that they cannot be separated. If any description be applied to it, it should be that of territorial fishing,(y) because the party has the dominion over the territory or land itself. And hence it follows, that those who maintain the opinion that the owner of a several fishery [*111] must necessarily have the soil as incident to the enjoyment, will consider this territorial possession as the several fishery so frequently mentioned in our books. In speaking, first, of a several fishery, it appears clearly, that if the doctrine mentioned in the last sentence were the true one, it would be unnecessary to enter further upon that subject; and this first species of fishery might then be laid out of the question. But as there are many considerable opinions and authorities contrary to this position, and from which it may be collected that the property of the soil may be in one person, and a right of several or exclusive fishery in another, it becomes indispensable to put these contradictory statements to the test of an inquiry. Our early law writers have not been so sparing of their remarks upon fisheries. Bracton expresses himself thus, speaking of free tenements: A fishery also, may be said to be a free tenement, either several or in common, in a man's own grounds; as if any one possess land on both sides of the water, near the bank, here he may fish without the hindrance of any, as his own free tenement, &c.,(z) So it is again, if he possess only the land on one side of the water, then he may fish to the middle line of the stream; unless by chance he have imposed a service on his land, so that another may fish with him; and so in common; or that another may fish by himself out of the whole; or again, that any one should have imposed upon himself a service, so that he could not fish.(a) This rule is very universal. So that if the lord of a manor would intrude his claim, he must make it out by evidence of his own. As by a deed. But the presumption that a general fishery passed to the lord as appurtenant to the manor under a deed is rebutted by proof that before the date of the deed owners of land within the manor and on the bank of the river had the right of free fishery therein.(b) We have next the commanding authority of Lord Coke. A man may prescribe to have a several fishery in such a water, and the owner shall not fish there, but if he claim to have common of fishery, or free fishery, the owner of the soil shall fish there. All this, says the learned commentator, has been "resolved (c) So again, if one be seised of a [*112] river, and he grant a several fishery in the same, and make livery of seisin secundum formam chartæ, the soil does not pass, nor the (y) Schultes, 87. (a) Id. Ibid. See also Id. lib. 4, c. 44; (b) 1 Car. & K. 549, Lamb v. Newggin. the declaration, but the Judge would not (c) Co. Litt. 122, (a). (2) Bract. lib. 4, c. 28, s. 1. c. 45, s. 1; c. 49. Flet. lib. 5, c, 41, s. 3. In this case there was a misjoinder in nonsuit the plaintiff. water, for the grantor may take water there, and if the river become dry, he may take the benefit of the soil, because a particular right only passed to the grantee, and the livery being secundum formam chartæ cannot enlarge the grant. And if a man grant his water, the soil shall not pass, but the piscary within the water shall. (d) Lord Hale's authority follows: "One man may have the river, and others the soil adjacent; or one man may have the river and soil thereof, and another the free or several fishing in that river."(e) The next step will be to collate the authorities on this side of the question, namely, that a several fishery may be used, independently of the right of soil. And a case may be cited to this effect as early as the reign of Edward 3.(f) So again, it was insisted some years afterwards, in an action of trespass for fishing in a several fishery to which liberum tenementum had been pleaded, that the soil might be in one, and the fishing in another, and that in answer to the defendant's plea, the plaintiff might shew how he had become entitled to the right he claimed. And it was urged in the same case, that a grant of several piscary would not debar the owner of the soil from fishing. But the other side put it strongly, that the soil would pass in such a case with the fishery; and it was subsequently arranged, that the counsel for the plaintiff should plead to the justification, and thus, by prescribing for a several fishery, the ownership of the soil would be regarded as distinct from the right. (9) And, which is very material, it was also said in that case, that no one except the defendant should be intended to be the owner of the several fishery, unless the contrary were shewn.