are neither commoners nor tenants in common (m). Such owner may also create a partial independent right or a limited liberty in another person, as a right to take in such fishery one particular species of fish, or fish for only the table of such person, without derogating from his own right, and, subject to such partial right or limited liberty, still have to all intents and purposes a several fishery (n). A several fishery, when an incident to the ownership Severable from of the soil, is severable therefrom (o), and may lawfully the soil. exist as a right of profit à prendre in gross (p), but so existing is not within the Prescription Act (q). A several fishery may be acquired not only from pri- From whom vate persons, but also by a private person from the and where acquired. Crown, in a creek or an arm of the sea or navigable tidal river (r), within the limits of the flux and reflux of the sea (s), and even in some known precinct with known bounds within the main sea, districtus maris (t), below low water mark (u), and either by grant, or by prescription, which presupposes a grant (x), and either with or without an interest in the soil (y); and as an incident to such a fishery, a weir in those places (z), and the fishery so acquired from the Crown, will exclude the public from the primâ facie right of fishing in such places (a). (m) See Wilson v. Mackreth, 3 Burr. 1824; Longf. & T. 99; Metcalf v. Rorke, 8 Ir. L. R. 137. (n) Seymour v. Lord Courtenay, supra. (0) Lord Paget v. Milles, 3 Doug. 43. (p) Co. Litt. 4 b; Hale, De Jure Maris, pt. i., c. i.; 19 C. B., N. S. 709. (q) 2 & 3 Will. 4, c.71; Shuttleworth v. Le Fleming, 19 C. B., N. S. 687. (r) Lord Barclay's case, Hale, De Jure Maris, 34; The Royal Fishery of the Banne, Dav. 55; Hamilton v. Marquis Donegal, 3 Ridgw. P. C. 267; 4 Burr. 2162; Gray v. Bond, 2 Brod. & B. 667. (t) Hale, De Jure Maris, pt. i. (u) The Free Fishers of Whitstable v. Gann, 11 C. B., N. S. 387; 13 Ib. 853; 11 H. L. C. 192. (x) Hale, De Jure Maris, passim; Gray v. Bond, supra. (y) Malcomson v. O'Dea, 10 H. L. C. 593. (z) Hale, De Jure Maris, 21, 22; Williams v. Wilcox, 8 Ad. & E. 314. Grant of from the Crown must have been Charta. If a several fishery, or a weir as an incident to it, be claimed by grant from the Crown, the grant must have before Magna been made prior to Magna Charta, which however has left untouched all fisheries made several to the exclusion of the public by act of the Crown not later than the reign of Henry II. (b). But where the enjoyment of the fishery has been of such a nature as would warrant a presumption of a grant of it having been made before the Great Charter, such a presumption will be made (c). Reverting to the Crown and merging since Magna Charta not regrantable. So created and existing may be conveyed since. A several fishery acquired from the Crown, if a franchise or liberty which, on reverting to the Crown, merges in the general prerogative right of the Crown (d), and since Magna Charta reverting to the Crown, would no longer exist as a separate franchise, and consequently could not be regranted by the Crown (e). In a late case in Ireland (ƒ), a several fishery in a navigable tidal river there belonging to the Crown was granted by the Crown in 1611, then reverted to the Crown by forfeiture, and was afterwards, in 1661, regranted by the Crown. But this question, as to the merger of the fishery, was not raised. And although such a fishery cannot be created by grant from the Crown since the Great Charter, yet, 2 Bos. & P. 472; Carter v. Mur- (b) The Duke of Somerset v. v. Wilcox, 3 Ad. & E. 314; Malcomson v. O'Dea, 10 H. L. C. 593; Gann v. The Free Fishers of Whitstable, 11 H. L. C. 192. (e) O'Neill v. Allen, 9 Ir. C. L. R. 132; Little v. Wingfield, 11 Ib. 63; Malcomson v. O'Dea, supra; Williams V. Wilcox, supra. (d) See Plowd. 219; The Abbott of Strata Marcella, 9 Rep. 24; Heddy v. Wheelhouse, Cro. El. 591; The King v. The Mayor of London, Show. 274. (e) See The Mayor of Colchester v. Brooke, 7 Q. B. 339. (f) Little v. Wingfield, 11 Ir. C. L. R. 63, 97. if created before and still existing, may be granted since (g). from a free Separalis piscaria is sometimes said to be all one How differing with libera piscaria (h); that is, as respects the pro- fishery. perty in the fish (i) before they are taken (k). The only substantial distinction, said Willes, J. (1), between a free and a several fishery is between an exclusive right of fishery usually called "several," sometimes "free" (used as in free warren), and a right in common with others, usually called "common of fishery," sometimes "free" (used as in free port). maintain The owner of separalis piscaria may maintain an Owner may action of trespass quare clausum fregit and for fishing action of trestherein, for where a right is exclusive trespass lies (m), pass, and for taking pisces suos, for there is not any other may take them, and he has the property in them before they are taken (n); or for disturbing his fishery (0), and he may plead it as his franktenement (p). He may also seize, by way of distress as damage feasant, to stop the further use, boats and other vessels, with all the tackle and other things belonging thereto, nets and other things, of the persons wrongfully fishing in his fishery (9). and distrain damage feasant. In many cases of several fishery arises the question, Whether a several fishery often very difficult to determine, whether the fishery, includes the jus piscationis, be an incident to and united in the same soil. person with the ownership of the soil, or be the mere jus piscationis in alieno solo (r). (g) The Duke of Devonshire v. Hodnett, Hud. & Br. 322. (h) Skin. 342; 1 Salk. 637. (i) Skin. 677. (k) Child v. Greenhill, Cro. Car. 553; Seymour v. Lord Courtenay, 5 Burr. 2814. (1) Malcomson v. O'Dea, 10 H. L. C. 593, 619. (m) Wilson v. Mackreth, 3 Burr, 1824. (n) Child v. Greenhill, Cro. Car. 553; Seymour v. Lord Cour tenay, 5 Burr. 2814; The Duke of (p) See the authorities cited in (q) Reynell v. Champernoon, Cro. Car. 228; Hayes v. Bridges, Ir. T. R. 390. (r) The Duke of Somerset v. Fogwell, 5 B. & C. 875; Holford v. Bailey, 8 Q. B. 1000; 13 Ib. May exist with or without the soil. Where the That a several fishery may exist as well in alieno solo, as an incident to the ownership of the soil, seems to have been generally assumed (s), and is now generally admitted (t), even in the Crown as a fishery in gross in a navigable river where the soil belongs to the owners of the land adjoining (u). In the early cases the question generally arose with question arises. reference to the form of action adopted for the redress of an injury to the fishery. The remedy was generally in trespass quare clausum fregit, which can be maintained in those cases only where the plaintiff is in the actual, or is entitled to the exclusive possession, or to an exclusive right to a part of the profits (v), of the land. Hence the question as to the soil in cases of claims to free and to several fisheries. In such cases (x), and in the case of a several fishery, as well when it is in alieno solo as when in the soil of the plaintiff (y), trespass will lie for disturbing the fishery. In Seymour v. Lord Courtenay (z), the court said it was not necessary to give any opinion whether a person can have a several fishery without being owner of the soil; for although there was a count in the declaration for breaking the plaintiff's close covered with water, implying the ownership of the soil (a), yet there were other counts for disturbing them in their several fishery. The general owner demised to the plaintiffs, reserving a particular species of fishing, the oystery, which, in its nature, is to be exercised in a particular mode; and the reservation being equal to a grant, the question was the same as if the 426; Malcomson v. O'Dea, 10 H. (8) Co. Litt. 4 b, 122 a; The supra. (t) Holford v. Bailey, supra; (u) See The Banne Fishery case, Dav. 55, 57. (v) Wilson v. Mackreth, 3 Burr. 1824. (x) F. N. B. 88, G. H.; Com. Dig. Trespass, A. 2. (y) Holford v. Bailey, 8 Q. B. 1000; 13 Ib. 426. (z) 5 Burr. 2814. plaintiffs, being the general owners, had granted the sole right of fishing for oysters to the lessor, so that the plaintiffs, except as to them, would still have had a several fishery. In Holford v. Bailey, the court observed, that in the prior cases the declaration generally contained an allegation of the taking of the plaintiff's fish, which is clearly the subject of an action of trespass (b), and is independent of the ownership of the soil; and in some of those cases the allegation was of the taking of the fish, not of the plaintiff, but "of the fishery" (c); meaning, however, it would seem, the fishery of the plaintiff, and therefore his fish. In the case before the court, the declaration contained neither kind of allegation. Much of the doubt and difficulty involved in this question would seem to have originated in regarding the fishery instead of the land as the principal subject, and the land instead of the fishery as the accessary or adjunct. tion of the The jus piscationis arises from, and is incident to, The connecthe ownership of the soil (d); and although not neces- ownership of sarily united with the soil, yet, until the contrary be the jus piscationis shown (e), or, being claimed by grant, the terms of the and of the soil. grant are unknown (f), is presumed to follow such ownership. When so claimed, however, and the terms of the grant are known, and are such as to convey an incorporeal hereditament only, the presumption of the fishery following the ownership of the soil is destroyed (g). But the ownership of the soil neither arises from, nor is incident to, the ownership of the (b) 8 Q. B. 1016. (c) 13 Q. B. 444. (d) L. R., 2 E. & I. A. C. 165. (e) 18 Hen. 6, 29; Partheriche V. Mason, 2 Chitty, 658; The King v. Old Alresford, 1 T. R. 358; Holford v. Bailey, 8 Q. B. 1000, 1016; 13 Ib. 426, in error; Marshall v. The Ulleswater Steam Navigation Co., 3 B. & S. 732; (f) Duke of Somerset v. Fog- (g) Duke of Somerset v. Fogwell, supra. |