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FISHERY (LAW OF)

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Originally appearing in Volume V10, Page 437 of the 1911 Encyclopedia Britannica.
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FISHERY (See also:LAW OF) . This subject has (I) its See also:international aspect; (2) its municipal aspect. On the high seas outside territorial See also:waters the right of fishery is now recognized as See also:common to all nations. Claims were made in former times by single nations to the exclusive right of fishing in tracts of open See also:sea; such as that set up by See also:Denmark in respect of the See also:North Sea, as lying between its possessions of See also:Norway and See also:Iceland, against See also:England in the 17th See also:century, and against England and See also:Holland in the 18th century, when she prohibited any foreigners fishing within 15 See also:German See also:miles of the shores of See also:Greenland and Iceland. This claim, however, was always effectively resisted on the ground stated in See also:Queen See also: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 See also:award of the See also:arbitration See also:court which decided the question of the See also:fur-See also:seal fishery in See also:Bering Sea in 1894. (See BERING SEA ARBITRATION; ARBITRATION, INTERNATIONAL.) The right of nations to take See also:fish in the sea may, however, be restrained or regulated by treaty or See also:custom; and See also:Great See also: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 See also:British subjects by statutes. Instances of these are the conventions of 1818 and 1872 between Great Britain and the See also:United States as to the See also:fisheries on the eastern coasts of British North See also: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 See also:France in 1839 and 1867 as regards fishing in the seas adjoining these countries, the latter of which will come into force on the See also:repeal of the former; the agreement of 1904 with respect to the See also:Newfoundland fisheries (see NEWFOUNDLAND); the See also:convention of 1882 between See also:Belgium, Denmark, France, See also:Germany, Great Britain and Holland, regarding the North Sea fisheries; that of 1887 between the same parties concerning the liquor See also:traffic in the North Sea; and the See also:declaration regarding the same waters made between Great Britain and Belgium for the See also:settlement of See also:differences between their fishermen subjects in such extra-territorial waters. At the instance of the See also:Swedish See also:government the British See also:parliament also passed an See also:act in 1875 to establish a See also:close See also: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 See also:whale fishery in See also:northern and See also:southern seas; and the customs proved to exist among the whaling See also:ships of the nations engaged in a particular See also:trade have been upheld if known to the parties to the See also:action. In territorial waters, on the other See also:hand, fishery is a right exclusively belonging to the subjects of the See also: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 See also:general See also:rule, that fishery is a right incidental to the See also:soil covered by the waters in which that right is exercised.

The See also:

bed of all navigable See also:rivers where the See also:tide flows and reflows, and of all estuaries or arms of the sea, is vested in the See also:crown; and therefore, in See also:Lord See also:Chief See also:Justice See also: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 See also:waste whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland See also:river.' " But," he continues, " though the See also:king is the owner of this great waste, and as a consequent of his propriety hath the See also:primary right of fishing in the sea and the creeks and arms thereof, yet the common See also:people of England have regularly a See also: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 Marls, ch. iv.). This right extends to all fish floating in the sea or See also: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 See also: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 See also:Scotland only whales which are of large See also:size can be so claimed; but the rights of See also:salmon fishing in the sea and in public and private rivers, and those of See also:mussel and See also:oyster fishing, except in private rivers, are inter See also:regalia, and are only enjoyable by the crown or persons deriving See also:title under it. As salmon fishery was formerly practised by nets and engines on the See also:shore, and the mussel and oyster fisheries were necessarily carried on on the shore, the See also:opinion was held at one time that See also:angling for salmon was a public right, but the later decisions have established that the right of salmon fishing by whatever means is a See also:jus regale in Scotland. In England the crown in See also: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 See also:present See also:day: but by Magna Carta the crown declared that " no rivers shall be defended from henceforth, but such as were in See also:defence in the time of King See also:Henry, our grandfather, by the same places and the same See also:bounds as they were wont to be in his time "; and thus See also:bound itself not to create a private fishery in any navigable tidal river. Judicial decision and commentators having interpreted this See also:statute according to the spirit and not the See also: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 See also:corporation on See also: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 See also:grant from the crown of that date to the claimant's predecessor in title, or a later grant or immemorial custom or See also:prescription to that effect, from which such an See also:original grant may be presumed. This exclusive right of fishing may be either a See also: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 See also:net, which may be either as a liberty without the soil, or as a liberty arising by See also:reason of and in concomitance with the soil or an See also:interest or propriety of it; or otherwise it is a See also: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 See also:gross, as many religious houses had, or as See also: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 See also: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 See also:water and soil wherein the fishing is, and some of them even within parts of the seas " (De Jure See also:Maris, ch. v.) An instance of the former See also:kind of fishery is to be found in the old See also:case of Royal Fishery of the River See also:Bann (temp.