(h) Moreover, a case was determined in 1657, which seems to be decisive upon this side of the argument. Trespass was brought for fishing in certain rivers, the defendant justified and made title to a moiety of the fishery, and said that those whose estate he had granted a free fishery to the plaintiff or to those whose estate he had, but it appearing that the plaintiff had the several "fishery, judgment was given for him. And by the Court: If one having a several fishery grant a free fish. [*113] ing, the grantee shall have free fishing with the grantor, but if he grant his fishing without saying any more, the entire right shall pass. (i) Having set forth the opinions of the ancient commentators on the law of this several fishery, together with the authorities which seem to bear upon the point, it only remains to be observed, that modern writers of great eminence have entertained similar sentiments. To mention one or two. Mr. Hargrave says, that why a several fishery should not exist (d) Id. 4, (b). (e) De Jure Maris, p. 6. (f) 46 E. 3, 28, pl. 21. (h) 18 H. 6, 29, and see an opinion of Mr. Baron Wood, in Chitty on Fisheries, p. 295. The opinion was, in effect, that the owner of the soil being prima facie the proprietor of the fishery, liberum tenementum would be a good plea on his part, to force the plaintiff to shew, how he could claim a several or free fishery. (i) 2 Sid. 8, Alderman de Londres v. Hasting. without the soil as well as a several pasture() is not easily to be understood, and he asks where the inconsistency would lie in granting the sole right of fishing with a reservation of the soil and its other profits. The plea of liberum tenementum may be replied to by prescribing for a several fishery (1) And Mr. Schultes, in his very elaborate essay on aquatic rights, is decidedly of the same way of thinking. He observes, that property in private rivers may be subjected to every kind of restriction by convention and agreement; a man may grant the soil for the purpose of erecting a weir or mill, and reserve the right to fish and take water. He might yield his own prerogative of fishing on the other hand, and so confer upon his grantor an exclusive or several fishing without the ownership of the soil, or he might grant a license to other persons to fish in common with himself. (m) Therefore, to sum up the matter, it seems clear, that the owner of a territorial fishery, so to speak, may either make a grant, and thereby exclude himself, or he may permit another to enjoy a co-extensive or limited right of fishing in his own water, still reserving his ownership. And, indeed, so far from a several fishery being necessarily incident to the soil, it should seem in strictness it must be separated therefrom, because if the proprietor of the soil admit another to participate in the profit, a free fishery or common of fishery is hereby granted; and if he do any act to exclude himself, he either retains the soil, and a several fishery passes to his grantee, or he parts with both the soil and piscary, and then a territorial fishing is conferred by the alienation. Much confusion would be prevented by calling this latter fishing territorial, as being identified with the property, and giving to that the name of a several fishery which is enjoyed, as all rights, properly speaking, must be, in [114] alieno solo. It may just be added, before we proceed to investigate the authorities on the other side of the question, that the owner of an exclusive fishery is prima facie presumed so be owner of the soil.(n) But Mr. Justice Bayley has observed, that such a presumption will only obtain when the terms of the grant are unknown, for that, if the grant appear to convey an incorporeal hereditament only, the presumption is destroyed.(o) This doctrine of the learned Judge is of itself sufficient to shew that the impression on his mind must have been in favour of the existence of an exclusive fishery, independent of the soil. Many authorities are, however, relied on in support of a doctrine entirely opposite to the foregoing. Their purport is, that a several fishery is (k) There may be a prescription to exclude the lord from pasture in his own soil, but not to debar him from entering upon it to take other profits, as the trees, gravel, &c. (1) In his notes upon Co. Litt. 122 (b), n. 7. See Dy. 267 (b). (m) See the Treatise, pp. 85-101. (n) Loft. 364, Anon. S. P. 2 Chit. Rep. 658. (0) 5 B. & C. 886. See Co. Litt. 122 (a(, n. 7. necessarily incident to the ownership of the soil over which the fishery is exercised. According to this argument, a man could not grant an exclusive right of fishing without passing the soil, although he might still create a free, or common of fishery, by permitting another to fish with him. In a very early case in the Year Books, the writ of monstraverunt was brought for certain land with a common of fishery attached,(p) and as this with other real writs has been occasionally resorted to for the purpose of recovering a piscary, it was supposed that a several fishing could not be separate from the soil. It will not escape notice, that both appendant and appurtenant commons are allied to land, a circumstance which considerably strengthened the argument. Then again, trespass was brought by the Abbot of D. for taking a fish in his common fishery, and as the word "common" here most likely meant a fishery enjoyed in common with another, and so might in truth have been a several fishery, this is prima facie a good case for uniting the soil with the piscary, because trespass being a real writ would of course include the soil.