p. 2164N



No. 916.


EXTRACTS FROM MOORE ON FISHERIES (1903), Ch. X1X.


In tidal waters, estuaries, and arms of the sea below the high water mark of ordinary tides situate within the limit of the kingdom, as fixed by the Territorial Waters Jurisdiction Act, 1878, the public, as subjects of the realm, have the right to fish to the exclusion of the subjects of all foreign powers, except in such parts of those tidal waters as have been legally appropriated as private fisheries. In such parts, so legally appropriated and granted to a subject, no public right exists, or can exist, and can be acquired by the public by user, however long existing ; and such parts being put in defence as against the public are in the same condition as regards any public right of fishing as the non-tidal waters.



The limit seawards of the public right exclusive of subjects of foreign states is the limit of the kingdom as fixed by the Territorial Waters Jurisdiction Act, 1878 ; the limit landwards, where the public right ends and the private right of owners of non-tidal fisheries commences, has given rise to much discussion. In non-tidal waters, viz., in rivers and lakes, ponds, canals, and artificial watercourses, the public have not, and cannot acquire by any means, a right to fish as members of the public. The right of the public depends wholly upon the existence of tidal influence at the spot in question. Notwithstanding that the river or water may have been navigable and navigated from time immemorial, if it is not also tidal there can be no right in the public to fish, not even when it is proved that they have so fished from a period beyond the time of living memory.
 There was formerly an erroneous impression that where a river was a public navigable river, although not tidal, the public had a prima facie right to fish. It was, in fact, contended that the navigability of the river imparted the public right, and that it was not necessary that the river should be also tidal. In one case, the claim of the public to fish was made as to the river Itchen, a non-tidal river made navigable by means of a canal system. The point has been definitely decided, and is summed up by Grove, B. and Huddleston B., thus : “The distinction is clear upon the whole current of authorities in this country and in Ireland that when a river is navigable and tidal the public have a right to fish there as well as to navigate it ; but that when it is navigable but not tidal, no such right exists.”*

* Pearce v. Scotcher, [1882] 9 W.B.D. 162. See p. 2153.

p. 2165

It is therefore now settled law that the right of the public to fish depends upon the water being tidal and not comprised within the limits of any several fishery. This is founded on the theory that the soil of the sea and tidal water up to the flow of the ordinary tides, as settled by the case of Att.-Gen. v. Chambers, * is prima facie vested in the Crown, and the right of the public is co-extensive with and depends upon the limit of the prima facie right of the Crown to the soil covered by the tidal water.



No. 917.N

EXTRACTS FROM
ATTORNEY GENERAL FOR BRITISH COLUMBIA

v.
ATTORNEY GENERAL FOR CANADA.



1914 A.C. 153.

Appeal by special leave from a judgment of the Supreme Court (February 18, 1913) answering questions referred for hearing and consideration.
****
VISCOUNT HALDANE L.C. . . . . The general principle is that fisheries are in their nature mere profits of the soil over which the water flows, and that the title to a fishery arises from the right to the solum. A fishery may of course be severed from the solum, and it then becomes a profit à prendre in alieno solo and an incorporeal hereditament. The severance may be effected by grant or by prescription, but it cannot be brought about by custom, for the origin of such a custom would be an unlawful act. But apart from the existence of such severance by grant or prescription the fishing rights go with the property in the solum.
The authorities treat this broad principle as being of general application. They do not regard it as restricted to inland or non-tidal waters. They recognize it as giving to the owners of lands on the foreshore or within an estuary or elsewhere where the tide flows and reflows a title to fish in the water over such lands, and this is equally the case whether the owner be the Crown or a private individual. But in the case of tidal waters (whether on the foreshore or in estuaries or tidal rivers) the exclusive character of the title is qualified by another and paramount title which is prima facie in the public. Lord Hale in his De Jure Maris in a passage cited with approval by

* [1859] 4 De G. & J. 55.

p. 2166
Lord Blackburn in his judgment in Neill v. Duke of Devonshire* states the law as follows : “the right of fishing in this sea” (i.e. the narrow seas adjoining the coasts) “and the creeks and arms thereof, is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river . . . But though the King is the owner of this great waste, and as a consequence of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof, yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty.”
****
Their Lordships are in entire agreement with him on his main proposition, namely, that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them.
****
These considerations enable their Lordships to answer the first question, which reads as follows:—
“Is it competent to the Legislature of British Columbia to authorize the Government of the Province to grant by way of lease, licence, or otherwise the exclusive right to fish in any or what part or parts of the waters within the railway belt—(a) as to such waters as are tidal, and (b) as to such waters which, though not tidal, are navigable ?”
The answer to this question must be in the negative. So far as the waters are tidal the right of fishing in them is a public right subject only to regulation by the Dominion Parliament. So far as the waters are not tidal they are matters of private property, and all these proprietary rights passed with the grant of the railway belt, and became thereby vested in the Crown in right of the Dominion. The question whether non-tidal waters are navigable or not has no bearing on the question. The fishing in navigable non-tidal waters is the subject of property, and according to English law must have an owner and cannot be vested in the public generally.
****
The principles above enunciated suffice to answer the third question, which relates to the right of fishing in arms of the sea and the estuaries of rivers. The right to fish is in their Lordships' opinion a public right of the same character as that enjoyed by the public on the open seas.

* A.C. 135, 177.

[1927lab]


 

Partnered Projects Government and Politics - Table of Contents Site Map Search Heritage Web Site Home