These seem to be the chief authorities in favour of the united possessions. The opinion of the most eloquent commentator upon our laws must be added in support of the same doctrine. Sir William Blackstone observes, that he who has a several fishery must also be [or at least derive his title from](c) the owner of the soil, which in a free fishery is not requisite.(d) Thus the learned Judge distinguishes the several from the free fishery, as we shall have occasion to notice hereafter.

of

*It may not be improper to offer some few short comments on [*117] these opinions and authorities; but before we do this, two cases shall be mentioned where this very point had almost arisen. In the first an action of trespass had been brought for disturbing the plaintiff's right of several fishery. The evidence in favour of the plaintiffs was, that a grant of tht fishery had been made to them from Lord C., with the exception of an oystery. The grantor also reserved to himself the power taking fish for the supply of his own table. Upon this, it was strenuously insisted, that so far from proof having been made of a several fishery, the direct contrary had been shewn; and the objection being considered valid, the plaintiffs were nonsuited. Another exception was also taken, that it did not appear that the soil had been granted to the plaintiffs, supposing that none could have a several fishery excepting the owner of the soil. On the discussion of a motion to set aside this nonsuit, it was argued for the defendants, that this evidence sustained a claim for a free fishery only; that it was not Lord C.'s intention to have granted an exclusive power; and that, as others had a right to fish as well as the grantees, the latter could not be said to have a several fishery. The Court, however, were of opinion, that although true it was that no person could have a co-extensive right with the claimant of a several fishery, yet that a partial independent right, or limited liberty, as in the case in question, would not derogate from the right of the general owner. And the Court, moreover, evaded the question as to the ownership of soil, Lord Mansfield declaring, that it was the grantor's intention to have passed every thing necessary to convey a several fishery to the plaintiffs. As to the reservation of the oystery, it was the same as though the plaintiff had granted the sole right of fishing for oysters to Lord C. And the plaintiffs would have had a several fishery, to all intents and purposes except as to the taking of oysters. This could not be a free fishery, because no one possessed a co-extensive right with the plaintiffs, and there could be no pretence for calling it a common of piscary. Consequently, it was a several fishery; and therefore the rule was made absolute for setting aside the nonsuit.(e) (ƒ)

The point was nearly arising again on a future day.

The plaintiff

(c) The words between brackets were not in the earlier editions of the work. (d) 2 Com. 39.

(e) 5 Burr. 2816, Seymour and others v. Lord Courtenay and others.

(f) If the soil had passed in this instance, the profit of the fishery would have been what we should call territorial; and as there was no proof that the soil did not pass, the particular question did not necessarily press for determination. APRIL, 1853.-9

sued in trespass for fishing in the River Dove, and obtained a verdict He had declared upon his possession of a several fishery, and the defendants had pleaded not guilty, with special justifications. The matter might have been brought *forward on this occasion, because the plaintiff [*118] was not the owner of the soil; but an accident intervened. The defendants had justified, as servants to one C.; and in the first plea, in which C. was mentioned, they had called him the said W. C., although his name had not appeared before on the record. By reason of this mistake, therefore, it became necessary to amend the pleas, in order that the defendants might avail themselves of their justifications. The plaintiff, on this part, was afraid to risk the point, whether an exclusive fishery could in fact exist separately from the soil; and in consequence of this a compromise was made. It was agreed that the cause should be tried as though there had not been a count for a free fishery, and as if the pleas had been amended; and that the pleadings should be amended in the next term, by consent. Thus it was that the point again went off.(g)

A few remarks may be made here on the inefficiency of the arguments and decisions referred to in the last instance.

With regard to the writs of monstraverunt and trespass, which it is said, once lay for the recovery of real property only, to which may be added the old writ of præcipe quod reddat; (h) it by no means follows, that because they can be had in cases where a piscary is united to the soil, they may be so used upon every claim of a several piscary. On the contrary, we are informed, that if a praecipe quod reddat be brought for a piscary in the water of another person, it will be a bad writ, because a quod permittat should be employed as the proper remedy.(i) Therefore, as other than real writs would lie for a fishery, and as it is no where said that quod permittat might not have been had for a several fishery, it is fair to conclude, that upon the occasions when these real actions have been brought, the piscaries in question were identified with the soil. That the soil has been frequently joined with a several fishery, in writs, is one consideration; but that a several fishery has never been demanded in any other manner, is obviously quite another. Finally, to use the words of Mr. Hargrave, this evidence of the writs "proves nothing as to the sense of several piscary, without farther explanation."(k) The cases of Child v. Greenhill, and Upton v. Dawkin, may be disposed of by the same reasoning; for the soil of the plaintiff, together with the fishery, were probably combined in the former case, and non constat that if the fishing had been detached from the soil, trespass could have been sustained. *Then, with regard to the authorities in the Year Books,

