The Labrador Boundary


Privy Council Documents


Volume V
Contents




[1891.]

[1780.]

[1670.]

[1862.]

[1882.]


p. 2152N



THE EXTENT OF THE PUBLIC RIGHT OF FISHERY.

No. 911.

EXTRACTS FROM CASES. 1670—1891.



EXTRACTS FROM SMITH v. ANDREWS.
(1891) 2 Ch. D. 678, 692, 693.

NORTH J. The Plaintiff's title having been thus challenged she has thought it necessary or desirable to prove it from the earliest times. I do not quite understand why this course had been adopted. It would certainly have been necessary if that portion of the Thames now in question had been affected by the ebb and flow of the tide as well as been navigable, for then the bed or soil of the river would have been in the Crown and the right of fishing in the public unless the Plaintiff could have made out a valid title to the fishery based upon some grant by the Crown antecedent to Magna Carta. But it is not suggested in this action that the Thames, in which we know that in Lord Hale's time long before Teddington Lock was built the tide was not felt above Kingston, was ever tidal at the part now in question



EXTRACTS FROM THE KING v. SMITH.
[1780] 2 Douglas 441, 444.

. . . . The case was argued by Erskine for the prosecution and Hunter for the Defendants. . . .
Hunter insisted . . . the sea did not properly flow above London Bridge. The tide beyond that limit was occasioned by the pressure and accumulation backwards of the river water. Therefore the soil there did not belong to the Crown. . . .

Lord Mansfield told Erskine it was unnecessary for him to reply. His Lordship said the distinction between rivers navigable and not navigable, and those where the sea does or does not ebb and flow was very ancient but that what Hunter contended for, viz. a distinction between the case of the tide occasioned by the flux of sea water, or by the pressure backwards of the fresh water of a river, seemed to be entirely new, and that there were no facts set forth in the case which let in the consideration of that distinction. That the case did not state whether the water when the tide rises at Richmond is fresh or salt, but that it rather took it for granted that it is salt, describing the Thames generally as a navigable river.

p. 2153

LORD FITZWALTER'S CASE.
1 mod. 105.

A trial at Bar concerning the river of Wall-Fleet : the question was whether the Defendant had not the right of fishing there exclusive of all others.

HALE C.J. In case of a private river the lord's having the soil is good evidence to prove that he hath the right of fishing and it puts the proof upon them that claim liberam piscariam. But in case of a river that flows and reflows, and is an arm of the sea, there, prima facie, it is common to all : and if any will appropriate a privilege to himself, the proof lieth on his side ; for in case of an action of trespass brought for fishing there it is prima facie a good justification to say that the locus in quo is brachium maris in quo unusquisque subjectus dom. Regis habet et habere debet liberam piscariam. In the River Severn there are particular restraints as gurgites etc., but the soil doth belong to the lords on either side : and a special sort of fishing belongs to them likewise ; but the common sort of fishing is common to all. The soil of the River of Thames is in the King ; and the Lord Mayor is conservator of the river, and it is common to all fishermen : and therefore there is no such contradiction bewixt [sic] the soil being in one and yet the river being common for all fishers, etc.



EXTRACT FROM MALCOMSON v. O'DEA.
[1862] 10 H.L.C. 593.

Mr. Justice Willes delivered the unanimous opinion of the Judges.
. . . Some discussion took place during the argument as to the proper name of such a fishery, whether it ought not to have been called in the pleadings (following Lord Blackstone) a “free” instead of a “several” fishery. This is more of a confusion which the ambiguous use of the word “free” has occasioned from a period as early as that of the Year Book of 7 H. 7 P. f o. 13 down to the case of Ho/ ford v. Bailey, 13 Q.B. Rep. 426, where it was clearly shown that the only substantial distinction is between an exclusive right of fishery usually called “several” sometimes “free” (used as in free warren) and a right in common with others usually called “common of fishery” sometimes “free” (used as in free port).



EXTRACT FROM PEARCE v. SCOTCHER.
9 Q.B.D. 162.

CASE STATED BY JUSTICES FOR DENBIGH UNDER 20 & 21 VIC. CAP. 43.

1. . . . A complaint was heard . . . . upon an information preferred by a river watcher against the Defendant charging that he . . . . at the Parish of Ruabon by angling . . . . unlawfully and wilfully did attempt to

p. 2154

take certain fish called salmon, then being found in a stream of water there known as the River Dee, wherein Arthur Mostyn Owen and others there had a private right of fishery,. . . . the justices dismissed the information . . . .

5. The River above Eibistock Weir (including the place mentioned in the information) is not tidal nor capable of being navigated except by small pleasure boats or fishing boats called corracles, or barges carrying very light weights ; . . . .

5A. For the purposes of this case, but not otherwise, it was to be taken as a fact admitted by both parties that the River Dee at the place where the respondent fished is a public navigable river and highway for the public to pass and repass in corracles and such light craft as are suitable for such navigation.

10. It was contended on the part of the respondent that the fishing at this place belonged to the public, . . . .

11. It was contended on the part of the appellant that, as the Dee at this spot is not a tidal river, the right of fishery necessarily belonged to the owner of land over which the river ran, . . . .

GROVE, J.I entertain no doubt in this case. It is determined by authority. The cases cited by Mr. Matthews are all uniform and consistent with the rule laid down in Hale de Jure Maris, and by Sir John Davis in The Banne.* Mr. M'Intyre's argument amounts to this,—It being conceded that the public have enjoyed the right of navigating this river at the spot in question, and as navigation is some evidence of ownership of the soil, the right to fish follows. But, to sustain his argument, he must go further, and shew not only that the public have the right stated in par. 5A. of the case, but also that they have a right to take fish from the river at a point where it ceases to be tidal. The cases of Reg. v. Burrow† and Bristow v. Cormican,‡ as explained by Mr. Matthews, do not in reality conflict with the strong current of decisions. The question is not whether the river Dee at the spot in question is more or less navigable, but whether the spot at which the respondent claims the right to fish is within the flow and reflow of the tide. I think it is a perfectly clear case, and that the appeal must be allowed.

HUDDLESTON, B.I also am of opinion that the justices were bound to convict. The whole case is disposed of when you read paragraphs 5 and 5A of the statement. The distinction is clear upon the whole current of authorities in this country and in Ireland, that, where a river is navigable and tidal, the public have a right to fish therein as well as to navigate it ; but that, where it is navigable but not tidal, no such right exists.

Judgment for the Appellant.

* Davis 55† 34 J.P. 53.‡ 10 Ir. Rep. C.L. 398.

[1927lab]


 

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