A fishery, jus piscationis (h), especially a public The ownership common fishery (i), is in or on the water, and the of the water. water, either when stagnant on, or when flowing from, one part to another of the land of the same owner, is the exclusive property of such owner (j), yet when flowing into or over the lands of different proprietors is not, in itself in regard to its integral parts, capable of exclusive proprietorship, but is then by nature their common property (k); and they have, at least, an interest which, although it may not be styled property, yet as nearly as the subject admits amounts to property, and more than the right of user, and may give to them rights, quoad the public, equivalent to the right of property, or even such right itself (1); and when the stream is on the surface, and not merely subterranean (m), they have amongst themselves the use, but so far only as not to work any material injury to the other proprietors above or below on the stream (n). owners of fishings. Conterminous proprietors of fishings in a navigable Community of tidal river, or in the waters of a private stream, without interest and property of the ownership of the soil of the alveus of such river or conterminous stream, but owners or not owners of the lands on each side of such river or stream, have more community of interest, though not of property, than proprietors of land adjoining such river or stream on each side (o). As between the proprietors of two sole and separate salmon fisheries in the same river, one below the other, both acquired by grant from the Crown, the proprietor (h) Co. Litt. 4 b. (i) See Blundell v. Catterall, 5 B. & Ald, 268, 301. (j) See Fergusson v Shirreff, 6 Court Sess. Ca., 2nd series, 1363. (k) 2 Court Sess. Ca., 3rd series, 1082, 1087, 1090. (1)Fergusson v. Shirreff, 6 Court Sess. Ca., 2nd series, 1363. (m) Acton v. Blundell, 12 M. & W. 324. (n) Hamilton v. The Marquis of Donegal, 3 Ridgw. P. C. 267; Wright v. Howard, 1 Sim. & S. (0) See Wedderburn v. Pat- Mutual rights two fisheries, one below the of owners of other. Ownership of a fishery fol lows that of the river. Fishery is an interest, an hereditament, and incorporeal. of the upper fishery has a right to the full possession of the water, the element of his fishery, in the same state, plight and condition in which it was enjoyed when the grant was obtained. 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 industry and art, which find their way into his fishery. The proprietor of the lower fishery has the same rights, a right to the same full possession of the water, to a free passage for fish from the sea into his fishery, a right abstractedly to catch every fish which finds its way into his fishery, which he can seize by his art or by his industry. But in the exercise of this right he cannot alter the state, plight or condition of the water of the upper fishery, from the state, plight and condition in which it was enjoyed when granted by the Crown, to the injury of such upper fishery. Nor can he stop or obstruct the passage of fish from the sea into such fishery, in any manner not essentially necessary to enable him to exercise his right of catching fish in their passage up the river (p). The allegation of the ownership of a river is primâ facie an allegation of the ownership of the fishery therein (q), and where land is held in severalty the right of fishery is also to be taken as so held (r). A fishery, whether a public common fishery (s), or a private one, is an interest, and not a mere easement (t), is clearly a hereditament (u), and, without any distinction as to being several, free or common, has been treated (x) as a thing incorporeal, which may be append (p) Hamilton v. Marquis of Donegal, 3 Ridgw. P. C. 267; Weld v. Hornby, 7 East, 195. (q) See Rex v. Green, Cald. 391. (r) Snape v. Dobbs, 8 J. B. Moore, 23. (s) Ashworth v. Browne, 10 Ir. C. R. 421, 438. (t) Hardr. 407; Herbert v. Laughlwyn, Cro. Car. 492; Hale, (u) Cooper v. Phibbs, 2 L. R., E. & I. A. C. 149. (x) Hill v. Grange, Plowd. 170. ant or appurtenant to a thing corporeal; and even when several has been considered of that nature (y), and may be appurtenant to a manor (z), that is, in rei veritate, to the demesnes or lands of the manor (a), of which it principally consists (b); and such a fishery, when in a navigable river, may be appurtenant to lands adjoining the river, although not demesne lands (c). cationis may A fishery, comprising both land and the jus pis- The soil and cationis, the soil may be in one person and the jus pis- the jus piscationis may be either in another person (d), or common be in different to all persons, as in a public common fishery in a navi- persons. gable river (e), and therefore lies not in tenure, and the lord cannot distrain (ƒ). recoverable in A fishery, jus piscationis, cannot be recovered by Fishery not ejectment, because only a profit à prendre (g), for pos- ejectment. session of it cannot be delivered (h). In the case of Rex v. Old Alresford (i), Ashhurst, J., said a fishery may be recovered in ejectment. But there the fishery and the soil, that is, a several fishery, were presumed to have passed together, and even then the ejectment would be for the land, aqua cooperta, and not the fishery merely (k). A tenant in common of a piscary may have an action of waste against his companion (7). A fishery will pass by a conveyance of the land ad- When it passes (y) See Hayes v. Bridges, Ir. T. R. 390; per Pigot, C. B., Little v. Wingfield, 11 Ir. C. L. R. 63, 103. (z) Rogers v. Allen, 1 Campb. 