "king? The lake, answers the lawyer, to give the right of "fishing to the public, should be navigable. It is navigable, answer the inhabitants of four counties. No, retorts the "lawyer, navigable in fact is one thing, navigable in law is "another. Navigable,' writes Lord Hale, 'means tidal,' and, "unless the salt water flows and recedes, the lough is not "legally navigable; and if the water be fresh, though as wide "as three counties, and teeming with fish, the public cannot "take one fish in the exercise of their industry in procuring "sustenance for themselves and others; the liberty of fishing, "which is of common right in the creeks and arms of the sea 'or navigable rivers, does not exist in vast sheets of water or "inland seas, because the water is not salt-an arbitrary rule repugnant to reason, convenience, and the common sense of "mankind. Inquisitive lawyers have raised the question, did Lord Hale really propound dogmatically that navigable in law "meant tidal, not that it really was so? But the authorship "is made a question in a note to Calmady v. Rowe. It may be "fairly said this question should now be thoroughly investigated on principle, and decided according to analogy and reason, by "the ultimate Court of Appeal, by which tribunal alone it can "be decided."

66

66

66

The case went on appeal to the House of Lords; but as the question of the public right of fishing in the lake was not before the House, no decision on that point was given. Cairns, L. C., says, "The defendants in the action, the respondents, had "pleaded a special defence, alleging that Lough Neagh was a "public or common navigable inland sea, and every subject of "the realm had a right of fishing in it, and justifying their "trespass under this right. To this special defence there was a "replication, averring that the tides of the sea had never flowed "in Lough Neagh, and to this replication there was a demurrer, "which demurrer was overruled. Against the order overruling "this demurrer the respondents have not appealed, and the "appellants remain, therefore, the victors on that issue. My 23 App. Cas. 641, at p. 651.

1 6 C. B. 878.

"Lords, I mention this in order to show that it does not appear "to me that your Lordships can decide, whether the replication "to which I have referred was or was not a valid defence in law. "That may be a fit question to raise in some other case; but it "cannot for the reasons I have mentioned be raised in this "case. 1 Lord Blackburn in the same case seems to be clear that the Crown has no right to the soil or fishery in such lakes; but thinks it doubtful whether the rule, that each adjoining proprietor is entitled to the soil usque ad medium filum aquæ (and consequently to the fishing therein), applies to such lakes as Lough Neagh. After referring to certain dicta of Wightman, J., in Marshall v. Ulleswater Co.,2 he continues, "This is the only "case cited, and, as far as I can find, the only case which "exists, where there is even a suggestion that the Crown of common right is entitled to the soil of lakes. Neither the passage in Comyns, nor that in Hale de Jure Maris, cited by "Mr. J. Wightman, gives any countenance to such doctrine. "But it did appear that the learned judge did not think the law "as to land covered by still water was so clearly settled to be "the same as the law as to land covered with running water, as "to justify him in unnecessarily deciding that it was the same. "More than this I think does not appear from that case.

"myself to be unable to see any reason why the law should not "be the same, at least where the lake is so small, or the "adjoining manor so large, that the whole lake is included in

66

'one property. Whether the rule that each adjoining proprietor, "where there are several, is entitled usque ad medium filum aque "should apply to a lake, is a different question. It does not seem very convenient that such proprietor of a few acres, "fronting on Lough Neagh, should have a piece of the soil of "the lough many miles in length tacked on his frontage."

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3

In Reg. v. Burrow, a conviction by magistrates of defendant for fishing in Ulleswater was quashed by the Court, on the ground that a bona fide claim by defendant, as one of the public, to fish there, ousted their jurisdiction, the point not being so fully settled by authority as to make the claim one which could not exist at law.4

5

In Pery v. Thornton, the plaintiffs, owners of most of the

1 See also per Lord Gordon, 3 App. Cas. at p. 671.

2 3 B. & S. 732; 41 L. J., Q. B. 41; 25 L. T. 793.

3 34 Justice of Peace, 53.

4 See judgment of Cockburn, C. J., in

this case, ante, p. 349.

5 23 L. R.. Ir. 402.

Canals and artificial waters.

lands surrounding Lough Conn, a freshwater lake, eight miles long by one to four miles wide, were held entitled to an injunction to restrain the defendants, members of the public, from fishing in the lake with cross lines, a mode very destructive to fish, though the defendants pleaded that the lake was a public navigable lake, and gave some evidence that cross lines had been used on the lake for over twenty years.

1

In Blower v. Ellis, B. was charged under 24 & 25 Vict. c. 96, s. 24 (Larceny Act, 1861), with unlawfully taking fish in a private fishery. The river was part of a Norfolk broad or lake, thirty-five miles from the sea. The evidence showed that the tide did not reach the spot, though occasionally the fresh water was backed up so as to rise three or four inches when there was a high tide. Anglers had been occasionally turned off if no consent of adjoining owners had been obtained. Held, that there was sufficient evidence to support the finding of justices that this was not a tidal navigable river where the public had a right to fish, but was a private fishery, and the conviction was held right.

