Ch. VIIL] Fisheries and Fish. 14*5 evidence [a) ), have an exclusive right of fishing in an arm of the sea, or any particular part of a navigable river. , For though the prescription or usage derogate from a public right, yet the existence of an exclusive appropriation may be grounded on a supposition that the inhabitants of a particular district might consent to relinquish a general right for some peculiar advan- tage of a different, though perhaps of an equal or more extensively beneficial nature. This is generally admitted by elementary writers (6), and there are several decisions to the same effect (c). It seems however that a private right of fishing in the sea cannot be claimed under an existing grant from the Crown, for a grant to support it must be as old as the reign of Hen. 2., and therefore beyond the time of legal memory, as the Crown was restrained by King John's Great Charter and by other charters from making fresh grants of exclusive rights of fishery, affecting the public privilege {d). As to the soil or fundum maris, there can be no doubt it may be claimed either by charter or prescription, for every prescrip- tion respecting a franchise generally supposes a grant, which in this instance could be made by the King, yet it is to be observed that the soil can only be appropriated sub modo; for, according to Lord Hale, though the dominion either of fran- chise or propriety be lodged by prescription or charter in a subject, yet it is charged or effected with that jus publicum that belongs to all men [e). On the same principles the holder of an exclusive prescriptive right of fishery in public waters enjoys it, subservient to the superior and sacred right of the public to use the arm of the sea or river for the purposes of naviga- tion (/). With respect to private fisheries, the presumption of law is, that the owner of the soil is the owner of the water or fishery ; (a) Ante 138. Pul. 472. 1 Campb. 309. 11 East, (ft) See Co. Lit. 113, a. b. and 114. 263, That a custom to dry nets on the 2 Bla. Com. 39. Hale de jure Maris, land of another is good. See 2 Hen. page 1. c. 4. Hargr. Tracts, 1 vol. Bla. 395. page 11. Schultes Aqu. Rights,.99, &c. . (r/) 2 Bla. Com. 59, 1 Chitty, G..L. 1 Chitty, G. L. 268 to 272. Selw. N. P. 244,' 2l2. 1;^t. fishery. {e) Hale de Portibus. See also Craig, (c)" Davy's Rep. 55. 1 Mod. Rep. lib. 2. dicg. 8. s. 5. 2 Inst. Mag. Ch. 106. 4 Burr. 2162. 4 T. R. 437. ^ 5 cap. 16. ibid. 367. 2 Hen. B.' 182; 2 Bos. and (/) Ibid. 1 Campb. 517. 3 nor
