THE QUEEN v. COX.
(1850-1874) 1 P. E. I. REP. 170.
Fishery reserves—Construction of term “high water mark on the coast” in Township Grants.
The original grants of townships reserved to the Crown five hundred from feet "high water mark on the coast" for the purposes of the fisheries. Under this reservation the Crown claimed sixty nine acres fronting on St. Peter's Bay, and sixty-nine acres on the Morell River, in which th [sic] tide ebbs and flows. A verdict for the Crown was found for the whole. A rule nisi for a new trial was granted on the ground, amongst others, that the reservation clause only applied to land fronting on the open sea, and not to that fronting on tidal rivers. It was contended that the employment of the word "coast" limited the reservation to land fronting on the open sea ; also that in construing the grant regard must be had to the purpose for which the reserve was made, and as it would be of no use for the purpose intended in a tidal river, it could not have been meant to apply to such river.
The Attorney General for the plaintiff.
Held, (Peters, J.) That the clause only applied to land fronting on the open sea.
Mr. Edward Palmer for defendant.
9th March, 1858.
PETERS, J. This was an information filed by the Attorney General for intrusion on land called the fishery reserve. The locus in quo is situated partly on the shore of St. Peter's Bay and partly on Morell river, and forms part of Townships 39 and 40. In 1769 these Townships were granted to Spence & others and Fraser, and in each of these grants is contained the following clause of reservation : "And further saving and reserving for the disposal of His Majesty, his heirs and successors, five hundred feet from high water mark on the coast of the tract of land hereby granted, to erect stages and other necessary buildings for carrying on the fishery." Under this clause the Crown claims sixty-nine acres fronting on the bay, and sixty-nine acres on the Morell river, in which the tide ebbs and flows.
On the trial the jury were directed that under this reservation the land fronting on the bay was excepted and belonged to the Crown, but that fronting on the river was not excepted and passed to the grantee. The jury, notwithstanding, found for the Crown for the whole.
The point now to be decided is, whether the sixty-nine acres fronting on the Morell river is embraced within the reserve. As many of the grants of Township lands in the Island contain a similar reservation, the decision of the question thus raised is one of considerable importance.
In legal construction the term "sea shore" applies to all land over which the ordinary tides flow and reflow, and as, under that definition, wherever a high water mark exists the "sea shore" in contemplation of law, extends, if the words "high water mark," in these grants, are construed as designating both the "sea shore" along which the reservations were to extend, and also
the point on the shore from which the five hundred feet is to be measured, the land fronting on this tidal river would be clearly comprised within the reservation. But the construction of grants, like other instruments, depends on the intention of the grantor, and a knowledge of the nature or peculiarities of the subject matter of the grant is, sometimes, essential in order to ascertain the sense and meaning in which particular words are intended to be used. The reservation in the grants in question is expressed to be made for the purpose of enabling His Majesty to dispose of the lands reserved for a particular purpose, viz., to erect stages and other necessary buildings for carrying on the fisheries. The object in. making this reservation, evidently, was to promote and encourage the development of a great source of national wealth by affording facilities and conveniences to those who might embark in the fisheries. Along the coasts, on the open sea, and also in the bays of this Island, very valuable cod and other fisheries exist, in prosecuting which stages and other buildings, covering a considerable extent of ground, are necessary ; and on those shores, therefore, such a reservation might prove a valuable privilege to fishermen. But the rivers corresponding to the size of the Island are on a diminutive scale, while from the general formation of the country, the tides ebb and flow many miles up all the rivers and almost to the source of many others. We cannot be ignorant of what every one in the country knows, that no fisheries exist in those rivers of a description to require any such extensive reservations for the erection of stages or other buildings in which to carry them on. In fact, in such situations the reservation for fishing purposes would be useless. We must not assume the Crown to have been ignorant of the nature of the country it was granting away, and it seems to us that under such circumstances, the clause reserving a certain space from high water mark on the coast for the purpose of carrying on a fishery must have been intended to apply only to those parts of the Townships popularly known as coast, viz., the shores of the open sea and the bays and inlets of the sea along which only any fisheries existed, for which such reserves could be necessary and that it could not have been meant to extend to rivers where a large extent of ground would then be appropriated to a purpose for which it could be of no practical use.
But it appears to us, without drawing on our local knowledge of the country, the language of the reservation itself when taken altogether, will not bear so extensive a construction as is contended for. The words of the reservation are "five hundred feet from high water mark on the coast of the tract hereby granted." Now if the reservation was intended to extend to all tidal rivers, or to every place where the tide ebbed and flowed, why was the word "coast" used? since the words five hundred feet from high water mark would have extended to all places where a high water mark could be found. If, therefore, the words "on the coast" were not intended to confine the description of the premises reserved within narrower limits than the words "high water mark" would have done, they seem to us to have no meaning, or at most, are mere surplusage but in construing an instrument no words should be rejected if a sensible interpretation can be put upon them. The term coast, in its popular sense is, we believe, applied to the land fronting on the
open sea, or inlets off the sea, or bays, but is never applied to that fronting on rivers. And taking the word in that sense it appears to us, evidently, used to contradistinguish high water mark on what is popularly called the coast from high water mark on the rivers, and to limit the reservation to the former, and prevent its extending to the latter.
On these grounds we think the land fronting on Morell river is not included in the reserve, but passed to the grantee.
