of such river (m). Sometimes such a fishery may mean the right of fishing incident to the ownership of the soil, and is then synonymous with several fishery (n); and this would also seem to be the meaning when it is said that a man may have liberam piscariam in his own soil (o).

clude the owner of the

A grant or a claim of liberam piscariam does not ex- Does not exclude the owner of the soil from fishing (p), and therefore when in a public river does not, primâ facie, soil. exclude the Crown (q).

separalis pis

caria one.

The allegation of libera piscaria in the close of an- When libera other is equivalent to a claim of separalis piscaria (r). piscaria, and Liberam piscariam is sometimes said to be all one with separalis piscaria, and not with communis piscaria, for libera piscaria implies an interest, and the owner of it, in an action of trespass for fishing in libera piscaria sua, may plead that it is his franktenement (s). Such a fishery, as respects the property in the fish (t), may be one with separalis piscaria (u), and is sometimes said to be the same thing as common of fishery (x). But the passage in Lord Coke on which this note is made would seem to mean that free fishery and common fishery are the same, so far only as in neither of them is the owner of the soil excluded from fishing (y).

owner has a property in

Libera piscaria, being only the liberty of fishing with Whether the others (z), is said to give neither the property in, nor the possession of, the fish until they are taken (a). the fish before Some authorities, however, say that the owner of such a fishery has a property in the fish before they are

(m) Hale, De Jure Maris.
(n) See Lamb v. Newbiggin, 1

Car. & K. 549.

(0) Gips v. Wollicot, 1 Comb. 433, 464; Skin. 678; Com. Dig. Piscary, A.

(p) Co. Litt. 122 b.

(4) Hale, De Jure Maris.

(r) Per Dolben, J., Smith v. Kemp, Carth. 285.

(8) Skin. 342; 1 Salk. 637.
(t) Skin. 677.

(u) Holt, Rep. 323.
(a) Note 7, Co. Litt. 122 a.
(y) Co. Litt. 122 b.
(z) Holt, 323.

(a) Upton v. Dawkins, 3 Mod.
97; Child v. Greenhill, Cro. Car.
553; Smith v. Kemp, Carth. 285;
Holt, 322, S. C.

taken.

The extent of the right of

each person,

exercised.

caught (b). These authorities may perhaps be reconciled by considering the former class as having relation to only the owners of such a fishery as amongst themselves, and the latter class as having relation to them on the one hand, and strangers on the other. It is said that the owner of a river in which others have a right of fishing may have an action quare clausum fregit et piscatus fuit in aqua sua, and should allege that the defendant pisces suos cepit, and may allege the taking of them in libera piscaria of such owner (c).

Inasmuch as in the case of a free fishery the right of each person is coextensive with that of each of the others, and how to be it may be exercised independent and regardless of the rights of the others, except so far as that exercise may be or tend to the destruction of the fishery itself, and all of them, when the fishery is in the several fishery of another person, are not only as respects the owner of the several fishery, but as respects one another, having separate and coextensive rights, in a different position to what they would be if the fishery had been granted so as to give them common of fishery; for although, in the case of a grant of communis piscaria or of libera piscaria, the owner of the soil is not excluded from fishing (d), yet in a free fishery all the owners have equal and coextensive rights; each of them must exercise his right with a due regard to those of the others, and the owner, as in the case of any other common.

3. Common
of fishery.
A species of

common.

Common of fishery is the last kind of private fishery. Common is defined as a right or privilege of one person or more to take or to use some part or portion of the produce of the lands, waters, woods, &c. of another person (e), either together with such owner of the soil, or with such owner and other persons (f). The word

(b) F. N. B. 88; 2 Com. 40; Salk. 637; 4 Mod. 186, 187; Skin. 342; Com. Dig. Piscary, A.

(c) Gips v. Wollicot, Comb.

(d) Co. Litt. 122 a.

(e) 3 Cru. Dig. tit. xxiii., Common, s. 1; 2 Steph. Com. 3. (f) Co. Litt. 122 a.

common, however, has two meanings, and one person may have right of common and no more (g). Common of fishery is treated by the best text writers (h) as one species of common. Another text writer, speaking of fisheries generally, doubts whether they are not improperly included in rights of common, and would then refer them to the head of franchises (i). But franchises are royal privileges or branches of the king's prerogative, subsisting in the hands of a subject (k), and a fishery derived from the Crown, as the exclusive right of fishing in a public river, that is, a navigable tidal river, called a free fishery (1), or in a district, or in an arm or creek of the sea (m), is such a franchise (n). A fishery therefore, not so derived, is not properly a franchise.

