II. Of the different Kinds of Fishery. Several Fishery, p. 824. Free Fishery, p. 825. Common of Fishery, p. 827. "In A several fishery is where a person has an exclusive right of fishery, either in his own soil or in the soil of another (g). order to constitute a several fishery, it is requisite that the party claiming it should so far have the right of fishing independently of all others, as that no person should have a co-extensive right with him in the object claimed. But a partial independent right in another, or a limited liberty, does not derogate from the right of the general owner" (h). He who has a several fishery is not necessarily the owner of the soil (i); but as the exclusive right of fishing is an incident to the ownership of the soil, it will be presumed, until the contrary be shown, that such right resides in the owner of the soil (k). Trespass lies for an injury to a right of several fishery (1): it is a good plea that the soil and freehold belong to the defendant. To this, however, the plaintiff may reply title to the several fishery, either by prescription or grant, thereby rebutting the presumption of the right of several fishery being still vested in the owner of the soil (m). The description of such a fishery "as a sole and exclusive fishery," is sufficient, and equivalent to that of a several fishery (n). Where a subject was owner of a several fishery in a navigable river, where the tide flows and reflows, which fishery had been granted to him before Magna Charta, by the description of separalis piscaria; it was held, that it was an incorporeal and not a territorial hereditament, and that a term for years in it could not be created without deed (o). If a person be seised of a river, and by deed grant a several fishery in the same, and makes livery of seisin secundum formam carta, the soil does not pass; and if the river becomes dry, the grantor may take the benefit of the soil, for a particular right only passed to the grantee (p). A prescriptive right to a several fishery in a navigable river may pass as appurtenant to a manor (q). right of fishery is divisible, and may be abandoned as to part, while another part is preserved. Hence, an exclusive right to dredge for oysters may subsist as appurtenant to a manor, although (g) Fitz. Abr. Barre, pl 27, cites M. 20 Hen. VI. 4. (h) Per Ld. Mansfield, C. J., delivering the resolution of the court, Seymour and others v. Lord Courtenay and others, 5 Burr. 2814. (i) Hargrave's Note, Co. Litt. 122, a. n. (7). (k) See 5 B. & C. 886. (1) Holford v. Bailey, 13 Q. B. 426; S. C. (in error) 18 L. J., Q. B. 109. (m) 17 Edw. IV. 6, b; 18 Edw. IV. b. Per Paston, J., 18 Hen. VI. 30, a.; Fitz. Abr. Barre, pl. 20, S. C. See also Holford v Bailey, supra. (n) Holford v. Bailey, supra. (0) Duke of Somerset v. Fogwell, 5 B. & C. 875. (p) 1 Inst. 4, b. But see Hargrave's note. (9) Rogers v. Allen, 1 Campb. 309. it be lawful for all the king's subjects to catch floating fish therein. Trespass for breaking and entering his close, and fishing in separali piscaria suâ, and for taking pisces suos. After verdict, exception was taken to the declaration in arrest of judgment, because it is said pisces suos. But the court were of opinion, that being in separali piscaria, it might well be said pisces suos, because they could not be taken by any other person (r). In Fontleroy v. Aylmer, Lord Raym. 239, where the declaration stated that defendant, in separali suâ piscariâ piscatus fuit, et pisces cepit, after verdict for plaintiff, an exception in arrest of judgment, directly the reverse of that in the foregoing case, was taken, viz. that the declaration had omitted the word suos; but the court thought the objection entitled to very little weight; because the plaintiff having alleged that it was his fishery, the fish there should he intended prima facie to be his fish. A., being seised of a mill, and having a sole fishery in the waters of the mill, granted the mill, with all waters, streams, &c. necessary in working the same, "except, and always reserving, the right and privilege of fishing in the waters of the said mill." It was held, that this was an exception of the sole fishery, and not a reservation of a new easement (s). Free Fishery. It is to be lamented, that the books do not afford materials for an accurate description of a free fishery. That this subject is involved in doubt and uncertainty, will appear from the following passages, extracted from the writings of Mr. Justice Blackstone and Mr. Hargrave: Mr. J. Blackstone, having defined common of fishery to be a liberty of fishing in another man's water (t), states a free fishery to be an exclusive right of fishing in a public river, and adds, "that it is a royal franchise, and is considered as such in all countries where the feodal polity has prevailed; though the making such grants, and thereby appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by King John's great charter (u); and the rivers that were fenced in his time were directed to be laid open. This opening was extended by the second and third charters of Henry III. to those also which were fenced under Richard I., so that a franchise of free fishery ought to be as old as the reign of Henry II. This differs from a several fishery, because he that has a several fishery must also be (or at least derive his right from) the owner of the soil, which in a free fishery is not requisite. It differs from a common of piscary, in that the free fishery is an exclusive right; the common of piscary is not so; and therefore, in a free fishery, a person (r) Child v. Greenhill, Cro. Car. 553; Sir W. Jones, 440, S. C. (s) Ld. Paget v. Milles, 3 Doug. 43. (t) 2 Bl. Com. 39, 40; Edn. 12. (u) See Mayor of Colchester v. Brooke, 7 Q. B. 339. has a property in the fish before they are caught; in a common of piscary, not until afterwards. Some, indeed, have considered a free fishery, not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor. But the considering such right as originally a flower of the prerogative, till restrained by Magna Charta, and derived by royal grant, previously 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." On this passage Mr. Hargrave made the following remark (x): "Both parts of this description of a free fishery seem disputable. With regard to the first part, although 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 although in other countries it may be so considered, yet, from the language of our books, it seems as if, in our law, practice had extended this kind of fishery to all streams, whether private or public: neither the register nor other book professing any discrimination. Reg. 95, b. F. N. B. 88, G.; Fitz. Abr. Ass. 422; 17 Edw. IV. 6, b., 7, a. ; 7 Hen. VII. 13, b. With respect to the second part, it is true, that in Smith v. Kemp, 2 Salk. 637; Carth. 