Exercise of the right as evidence of ownership of the soil. Right to dry access to the banks, but the right must be exercised in the least oppressive manner (t). The exercise of the right of landing nets, and of driving stakes into the soil for affixing to them the nets, may afford evidence of the ownership of the soil (u), and such exercise for twenty years will warrant a direction to a jury to presume a grant of them from the owner of the soil to the owner of a several fishery in a navigable river, lord of a manor who claimed such fishery as appurtenant thereto (x). In The Heirs of Sir Roger Lewknor and Ford's nets on adjoin case (y), Anderson, C. J., said, "if one hath a piscarie ing land. in the land of another man, the land adjoining is, as it were, a servant, viz., to drie the nets." This however is a mere dictum, and is, at least, questionable. But such a right, when it does not involve digging in the land and pitching stakes for drying the nets, may be claimed by custom (z). Two classes of II. Public. A fishery, regarded simply as to the persons using it, is either a right, accompanied, in a greater or less degree, with property, and vested in either a person, or in a limited number of persons, as a private right; or is a public privilege exerciseable by, and common to, either all persons, or some class or classes of the public, usually designated a common fishery, and, apart from its public nature, distinguishable from a private common of fishery (a). I. A private fishery is either a several fishery, a free fishery, or a common of fishery (b), and may be either appendant or appurtenant or in gross (c). (t) Miller v. Blair, 4 Court Sess. Ca., 1st series, 214; Forbes v. Earl of Kintore, Ib. 650. (u) The King v. Ellis, 1 M. & S. 652. (x) Gray v. Bond, 2 Brod. & B.667. (y) Godb. 114, 117. (z) 8 Edw. 4, 18, 19; Hale, De Jure Maris, pt. 2, c. vii.; 5 B. & Ald. 296, 297. (a) Bennett v. Costar, 8 Taunt. 183. (b) Seymour v. Lord Courtenay, 5 Burr. 2814. (c) Co. Litt. 121 b, 122 a; F. N. B. 179 d; Plowd. 164; Hayes v. Bridges, Ir. T. R. 390; Rogers v. Allen, 1 Campb. 309. Private fisheries are commonly thus distinguished. Effect of disBut in so distinguishing them, and, as respects at least tinction of private two kinds, on the meaning and the application of the fisheries. terms employed in the distinction, much confusion, and, as a consequence, much discussion have arisen in England, whilst in Scotland no corresponding, or indeed no such, distinction exists, and thus that confusion and its consequence have been avoided (d). one. A several fishery, as an incident to the ownership of How a several the soil, has been sometimes called predial or territorial, fishery is distinguished and, when not so incident and strictly defined, as an from a free exclusive right of fishing in alieno solo (e). In old deeds it is sometimes designated a "free fishery" (ƒ). A several fishery, whether as an incident to, or apart from, such ownership, has also been said to be the exclusive right of only one person (g). A free fishery is defined by Blackstone (h) as an exclusive right of fishing in a public river (¿) and a royal franchise, and adds that some have considered such a fishery, not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor, and cites Siderfin (j). Admitting, however, that in either case the fishery is to be designated a free fishery (k), disregarding the place where the right is exercised, and the person from whom it is derived, and attending to only the nature of the right in each of these cases as exclusive, a free fishery, according to this definition, is really a several one. A free fishery has been also defined as where "several specified persons have equal rights of (d) See Henderson v. Johnstone, 1 Court Sess. Ca., 3rd series, 128. (e) Chitty on the Game Laws, 283. (f) See Lamb v. Newbiggin, 1 Car. & K. 549. (g) Phear on Rights of Water, 63, 64. (h) 2 Com. 39. (i) See Gray v. Bond, 2 Brod. (j) 2 Sid. 8. See also 8 Ir. C. L. All private fisheries are several; fishing in the same waters" (7). A several fishery, however, may belong to more than one person and yet be several or exclusive as to all other persons (m), and a free fishery may belong to only one person, as where the owner of a several fishery grants liberam piscariam to another. A free fishery also is admitted to be an exclusive right (n), and therefore is so far a several one as being also a right exclusive. With reference indeed to the real nature of these two kinds of fisheries, the number of persons claiming them, and, as respects the free fishery, the place in which it is claimed, are merely accidental and not essential. In the course of the argument in the case of Shuttleworth v. Le Fleming (o), Willes, J., is reported to have said, "When common of fishery is described, it is usually called free, by reason of everybody having a right to go there ;" and in the judgment of the House of Lords, delivered by him in the case of Malcomson v. O'Dea (p), is reported as having said that a right in common with others is usually called common of fishery," sometimes "free," used as in free port. But the reason assigned is not applicable to a common of fishery, but only to a common fishery, and they are sometimes confounded (q). He had previously said in the same case (r) "free fishery primâ facie means several fishery." All private fisheries, considered as respects the owners of them, on the one hand, and strangers on the other hand, are several in their nature; for a several fishery is the right to fish exclusive of all other persons in a 64. (7) Phear on Rights of Water, (m) See Seymour v. Lord Courtenay, 5 Burr. 2814. (n) 2 Com. 39. (0) 19 C. B., N. S. 687, 700. (p) 10 H. L. C. 593. (q) Bennett v. Costar, 8 Taunt. 