but the rights of salmon fishing in the sea and in public and private rivers, and those of mussel and oyster fishing, except in private rivers, are inter regalia, and are only enjoyable by the crown or persons deriving title under it. As salmon fishery was formerly practised by nets and engines on the shore, and the mussel and oyster fisheries were necessarily carried on on the shore, the opinion was held at one time that angling for salmon was a public right, but the later decisions have established that the right of salmon fishing by whatever means is a jus regale in Scotland. In England the crown in early times made frequent grants of fisheries to subjects in tidal waters, and instances of such fisheries belonging to persons and corporations are very common at the present day: but by Magna Carta the crown declared that “no rivers shall be defended from henceforth, but such as were in defence in the time of King Henry, our grandfather, by the same places and the same bounds as they were wont to be in his time”; and thus bound itself not to create a private fishery in any navigable tidal river. Judicial decision and commentators having interpreted this statute according to the spirit and not the letter, at the present day the right of fishery in tidal waters prima facie belongs to the public, and they can only be excluded by a particular person or corporation on proof of an exclusive right to fish there not later in its origin than Magna Carta; and for this it is necessary either to prove an actual grant from the crown of that date to the claimant’s predecessor in title, or a later grant or immemorial custom or prescription to that effect, from which such an original grant may be presumed. This exclusive right of fishing may be either a franchise derived from the crown, or may arise by virtue of ownership of the soil covered by the waters.
In Lord Hale’s words: “Fishing may be of two kinds ordinarily, viz. fishing with a net, which may be either as a liberty without the soil, or as a liberty arising by reason of and in concomitance with the soil or an interest or propriety of it; or otherwise it is a local fishing that ariseth by or from the propriety of the soil,—such are gurgites, wears, fishing-places, borachiae, stachiae, which are the very soil itself, and so frequently agreed by our books. And such as these a subject may have by usage; either in gross, as many religious houses had, or as parcel of or appurtenant to their manors, as both corporations and others have had; and this not only in navigable rivers and arms of the sea but in creeks and ports and havens, yea, and in certain known limits in the open sea contiguous to the shore. And these kinds of fishings are not only for small sea-fish, such as herrings, &c., but for great fish, as salmons, and not only for them but for royal fish. . . . Most of the precedents touching such rights of fishing in the sea, and the arms and creeks thereof belonging by usage to subjects, appear to be by reason of the propriety of the very water and soil wherein the fishing is, and some of them even within parts of the seas” (De Jure Maris, ch. v.)
An instance of the former kind of fishery is to be found in the old case of Royal Fishery of the River Bann (temp. James I., Davis 655), and the modern one of Wilson v. Crossfield, 1885, 1 T.L.R. 601, where a right of fishery in gross was established; but the latter kind, as Hale says, is much more common, and the presumption is always in its favour; à fortiori where the fishing is proved to have been carried on by means of engines or structures fixed in the soil. In England the public have not at common law, as incidental to their right of fishing in tidal waters, the right to make use of the banks or shores for purposes incidental to the fishery, such as beaching their boats upon them, landing there, or drying their nets there (though they can do so by proving a custom from which such a grant may be presumed); but statutes relating to particular parts of the realm, such as Cornwall for the pilchard fishery, give them such rights. In Scotland a right of salmon fishing separate from land implies the right of access to and use of the banks, foreshores or beach for the purposes of the fishing; and so does white fishing by statute. But otherwise there is no right to do so, e.g. in a public river for trout fishing. A similar privilege is given to Irish fishermen for the purpose of sea fishery by special statute. There is no property in fish in the sea, and they belong to the first taker; and the custom of the trade decides when a fish is taken or not, e.g. in the whale fishery the question whether a fish is “loose” or not has come before English courts.
(b) Fresh Waters.—In non-tidal waters in England and Ireland, for the reason given above, the presumption is in favour of the fishery in such waters belonging to the owners of the adjacent lands; “fresh waters of what kind soever do of common right belong to the owners of the soil adjacent, so that the owners of the one side have of common right the property of the soil, and consequently the right of fishing usque ad filum aquae, and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side; and if a man be owner of the land on both sides, in common presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length” (Hale, ch. i.). There is a similar presumption that the owner of the bed of a river has the exclusive right of fishery there, and this is so even though he does not own the banks; but these presumptions may be displaced by proof of a different state of things, e.g. where the banks of a stream are separately owned the owner of one bank may show by acts of ownership exercised over the whole stream that he has the fishery over it all. The crown prerogative of fishery, never it seems, extended to non-tidal waters flowing over the land of a subject, and it could not therefore grant such a franchise to a subject, nor has it any right de jure to the soil or fisheries of an inland lake such as Lough Neagh (Bristow v. Cormican, 1878, 3 App. Cas. 641). The public cannot acquire the right to fish in fresh waters by prescription or otherwise although they are navigable; such a right is unknown to law, because a profit à prendre in alieno solo is neither to be acquired by custom nor by prescription under the Prescription Act. It has been decided that the “dwellers” in a parish cannot acquire such a right, being of too vague a class; but the commoners in a manor may have it by custom; and the “free inhabitants of ancient tenements” in a borough have been held capable of acquiring a right to dredge for oysters in a fishery belonging to the corporation of the borough on certain days in each year by giving proof of uninterrupted enjoyment of it from time immemorial, on the presumption that this was a condition to which the grant made to the corporation was subject.
In Scotland the law is similar. The right to fish for trout in private streams is a pertinent of the land adjacent, and owners of opposite banks may fish usque ad medium filum aquae; and where two owners own land round a private loch, both have a common of fishing over it. The public cannot prescribe for it, for a written title either to adjacent lands or to the fishery is necessary. A right of way along the bank of a river or loch does not give it, nor does the right of the public to be on or at a navigable but non-tidal river. The right of salmon fishing carries with it the right of trout fishing: and eel fishing passes in the same way.
In England and Ireland private fisheries have been divided into (a) several (separalis), (b) free (libera), (c) common of piscary (communis), whether in tidal or non-tidal waters. The distinction between several and free fisheries has always been uncertain. Blackstone’s opinion was that several fishery implied a fishery in right of the soil under the water, while free fishery was confined to a public river and did not necessarily comprehend the soil. He is supported by later writers, such as Woolrych and Paterson. On the other hand, the opinions of Coke and Hale are opposed to this view. “A man may prescribe to have a several fishery in such a water, and the owner shall not fish there; but if he claim to have common of fishery or free fishery the owner of the soil shall fish there” (Co Littl. 122 A); “one man may have the river and others the soil adjacent: or one man may have the river and soil thereof, and another the free or several fishing in that river” (De Jure Maris, ch. i.). Lord Holt, though in one instance he distinguished them, in a later case thought that they were “all one.” Later decisions have established the latter view, and it is now settled that although the owner of the several fishery is prima facie owner of the soil of the waters, this presumption may be displaced by showing that the terms of the grant only convey an incorporeal hereditament, and that the words “sole and exclusive fishery” give a several fishery in alieno solo. In the words of Mr Justice Willes, “the only substantial distinction is between an exclusive right of fishery, usually called
