With respect to a right of several fishery in a navigable river, it has been already treated of in the former part of this Chapter. (v)

We have already seen, that fresh rivers belong to the owners of the adjacent land; it follows from hence, that they have the fishery also of common right. Each proprietor is entitled to the profit, usque ad filum aqæ; and, on the other hand, if a party have the land on both sides of the river, he becomes, in common presumption, the owner of the right of fishing according to the extent of the land in length.(w)

But, again, this ordinary enjoyment of the river may be different, for a man may have the river, and others the adjacent soil; or one may have the river and soil, and a second the free or several fishery.(x)

It is impossible to enter upon the consideration of a free fishery, without the presence of many difficulties. Indeed, the explanations and definitions of this right are as variable, and nearly as numerous, as the points of the compass. Sometimes a free fishery is confounded with a several, sometimes said to be synonymous with a common, sometimes treated as distinct from either; and again we find it mentioned as a royal [*123] franchise. Yet, notwithstanding the diversity of opinions, and the discrepency of authorities, it seems, that to consider the free fishery as the same with common of fishery, will be a reasonable as well as a legal conclusion. It is curious also to notice how well the subject when dispassionately investigated will admit of this interpretation.

In one of the earliest cases, trespass was brought against the defendant, for disturbing the free fishery of the plaintiffs in the waters of T., in a place called G. It was immediately objected, that trespass would not lie for an injury committed in alieno silo. But the counsel for the

plaintiffs answered, that they had not claimed common of fishery, but general fishery; and that a man might have that and general pasture also, in his own soil. And the Court directed the defendant's counsel to answer, saying that the plaint was good enough, without mentioning in whose soil the nuisance was committed; and that advantage might be taken subsequently of any error respecting the statement of property in the soil. (y) Now, in the above case, it is impossible not to see that free fishery was confounded with a several or exclusive fishery; for non con. stat, that because the water belonged to T., he might not have granted it to the plaintiffs; and in those days it was customary to shew title, instead of declaring as at present upon the possession. In another case in the same reign, where trespass was brought for fishing in a free fishery, the defendant prayed in aid the owner of the soil, who seemed to be the plaintiff; and then, again, the term free was confounded with several or

(v) Ante; and see as to ancient demesne, 40 E. 45. Chitty on Fisheries, 304. (w) Hale de Jure Maris, p. 6, cites Baker v. Hercy, temp. Ed. 1. Owen v. Dunch, vide Tr. 2 Jac. 1 B, R.

(x) Ibid.

(y) 4 E. 3, 48.

territorial fishery.(z) The case in the Year Book of Ed. 4, referred to in a former page,(a) in which it was said, that a man may grant a free fishery to twenty in his own soil, discloses nothing inconsistent with this idea, that this free fishery would have been a common of fishery.

Subsequent authorities, when impartially considered, tend to the same conclusion. Thus the judgment of the Court in Child v. Greenhill, (b) proceeded on the ground that the fish had been taken from the several, and not the free fishery of the plaintiff. It was an action of trespass for taking fish. While in Upton or Upjohn v. Dawkin, (c) the judgment was reversed, where the plaintiff had obtained a verdict in trespass for taking

*trouts from a free fishery, because a man has not such a property [124]

in a free fishery, as to call the fish his own.

In other cases which are referred to in the note, there were counts both for a several and free fishery, (d) so that it could not be distinctly ascer tained whether the verdicts applied to the one or the other in particular: Then, again, upon another occasion, the declaration charged a trespass in the plaintiff's free fisheries; the defendant pleaded not guilty, and that the fisheries were parcel of a public navigable harbour or creek. The plaintiff protesting that they were not parcel, replied, that he was seised in fee of the Manor of Bohurra, and then prescribed for a free fishery there in right of his manor. A verdict was found for the plaintiff on the general issue, but on the prescription for the defendant. The Court considered that the issue found for the defendant went to the whole of the case. The Court said, that this resembled the case put in argument at the bar, where to an action of trespass q. c. f., the defendant pleads not guilty, and liberum tenementum of A., by whose command the defendant entered. The replication deduces a title to the plaintiff under A., which derivative title is traversed and found for the defendant; in which case the plaintiff cannot be entitled to costs, because the issue found for the defendant goes to the whole (e) Here the soil in which the the free fishery was claimed, was clearly in another person, and might, therefore, be enjoyed in the same manner as a common. For, now that we are on the subject of common, it may be necessary to observe, that a common of fishery is by no means confined to places where there is a lord of a manor, under whom the tenants of the manor enjoy their respective commonable privileges. These are common lands which a number of persons depasture co-extensively and promiscuously, and these individuals are said to exercise commonable rights, although their property is not situate within any manor. And so if a grant be made to twenty persons

(2) 45 E 3, 11; and see 3 H. 4, 12.