In Micklethwait v. Vincent, a landowner who claimed to be owner of part of one of the Norfolk broads brought an action for an injunction to restrain a person, claiming (inter alia) as one of the public, from shooting or fishing over the plaintiff's part of the broad, and from boating over such part, except within certain limits, comprising what was called the "channel." The defendant challenged the claim to ownership on various grounds, alleging (inter alia) that the broad was a tidal water, and therefore Crown property, and open to the public for all purposes. Held, upon the evidence, that the broad was not tidal; that the defendant's other contentions against the plaintiff's claim to the ownership and exclusive right of shooting and fishing failed, and that an injunction must be granted accordingly, but that the plaintiff had not made out his claim to restrict the public right-of-way and boating to the so-called "channel."

The right of fishery in canals and artificial watercourses is of course incident primâ facie to the ownership of the soil, as is the case in all other non-tidal waters, and it is clearly competent for the canal proprietors to let their right of fishery, if they should see fit.3 In many cases the right of fishery is regulated

1 50 J. P. 326.

2 (1892) 67 L. T. 225.

3 Woolrych on Waters, p. 65.

by the Act of Parliament creating the canal, and, in that case, will of course depend on the construction of the Act.

Thus, where a canal was made through a manor, and it was enacted by statute that the lord of the manor should have the fishing in so much of the canal, or cut, or reservior, as should be made in, over, or through the common or waste lands of the manor; and the owner of any other lands should have a like right of fishery in so much of the collateral cut as should be made in, over, or through his lands; it was held that the words common or waste " meant those commonable lands of which the soil was in the lord, and not open fields where owners had rights of severalty, and that the lord had only the right of fishing in the canal or cut over his lands, and not in the reservoir.1

46

Statutory Regulations affecting Fishery.

enactments

The statute laws relating to fishery, and framed for the pro- General tection of fish as a valuable source of food supply, are chiefly for protection important as regulating the season during which fish may be of fish. caught, and the means which may be employed in catching them.

In addition to this, the Larceny Act (24 & 25 Vict. c. 96) Larceny Act. declares the law with regard to poaching fish. The importance

of salmon, as an article of food, has occasioned the passing of numerous statutes for its protection.

By sect. 1 of 49 & 50 Vict. c. 39 (the Salmon and Freshwater Salmon. Fisheries Act, 1886), which transfers to the Board of Trade the powers and duties previously exercised by the Home Office under the "Salmon and Freshwater Fishery Acts," the Act is to be construed as one with those Acts; and by sect. 7 and the Sched. of the Act they are declared to comprise: 24 & 25 Vict. c. 109 (the Salmon Fishery Act, 1861); 26 Vict. c. 10 (the Salmon Acts Amendment Act, 1863); 28 & 29 l'ict. c. 121 (the Salmon. Fishery Act, 1865); 33 & 34 Vict. c. 33 (the Salmon Acts Amendment Act, 1870); 36 d 37 Vict. c. 71 (the Salmon Fishery Act, 1873); 39 & 40 Vict. c. 19 (the Salmon Fishery Act, 1876); 39 & 40 Vict. c. 34 (the Elvers Fishery Act, 1876); 40 & 41 Vict. c. 65 (Fishery (Dynamite) Act, 1877); 40 & 41 Vict. c. 98 (Norfolk and Suffolk Fishery Act, 1877); 41 & 42 Vict. c. 39 (Freshwater Fisheries Act, 1878); 42 43 Vict. c. 26 (Salmon Fishery Law Amendment Act, 1879); 47 Vict. c. 11 (Freshwater

1 Grand Union Canal Co. v. Ashby, 6 H. & N. 394; 30 L. J., Ex. 203; 3 L. T.

673. See also Snape v. Dobbs, 8 Moo. 23;
25 R. R. 616; Paterson, p. 66.

Freshwater

fish.

Fisheries Act, 1884); 49 Vict. c. 2 (Freshwater Fisheries Act, 1886).1

With regard to freshwater fish, except trout, char, eels, and lamperns in a salmon river, there were no restrictions whatever as to season or means of capture, until the passing of the Freshwater Fisheries Act, 1878 (41 & 42 Vict. c. 39), amended by the Freshwater Fishery Acts, 1884 and 1886 (47 Vict. c. 11, and 49 & 50 Vict. c. 39). With regard to sea fish, there are no statutory restrictions imposed on their capture, except by the conventions with France and certain other states confirmed by statute.

It is proposed to consider shortly the principal of these Acts, and then to treat more fully of the various restrictions imposed

1 Neither the Freshwater Fisheries Act. 1878 (41 & 42 Vict. c. 39), nor the Freshwater Fisheries Act, 1884 (47 & 48 Vict. c. 11), apply to Ireland or to Scotland. 26 & 27 Vict. c. 10 (Salmon), 33 & 34 Vict. c. 33 (Salmon) apply to both Scotland and Ireland. 31 & 32 Vict. c. 45 (Sea Fishery) applies to Ireland, and sects. 27, 67, 69 and 70 (Oysters) of the Act to Scotland. Sect. 13 of 54 & 55 Vict. c. 37 (Legal Proceedings) applies to both Scotland and Ireland.