Common of fishery, communiam piscariæ, is the Definition of. right of the owner of land covered with water (0), and of another person or several persons, or of several persons, exclusive of such owner, to fish, jus piscationis, in common in such waters (p), and resembles the case of other commons (q); and is called common because it belongs to many (r), and cannot be claimed by prescription to exclude the owner of the soil (s), and when existing in the several fishery of another will not exclude the owner of such fishery (t); and an owner of such right for an estate of freehold might have had an assize (u), or if disturbed so that he cannot exercise, or so exercise his right as to

How it differs from common of pasture.

II. A public

or common

fishery.

Definition of.

have the benefit to which he is by law entitled (x), he may have an action on the case (y).

A common of fishery differs from a common of pasture as being a profit or benefit from water or land covered with water, by the owner in common of the fishery himself, direct and immediate; but common of pasture is a profit or benefit from the land not direct and immediate, but mediately and indirectly, that is, by and through his commonable animals.

II. A public or common fishery is the last kind of fishery, and is to be carefully distinguished from a private common of fishery, with which it is sometimes confounded (z).

A public common fishery is the right for all persons to fish in the sea and in the creeks and arms thereof (a), and in navigable tidal rivers (b), but only so far as the tide ebbs and flows (c), that is, on the water and on the sea shore or land when covered with water (d), and the soil is in the Crown (e); and this right extends as well to the taking of shell fish left on the sea shore upon the reflux of the tide, between high and low water mark (ƒ), as mussels and other similar things, as to floating fish (g). By the law of Scotland, the right of fishing in the deep sea, as it is called, that is, where the water is salt,

(x) Litt. 107; 3 Wils. 278; 2 W. Bl. 817, 1233.

(y) 9 Co. 112 b.

(z) See Bennett v. Costar, 8 Taunt. 183.

(a) Hale, De Jure Maris, 11, 19, 20; Nicol v. Blakie, 22 Court Sess. Ca., 2nd ser. 335, 342, 343.

(b) Lord Fitzwalter's case, 1 Mod. 105; Warren v. Matthews, 6 Ib. 73; Salk. 357; Carter v. Murcot, 4 Burr. 2162; Blundell v. Catterall, 5 B. & Ald. 293; Ashworth v. Browne, 10 Ir. C. R. 421; 16 W. R. 595; Malcomson v. O'Dea, 10 H. L. C. 593.

(c) Hale, De Jure Maris; Ashworth v. Browne, 10 Ir. C. R.

421, 437; Murphy v. Ryan, Ir. L. R., 2 C. L. 143; 16 W. R. 687, S. C.

(d) Per Holroyd, J., Blundell V. Catterall, 5 B. & Ald. 301.

(e) See Murphy v. Ryan, 16 W. R. 678; Ir. L. R., 2 C. L. 143, S. C. and cases cited.

(f) Bagot v. Orr, 2 Bos. & P. 472; 1 A. & E. 357.

(g) See Duke of Argyll v. Robertson, 22 Court Sess. Ca., 2nd ser. 261, 265; and on this case, Duchess of Sutherland v. Watson, 6 Ib., 3rd ser. 199; Hall v. Whillis, 14 Ib., 2nd ser. 324; Lindsay v. Robertson, 5 Ib., 3rd ser. 864.

even while the tide is out, belongs to the public at large (h).

A public common fishery is in reality, and sometimes Is a free is designated, a free fishery; for primâ facie the owner- fishery. ship of the soil is in the Crown, and the liberty of fishing is in the Crown and the public with coextensive rights (i).

By the common law in the public.

the Crown.

This right of fishing in these places was originally Originally in lodged in the Crown (k), but by the common law belongs to all the subjects of the realm equally, and has been designated a public common of piscary, or common of fishing (1); or, more precisely, a common fishery (m), and regarded as a valuable advantage both as a means of subsistence and beneficial employment (n), and a source of commerce in all civilized communities. Like other valuable commodities, fish, as well swimming as shell fish, are susceptible of being property (o).

This kind of fishery being of common right cannot Not claimable be claimed by prescription (p), but the right of a part tion. by prescripof the public may be excluded by one person or more acquiring, in a particular place, either by grant from the Crown before Magna Charta, or by prescription, the right exclusive of the general public (q).

This kind of fishery cannot be acquired by the public either in non-navigable rivers (r), or in an inland lake when the lake is private property (s).

A public right of way along the banks of a private river confers no common law right of fishing on the public in connection with such way (t).