Another ground on which a new trial is moved for is, that the verdict is contrary to the evidence in finding for the whole five hundred feet, whereas a considerable portion of it was proved to have been washed away by the encroachment of the sea. There is no doubt that the verdict is contrary to the evidence in this respect. That the sea had encroached to a considerable extent was proved beyond all question, but the evidence as to the extent of that encroachment was conflicting. Some of the witnesses estimated it on the average at one foot, and others at four feet per annum. It was admitted by the Attorney General that whatever part of the five hundred feet had been so lost must be deducted. The jury, however, found for the whole.
On both these grounds, therefore, we think the rule for a new trial must be absolute.
Several other points were raised, but as they were disposed of during the arguments it is unecessary now to advert to them.
BOWIE vs. MARQUIS OF AILSA.
14 COURT OF SESSION CASES (4TH SER.). 649.
Fishings—White fishings—Tidal and navigable river—Acts Anne, 1705, cap. 2, and 29 Geo. II. cap. 23.—A member of the public brought an action against the riparian proprietor concluding for declarator that he had a right to fish with single rod and line for floating white fish, including trout, flounders, eels, and any other sort of floating white fish which were not of the salmon kind, in that part of the river Doon where the tide ebbed and flowed, and as far as the highest point reached by the ordinary spring tides ; and averred that the portion of the Doon so described extended from the sea to a distance of about 500 yards inland. The action was founded both on common law and the Acts of Anne, 1705, cap. 2, and 29 Geo. II. cap. 23, which gave the public right to take "herrings, cod, ling, or any other sort of white fish in all and every part of the seas, channels, bays, firths, lochs, rivers, and other waters where such fish are to be found on the coasts" of Scotland.
The riparian proprietor in defence produced a crown charter of barony,
dated 1793, which contained a clause "cum piscationibus yairis et cruives et salmonum et alborum piscium tam in aquis salsis quam dulcibus," and averred exclusive possession of both the white and the salmon fishings on that title. He further denied that the river was either tidal or navigable beyond a point in line with the line of high-water on the neighbouring coasts, and averred that between the points in dispute floating white fish were not to be found, or at least not in such numbers as to be of any value to the public.
It was proved that no part of the solum of the river for the 500 yards in question was left dry at low water, although the level of the water rose and fell with the flow and ebb of the tide, and was sometimes found to be brackish up to the extreme point claimed by the pursuer. The defender had let the fishings in question for more than forty years previous to the date of the action, and had granted licences to anglers entitling them to fish there, of which the pursuer at one time held one. Eels, small flounders, and also, to some extent, seath and lythe were caught in the water in question ; but the only fish which the defender's tacksmen thought it worth while to keep, were fish of the salmon kind and yellow trout, of which last comparatively few were to be caught. Pleasure parties in rowing boats occasionally went up the river at high tide, but there was a bar at the mouth which was an obstacle to more extended navigation, although it was proved that in former years small smacks and on one occasion a small steamer, had gone a short way up.
Held (rev. judgment of Lord Trayner) (1) that the Doon between the points in question was neither a tidal nor a navigable river, and that the pursuer was not entitled to declarator either at common law or under the satute ; and (2) that the defender under his titles had right to the whole fishings therein, and had had from time immemorial exclusive possession thereof. Defender therefore assoilzied.
It was contended on the part of the pursuer that as long as he confines himself to fishing for white fish, he is entitled to fish anywhere in the river Doon where white fish can be found within the salt water of the sea, and he founds his contention upon two Acts of Parliament of Queen Anne and Geo. II. for the encouragement of white-fishing in Scotland, which certainly give a right to fish for white fish wherever they can be found on the " coasts " of Scotland.
In the first place, I am quite clear that the Acts of Parliament referred to do not affect this case, and are not meant to affect any question about private property in a tidal stream. They are meant to apply to sea-fishings, and to provide protection for the public in carrying on an important article of commerce without interruption. The case of M'Douall, 2 R. (H. of L.)
55, referred to in the Sheriff's note, was a case of that sort, and Lord Cairns' observation was necessarily directed to sea-fishing only. It certainly never was intended to do more than to give a right to the public to fish on the "coasts," as the Act expresses it ; and I do not apprehend that the banks of a river, although subject to tidal influence, come within that description.
LORD YOUNG.—I am of the same opinion. I concur exactly in all that your Lordship has said, and I agree generally with the Sheriff in the opinion expressed by him in the Sheriff Court action. It is quite clear, and I have no doubt about it, that the public have a right to fish for white fish in the sea ; if it were necessary that I should do so, I should say that they have that right irrespective altogether of the Acts of Anne and Geo. II., which were passed to promote the fishing industry in Scotland ; but I agree with your Lordship that the river Doon is no part of the sea. It runs into the sea, but it is not the sea. Nor do I think that it is a river of the kind or class to which the statutes refer. There are rivers in Scotland, as we know, which have estuaries opening out gradually until they really become sea, finishing their course through sand which on either side is uncovered at low water. The Doon is not a river of that kind at all. It is a river with a distinct narrow alveus or channel, very much like a creek, only that it contains fresh water which fills it from bank to bank, and leaves no part dry at any state of the tide.
"The fishing industry of Scotland" is, no doubt, a very general expression, but according to the statutes, taking the later of them, it applies to herrings, cod, ling, or any other white fish, to the fishing for these in the sea, and to taking measures upon the sea-coast for curing them.
LORD RUTHERFURD CLARK.—I am of the same opinion. I am clear that the river Doon between Doonfoot Bridge and the high-water mark of ordinary
spring tides is a private river in all essential respects, and is in no sense a public navigable river. I therefore think that the Acts of Parliament do not apply to it in so far as between these two points, because it is not there a river in the sense of these statutes upon the coasts of Scotland. That being so, I have no difficulty in concurring in the judgments which your Lordships propose to pronounce.