Plea to novel iffue. trod down the grafs then growing in the faid closes, in manner and And the faid Thomas fays, as before, that the faid James affignment, and Cooper and all those whofe eftate he now hath and at the said feveral times when, &c. had of and in the faid mills, with the appurtenances, in the faid fecond plea mentioned, from time whereof the memory of man is not to the contrary, have had and have ufed, and been accustomed to have, and of right ought to have had, and the faid James Cooper ftill of right ought to have common of fishery in the faid river and fishery in which, &c. every year, at all reafonable times of the year at their free will and pleafure, as to the faid mills, with the appurtenances, belonging and appertaining as the faid Thomas hath in his faid plea fecondly above pleaded in bar alledged, and of this he the faid T. puts himself upon the country; and the faid C. doth the like; and the faid T. as to the faid feveral trefpaffes above newly affigned, fays, that he is not guilty thereof in manner and form as the faid C. hath aboye thereof complained against him; and of this he alfo puts himfelf upon the country, &c. and the faid C. doth the like, &c. S. MARRYAT. Declaration for LANCASHIRE, to wit. William B. B. complains of E. S. entering clofe, J. W. T. P. and J. B. being, &c. for that they the faid deand fishing and fendants on, &c. and on divers other days and times between catchingfish,&c. that day and the day of exhibiting the bill of the faid plaintiff, with force and arms, &c. broke and entered the clofe of the faid plaintiff, to wit, one clofe covered with water called the River Cloyne, fituate and being within the parish of, &c. in, &c. and fifhed in the feveral fisheries of the faid plaintiff there for fish, and the fifh of and in the faid fithery of the faid plaintiff, to wit, ten ten falmon, &c. of the value of ten pounds there found, catched, took, and carried away, and then and there converted and difposed thereof to their own ufe; and alfo for that the faid defendants afterwards, to wit, on, &c. and on divers, &c. with force and arms, &c. broke and entered his fishery and fifhed therein. [Third Count, ftating them to have broke and entered his fishery and fifhed therein: fourth Count for feizing, taking, &c. the goods and chattels (a), to wit, ten other falmon, &c.] J. WALLACE. (a) Mr. Chambre was of opinion that this defcription was fufficient in an aétion, though it would be otherwife in within the flux right to fish. а First, Not Guilty, and for further plea in this behalf as to the Pleatothe above, breaking and entering of the faid clofe covered with water called that the locus in the River Cloyne in the faid declaration above fuppofed, &c. is part of a (actio non); because they fay, that the faid clofe in which, &c. navigable river at the faid feveral times when, &c. was, and ftill is, and from time and reflux of the immemorial hath been part and parcel of a certain river called the tides of the fea Cloyne, in the faid county of Lancashire, and that the faid river in which every called, &c. in the faid part thereof in which, &c. now is and at fubject has the faid feveral times when, &c. was, and from time whereof the memory of man is not to the contrary, hath been a public and common navigable river in which the tides and waters of the fea, during all the time aforefaid, have flowed and re-flowed, and that in the said part of the fame river called, &c. in which, &c. every fubject of this realm at the said several times when, &c. of right had and of right ought to have had, and now hath, and of right ought to have the liberty and privilege of fifhing; wherefore the faid defendants being fubjects of this realm at the faid feveral times when, &c. entered into the faid clofe in which, &c. fo being part of fuch navigable river as aforefaid, when the tides and waters of the sea flow, to fish in the faid river there at the faid times when, &c. being feafonable times of the year for fuch fishing, and at those feveral times did fish there as it was lawful for them to do, which are the fame breaking and entering the faid clofe covered with water called, &c. in the faid declaration mentioned by the faid defendants above fuppofed to have been done, whereof the faid plaintiff hath above complained against them; and this, &c.; wherefore, &c.; if, &c. V. GIBBS. declaration to And the faid plaintiff, as to the faid plea of the faid defendants, Similiter as to whereof they have above put themfelves upon the country, he the first plea, and faid plaintiff doth the like, &c.: And the faid plaintiff freely ac noi prefiqui as knowledges here in court that he will not further profecute against to firft Count of the faid defendants as to the faid firft Count in the faid declaration which the above mentioned, and the faid trefpaffes therein contained; therefore let plea is a juftifi the faid defendants go thereof quit, &c. and to try the iffue cation. above joined between the parties as to the refidue of the premifes let a jury come, &c. N 2 J. WALLACE. And Mr. Lawes's The above entry is rather an uncom. opinion on noli mon proceeding, but in a cafe, circumprofequi. ftanced as this is, feems proper and judicious. It is calculated to get rid of the difficulties that would neceffarily attend a replication to the fpecial plea as well as to prevent an exposure of plaintiff's real title. As the proceedings now stand, the first Count of the declaration is entirely out of the question, and the onus probandi