(a) 17 E. 4, 6, ante, p. 115. To the same effect is 7 H. 7, 13.

(b) Cro. Car. 553.

(c) 3 Mod. 97. Carth. 285, cited there. Peak v. Turner cited in the margin of Carth. 286, S. P. Same case with Peck v. Turner, mentioned in 20 Vin. Ab. 442, pl. 11, in the notes.

(d) 2 Mod. 67, Wine v. Ridder and others. 2 H. Bl. 182, Richardson v. the Mayor and Commonalty of Orford. 1 Campb. 509, Rogers v. Allen.

(e) 11 East, 263, Vivian v. Blake and others.

to fish in the soil of another, it might well be called a common of fishery, upon the same principle that the proprietors of common fields are said to enjoy a mutual benefit of that nature when they intercommon together. It might be said, that the commoner is compellable to expend the fish he takes for the sustenance of his family, according to the rule regarding estovers, turbary, &c.; and a free fishery would so far differ from the other, as that the owner of the free fishery might sell or dispose of his fish as he might think fit. This obligation on the commoner, however, is not fully settled; but admitting it to be so (and it is certainly a *very reasonable rule,) there may surely be a common of fishery [*125] entirely independent of a manor; for where several persons are found in the possession of a right of fishery co-extensively with each other, the law must call such an user an intercommoning.

Lord Mansfield seemed to consider the right of free fishing, in Seymour v. Lord Courtenay,(ƒ) as a co-extensive right; and if it be objected that all rights of common are not so ample, it should be recollected, that there are commons without stint; and that if one have a right to pasture or other profit in an equal degree with the grantor, which may be conceded to him provided no injury be done to the other tenants of the manor, this person would have no less than a common without stint. Then, on the other hand, there are stinted commons, as for one hundred sheep, &c. ; and so if the owner of a fishery were to grant to another the right of taking one hundred fish at a certain season, that might be called a stinted common of fishery.

But in the case of Smith v. Kemp,(g) which has been already referred to, the opinion of Chief Justice Holt is certainly at variance with the definition we have attempted to establish. For it is said, that libera piscaria is where the right of fishing is granted to the grantee, and then such a grantee has a property in the fish, and may bring a possessory action for them, without making any title. This decision is said to have overruled Peak v. Tucker; (h) and if so, Upton v. Dawkin is likewise shaken by it. But shortly afterwards the Lord Chief Justice held, that a man might have a free fishery in his own soil; as, for instance, that he might have a river in his own manor, and another have a right of fishing there with him ;(i) and, therefore, upon these inconsistent opinions, we may be justified in saying, that the above determinations are still entitled to respect. And it may be further remarked, that as he alone who has a several or territorial fishery can with justice be considered as having a property in fish before they are caught, it is probable that the first opinion of Lord Holt would apply to an exclusive fishery, granted independently of the soil; (k) and with respect to the second, the right of

(f) 5 Burr. 2816; and see 2 Sid. 8.

(g) 2 Salk. 637. 20 Vin. Ab. 442, pl. 11.

(h) Cited Carth. 286, in the notes.

(i) 3 Salk. 291. 360, Gibb v. Woolliscott. S. C. With Gipps v. Woollicot, cited

ante.

(k) But as the Chief Justice denied that a several fishery could exist independently of the soil, we cannot understand him to have intended an interpretation of

free fishery in a man's own soil, might either *be understood to mean his territorial fishing, or a reservation of a certain limited right in a grant of several fishery to another.(?)

[*126]

It is therefore suggested that a free fishery is no other than an unlimited common of fishery.