[119] it is certainly laid down in those of the reigns of Edw. 4, and H. 7,

above referred to, that a man cannot have a several fishery unless it be

(g) Dougl. 56, Kinnersley v. Orpe and others. See also 1 M. & S. 652, Rex v. Ellis, where the question was again alluded to.

(h) Now abolished.

(i) See Mr. Hargrave'n note (7) to Co. Litt. 122 (a)

(*) Note to Co. Litt. 122 (a), ut supra.

in his own soil: but on the other hand, in answer to this, we have cited cases from the Year Books, where the Judges allowed a replication of prescription to a plea of liberum tenementum. Now, as the action was trespass for fishing in a several fishery, a prescription would necessarily have been for a right in alieno solo; and however the form of action was misconceived, such a course of proceeding clearly recognises the several right, independently of the soil.

Smith v. Kemp, and Gipps v. Wallicott, it must be admitted, are likewise decisions against the severing of the fishery from the soil. Yet even upon those occasions, Holt, C. J., seems to have entertained two different opinions as to what should be deemed a free fishery; while Mr. Justice Eyre gave an entirely opposite judgment. And with respect to the King v. Old Alresford, it seems to prove no more than what might be readily admitted; namely that the ownership of a fishery will imply a property in the soil, without further explanation.

The Author has forborne as much as possible from venturing on any suggestions of his own; and as the opinions of the most eminent law writers and Judges are by no means in unison upon the subject, it would be presumptuous in him to do so. By a proper method of pleading, the question will be always evaded, unless a jury should find for a plaintiff who is not owner of the soil, upon the count of a several fishery only; and it will be time enough then for the Court to decide between authorities which are pretty nicely balanced. Circumstances have occurred, however, under which it has become necessary to ascertain whether the soil has passed independently of the question of fishery. Thus, trespass was brought for breaking and entering the plaintiff's closes, and taking shingle and stones from them. The defendant pleaded not guilty, and gave a deed in evidence by which it appeared that certain persons therein named had granted to him all that messuage, tenement or boat-house, with the gardens, stables, &c.; and also all that and those sea-grounds, oyster-layings, shores, and fisheries, &c.; with full and free liberty to fish, dredge, and lay oysters thereon. The question merely was, whether these words comprehended the soil. The plaintiff contended, that a mere casement or privilege was conveyed without more. The defendant, on the contrary, maintained that the instrument passed the soil to him; and of that opinion was the whole Court. For, generally speaking, the soil passes by the word "grounds;" and if the grant had only contained the word "sea-grounds," it would have been sufficient. It had been agreed, however, that by introducing the expression

* oyster-layings," a privilege of laying oysters was intended to [*120] pass, and that alone. Those additional words, however were probably introduced because the grantor was uncertain as to the nature of the right which he had actually derived from the Crown. So also, with respect to the word "fishery," it was inserted to remove all doubt as to the extent of the right granted. The additional words, therefore, were intended as words of amplification, and not as words of restriction.(?)

(1) 4 B. & C. 435, Scratton v. Brown.

Stripped of the difficulty which has been mentioned concerning it, a several fishery is, as its nature imports, an exclusive property. Not but that the territorial owner, or his grantee, or lessee, may give permission to another person to fish, and yet preserve the several fishery; an owner of the above description would still remain seised of his original estate or right, and he would be the several proprietor, although he should suffer a stranger to use a co-extensive or qualified right of fishing with him.

Nevertheless, we are at length in a condition to assume a more certain position as to this much disputed claim.

The point may almost be considered as decided in favour of the independent right. Since the above was written the Court of Queen's Bench nearly decided this much agitated point, and they intimated a strong opinion upon the subject, but they decided against the plaintiff upon a question of pleading. Upon this, error was brought, and the matter seems to be set at rest by the Court of Error. The case was thus: Trespass was brought and declaration stated, that the defendant with force and arms broke and entered the sole and exclusive fishery of the plaintiff, being the soil of A., and disturbed the plaintiff's fish. It was urged that trespass does not lie for an injury to a several fishery on the soil of a third person [which was, in effect, raising the point, because, if decided in the affirmative, a several fishery may exist independently of the soil.]