See also:

James I., See also:Davis 655), and the See also:modern one of See also:Wilson v. Crossfield, 1885, r T.L.R. 6or, 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; d 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 See also: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 See also:relating to particular parts of the See also:realm, such as See also:Cornwall for the See also:pilchard fishery, give them such rights. In Scotland a right of salmon fishing See also:separate from See also:land implies the right of See also:access to and use of the banks, foreshores or See also:beach for the purposes of the fishing; and so does See also:white fishing by statute. But otherwise there is no right to do so, e.g. in a public river for See also:trout fishing. A similar See also:privilege is given to Irish fishermen for the purpose of sea fishery by See also:special statute. There is no See also: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 See also:English courts. (b) Fresh Waters.—In non-tidal waters in England andIreland, 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 See also:side have of common right the property of the soil, and consequently the right of fishing usque ad filum See also: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 See also:man be owner of the land on both sides, in common presumption he is owner of the whole river, and See also:bath 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 See also:state of things, e.g. where the banks of a stream are separately owned the owner of one See also:bank may show by acts of ownership exercised over the whole stream that he has the fishery over it all. The crown See also: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 See also:lake such as Lough See also:Neagh (See also: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 a prendre in alieno See also:

solo is neither to be acquired by custom nor by prescription under the Prescription Act. It has been decided that the " dwellers " in a See also:parish cannot acquire such a right, being of too vague a class; but the commoners in a See also:manor may have it by custom; and the " See also:free inhabitants of See also:ancient tenements " in a See also: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 See also:year by giving proof of uninterrupted enjoyment of it from time immemorial, on the presumption that this was a See also: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 See also:medium filum aquae; and where two owners own land See also:round a private See also: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 See also:eel fishing passes in the same way. In England and See also: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. See also: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 See also:

Paterson. On the other hand, the opinions of See also: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 See also: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 See also:hereditament, and that the words " See also: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 See also:warren,' and a right in common with others, usually called ` common of fishery,' and sometimes ` free,' as in ` free See also:port.' A several fishery means an exclusive right to fish in a given See also: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 See also:lease of lands including water will pass the fishery therein; a several fishery will not See also: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 See also: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 See also: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 " See also:paper title," i.e. one founded on documentary See also:evidence only, is not sufficient; it must be sup-ported by evidence of acts of ownership in See also: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 See also:advantage of a See also: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 See also:

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 See also: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 See also: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 See also:rod and See also: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 See also: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 See also:Board of See also:Agriculture and Fisheries has (since 1903, when it took it over from the Board of Trade) See also:power by See also: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 See also:committee to regulate the sea fisheries in such See also:district, which can make by-See also:laws for that purpose. It appoints fishery See also:officers to enforce them, prescribes a close time for sea fish (which does not include salmon as defined in the Salmon Act), has See also:summary See also:jurisdiction over offences committed on the sea See also:coast or at sea beyond the See also: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 See also:shell fish. Special See also:provision is also made by statute for the oysterfishery and See also:herring fishery (applicable also to Scotland), and that of mussels, cockles, lobsters and crabs (applicable to all the United See also:Kingdom). In Scotland the Fishery Board.can constitute sea fishery districts, and boards with like See also:powers to those in England, and has general See also:control over the coast and deep-sea fisheries of Scotland; and there are acts relative to herring, mussel and oyster fisheries, and allowing the See also:appropriation of See also:money intended to relieve local See also:distress and See also: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 Dish fisheries; special statutes, besides the general ones applying to all the United Kingdom, See also:deal with oyster fisheries and mussel fisheries; and money is also appropriated for sea fisheries under the See also:head of technical instruction. In all three component parts of the United Kingdom there are also special statutes relative to salmon and See also: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 See also:

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 See also:official number of conservators on such boards are appointed by the See also:county See also: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 See also:area on the application of any board of conservators, or of a county See also:council, or of the owners of one-See also:fourth in value of private fisheries. There are also special acts dealing with the fishing in certain rivers, such as the See also:Thames, See also:Medway, See also:Severn, See also: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 See also: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 See also:poison or other noxious substance for destroying fish. Officers in the See also:army or See also:marines are forbidden (under See also: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 See also: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 See also:Merchant See also:Shipping Acts 1894–1906 for sea-fishing boats (except in Scotland and the colonies), relating to their See also:registration, carrying official papers, carrying boats in proportion to their See also:tonnage, the See also:punishment of offences on board, the See also:wages of their crews, and keeping See also: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 See also:form of agreement with the See also: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 See also: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 See also:lights must be carried by fishing boats in navigation. An act of 1908 (The Cran See also:Measures Act) legalized the use of cyan measures in connexion with trading in fresh herrings in England and See also:Wales, the Board of Agriculture and Fisheries being empowered to make regulations under the act.

End of Article: FISHERY (LAW OF)

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