(q) The next case has been much relied on by the advocates for uniting the fishery and the soil. The plaintiff sued in trespass *for an injury [*115] to his several piscary, and the defendant pleaded liberum tenementum. Pigot argued that this was not a good plea, because it might have been that the lessor had granted a several piscary in his own water, and so the freehold would remain in him, although he could not fish. But by Brian C. J.; It seems to me that the plea s good, for there is a great difference between a several and a free fishery, for no man can have a several fishery unless it be in his own soil, but I may grant a free fishery to twenty persons in my own pool. (r) And on a subsequent occasion it was again said, that one might have free fishery in the water of another well enough, but not several.(s) Again, trespass was brought for taking fish in a several fishery, and the plaintiff recovered, no objection being made to the form of the action.() It must be presumed, that the soil belonged to the owner of the fishery. While, on the contrary, judgment was reversed in an action of trespass brought for taking the plaintiff's trouts in a free fishery.(u) This same doctrine, however, received a further confirmation in a case where trespass was brought for taking fish in a free fishery, but in order to understand the case clearly with reference to that last mentioned, it (p) 40 E. 3, 45. (7) 4 H. 6, 11, pl. 7, and see Bract. lib. 4, c. 45, s. 4, who speaks of the writ quod permittat, as brought for a common fishery, and F. N. B. 123, quod permittat for a free fishery. See also Schultes, p. 47. (r) 17 E. 4, 6, pl. 5. 18 E. 4, 4, pl. 24. S. C. Sembl. S. P. 10 H. 7, 24. Id. 28, Semb. S. C.; and see 2 Ro. Rep. 30, by Houghton, J. (8) 7 H. 7, 13. Bro. Tres. pl. 282, cites S. C. (t) Cro. Car. 554, Child v. Greenhill. S. C. Mar. 48. S. C. Sir Wm. Jones, 440. 2 Ro. Ab. 564. (u) 3 Mod. 97, Upton v. Dawkin. S. C. Comb. 11. same. should be premised, that Lord C. J. Holt distinguished a free from a common fishery. After verdict for the plaintiff, it was moved to arrest the judgment on the same principal which prevents a commoner from maintaining trespass for injuries done to his common. The Chief Justice, however, would not allow the objection. He said, that there were three sorts of fishery:-1. Several; where the party was owner of the soil, and so liberum tenementum was a good plea; 2. Free; where the grantee had a property in the fish, and he might bring his action for them without making any title; and lastly; Common of fishery, which resembled other commons. And further, the Lord Chief Justice denied the authority of Lord Coke, which we have quoted. Mr. Justice Eyre differed entirely from this, holding, that free and common of fishery were the Dolben, J. was of the same opinion with Holt.(v) It was even held in a subsequent case, by the same very learned Judge, that a free fishery implies a right in the *soil. Trespass was brought for [*116] fishing in a several and free fishery. The jury found for the defendant as to the several, and for the plaintiff as the free fishery. The locus in quo was part of the manor of D., and the plaintiff was lord of that manor, and the question was, whether one might have a free fishery in his own soil. By Holt C. J. The owner of the soil may perhaps have liberty of fishing; trespass lies not for hindering a commoner of his common; bringing trespass for fishing in libera piscara, seems to imply a right in the soil.(w) In his own report of this case, he says that a separate and free fishery are all one ;(x) that by the grant of fishery the soil passes; that where the owner of the soil has a right to fish with others, he may have an an action of trespass; which, however, does not lie for him who has a mere liberty to fish; and that, in the absence of proof to the contrary, such a fishery should be intended the plaintiff's several fishery.(y) Then, lastly, in a case where a pauper had rented the fishing of a pond' with the spear, sedge, moss and rushes growing there, for 10l. a-year, provided he supplied his lessor's house with fish, the Court held, that a settlement had been gained, because the fishery and the soil should be intended to have passed together.(z) And by Buller, J.: «The fact of letting a fishery is sufficient, and we must presume that the soil passed along with it: though I am by no means ready to allow, that if it had been any other kind of fishery, it would not have given a settlement."(a) Mr. Justice Ashurst said, "There is no doubt but that a fishery is a tenement. Trespass will lie for an injury to it, and it may be recovered in ejectment."(b) (v) 2 Salk. 637, Smith v. Kemp. S. C. 4 Mod. 187. S. C. Holt's Cases, 322. S. C. Skin. 342; and see 2 Keb. 178, Rex v. Wetwine. S. C. 1 Lev. nom. 203, Rex v. Wetwang. (w) Comb. 433, Gipps v. Woollicot. S. C. Id. 464. S. C. 3 Salk. 290. 360. (x) See, however, 19 E. 4, 4, pl. 13, by Schard, where several and free fishery are distinguished. (y) Holt's Cases, 323, Gipps v. Woollicot. (2) 1 T. R. 358, Rex v. Old Alresford Inhabitants. (a) Id. 361. (b) Ibid. |