The Court inclined to hold that it would so lie, thus affirming the claim, and whether any fish were or not taken. But a difficulty occurred. The declaration had called this the sole and exclusive fishery: this the Court said was not equivalent to the several fishery, and, therefore, the judgment for the plaintiff was arrested. The plaintiff's counsel had. also endeavoured to maintain, that after verdict, this might be taken to be a declaration in case, but the Court would not entertain the proposition.(m). However a Court of Error reversed this judgment. [*121] *They considered the expression, "sole and exclusive," to be equivalent to "several" in respect of the right of fishery, at least after verdict. For the plaintiff must have proved his case at the trial, as to the exclusive right. And they agreed, that trespass would lie though no fish were taken, and they said the plaintiff need not shew further title, notwithstanding that the declaration had stated the several fishery, or, sole and exclusive fishery, in alieno solo; for there was no warrant to shew that the defendant claimed under the owner of the soil. And they moreover agreed with the Court of Queen's Bench that this declaration must be considered as not in case but trespass.(n)

This property in fish usually exists in rivers; but it may be had else

(m) 8 Q. B. 1000, Holford v. Bailey. S. C. 16 Law J., Q. B. 68. (n) 18 L. J., Q. B. 109, Holford v. Bailey, (in error).

where; for a man's stew-pond may be his several piscary; and so it was held in a case where, after verdict for the plaintiff, it was objected that the plaintiff had called the fish of his several fishery pisces sous. But the Court disallowed the motion in arrest of judgment, observing, that they would intend, after verdict, that the place was a stew-pond, which is a man's several piscary, and that even had the matter arisen upon a demurrer the decision would have been the same, by reason of the local property.(0)

It is laid down, that any man may erect a fish-pond, or water wherein fish as kept and maintained, it being a matter of profit, and increase of victuals;(p) and in an anonymous case, Holt, C. J. is reported to have said, that there needs no privilege to make a fish-pond, as there needs in case of a warren.(9) But the lord of a manor would not be justified in making such a store-place for fish, if he thereby disturbed the commonable rights of his tenants.(r)

A question once arose respecting the fish in a stew-pond, whether the heir or executor should have the property. A man bought several carp, tench, trout, &c., and put them in his pond for store, and then died. The Court decided, that the heir should have the fish. Clench, J., irclined to think that the fish were mere chattels, and passed to the executor; but Popham, C. J., replied that it might be so of fish in a trunk, or some *narrow place, where they are put to be taken at [*122] will, but not where they are put into a pond; and Fenner, J., cited an old case, where an action of waste lay against a guardian in chivalry, for taking fish out of a pond by Magna Charta. (s) It has also been allowed for law, that one may have an action of account for fish in a pond.(t)

An action for use and occupation will lie for a fishing. Upon such an occasion, after a plea of non-assumpsit, it appeared that an agreement had been made with the defendant for a right to angle only. It was then objected that this was not within the description of "lands, tenements, or hereditaments" mentioned by the statute, 11 Geo. 2, s. 19. It was a mere personal right and consequently, there should have been a non-suit. But the Court said, there was no distinction, that it mattered not, and they sustained the plaintiff's verdict.(u)

(0) 1 Ventr. 122, Pollexfen and Ashford v. Crispin. S. C. 2 Keb. 757. 765, nom. Ashford and Polixphen v. Chrispen. S. P. Cro. Car. 554, Child v. Greenhill. Though it was said in the case cited in the text, according to Keble's Report, that Greenhill's case had been considered spurious in the Common Pleas. Saywell v. Thorpe, cited 2 Keb. 757. The Court, however, as we have seen, paid no regard to the suggestion.

(P) 2 Inst. 199.

(9) 6 Mod. 183, Anon.

(7) See Cro. Car. 495, Reeve v. Digby.

(8) Ow. 20, Greye's case; and see 21 H. 7, 26.

(t) 10 H. 7, 6. 30. Ow. 20, per Fenner J.

(u) 18 Law J., Exch. 315, Holford v. Pritchard. S. C. 3 Exch. 793.

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