1911 Encyclopædia Britannica/Fishery, Law of

FISHERY (Law of). This subject has (1) its international aspect; (2) its municipal aspect. On the high seas outside territorial waters the right of fishery is now recognized as common to all nations. Claims were made in former times by single nations to the exclusive right of fishing in tracts of open sea; such as that set up by Denmark in respect of the North Sea, as lying between its possessions of Norway and Iceland, against England in the 17th century, and against England and Holland in the 18th century, when she prohibited any foreigners fishing within 15 German miles of the shores of Greenland and Iceland. This claim, however, was always effectively resisted on the ground stated in Queen Elizabeth’s remonstrance to Denmark on the subject in 1602, that “the law of nations alloweth of fishing in the sea everywhere, even in seas where a nation hath propertie of command.” The enunciation of this principle is to be found, also, in the award of the arbitration court which decided the question of the fur-seal fishery in Bering Sea in 1894. (See Bering Sea Arbitration; Arbitration, International.) The right of nations to take fish in the sea may, however, be restrained or regulated by treaty or custom; and Great Britain has entered into conventions with other nations with regard to fishing in certain parts of the sea. The provisions of such conventions are made binding on British subjects by statutes.

Instances of these are the conventions of 1818 and 1872 between Great Britain and the United States as to the fisheries on the eastern coasts of British North America and the United States within certain limits, and the award of the Bering Sea arbitration tribunal under the treaty of 1892; the conventions between Great Britain and France in 1839 and 1867 as regards fishing in the seas adjoining these countries, the latter of which will come into force on the repeal of the former; the agreement of 1904 with respect to the Newfoundland fisheries (see Newfoundland); the convention of 1882 between Belgium, Denmark, France, Germany, Great Britain and Holland, regarding the North Sea fisheries; that of 1887 between the same parties concerning the liquor traffic in the North Sea; and the declaration regarding the same waters made between Great Britain and Belgium for the settlement of differences between their fishermen subjects in such extra-territorial waters. At the instance of the Swedish government the British parliament also passed an act in 1875 to establish a close time for the seal fishery in the seas adjacent to the eastern coasts of Greenland.

Cases have come before British courts with regard to the whale fishery in northern and southern seas; and the customs proved to exist among the whaling ships of the nations engaged in a particular trade have been upheld if known to the parties to the action. In territorial waters, on the other hand, fishery is a right exclusively belonging to the subjects of the country owning such waters, and no foreigners can fish there except by convention.

(a) Tidal Waters.—In British territorial waters, it may be stated, as the general rule, that fishery is a right incidental to the soil covered by the waters in which that right is exercised.

The bed of all navigable rivers where the tide flows and reflows, and of all estuaries or arms of the sea, is vested in the crown; and therefore, in Lord Chief Justice Hale’s words, “the right of the fishery in the sea 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,” he continues, “though the king is the owner of this great waste, and as a consequent 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 therein as a public common of piscary, and may not without injury to their right be restrained of it unless in such places or creeks or navigable rivers where either the king or some particular subject hath gained a propriety exclusive of that common liberty.” (De Jure Maris, ch. iv.).

This right extends to all fish floating in the sea or left on the seashore, except certain fish known as royal fish, which, when taken in territorial waters, belong to the crown or its grantee, though caught by another person. These are whales, sturgeons and porpoises; and grampuses are also sometimes added (whales, porpoises and grampuses being “fishes” only in a legal sense). In Scotland only whales which are of large size can be so claimed; 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 ’several,’ and sometimes ‘free,’ as in ‘free warren,’ and a right in common with others, usually called ‘common of fishery,’ and sometimes ‘free,’ as in ‘free port.’ A several fishery means an exclusive right to fish in a given place, either with or without the property in the soil” (Malcolmson v. O’Dea, 1863, 10 H.L.). A common of piscary, or “a right to fish in common with certain other persons in a particular stream,” is usually found in manors, the commoners of which may have the right to enjoy it to an extent sufficient for the sustenance of their tenements; but they cannot, except by immemorial special prescription, exclude the lord of the manor therefrom, and have no rights over the soil itself. Decisions also establish that a grant of “fishery” will prima facie pass an exclusive fishery; a grant of soil covered by water or a lease of lands including water will pass the fishery therein; a several fishery will not merge on being resumed by the crown; and a fishery situate within a manor is presumed to belong to the owners of adjacent land, and not to the lord. A several fishery, as already seen, being an incorporeal hereditament, can only be transferred by deed, and therefore cannot be abandoned, and so acquired by the public, even on proof that the public have, as far back as living memory, exercised the right of fishing in the locus in quo to the knowledge of and without interruption from the claimant of the fishery. But to establish a title to a several fishery, a “paper title,” i.e. one founded on documentary evidence only, is not sufficient; it must be supported by evidence of acts of ownership in recent times, for otherwise it will be presumed that a person other than the alleged owner is the real owner. If the waters of a tidal river leave their old channel and flow into another, the owner of a several fishery in the old channel cannot claim to have it in the new one; but, on the other hand, the owner of a several fishery can take advantage of a gradual encroachment by the river upon and into the land of a riparian owner, the limits of whose land are ascertained. The owner of an exclusive fishery, whether in tidal or fresh waters, has the right to take as many fish as he can, and may do so by means of fixed engines or dredging, provided that in navigable waters he does not interfere with the right of navigation, and that in navigable and other waters he does not interfere with the fishing rights of his neighbours or infringe the provisions made by old or modern statutes as to the methods of taking the fish, e.g. by weirs. These were forbidden in rivers by Magna Carta and later statutes, and on the seashore by a statute of James I.; but all weirs in navigable fresh waters traceable to a date not later than 25 Edward III. are lawful, for the statutes forbidding weirs do not apply to navigable waters. It seems, however, that at common law any fixed structures put up by the owner of a fishery in his part of a river, which at all prevent the free passage of fish to the waters above or below, give the owners of fisheries therein a right of action against him. So the grantee of an exclusive fishery with rod and line in an unnavigable river can prevent any person from polluting the river higher up and so damaging the fishery. At common law there is no property in fish when enjoying their natural liberty; the taker is entitled to keep them unless they are caught from a tank or small pond; or except in the case of salmon by statute.