does, I think, lie upon the plaintiff. He feems poffe ffed of fufficient evidence to infure a verdict upon the third Count, if not upon the fecond, of which there may be fome doubt. The nifi prius cafe from Chefter is certainly an authority for the neceffity of his fhewing an actual grant on the fact of the tides flowing into the rivers being establifhed, but I am inclined to think that that opinion will at this day be difregarded-and that the ufage and enjoyment which accompanies the cafe before me will be fufficient evidence of fuch a grant having existed to entitle the plaintiff to a verdict; nor are the other cafes that have been cited at all the other way. The former is filent as to what fort of proof is neceffary, and therefore for ought that appears to the contrary, prefcriptive evidence is fufficient, and the latter authority is I think confined to the original grant or inftrument itself, which when produced fhould, perhaps, carry the antiquity contended for, but it by no means excludes the usual evidence of prescription in which a grant is implied. But the cafe of Carter and Murcot. in 4 Burr. 2162, and subsequent to that at Chefler, is conclufive upon the point. There the plea was precifely the fame as here, and no more than a prefcriptive title was replied; and if it was fufficient in pleading it will of courfe be fo in evidence. I have only to add then any evidence of non ufe or interruption of the right claimed will be material on the part of the defendants, the general opinion of landholders upon the fubject with the circumstances of the privilege of fishing being preferved in their leafe I will likewife demand attention; but upon the whole, I am of opinion that the plaintiff must recover. V. LAWES. The facts of the cafe on which the above opinion of Mr. Lawes was grounded, with the cafes by him referred to, and alfo with Mr Lee's and Mr. Wilfon's opinions on the cafe, The facts of the cafe were briefly thefe: the plaintiff had only prefcriptive right of fishing, and that a part of the river in which, &c. was within the flux and reflux of the tides, the following authorities were cited: 1 Mod. 105, 2 Black. Com. 39. and a caufe tried at Chefter Affizes about fixteen years ago, between the people of Warrington and one Mr. Dumboll relating to the fithery of the River Merfey. It is faid Dumboll could have proved an exclufive and an uninterrupted right therein for ninety eight years and upwards and beyond all remembrance to the contrary, but the judge would not hear evidence of his prefcriptive right, but held it an ufurpation or encroachment; and faid that if ever the fea had flowed to fuch an arm or branch thereof it was a common fifhery, although it was objected on the trial that above the first bridge on a river it might be private property, which objection the judge held of ro confequence. The trefpafs there was committed on the Cheshire fide of the river, and the following Queries referred to Mr. Lee and Mr. Wilfon for their opinions. If Qu. Whether if plaintiff fhould be able to prove an exclufive and uninterrupt. ed enjoyment and use of the fishery or any part thereof for forty, fifty, fixty years paft, or fo far as memory can reach, that would veft an exclusive right in him and his heirs thereto, within the flux and reflux of the tide, would fuch evidence in this cafe be admissible, an if admitted would establish a right that would amount to full proof in conftruction or prefumption of law, that a regular grant or grants were originally obtained from the crown to those whose eft te he hath at the time when fisheries were a branch of the royal prerogative, that through lapfe of time or accident they have been loft or deftroyed; or would he be obliged to produce the original grants or authentic copies thereof in evidence to fupport his claim against the public? 2d Qu. In cafe the public were to draw nets and fish, would it be fufficient for those against whom actions are brough to plead that the place where, &c. is within the ebbing and flowing and an arm of the fea; and would plaintiff on fuch plea be put to the proof of his own title; and does Lancaster Bridge, and plaintiff's wears and locks at Sterton, (the tide flowing beyond both) or either of them, in any way effect or bound the claim of the public ? As to the query first. I am of opinion that by the common law the fishing of navigable rivers where there is flux and reflux of the tides belongs to the crown, and the crown could give it by grant, of which poffeffion from time immemorial is evidence. The fact of enjoyment by the plaintiff's family (if it could be fhewn when it commenced) could not avail them, and it seems to be intimated as if the exercife of this exclufive fishery is fufpected to be a modern thing. I think, fuppofing the enjoyment conitant and uninterrupted from all known antiquity, plaintiff might prefcribe for it; though, perhaps, if it were in a creek or bay of the fea it might be neceffary to alledge a grant. Indeed if a grant were alledged (fave the difficulty of ftating the reign, &c. in which it was made) fuch proof would be fuficient to find a grant upon. To query fecond. I think if plaintiff fhould fhew a title as he may by grant or prefcription to the fishery, it will be no defence to alledge that it is within the flux and reflux of the tide; nor in my. J. LEE. Plaintiff's claim is fuch as may be fupported by prescription and evidence of an exclufive and an uninterrupted enjoyment and use of the fishery by him and his