the right of fishery therein, be specially appropriated to a third person, whether he have land or not on the borders thereof. The ownership of the soil of a several fishery may be indicated by the nature of the fish to be taken, by the mode of exercising the jus piscationis, by the nature of the acts of ownership in relation to the fishery, and by the mode of conveying the fishery. Any kind of fishery, whether an incident to the ownership of the soil, or whether the mere jus piscationis in alieno solo, may be either for floating fish or for shell fish, or for all fish; but as respects a fishery for floating fish the ownership of the soil is of less importance than as respects a fishery for shell fish (g); and even for the latter is not absolutely essential (h). Fish is either floating fish or shell fish, as oysters, mussels, lobsters, and the like. Sometimes the terms floating fish and shell fish are used, and sometimes the former is used in contradistinction to the latter, and sea fish synonymously with floating fish, and sea fish as not including shell fish (i) Some shell fish, however, as oysters and mussels, stand in complete contrast to floating fish. Such shell fish adhere to the rocks or shore, and are practically fixtures and parts of the soil, but floating fish are unconnected with any locality, and appear in different portions of the sea, without any one knowing whence they come or whither they go (k). The mussel is attached to the soil with a peculiar tenacity that is very remarkable in the natural history of the animal; so much so that it is a trespass and encroachment upon the soil if any one takes from it any settlement of these animals that is so attached. Other (g) See Bridges v. Highton, 11 L. T. R., N. S. 653. (h) See Scratton v. Brown, 4 B. & C. 485; 11 C. B., N. S. 406. (i) See Bridger v. Richardson, 2 M. & S. 568. (k) See Duchess of Sutherland v. Watson, 6 Court Sess. Ca., 3rd ser. 199. facts show its close connection with, and to be almost an integral part of the soil. The characteristics of the mussel are―(1) it has so little power of motion that it may be regarded as immovable and localized; (2) it is gregarious; (3) it is capable of cultivation and artificial propagation; (4) its chief habitation is in sand or mud banks, in estuaries or creeks near the shore. By these it is distinctly marked off not only from floating fish, but from lobsters, which have great power of motion, and other shell fish, like whelks, which do not congregate in scalps, but move about. The mussel has also powers and organs of locomotion, which it puts in operation, particularly early in life; but when it has once settled down, it seems to do so animo remanendi, and there it remains generally for the full period of its life, till dislodged by some violent means, or till some other extraordinary circumstance occurs (1). Mussels, although, in natural history, of the class molluscs, in law are considered as fish (m). There is a distinction between an oystery and a Oysters. fishery, in the common use of the term. The one applying to the use of land under the water, which is peculiarly adapted to the growing of oysters, and to be used for that purpose in the cultivation of oysters, as other lands are used for the purpose to which they are peculiarly adapted. Whereas a fishery, in common acceptation, has reference to the use of the water for floating fish, and this is a very obvious and natural distinction (n). And with respect to a right of fishery there is a marked distinction, both in reason and authority, between the right in relation to floating fish, and the right of dredging for oysters. The latter is entirely local and connected with the soil. There are natural (1) Duchess of Sutherland v. Watson, 6 Court Sess. Ca., 3rd ser. 199. (m) See Duchess of Sutherland v. Watson, 6 Court Sess. Ca., 3rd ser. 199, 214. (n) Per Thompson, J., Martin v. Wriddell, 14 Curt. Am. Rep. 345, 358. beds of oysters, but in other places there is a peculiar soil, adapted to the growing of oysters. They are planted and cultivated by the hand of man like other productions of the earth; and the books in many cases (7) clearly hold such a distinction, and speak of the oyster fishery as distinct from that of floating fish (r). The public may be entitled to catch floating fish, and yet not be justified in dredging for oysters, which may be private property (s). In Scratton v. Brown (t), the general privilege of fishing is distinguished from that of laying, keeping and taking of oysters. An oystery in its nature is to be exercised in a particular mode (u). A several fishery for oysters has been established in several cases (x), and in one case with the soil as parcel of the manor of the claimant (y). In the case of The Free Fishers of Whitstable v. Gann (z), it was argued that an oyster fishery necessarily differs from every other sort of fishery, the possession of the soil being essential to it, but Erle, C. J., said an easement would be enough. He said, however, and it was held, that considering the nature of an oyster fishery