183. (r) 19 C. B., N. S. 697. particular place, either with or without the soil (s), and a free fishery and a common of fishery, although belonging to several persons, are rights to fish exclusive of all other persons in particular places, and, therefore, several fisheries; and a free fishery, defined as the exclusive right of fishing in a public river (†), is sufficiently described as a several fishery (u). Considered, however, as respects the owner or owners alone, but rejecting the distinctions having reference to such owner or owners, tinguished. either individually or collectively as a class or classes, and to the place where the jus piscationis is exercised, the several species of private fishery will be defined and considered seriatim under the distinctive names already given, by which they are commonly denoted. but considered as usually dis A several fishery, separalis piscaria (x), is the first 1. A several fishery, what. kind of private fishery, and is either the natural right of the owner of land, as an incident of such ownership (y), exclusive of all other persons, or the right of another person without any interest in but derived from the owner of the land (z), exclusive of the owner of the soil (a) and of all other persons (b) in a particular (8) Holford v. Bailey, 13 Q. B. 426, 446; Malcomson v. O'Dea, 10 H. L. C. 593, 619. (t) 2 Com. 39. (u) Malcomson v. O'Dea, supra. (a) Co. Litt. 4 b, 122 a; 13 Q. B. 446; 19 C. B., N. S. 700. (y) 18 Hen. 6, 29; 17 Edw. 4, 6; Hale, De Jure Maris, 1, 18, 19, 20; The Banne Fishery, Dav. 55; Child v. Greenhill, Cro. Car. 553; Carter v. Murcot, 4 Burr. 2162; Smith v. Kemp, Holt, 322; Seymour v. Lord Courtenay, 5 Burr. 2814; The King v. Ellis, 1 M. & S. 652; The Duke of Somerset v. Fogwell, 5 B. & C. 886; Scratton v. Brown, 4 B. & C. 485; Calmady v. Rowe, 6 C. B. 861; Malcomson v. O'Dea, 10 H. L. C. 593; Gann v. The Free Fishers of Whitstable, 11 Ib. 193; Holford v. Bailey, 8 Q. B. 1000; 13 Ib. 426, on error; Marshall v. The Ulleswater Steam Navigation (z) Co. Litt. 4b; The Royal (a) Co. Litt. 4 b, 122 a. (b) Co. Litt. 4b, 122 a; Seymour v. Lord Courtenay, 5 Burr. 2814; Holford v. Bailey, supra; 13 Ib. 426; 8 Ir. C. L. R. 295. May be in separate parts of the same water, and in separate owners. place (c), and either for all, or for all of a particular kind of fish (d); and such a fishery, enjoyed to the exclusion of others, and dealt with as of right, as a distinct and separate property, is sufficiently described as a several fishery (e); and even the description of it as a "sole and exclusive fishery," although doubtful on special demurrer, cannot be objected to after verdict (f). And a weir, by long enjoyment of it with such a fishery, may be claimed as appurtenant to it (g). A several fishery may exist in separate parts of the same water, and in each part may belong to a different person (h); and such a fishery, whether an incident to the ownership of the soil, or in alieno solo, may belong to several persons (i), and as to all other persons will still remain a several fishery. Even if such several persons have the fishery as tenants in common, it does not become a common of fishery, and each of them must exercise his right of fishing with a due regard to the same right of each of the others. But if the owner of a several fishery grant to several persons separate and coextensive rights of fishing, each of such persons has what is commonly designated a free fishery (k), but without excluding the owner (1). And although such persons have coextensive rights of the same kind, they (c) Ib. 46; Hale, De Jure Maris, 1; The Royal Fishery of the Banne, Dav. 55; Holford v. Bailey, 8 Q. B. 1000; 13 Ib. 426; 10 H. L. C. 619. (d) Per Rookby, J., Gipps v. Wollicott, Comb. 434; The Banne Fishery, Dav. 55; Seymour v. Lord Courtenay, 5 Burr. 2814; Holford v. Bailey, 13 Q. B. 436; Bridges v. Highton, 11 L. T., N. S. 653; Malcomson v. O'Dea, 10 H. L. C. 593. (e) See Malcomson v. O'Dea, 10 H. L. C. 593. (f) Holford v. Bailey, 13 Q. Q. 426, on error, reversing the decision of the Q. B. See also Hayes v. Bridges, Ir. T. R. 390. (g) Williams v. Wilcox, 8 Ad. & E. 314; Little v. Wingfield, 11 Ir. C. L. R. 63; Rolle v. White, 17 L. T. R., N. S. 560. (h) Hamilton v. The Marquis of Donegal, 3 Ridgw. P. C. 267; Lamb v. Newbiggin, 1 Car. & K. 549. (i) See Seymour v. Lord Courtenay, 5 Burr. 2814; Gann v. The Free Fishers of Whitstable, 11 C. B., N. S. 387; 13 Ib. 853; 11 H. L. C. 192. (k) Alderman de Londres v. Hastings, 2 Sid. 8; Seymour v. Lord Courtenay; see also Little v. Wingfield, 8 Ir. C. L. R. 279, 288; 11 Ib. 63, 96, 104. (7) Co. Litt. 122 a. |