Modern statutes now regulate all fisheries, sea or fresh, in territorial or inland waters. As regards sea fishery in England, the Board of Agriculture and Fisheries has (since 1903, when it took it over from the Board of Trade) power by order to create sea fisheries districts, comprising any part of the sea within which British subjects have, by international law, the exclusive right of fishing, and to provide for the constitution of a local fisheries committee to regulate the sea fisheries in such district, which can make by-laws for that purpose. It appoints fishery officers to enforce them, prescribes a close time for sea fish (which does not include salmon as defined in the Salmon Act), has summary jurisdiction over offences committed on the sea coast or at sea beyond the ordinary jurisdiction of a court of summary jurisdiction, can enforce the Sea Fisheries Acts, or regulate, protect and develop fisheries for all or any kind of shell fish. Special provision is also made by statute for the oyster fishery and herring fishery (applicable also to Scotland), and that of mussels, cockles, lobsters and crabs (applicable to all the United Kingdom). In Scotland the Fishery Board can constitute sea fishery districts, and boards with like powers to those in England, and has general control over the coast and deep-sea fisheries of Scotland; and there are acts relative to herring, mussel and oyster fisheries, and allowing the appropriation of money intended to relieve local distress and taxation towards the encouragement of sea fisheries, and marine superintendence and enforcement of Scottish sea fisheries laws. In Ireland the sea fisheries are under the direction of the inspectors of Irish fisheries, who have replaced the former fishery commissioners and special commissioners for Irish fisheries; special statutes, besides the general ones applying to all the United Kingdom, deal with oyster fisheries and mussel fisheries; and money is also appropriated for sea fisheries under the head of technical instruction. In all three component parts of the United Kingdom there are also special statutes relative to salmon and freshwater fish: for England, the Salmon and Freshwater Fisheries Acts 1861–1907, and the Freshwater Fisheries Acts 1878–1886; for Scotland the chief Salmon Acts are those of 1862–1868, and for trout and freshwater fish those of 1845–1902; for Ireland, the Fisheries (Ireland) Acts 1842–1901. A similar scheme is adopted in each case, namely, fishery districts and district boards are set up which regulate the fishing by by-laws and protect the fish by fixing a close time, and prescribing passes, licences, inspection and the like, breaches of which are punishable by courts of summary jurisdiction. The supreme authorities in each case are—for England the Board of Agriculture and Fisheries, for Scotland the Fishery Board, and for Ireland the inspectors of fisheries, and in England a certain official number of conservators on such boards are appointed by the county councils. The Salmon and Freshwater Fisheries Act 1907 gives the Board of Agriculture and Fisheries power to make provisional orders for the regulation of salmon fisheries or freshwater fisheries within any area on the application of any board of conservators, or of a county council, or of the owners of one-fourth in value of private fisheries. There are also special acts dealing with the fishing in certain rivers, such as the Thames, Medway, Severn, Tweed and Esk. (The act of 1907 applies, however, to the Esk, but not otherwise to Scotland nor to Ireland.) Throughout the United Kingdom the use of dynamite or other explosive substance to catch or destroy fish in any public fishery is prohibited, as it is also in England in any private waters subject to the Salmon and Freshwater Fisheries Acts 1878, in which it is also forbidden to use poison or other noxious substance for destroying fish. Officers in the army or marines are forbidden (under penalty) to kill fish without written leave from the person entitled to grant it. There are also provisions of the criminal law dealing with the protection of fisheries generally, as well as the provisions of the acts already mentioned dealing with special kinds of fish.

Special provision is made by the Merchant Shipping Acts 1894–1906 for sea-fishing boats (except in Scotland and the colonies), relating to their registration, carrying official papers, carrying boats in proportion to their tonnage, the punishment of offences on board, the wages of their crews, and keeping record of all casualties, punishments and the like on board. As regards trawlers, especially in the case of those of 25 tons and upwards, a statutory form of agreement with the crew is prescribed, as well as accounts of wages and discharges; and skippers and second hands must have certificates of competency, which are granted under similar conditions to those required in the case of seagoing ships and are registered with the Board of Trade. Scottish fishing boats are regulated by a special statute of 1886 (except as regards agreements to pay crew by share of profits, dealt with by the above act) and by the Sea Fisheries Act of 1868, which applies to all British fishing boats. Particular lights must be carried by fishing boats in navigation. An act of 1908 (The Cran Measures Act) legalized the use of cran measures in connexion with trading in fresh herrings in England and Wales, the Board of Agriculture and Fisheries being empowered to make regulations under the act.

Authorities.—Green, Encyclopaedia of Scots Law (Edinburgh, 1896); Stewart, Law of Fishing in Scotland (Edinburgh, 1869); Woolrych, Waters (London, 1851); Paterson, Fishery Laws of the United Kingdom (London and Cambridge, 1863); Stuart Moore, Foreshore (London, 1888); Phillimore, International Law (3rd ed., London, 1879); Martens, Causes célèbres du droit des gens (Leipzig, 1827); Selwyn, Nisi Prius, Fishery (London, 1869).  (G. G. P.*)