285, S. C., the court held free fishery to import an exclusive right equally with several fishery, chiefly relying on the writ in the Register, 95, b. and the 46 Edw. III. II, a. But then this was only the opinion of two judges (y) against one (z), who strenuously insisted, that the word libera, ex vi termini, implied common, and that many judgments and precedents were founded on Lord Coke's so construing it. That the dissenting judge was not wholly unwarranted in the latter part of his assertion, appears from two determinations a little before the case in question, viz. Upton v. Dawkin, 3 Mod. 97, where judgment was arrested in trespass for breaking and entering a free fishery; because the declaration alleged the fish taken to be the fish of the plaintiff; and Peake v. Tucker, cited in margin, Carth. 286, where judgment was arrested on the same ground." After the preceding remarks were published, Mr. J. Blackstone, with that candour and liberality which are the inseparable companions of true learning, added the following observation, in a subsequent edition of his Commentaries: "It must be acknowledged, that the right and distinctions of the three species of fishery are very much confounded in our law books: and there are not wanting respectable authorities (see them well digested in Hargrave's notes on Co. Litt. 122 (23),) which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary." Whatever be the nature of free fishery, whether it be, as Mr. J. (r) Hargrave's Co. Litt. 122, a. n. 7. (z) Eyre, J. (y) Holt, C. J., Dolben, J. Blackstone supposes, an exclusive right, or as Mr. Hargrave seems to think, only the same with common of fishery; since the case of Smith v. Kemp, before mentioned, it is too late now to contend, that an action of trespass vi et armis will not lie for an injury to it. It should be remarked, however, that the declaration in Smith v. Kemp, was for breaking and entering the close of the plaintiff, and fishing in the free fishery of the plaintiff in the said close. See Carthew's Rep. p. 285. It may admit of a question, whether the declaration ought to state the fish taken to be the fish of the plaintiff. It seems, that such allegation ought to be made. Common of Fishery. A common of fishery is a right of fishing in common with other persons in a stream or river, the soil whereof belongs to a third person. This does not differ in any respect from any other right of common, and trespass will not lie for an injury to it (a). A person having a common of fishery in another's land, cannot cut the grass growing on the bank (b). Under ancient deeds recognizing a right in the owner of an estate to have a weir across a river for taking fish, if it appear that such weir was heretofore made of brushwood, through which the fish might escape into the upper part of the river, he cannot convert it into a stone weir, whereby the possibility of escape is debarred, except in times of extraordinary flood (c). Weirs erected in public rivers before the time of Edw. I., although an obstruction to navigation, are legalized by subsequent acts of the legislature (d). The right of the public to navigate a public river is paramount to any right of property in the crown, which never had the power to grant a weir so as to obstruct the public navigation; and if a weir, which was legally granted in such a river caused obstruction at any subsequent time, it became a nuisance (e). (a) Salk. 637. (b) 13 Hen. VIII. p. 15, b. (d) Williams v. Wilcox, 3 Nev. & P. 606. (e) S. C. See also Mayor of Colchester v. Brooke, 7 Q. B. 339. CHAPTER XXI. FRAUDS, STATUTE OF. Stat. 29 Car. II. c. 3, entitled, An Act for Prevention of I. Sections 1, 2, & 3, and the Stat. 8 & 9 Vict. c. 106, s. 3, On the Effect of Parol Evidence of a Variation or III. The fifth and sixth Sections, relating to the Execution Stats. 1 Vict. c. 26, and 15 Vict. c. 24, for the Amend- PAGE 829 835 875 881 899 THE Statute of Frauds, the provisions of which have been so often commended (a), originated with Lord Nottingham, who probably was assisted by Sir Matthew Hale, Sir F. North, and Sir Leoline Jenkins, an eminent civilian (b). Sir M. Hale, however, died a few months before the act passed into a law (c); and this circumstance may possibly account for the inaccuracies which have been discovered in the composition (d), and justify the inference made by Lord Mansfield, that the statute was not drawn by that eminent judge; more especially as the bill was introduced in the usual manner, and not upon any reference to the judges (e). (a)" It is of great consequence to preserve unimpaired the several provisions of the Statute of Frauds, which is one of the wisest laws in our Statute Book." Per Ld. Kenyon, C. J., in Chaplin v. Rogers, 1 East, 194. See also per Ld. Kenyon, C. J.. in Chater v. Becket, 7 T. R. 204; per Bayley, J., in Saunders v. Wakefield, 4 B. & A. 600; per Abbot, C. J., in Baldey v. Parker, 2 B. & C. 40; Ld. Campbell's Lives of the Chancellors, vol. 3, p. 421. (b) See Ash v. Abdy, 3 Swanst. 664; Gilb. Eq. R. 171; Lord Keeper Guild ford's Life, p. 109; per Ld. Ellenborough, C. J., in Wain v. Walters, 5 East, 17; Lord Campbell's Lives of the Chancellors, vol. 3, p. 421. (c) Sir M. Hale died on the 25th of December, 1676. Parliament met on the 15th February following, and this statute received the royal assent on the 16th April, 1677. (d) See Doug. 244, n. (e) See per Ld. Mansfield, C. J., in Wyndham v. Chetwynd, 1 Burr. 418. |