ancestors, and them under whom he claims as far back as memory can go, and a reputation that it belonged to them will be admiffible evidence of a prefcriptive right in plaintiff; and as fuch I think that a jury would be bound to find for the plaintiff upon fuch a prefcriptive right established by usage, and reputation would be as effectual as any grant that could be produced. As to query fecond, if an action fhould be brought against any perfon for fishing within the limits claimed by plaintiff, he defendant, by a proper plea, might put plaintiff upon proving his title. What would be the proper plea will depend upon the nature of the action. I do not conceive that either the bridge or the wears will affect this question. JOHN WILSON. LIBERUM TENEMENTUM. DECLARATION in trefpafs, placing timbers on plaintiff's walls, breaking clofes, digging in foil, fetting up pofts, laying rubbith, and expelling plaintiff from poffeffion of part of the faid clofes. Two Counts. And the faid defendants, by A. B. their attorney, come and de- Plea ft, No fend the force and injury when, &c. and fay, that they are not Guilty. guilty of the premifes above laid to their charge in manner and form as the faid plaintiff hath in his faid declaration complained against them; and of this they put themfelves upon the country, &c. And the faid defendants for further plea in this behalf as to 2d Plea, that as the erecting and fetting up the faid building and the faid beams, to placing the rafters, and timbers in the faid firft Count of the faid declaration timbers, defendants fay, that mentioned, on the two faid walls in the faid first Count of the faid the walls are the declaration mentioned, and keeping and continuing, and caufing freehold of one to be kept and continued the fame fo erected and fet up, put, and A. B. and plainplaced on the faid walls for the faid fpace of time in the laid firft tiff, and they as Count of the faid declaration mentioned by the faid defendants, fervants and by above supposed to be done by leave of, &c. (actio non); because A. B. fet up the they timbers. N 3 the command of they fay, that the faid walls in the faid firft Count of the faid de claration mentioned now are, and at the faid time when, &c. were the foil and freehold of the faid B. C. and of the faid plaintiff; wherefore they the faid defendants at the fame time when, &c. as fervants of the faid B. C. and by his command, erected and fet up the faid buildings, and the faid beams, rafters, and timbers in the faid first Count of the faid declaration mentioned, on the faid walls in the faid first Count of the faid declaration mentioned, and kept and continued, and caused to be kept and continued the fame fo erected and fet up, put, and placed on the faid walls for the faid fpace of time in the firft Count of the faid declaration mentioned, as being the walls of the faid plaintiff and of the faid B. C. as it was lawful for them to do for the caufe aforefaid, which is the fame erecting and fetting up the faid building, beams, rafters, and timbers in the faid firft Count of the faid declaration mentioned, on the faid wall in the faid firft Count of the faid declaration mentioned, and keeping and continuing, and caufing to be kept and continued the fame fo erected and fet up, put, and placed on the faid wall for the faid space of time in the faid firft Count of the faid declaration mentioned, whereof the faid plaintiff hath above com3d Plea, that plained against them; and this, &c.; wherefore, &c. if, &c.: And A.B. is poffeffed the faid defendants for further plea in this behalf as to the erectof a houfe ad- ing and fetting up, &c. [as before] by the faid defendants above joining to the fuppofed to be done by like, &c. (actio non); because they fay, walls, and that that the faid B. C. at the faid time when, &c. was, and long beplace the timbers fore was, and still is feifed in his demefne as of fee of and in a ceron the wall as tain ancient meffuage or tenement, with the appurtenances, in an easement to the parifh aforefaid, in the faid county, adjoining to the said walls he had a right to his houfe. in the faid first Count of the faid declaration mentioned in which, &c. and that the faid B. C. and all those whose eftate he now has, and at the said time when, &c. had of and in the faid messuage or tenement, with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have had the liberty and privilege of laying and putting, and have been used and accustomed to lay and put, and fill of right ought to have the liberty and privilege of laying and putting the rafters, beans, and timbers of and belonging to his faid meffuage and tenement, with the appurtenances, on the faid wall in the faid first Count of the faid declaration mentioned, as an eafement to the faid ancient meffuage or tenement, with the appurtenances, of the faid B. C. belonging and appertaining; wherefore the faid B. C. in his own right, and the faid B. T. and E. as fervants to the faid B. C. and by his command at the faid time when, &c. erected and fet up the faid beams, rafters, and timbers in the faid firft Count of the faid declaration mentioned (the fame then and there being beams, rafters, and timbers of and belonging to his faid meffuage and tenement, with the appurtenances, and parcel of a certain building part thereof), upon the faid walls in the faid firft Count of the faid declaration mentioned, and kept and continued the fame fo there erected, put up, fet up, and placed for the faid fpace of time in the |