In inland rivers, -lakes, fishery. The ownership of the fishery may be altogether distinct from, and be exclusive and independent of, any sort of ownership in the soil (h), and may exist, even in the Crown (i), as a fishery in gross (k). A several fishery in an inland river alleged in a declaration in an action of trespass is, primâ facie, to be assumed as in the soil of the plaintiff, and that inference is not negatived by an allegation in the same declaration that the fishery is in alieno solo, and if there be no averment by the defendant in his plea, that he claims under or acts by the authority of the owner of the soil, the plaintiff need not show a title either by grant or by prescription to the fishery (1). In Marshall v. The Ulleswater Steam Navigation Company (m) accordingly, in an action of trespass for entering the land of the plaintiff covered with water, and for disturbing certain several fisheries of the plaintiff in certain land covered with water, the defendant pleaded amongst other pleas that the land in which were the alleged fisheries of the plaintiff was the soil and freehold of divers persons, and that the defendants acted by the leave and in the exercise of the rights of such lastmentioned persons as such owners of the soil and freehold; whereupon the plaintiff was compelled to prove his title, and proved a title to a several fishery by showing a conveyance of a fishery, and in such a mode as to pass the soil and the jus piscationis as an incident thereto. In Shuttleworth v. Le Fleming (n), the action was trespass on land of the plaintiff, to which the defendant pleaded that the land was part of the shore of an inland lake or water called Coniston or Thurston water, and then a prescriptive right to a "free fishery" in the said (h) Seymour v. Lord Courtenay, 5 Burr. 2814; Duke of Somerset v. Fogwell, supra; Holford v. Bailey, supra. (i) The Banne Fishery case, Dav. 55, 57. (k) 19 C. B., N. S. 709. (1) Holford v. Bailey, 13 Q. B. 426; 13 Jur. 280; 18 L. T., N. S. 112, S. C. (m) 3 B. & S. 732. (n) 19 C. B., N. S. 687. water. The court, however, would not decide whether the words "free fishery" meant a sole several fishery, or a common of fishery. A several fishery in a navigable river may exist in and navithe Crown, whilst the owners of the land on each side of gable rivers. the river may be also the owners of the soil of the bed of the river, and is then an inheritance in the Crown in gross, and will not pass by a grant from the Crown of lands of the Crown adjoining the river, piscarias, piscationes, aquas, aquarum cursus, &c. (o). the water. The ownership of both the soil.of a stream and the Ownership of water, when and so far as it can be the subject of owner- the soil and ship, may either follow (p) or be independent of the ownership of the land adjoining the stream (7); and in the latter case the ownership need not extend over or to any greater portion of the soil of the stream than may be necessary as a substratum for, or otherwise required in connection with, the fishery (r). fishery is de Where a several fishery is derived from the Crown Where the the jus piscationis may also be either an incident to, rived from the and united in the same person with, the ownership of Crown. the soil, or may be distinct from such ownership, which may continue in the Crown; and from the nature of the case, and as such a fishery is generally in either the open sea below low water mark within certain limits, districtus maris, or between high water mark and low water mark, or in an arm or a creek of the sea, or in a port or haven, between those marks (s), the question whether the jus piscationis be such an incident and so united, or be thus distinct, rests on different considerations, and is more difficult to determine than in the case of a several fishery derived from a private person. (0) The Royal Fishery of the Banne, Dav. 55. (p) Ib. (g) See Marshall v. The Uleswater Steam Navigation Co., 3 B. & S. 732, 742. (r) See Hamilton v. Marquis Donegal, 3 Ridgw. P. C. 267; The King v. Ellis, 1 M. & S. 666. (8) Hale, De Jure Maris, pt. i. cc. iv., v., vi. In the sea. Distinction between an estuary and an The property or ownership of the sea and the soil of it, and, as a consequence of such ownership, the right of fishing in the sea and in the creeks and arms thereof, so far as the sea flows (t), the shore, littus maris, that is, the ground between the high water mark and the low water mark at ordinary, but not at high-spring, or extraordinary tides (u); and all increase of land by the sea, per alluvionem, per recessum maris, or a sudden retreat of the sea, and islands arising in the sea, or in the arms of it, are primâ facie (x), and, until the contrary be shown, are presumed to remain (y), in the Crown. An estuary and an arm of the sea, although having the common characteristic of being intra fauces terræ, arm of the sca. are distinguishable. Some rivers terminate without passing through any firth or estuary, and are lost in the open ocean almost as soon as they touch the salt water; others only join the ocean through a firth, or through a a land-locked valley, where the fresh and salt waters meet (z). An estuary is the space intermediate between the strictly proper river, and the strictly proper sea. Through this partly fresh and partly salt estuary, the river, though its ordinary river features may be impaired, or at high tides even obliterated, still in truth exists and operates, though its existence be only continued among sands and shaulds through which it has to work its way, struggling with the tide. . . . The estuary is a part of the river, and is included under this word (a). (t) Murphy v. Ryan, Ir. L. R. 2 C. L. 143; 16 W. R. 687, S. C. (u) Hale, De Jure Maris, pt. i. c. iv.; Blundell v. Catterall, 5 B. & Ald. 268, 291; Att.