309. See also Vivian v. Blake, 11 East, 263; Blundell v. Catterall, 5 B. & Ald. 268; Gray v. Bond, 2 Brod. & B. 667. (a) Co. Litt. 122 a. (b) Plowd. 168, 170; Co. Cop. s. 31. (c) Hayes v. Bridges, Ir. T. R. 390. (d) Lord Fitzwalter's case, 1 Mod. 105; Lord Paget v. Milles, 3 Doug. 43; Scratton v. Brown, 4 B. & C. 485; Gray v. Bond, 2 Brod. & B. 667; Holford v. (f) Fitz. Sci. Fa. 100; Bro. (g) Molineux V. Molineux, Cro. Jac. 144, 146; Herbert v. Laughlwyn, Cro. Car. 492. See also Irish Society v. Crommelin, Ir. Rep., 2 C. L. 324. (h) Challenor v. Thomas, Yelv. 143. (i) 1 T. R. 358. (k) 8 Q. B. 1013. See also Irish Society v. Crommelin, Ir. Rep., 2 C. L. 324. (2) Co. Litt. 200 b. by a conveyance of the land. When a lease gives no right angle for trout. joining a private river or other stream, because of common right it might be incident to the soil, but not necessarily by a conveyance of land adjoining a navigable tidal river, or an arm of the sea, or districtus maris, because by common right, unless a particular person have acquired either by grant or by prescription the exclusive right of fishing, all persons have a right to fish there (m); and even if the owner of the land in the latter case were also the owner of the soil adjoining thereto between high and low water mark, the right of fishing would not be, as in the former case, an incident to the soil, but exist as a distinct privilege, and would not pass by a conveyance of such soil, but only by the term fishery (n). game, In a recent case in Scotland (0), an agricultural to the lessee to tenant holding under a lease reserving to the lessor the but silent as to fishings, was held to have no right at common law to angle for trout in a pond stocked with fish by the lessor, through which flowed a small burn, the boundary between the farm leased and another farm of the lessor. And the use of the water by the tenant for the purposes of his farm was held to be consistent, and might subsist with, and could not affect, the separate and distinct right of trout-fishing in the pond. The general question whether, by the common law of Scotland, such a lessee, without special provision in his lease, would be entitled to fish for trout in a running stream passing through his farm, was raised and discussed, and the Lord Justice Clerk and Lord Neaves considered that there is no such right; that the right of trout-fishing in private streams, or in ponds or locks, is an accessory to the right of property in the lands adjoining and vested in the owner of the lands, and capable of forming the subject of a separate contract of lease, (m) Scratton v. Brown, 4 B. & C. 485; Hale, De Jure Maris, pt. i. cc. iv., v. (n) Ib. (0) Maxwell v. Copland, 7 Court Sess. Ca., 3rd series, 142. and may constitute a valuable right in itself; and that a lease of the lands themselves alone does not give to the lessee any such right. The latter judge also said that the right is not a public one, exerciseable by all who may have access to the water, but is a privilege of the proprietor of the soil, excluding strangers from taking the trout, and that there is no property in the trout in, any more than in the water of, the burn. an incident to The right of landing nets, or of driving stakes into Right of landthe soil for affixing them thereto, is sometimes claimed ing nets when as necessary to the right of fishing, and, when so neces- a fishery. sary, would pass as an incident. There are however many instances of rights of fishery being exercised without the right of landing nets, or of driving stakes, such as the fisheries in the Thames, the Southampton and other rivers, which are carried on by means of boats alone for that purpose; therefore these rights are not necessarily incident to the right of fishing, even in navigable rivers (q). In Shuttleworth v. Le Fleming (r), the right of landing nets on the land of the plaintiff was claimed as an incident to the free fishery claimed by the defendant, and it was argued that such right, as well as the fishery, being incorporeal, could not be so claimed. The right, however, if an incident necessary to the exercise of the right of fishing, would be so claimable (s). On the trial of the case the jury negatived the right. The case before the court however did not require a decision of the point, and only decided that the fishery, being in gross, the claim to it could not be sustained under the Prescription Act, 2 & 3 Will. 4, c. 71. A grant of salmon fishing in Scotland implies a right of drawing nets on both sides of the river, a right of (q) See The King v. Ellis, 1 M. & S. 652, 666; Shuttleworth v. Le Fleming, 19 C. B., N. S. 687. L. (r) 19 C. B., N. S. 687. M |