ticular place, and is often used in this sense, but it is generally used to express the right acquired by tenants of a manor to fish in the waters of the lord. This right is on the same footing as other commons, and depends much in each case on the custom of the manor. It is generally appendant or appurtenant to the copyhold tenements of the manor, but in some cases is held in gross.1 "A common of fishery," says Paterson,2 "is of three "kinds—common appendant, common appurtenant, and "common in gross. A common appendant is a right in separably annexed to the possession of a particular "house, and the extent of the right is measured by the "reasonable requirements of the family. It is a right of "a permanent nature attached to a house, and is not "available to mere inhabitants or lodgers, but is re"stricted to him who has an estate or interest in the house. Hence it is that the inhabitants of a vill or city "cannot prescribe for such a right, as there would be an "uncertain measure of claimants. A common of piscary "appurtenant is a right claimed by a person in respect "of a house not necessarily connected by way of tenure "or otherwise with the liability of the fishery, the right "must have been granted by deed within the time of legal "memory. It may also be severed from the house and "land to which it is appurtenant. Common in gross is a right claimed by a person not in respect of any land, "but under a grant, or, what is equivalent, by prescriptive "user." to fish. A right of fishery apart from the ownership of the soil, Licences being an incorporeal hereditament, can only be conveyed by deed. A licence to fish is distinct from a right of 1 Paterson's Fishery Laws, p. 55; Woolrych, p. 127; 4 Edw. IV. 29. 2 Fishery Laws, p. 56. 3 Gateward's case, 2 Rep. 59 a. Ordeway v. Orme, 1 Bulst. 183; Tinney v. Fisher, 2 Bulst. 87; English v. Burnell, 2 Wils. 258. 5 Cowlam v. Slack, 15 East, 107; Pretty v. Butler, 2 Sid. 87. 6 Teniel v. Harslop, 3 Keb. 66; Hayes v. Bridges, 1 R., L. & S. 890. 7 Duke of Somerset v. Fogwell, 5 B. & C. 875; Bird v. Higgenson, 2 A. & E. 696. Fishery in the high seas waters of the realm. fishery, and is revocable at will. A licence (in order to be binding on the grantor), even for an hour, must be granted by deed. But the fishery may be let by verbal agreement, and even where no rent has been agreed upon, the landlord is entitled to sue the tenant for a reasonable rent for use and occupation.2 Having now defined the various kinds of fishery recognized by the law, we now propose to consider how and where such rights can be enjoyed. Fishery in the Sea. On the high seas the right of fishing is common to all the world without any restriction or limitation whatever, either as to the description of fish that may be caught, or the means of catching them. When, however, disputes of a private character arise on the open sea between fishermen of different countries, the solution of these disputes is regulated by the custom of the locality where they occur. But such custom to be binding must be clearly understood by all those who frequent the locality in question.3 Fishery in The rights of fishery in the territorial waters of the the territorial realm within the distance of three nautical miles of low water mark would appear to be vested exclusively in the subjects of the realm by international law, evidenced by treaty or immemorial user, the subjects of one country not being entitled to fish within the territorial sea of another without a licence from the Crown or sovereign authority.* Within the ports and harbours and in the sea within the body of a county, or intra fauces terræ, and between high 1 Holford v. Bailey, 13 Q. B. 426, per Parke, B.; Hopkins v. Robinson, 2 Lev. 2. 2 793. Holford v. Pritchard, 3 Ex. 3 Aberdeen Arctic Co. v. Sutter, 4 Macq. App. Cas. 355; Fenning v. Lord Grenville, 1 Taunt. 147; see also Paterson's Fishery Laws, pp. 6, 7, and cases cited there; Little dale v. Smith, 1 Taunt. 243 a; Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, M. & M. 59, n. 4 See Paterson's Fishery Laws, p. 6; Hale de Jure Maris, c. 4; Selden, Mare Clausum, bk. 11, c. 81; see also Reg. v. Keyn, 2 Ex. Div. 205. and low water mark, the fishery is, by common law, common to all the subjects of the realm, subject to legal restrictions mentioned hereafter. Ꭵ By a convention entered into with the French govern- Convention ment, which is embodied in the Sea Fisheries Act, 1868, with France. it is provided that British fishermen shall enjoy the exclusive right of fishery within three nautical miles from low water mark of the British coast, and that French fishermen shall enjoy the same privilege within three nautical miles of the French coast, except as to that portion of the French coast between Cape Carteret and Point Meinga. The distance of three miles with respect to bays, the mouths of which do not exceed ten miles in width, is to be measured from a straight line drawn from headland to headland. Various regulations and restrictions on the manner of taking, and the seasons for taking fish, are imposed, which will be considered in a later part of the chapter. A convention also exists with the United States as to With America. the fisheries on the coast of North America, embodied in the statute 18 & 19 Vict. c. 3. The right of fishing in the sea being common to all subjects of the realm, a prescription for such a right annexed to a tenement is bad.2 Fishery in Tidal Waters. The right of fishing in the sea between high and low The public water mark, in tidal waters, in estuaries and arms of the right. sea, and in public navigable rivers, so far as the tide ebbs and flows, is primâ facie vested in all the subjects of the realm. It seems somewhat doubtful whether this right is 3 1 31 & 32 Vict. c. 45. 