-Gen. v. Chambers, 4 De Gex, M. & G. 206; 3 B. & Ad. 869; Smith v. Officers of State for Scotland, 13 Jur. 713; 6 Bell's App. Ca. 487, S. C. (x) Hale, De Jure Maris, pt. i. e. iv.; Att.-Gen. v. Burridge, 10 Pri. 350; Williams v. Wil cox, 8 Ad. & E. 314, 333; 1 Macq. H. L. C. 49; 10 H. L. C. 618. (y) 1 Anstr. 614; 5 B. & Ald. 304; Att.-Gen. v. Chambers, 18 Jur. 779; 10 Pri. 400; 13 Jur. 716; 8 Ell. & B. 904. (z) 16 Court Sess. Ca. 1st ser. 1291, 1292. (a) 5 Dow, 289, 290; Mackenzie v. Horne, 16 Court Sess. Ca. 1st ser. 1292. An arm of the sea is said to be where the sea flows and reflows, and so far only (b). In a recent case in Scotland, however (c), the court said that when the junction of the fresh water and the salt takes place, not at the edge of the open ocean, but far up in the land where the river loses itself in arms or bays of the sea, these portions of the ocean become what are called arms of the sea, and that they are so called merely because they happen to be enclosed within ridges, intra fauces terræ, which guide the waters into the interior. But this circumstance does not make these arms identical with estuaries. These arms are the sea. A subject may acquire by grant of the Crown the soil of the sea itself, as of a districtus maris, a place in it between certain points, or a particular part contiguous to the shore (d), or of a port or a creek or arm of the sea, and both in the water and the soil itself covered with water within such a precinct, and also the soil of an arm of the sea, and, as a consequence or concomitance of such acquisition, any accession of land per relictionem or recessum maris (e). So also in an arm of the sea with a manor (ƒ), though in gross and not parcel of it, and also, by apt and proper words, lands contiguous to the sea (g), which will pass land per alluvionem, but not per relictionem. So also in the littus maris, or shore between high water mark and low water mark (h), that is, between those marks at ordinary tides (i), or the ordinary flux and reflux of the (b) Hale, De Jure Maris, pt. i. c. iv. (c) Mackenzie v. Horne, supra. (d) See Hale, De Jure Maris, pt. i. c. vi.; The Free Fishers of Whitstable v. Gann, 13 C. B., N. S. 853; Gann v. The Free Fishers of Whitstable, 11 H. L. C. 192. (e) Hale, De Jure Maris, pt. i. cc. v., vi.; Duke of Beaufort v. (g) See Parmeter v. Att.-Gen. (h) Hale, De Jure Maris, pt. i. cc. v., vi.; Att.-Gen. v. Burridge, 10 Pri. 350. (i) Hale, De Jure Maris, supra. How the sea shore may be acquired by a subject, -with the right of fishing. Different rights may exist in such land. Public rights on the sea shore. sea (j), and not at extraordinary or spring tides, and as those marks exist from time to time, either by the alluvion (k), or by encroachment (1), or by the gradual dereliction (m) of the sea. The sea shore may not only belong to a subject in gross, which possibly may suppose a grant before time of memory (n), but it may be parcel of the manor of a subject (o), and the lord may have the exclusive right of fishing as such lord, but only as appendant or appurtenant to the manor by prescription, and consequently from time immemorial (p). In land lying between high water mark and low water mark, different rights may be vested in a subject. One person may have the soil itself alone, and another the general privilege of fishing, or of laying, keeping, and taking oysters on that spot, and both may afterwards become united in the same person; and if the privilege continue to exist distinct from and do not merge in the general right to the soil, or if the title to one were invalid, the grant of one would not necessarily pass the other (q). A grant of the soil will not necessarily convey the privilege of fishing, because all the king's subjects have a right to fish (r). And as the public have no right, at common law, to bathe in the sea, so they have no right to pass over such land so acquired by a subject, for the purpose of bathing in the sea (s); nor have they any right to Yarborough, 3 B. & C. 91; 5 Bing. 163; Duke of Beaufort v. Mayor, &c. of Swansea, 3 Ex. 413; Calmady v. Rowe, 6 C. B. 681. See also Wenman v. Mackenzie, 5 Ell. & B. 447. (p) Per Holroyd, J., Blundell v. Catterall, 5 B. & Ald. 268, 288. (g) See Scratton v. Brown, 4 B. & C. 485. (r) Ib. (s) Blundell v. Catterall, 5 B. & Ald. 293. |