In addition to these statutes the fisheries of Scotland and Ireland are both governed by separate groups of Acts.

Scotland.

6 Geo. I. c. 20, s. 14 (Fisheries Grant); 13 Geo. I. c. 26, s. 18, and 13 Geo. I. c. 30 (Trustees of Grant); 9 Geo. II. c. 33, s. 4 (Lobsters); 29 Geo. II. c. 23 (General); 11 Geo. III. c. 31, ss. 11—13, 48 Geo. III. c. 110, 55 Geo. III. c. 94, 1 & 2 Geo. IV. c. 79, 11 Geo. IV. & 1 Will. IV. c. 54, 14 & 15 Vict. c. 26, 30 & 31 Vict. c. 52, 52 & 53 Vict. c. 23, 53 & 54 Vict. c. 10, 54 & 55 Vict. c. 28 (Herrings); 5 Geo. IV. c. 64, ss. 9, 10, 57 &58 Vict. c. 14 (Grant for the Erection of Piers); 9 Geo. IV. c. 39, 7 & 8 Vict. c. 95, 25 & 26 Vict. c. 97, 26 & 27 Vict. c. 10, 26 & 27 Vict. c. 50, 27 & 28 Vict. c. 118, 28 & 29 Vict. c. 121, s. 63*, 31 & 32 Vict. c. 123, 33 & 34 Viet. c. 33, 36 & 37 Vict. c. 71, s. 12* (Salmon); 10 & 11 Vict. c. 92 (Mussels); 8 & 9 Vict. c. 26 (Trout); 27 & 28 Vict. c. 33 (Fish Teinds); 40 & 41 Viet. c. 65 (Dynamite); 41 & 42 Vict. c. 78, s. 7 (Employment of Children); 44 & 45 Vict. c. 11 (Clam and Bait Beds); 44 & 45 Vict. c. 12, s. 11 (Customs); 44 & 45 Vict. c. 33, s. 3 (Summary Proceedings); 45 & 46 Vict.

* These only apply to the Esk.

c. 78 (Fishery Board Inspector); 48 & 49 Vict. c. 61, s. 5, 50 & 51 Vict. c. 52 (Secretary for Scotland); 48 & 49 Vict. c. 70 (Scottish Sea Fisheries); and 58 & 59 Vict. c. 42 (Sea Fisheries Regulations); 49 & 50 Vict. c. 29, s. 32 (Crofting Parishes); 59 & 60 Vict. c. 42, s. 3 (Loans); 61 & 62 Vict. c. 56, s. 23 (Sea Fishery Grant).

Ireland.

1 & 2 Will. IV. c. 33, s. 106 (Public Works Commissioners) ; 6 & 7 Will. IV. c. 13, s. 15 (Constabulary) ; 1 & 2 Vict. c. 56, s. 63 (Rating); 5 & 6 Vict. c. 89, s. 61 (Drainage Commissioners); 5 & 6 Vict. c. 106, 7 & 8 Vict. c. 108, 32 & 33 Vict. c. 92 (General) ; 8 & 9 Vict. c. 108, ss. 2, 3, 7-15, 19, 23, 13 & 14 Vict. c. 88 (Oyster, Salmon and Trout); 9 & 10 Vict. c. 3 (Fisheries, Piers, and Harbours); 9 & 10 Vict. c. 86, ss. 3, 4 (Public Works Commissioners) ; 11 & 12 Vict. c. 92, 26 & 27 Vict. c. 114 (Salmon and Trout); 29 & 30 Vict. c. 88, 29 & 30 Vict. c. 97, 47 & 48 Vict. c. 48 (Oysters); 32 & 33 Viet. c. 9 (Inspectors); 37 & 38 Vict. c. 86, 45 & 46 Vict. c. 16, 54 & 55 Vict. c. 48, s. 35, 55 & 56 Vict. c. 61, s. 4 (Advances and Gifts for Fisheries); 40 & 41 Vict. c. 56, s. 74, 60 & 61 Vict. c. 17 (Appeals and Recognizances); 44 & 45 Vict. c. 12, s. 11 (Customs): 44 & 45 Vict. c. 49, s. 5 (5) (Rights of Fishing); 44 & 45 Vict. c. 66, 54 & 55 Vict. c. 20 (Pollen); 47 & 48 Vict. c. 21 (Sea and Coast Fisheries Fund); 51 & 52 Vict. c. 30 (Trawling); 1 Edw. VII. c. 38 (1901) (Steam Trawling): 58 & 59 Vict. c. 29 (Salmon); 61 & 62 Vict. c. 28 (Mussels, &c.) ; 61 & 62 Vict. c. 37, s. 37 (Local Government); 62 & 63 Vict. c. 50, ss. 2 (1), 3, 6 (3), 15 (c), 16, 30, 34 (Department of Agriculture).