there is the strongest possible presumption that the soil would be granted. There was nothing to show that at the time of the original grant the soil was not granted, and the nature of the grant would render necessary a grant of the soil (a). A free or a several fishery for oysters would require soil, or the right to use soil, sufficient for the beds, and a grant by the Crown of a several fishery in an arm of the sea, or a navigable river, or in the sea below low (g) See Seymour v. Lord Courtenay, 5 Burr. 2814; Rogers v. Allen, 1 Camp. 309. (") Ib. (s) Per Heath, J., Rogers v. Allen, supra. (t) 4 B. & C. 485. (u) 5 Burr. 2817. (x) Hayes v. Bridges, Ir. T. R. 390; Bridges v. Highton, 11 L. T. R., N. S. 653; Gann v. The (y) Wenman v. Mackenzie, 5 Ell. & B. 447. (2) 11 C. B., N. S. 387, 406. (a) Per Erle, C. J., 11 C. B., N. S. 413, 414. See also Scratton v. Brown, 4 B. & C. 485. water mark, might include a portion of the soil for the purpose of the fishery (b). Lord Chelmsford indeed said there was no instance appearing of a right of several fishery in the open sea below low water mark granted by the Crown. Although oysters are considered as fish, yet whether Oyster spat. oyster spat can be so considered has been questioned (c). Scalps or beds for oysters and mussels are partes soli, Oyster and parts of the foreshore, accessories of the soil, as much mussel beds. as seaweed or any other plant (d), and may be appropriated, or be granted by the Crown to a subject (e). makes no dif In relation to the rights of fishing of oysters and of Mussels being mussels, no difference exists in the legal principles used as bait applicable to the two rights of fishery on the ground ference in the that mussels are extensively used by fishermen as bait to these two legal principles in catching white fish, which oysters are not. These fisheries. rights however are usually classed together, and the same principles apply to both (ƒ). Lobsters hold an intermediate place between oysters Lobsters. and mussels on the one hand, and floating fish on the other. They have the power of locomotion in a great degree, but in certain seasons they are chiefly found attached to rocks or near them. They are caught by sinking baskets or creels properly baited, sometimes a considerable way from the shore, and in pretty deep water, and by persons who never leave their boat, but remain all the while afloat in the This seems to take the lobster from the class of localized or semidomesticated animals, such as oysters in a scalp, but to place it among the feræ naturæ, like game on land, or common fish in rivers or (b) Gann v. The Free Fishers of Whitstable, 11 H. L. C. 192. (c) See The Mayor of Maldon v. Woolvet, 4 Per. & Dav. 26. (d) Duchess of Sutherland v. Watson, 6 Court Sess. Ca., 3rd ser. 199, 204, 213. (e) See Duke of Portland v. open sea. fish in a pond, or Gray, 11 Court Sess. Ca., 1st ser. (f) See Duchess of Sutherland Whether an exclusive right to fish for lobsters can be acquired. (ii) By the mode of fish ing: -with nets, -weirs, &c., (which may be acquired by usage) the sea, which last are not the subject of property until caught (f). It has not been decided in any reported case whether an exclusive right to fish lobsters on the coast of an arm of the sea, or in a navigable river, can be competently granted by the sovereign, or acquired by the subject. A grant by the Prince of Scotland of lands "cum piscationibus salmonum et aliorum piscium," without an exclusive possession of lobster fishings following on it, has been held not to pass to the grantee an exclusive right to the fishing of lobsters (g). The mode of exercising the jus piscationis, or the mode of fishing, may afford indication of the ownership of the soil of a several fishery. Fishing may be of two kinds ordinarily, viz., the fishing with the net, which may be either as a liberty without the soil, or as a liberty arising by reason of and in concomitance with the soil, or interest or property in it; or otherwise it is a local fishing, that ariseth by and from the property of the soil. Such as gurgites, weares, fishing-places, borachiæ, stachiæ, &c., which are the very soil itself (h). Fishing by stake-nets is of modern origin (i). These modes of fishing a subject may have by usage, either in gross or as parcel of or appendant to their manors, and not only in navigable rivers and arms of the sea, but in creeks and ports and havens, yea and in certain known limits in the open sea contiguous to the shore (j), and are applicable for not only small sea-fish, but also for great fish, as salmon, and even royal fish when claimed by a subject, as they may be by pre (f) Duke of Portland v. Gray, 11 Court Sess. Ca., 1st ser. 14, 17, n. (g) Duke of Portland v. Gray, 11 Court Sess. Ca., 1st ser. 14. (h) Hale, De Jure Maris, pt. i. c. v.; Plowd. 154; Co. Litt. 56; Blundell v. Catterall, 5 B. & Ald. 268; Rawstorne v. Backhouse, 3 L. R., C. P. 67. (i) See Berins v. Bird, 12 L. T. R., N. S. 306; Olding v. Wild, 14 Ib. 402; described 5 Dow, 282. (j) Hale, De Jure Maris, c. v. 18, 19, 20, 21. |