2 Ward v. Cresswell, Willes, 265. 3 Malcolmson v. O'Dea, 10 H. L. 593; Murphy v. Ryan, Ir. R., 2 C. L. 143; Bristowe v. Cormican, 3 App. 641, per Lord Blackburn; Interference with, indictable; and actionable on proof of special damage. to be considered as belonging to the public of common right, or whether they derive it from the Crown as owner of the bed and soil of tidal waters; but, however acquired, this right is now absolute and cannot be barred or interfered with by grant or charter from the Crown. This public right includes the right of fishing on the shore between high and low water mark, and of taking shell-fish there, though it appears doubtful whether the public have a right to take fish shells. This right of using the shore, however, does not extend to the right of using the adjoining land for the purposes of fishery, either in the way of fixing nets by stakes, or drying nets, or drawing them ashore; as such rights would be inconsistent with the nature of permanent private property, such rights may, however, it seems, be gained by custom by the fishermen of a particular locality. It would appear that, by common law, the public have the right of catching in the sea and public rivers all the fish they can by all means which are not inconsistent with the rights of others, but that any undue interference with the rights of others is a nuisance and indictable. The right of public fishery, however, includes the right to use lawful nets.6 It has been held by the Irish Court of Exchequer, that an infringement of the public right of fishery is actionable on proof of special damage, and that a member of the public who was licensed to fish in the upper waters of a tidal river could maintain an action against a person who by unlawfully fishing in the lower waters of the river, 1 As to this, see Woolrych on Waters, p. 76; and Mayor of Carlisle v. Graham, L. R., 4 Ex. 361. 2 Warren v. Mathews, 6 Mod. 73. 3 Blundell v. Catteral, 5 B. & A. 299, per Holroyd, J. 4 Year Book, 13 Hen. VIII. 15, 6; 8 Edw. IV. 19, pl. 30; Hale de Port. Maris, p. 86; Year Book, 15 Edw. IV. f. 29 ▲, pl. 7; Padwick v. As to this, see Paterson, p. 33; judgment of fishery commissioners in Leconfield v. Lonsdale, L. R., 5 C. P. 664; Hamilton v. Donegal, 3 Ridg. P. C. 267. 6 Warren v. Mathews, 6 Mod. 73. within certain limits prohibited by statute, caused damage to the plaintiff in the exercise of his right to fish.1 The public have no right to take royal fish,- i.e. whale, Royal fish. sturgeon, or porpoise, which, whether caught in the sea or thrown on the shore within the realm, are the property of the Crown and not of the finder.2 confined to tidal waters. The public common fishery is, it would appear, confined Public right to the sea and tidal waters, and cannot exist at law in nontidal waters, although navigable and navigated from time immemorial, for the purposes of commerce, the right to navigate giving no right to fish. This point has been expressly decided by the Irish Courts in two modern cases; and though it has never come directly before the English Courts, it would seem, from opinions expressed by learned judges, as well as from principle, that the same rule of law would prevail in this country if occasion necessitated its decision. It has been held by the Court of Queen's Bench, that where a non-tidal river was made navigable by an Act of Parliament which did not expressly interfere with the rights of the riparian owners, none of the incidents attaching to a navigable river up to the flow and re-flow of the tide can properly attach, and that, therefore, a claim on the part of the public to fish there is a claim to a right which cannot exist at law.3 Following this, the Court of Exchequer has held, that such a right cannot exist at law in a non-tidal river which had been made navigable by locks, although evidence was given of user by the public of the right of fishing for more than forty years.1 From these cases it is clear that where a non-navigable river has been made navigable by artificial means, the public right of fishery cannot exist. 1 Whelan v. Hewson, Ir. R., 6 C. L. 283. 2 See Hall on the Seashore, p. 80; Paterson's Fishery Laws, pp. 24, 265, and ante, Chap. I. p. 40. 3 Hargreaves v. Diddams, L. R., 10 Q. B. 582. 4 Musset v. Burch, 35 L. T., N. S. 486. |