The explanation given by Mr. Justice Blackstone of this right, varies from that which has been just mentioned. That learned and elegant commentator distinguishes a free fishery from other rights of a similar nature. He observes, that it is an exclusive right of fishing in a public river, and that it is also a royal franchise, and considered as such in all countries where the feudal polity has prevailed. The Judge differs it from a several fishery, by connecting the ownership of the soil with the latter; and from a common of fishery, because it is an exclusive right, while the common is not; and then, he adds, that a man has a property in the fish before they are caught, which is not the case in a common of piscary. "To consider such right," he proceeds, "as originally a flower of the prerogative, till restrained by Magna Charta, and derived by royal grant (previous to the reign of Richard I.,) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed.(m)

Having already mentioned Mr. Hargrave's opinion upon the subject of several fishery, we will insert his comment upon this illustration of the learned Judge. "Though for the sake of distinction, it might be more convenient to appropriate free fishery to the franchise of fishing in public rivers by derivation from the Crown; and though in other countries it may be so considered, yet, from the language of our books, it seems as if our law practice had extended this kind of fishery to all streams, whether private or public; neither the register nor the books professing any discrimination.(n)

After the foregoing observations, we have but little to add concerning the common of piscary. Indeed we have endeavoured to treat it as the same with free fishery; but as there is no modern decision which can warrant us in uniting them, however reasonable the junction might be, the cases which speak more particularly of such a common have been reserved for this place, and for other Chapters in which it will be found necessary to treat of such a right.

*A common of fishery is defined to be a right in common with certain other persons in a particular stream.(0) The plaintiff

[*127]

this kind. His opinion, however, might be made to correspond with Sir William Blackstone's definition, namely, the exclusive right of fishing in a public river.

(1) See 5 Burr. 2817.

(n) Note to Co. Litt. 122 (a).

(o) 8 Taunt. 187, by Dallas, J. 2 Comm. 34.

(m) 2 Comm. 39, 40.

complained that the defendant had taken fish in his several water. Thè defendant justified, as having a common of fishing in the place, where, &c. appendant to a certain house and land, and the Court held his plea to be good.(n)

This common which chiefly exists in manors, was given for the sustenance of the families of the tenants, resulting, like other commons, from the necessity of maintaining and carrying on of husbandry.(o) It may be appendant, appurtenant, or in gross, and in this respect also it agrees with other commonable rights.

The season for enjoying this privilege, and the mode of using it, will be more particularly noticed in a subsequent Chapter.(p) It should, however, be observed, that commoners cannot exclude the lord from fishing without a special immemorial prescription, and that he cannot be absolutely shut out from his own soil; although, upon proof of such a claim of monopoly, the lord may certainly be prevented from taking the fish.(g) And, on the other hand, the commoner has no power over the soil itself, so that his remedy against the lord for disturbing him in the enjoyment of his right, is by action only, and not by abating a nuisance. To use the words of Inglefield, T. "If I have a common of fishing in your land, I cannot cut down the plants growing by the bank."(r)

Fourthly, and lastly, a fishery in gross is mentioned in some of our books as a distinct right. Yes it does not seem very difficult to refer this privilege also to the more general sorts, either of several or common of fishery. For if it be granted to a person exclusively of others, what is it but a several fishery; and if in common with other individuals, how does it differ from a common in gross, which is attached to the person in con. tradistinction to appendancy? Being an incorporate hereditament, it cannot be created without deed; and it should be remarked, that if a common of pasture be thus granted over, the character of the right is not altered, for it remains a common, notwithstanding the deed.

*However, this right in gross has found a place in some of the

[*128] early cases. For instance, where a piscary of common right of ap

pendant was pleaded in bar to trespass for taking fish in a several fishery, Danby said, common of pasture appendant, and common of piscary in gross, are used the one as well as the other.(s) So again, it was said, that the royal fishery of the Banne was not appurtenant, but a fishery in gross, and parcelof the inheritance of the Crown.(t)

There are, as we have already seen, many limited rights of fishing, but these have never been deemed sufficiently distinct to receive a separate

(n) 4 E. 4, 29.

(o) 2 Comm. 35.

(p) Chap. VIII. on User.

(9) See 2 Ro. Ab. 267, White v. Shirland; Chinnery v. Fisher; Foiston v. Cratchrode.

1 Inst. 122 (a).

(r) 13 H. 8, 15.