case submitted on behalf of the Corporation of Nottingham as to “Public Rights in Navigable Rivers”:—
“It has been said,” says Mr. Dove, “in several recent cases (Murphy v. Ryan, 2 Ir. R., C. L. 143; Pearce v. Scotcher, 9 Q. B. D. 162) that there can be no public right of fishing in non-tidal waters. The point has not yet come before any English Court of Appeal; and I have no hesitation in saying that it is not consistent with our earlier law.”
To support this view Mr. Dove has made a careful and exhaustive study of the Hundred Rolles and other ancient sources, from which he reaches the following conclusions as to the present state of the law:—
“The right to fish in navigable rivers was originally a royal franchise, and, excepting where granted by the Crown to a private person, was exercisable by the public in virtue of its belonging to the Crown.
“In and prior to the date of Magna Charta, the Crown granted this franchise to private persons in respect of portions of the navigable rivers in England.
“To remedy what was considered to be a great injury to the public, one of the stipulations of Magna Charta was that no further grants of the kind should be made, and that all those granted since Henry the Second should be void.
“This law has never been changed.
“There have, however, been decisions in the Law Courts treating the right to fish in navigable rivers as though it was especially a right of a private nature, and belonged to the riparian owners. These decisions have been taken to be binding by reason of their being decisions of the Courts.”
Accordingly he has drawn up a bill, declaratory of the law, in which he has embodied the result of his researches. This bill he hopes to have passed as “The Fishing in English Rivers Act, 1887.” A correspondent of the “Law Quarterly,” though in favor of the cause which Mr. Dove advocates, criticised several of his propositions as follows:—
“His first proposition is that every river that is in fact navigable for ships or boats is a ‘public river’ and a highway. This we imagine may be conceded by his adversaries, provided that the term ‘public river’ be not so used as to beg any question about the right to fish therein. But to show that a public river is a highway is little. A member of the public has a right to walk along the king’s highway; he has no right to pluck the grass or pocket the stones. Mr. Dove’s next proposition is that ‘an exclusive right of fishery is a royal franchise.’ But this proposition is too wide, for it would not be contended by any that in England the owner of both banks of a non-navigable river has not an exclusive right of fishing in it, and this without any grant from the Crown. The question then arises whether the line is to be drawn at the point where the modern authorities draw it, namely, where the river ceases to be tidal, or where Mr. Dove wants to draw it, namely, where the river ceases to be navigable.”