now the chief sea fisheries subjected to special control. Certain commissioners are appointed for the purpose of supervising this branch of the fisheries, aud many minute regulations are laid down in the statutes and. in their bye-laws, as to the packing, salting, and exporting of herrings. The commissioners are also empowered to regulate the cod and ling fisheries.' The herring fishery is lawful all the year round.2

The convention between the United Kingdom and France fixed the size of the nets to be used in the herring fishery at not less than one inch from knot to knot.3 The statute 14 & 15 Vict. c. 26, § 6, prohibited- trawl nets, and all nets except drift nets, to be used in the British herring fishery. The statutes in force contain numerous details relative to the herring trade which do not fall within the scope of this work.*

Pilchards. The pilchard fishery carried on in the bay of St. Ives, in the county of Cornwall, is regulated by the statute 4 & 5 Vict. c. lvii. That statute contains many minute regulations as to the mode in which the fishing-boats are to be engaged; but a statement of the details is not within the limits of this work.

Rights of Fishermen in sea and public Rivers as to adjacent Land.-Though the public have a right to fish in the sea and navigable rivers, they have no right to make use of the adjoining land for the purposes

1 1 Wm. IV. c. 54, § 4. 3 See ante p. 13.

2 As to Scotland, see post.

4 The statutes in force in England are: 48 Geo. III. c. 110; 55 Geo. III. c. 94; 1 Geo. IV. c. 103; 1 & 2 Geo. IV. c. 79; 5 Geo. IV. c. 64; 1 Wm. IV. c. 54; 6 & 7 Vict. c. 79; 10 & 11 Vict. c. 91; 14. & 15 Vict. c. 56; 21 & 22 Vict. c. 69. As to Scotland, see post.

3

their fishery, either in the way of fixing their nets by stakes, drying their nets, drawing them ashore, or otherwise. Such a right would be inconsistent with the nature of permanent private property. In some places, however, a custom has been held good according to an ancient case in the Yearbooks, by which the *fishermen of certain localities were entitled to dig the soil to place stakes for drying their nets. The opinions of the judges in that case as regards the general right are loose, and would almost warrant the right as incident to a public fishery generally. But Hale treats that case as one of local custom for the fishermen of Kent only. Indeed, as there is no right of towage on the banks of navigable rivers 5 incident to navigation, which is a much higher right than that of a public fishery, it would follow that there is no similar implied right of using the land in furtherance of a fishery: And a person who has a mere common of fishery cannot cut the grass growing at the edge of the banks." Nevertheless, the custom has been held good in the case already mentioned of the fishermen of Kent, and in a similar case where fishermen of a certain vill were held entitled to dry their nets on a particular close;"

....1 Per Holroyd, J. in Blundell v. Catterall, 5 B. & Ald. 299. 2 Yearbook, 8 Ed. IV. 19.

3 De Port. Mar. 86.

8

4 See also, per Holroyd, J. in Blundell v. Catterall, 5 B. & Ald. 296. 5 Ball v. Herbert, 3 T.R. 253.

• See also Blundell v. Catterall, 5 B. & Ald. 295.

7 Yearbook, 13 Hen. VIII. 15 b.

8 Supra, Bro. Abr. Customs pl. 46.

9 Yearbook, Tr. 15 Ed. IV. f. 29 A. pl. 7; Blundell v. Catterall, 5 B. & Ald. 295 ; Padwick v. Knight, 7 Exch. 881.

and in another case to dig gravel on the shore for ballast.1 In cases of grants to an individual, it is often a question of construction whether a right to use the banks was impliedly granted, and this depends on whether it was necessary to the exercise of the fishery that such banks should be used." If rights of this kind have been exercised for thirty years in case of a common, or twenty in case of an easement, this user will be evidence of a grant."

Thus, the lessees of a fishery in the navigable river Derwent brought an action on the case against the lord of the manor, for disturbing them in the right of drawing nets to land on the river banks. The lands of the defendant had been conveyed by the owner of the fishery in 1774, without any special reservation as to the right of landing nets. The plaintiffs had, however, for thirty years and upwards been in the practice of so using the banks. The court held that it was for a jury to presume from the evidence of enjoyment a grant of the right to land nets to the owner of the fishery by some owner of the close since 1776. Dallas, C. J. said: "A mere lapse of time would not of itself raise against the owner the presumption of a grant. When it does, the inference is also drawn from accompanying facts; and here, where there is no direct evidence whether or not the owner of the land had any knowledge of what passed, the inference to be drawn must in a peculiar degree depend on the nature of the 1 Mayor of Lynn Regis v. Taylor, 3 Lev. 160.

2. See R. v. Ellis, 1 M. & S. 666. See also, Co. Litt. 59 b; Lifford's case, 11 Rep. 52; 1 Wms. Saund. 323 n (6); Shep. Touch. 89.

3 2 & 3 Wm. IV. c. 71.

accompanying facts; and the presumption in favour of a grant will be more or less probable as it may be more or less probable that those facts could not have existed without the consent of the owner of the land. The circumstances proved in the present case were sufficient to leave to a jury as circumstances from which the knowledge of the owner, and his acquiescence on the supposition of a preceding grant, might fairly be presumed.'

1

Damage done while Fishing.-Where a person bond fide exercising his right of fishery does damage to adjoining property, he is expressly exempted from punishment under the Malicious Trespass Act, 24 & 25 Vict. c. 97. For, by sect. 52, it is enacted that nothing in that act contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass not being wilful and malicious committed in hunting, fishing, or in the pursuit of game; but every such trespass shall be punishable in the same manner as if this act had not been passed." It is true that the party may sometimes be liable in a civil action, but if he acts bona fidehe cannot be punished as for a criminal offence in a summary way by justices of the peace.

Fishing as an Obstruction to Navigation.—The right of fishery in the sea and navigable rivers is subordinate to the right of navigation, and where both are incompatible the fishermen must give way to the navigation of vessels. Each party must, however, use his right so as not to interfere with the other; and hence, if there 1 Gray v. Bond, 2 R. & B. 667.

2 Anon. 1 Campb. 517 n.

is ample room for a navigating vessel to pass, it ought to do so, without interference with the station of the fishing vessels. In the sea no collision is likely to occur; but in navigable rivers it may be often necessary for navigating vessels to interfere with the fishing vessels. Where the rights of both parties are incompatible, the above rules must be observed; the navigator is entitled to pass at all hazards; but he must do the least possible injury to the fisherman, for he is in the exercise of a lawful right, though it is to the above extent a subordinate one.

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Fishing in Public Navigable Rivers.-The right of the public to fish in public navigable rivers is put on the same footing as the right to fish in the territorial sea, and the creeks and arms thereof. None of the authorities seems to define what is a public navigable river, though, primâ facie, it would seem to be generally regulated by the test whether the tide ebbs and flows. Hale observes that an arm of the sea is where the sea flows and reflows. Lord Mansfield observed,1 "How does it appear that this is a navigable river? The flowing and reflowing of the tide does not make it so, for there are many places into which the tide flows that are not navigable rivers, and the place in question may be a creek in one's private estate." But this was said in reference to an attempted indictment for not repairing a creek where the tide used to flow and reflow.

2

It can scarcely be doubted that there are, or may be, places where the tide does not flow and reflow, and yet

1 De Jur. Mar. p. 1, c. 4.

2 Mayor of Lynn v. Turner, Cowp. 86; Lofft. 556.