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such right would be subservient to the franchise of free warren (h); and it should certainly seem that a free warren over the lands of another person may exist by prescription (i).
When the right of property in wild animals can be claimed ratione privilegii, it nevertheless continues only so long as they remain within the limits of the particular franchise, except, indeed, that the property would not be changed by being hunted by the owner, or even by a stranger, out of the free chase or warren, and killed in the grounds of another person (k).
FREE FISHERY, &c. (1).—A free fishery, in its more ordinary ac-
would extinguish the right; Br. Warren,
The grant of free warren would seem to In a recent case relief was refused in give a right to appoint a warrener to preequity to a cestui que trust, against whom serve the game, who is justified by ancient an action of trespass had been brought usage in killing dogs, cats and vermin; for sporting over the manor, the title not Wadhurst v. Damme, Cro. Jac. 45. being sufficiently established, the court (k) 2 Bl. Com. 419. The learned judge observing that, even if it had, all that the there also states (and so the law clearly cestui que trust could claim was, to have a seems to be) that “if a man starts game rateable proportion of the rents and profits on another's private grounds and kills it derivable from letting the privilege; Hut- there, the property belongs to him on chinson v. Morritt, 3 You. & Coll. (Ex. whose ground it was killed, because it Eg.) 547.
was also started there, the property arising (8) The case of Sutton 8. Moody, Salk. ratione soli: whereas if after being started 556, 1 Lord Raym. 250, Comb. 458, there it is killed in the ground of a third 5 Mod. 375, 12 Mod. 144, is an autho- person, the property belongs not to the rity that the courts will presume a right of owner of the first ground, because the proproperty to game in the owner of the land
perty is local, nor yet to the owner of the on which it is killed, ratione soli, as against second, because it was not started in his a perfect stranger; but it is a possessory soil; but it vests in the person who started property only; F. N. B. 87 A. And see and killed it, though guilty of a trespass 12 Hen. 8, 10; 11 Co. 87 b; 4 Inst. 320; against both the owners.” 2 Bl. Com. 419; post, n. (k).
Churchward. v. Studdy, 14 East, 249. (h) Sutton v. Moody, sup. The fre- (1) Ante, p. 660. n. (p). quency of these grants is urged by Sir
arm of the sea (m), or navigable river (n) being an arm of the sea (o), under a grant from the crown (p), and is therefore considered as a royal franchise (q); and as the jealousy with which this privilege was viewed by the people led to a declaration in King John's Charter (c. 47), that where the banks of rivers had been first defended in his time they should be laid open, and in the charter of 9 Hen. III. c. 16, that no banks should thenceforth be defended but such as were so in the time of Henry his grandfather (r), it has been suggested that “a franchise of free fishery ought now to be at least as old as the reign of Henry II. (s).”
Although it has been supposed that a several fishery is a perfectly distinct franchise from a free fishery, in that the owner of a several fishery “
“must be, or at least derive his right from, the owner of the soil(t),” which is not requisite in a free fishery, for that term imports the right to fish in the waters of another (u); and from a common of piscary, in that the latter does not imply an exclusive right (x); yet
(m) There can be no prescription for a (p) The right must be clearly proved, right to fish in the sea, as annexed to cer- and cannot be presumed; Carter v. Murtain tenements, such right being common cot, ubi sup: to all the king's subjects; Ward v. Cress- In a late case where the lord claimed well, Willes, 265; Kitch. 45, cites 8 Ed. the exclusive privilege of cutting seaweed 4, 10. “If the water ebb and flow upon (vraic) from rocks covered at ordinary Jand
every one may fish there;" per tides by the sea, and which right, in the Choke, ib.
absence of any grant from the crown, But the qualified common law right of could only be sustained by evidence of long the public to use the sea and the sea shore and undisturbed enjoyment, the evidence does not extend to the right of bathing in being of a continued adverse claim withthe sea ; Blundell v. Catterall, 5 Barn. & out resistance, followed up by suit, the Ald. 268.
court of appeal (Privy Council) set aside Fishing with stake nets on the sea coast the judgment in favour of the lord; Benest near the mouth of a river is not prohibited v. Pipon, 1 Knapp. (P. C.) 60. either by the statute or the common law (9) 2 Bl. Com. 39. of Scotland; Earl of Kintore appel. Forbes (r) See the case of Weld v. Hornby, 7 and others resp. 4 Bli. N. S. 485; in East, 195. Vide also Blundell v. Catterall, which case it was held that proprietors of fisheries on the sea coast, entitled only by (s) 2 Bl. Com. 39, 417; 1 Campb. the terms of their grant to fish with a net 312, n. and coble, cannot be restrained from fish- (t) 2 Bl. Com. 39; and see Kitch. 46, ing with stake nets on the suit of owners cites 17 Ed. 4,6; ib. 47, cites 22 Ed. 4,116. of fisheries in a river.
(u) Kitch. 46, cites 4 Ed. 3; Trespass, (n) Some of the books seem to extend 222; 7 Hen. 7, 13; 18 Ed. 4, 5. the term free fishery to public rivers, (x) See 1 Chit. G. P. 224. Free fishery though not arms of the sea; see 2 Bl. Com. held to import an exclusive right equally 39; per Lord Mansfield in Carter v. Mur- with a several piscary; Smith v. Kemp, cot, 4 Burr. 2164 ; per Holt, C. J. in Salk. 637 ; S. C. Carth. 285. Warren v. Matthews, 1 Salk. 357.
Common of piscary may be prescribed (0) River Bann case, Sir John Davis's for as appendant to land; Kitch. 46. Rep. 55.
others have slighted these distinctions, and considered a free fishery merely as a liberty to fish in the several fishery of the grantor (y), and to be synonymous with common of piscary(z); and others again have denied the ownership of the soil is necessarily included in a several fishery (a). These conflicting opinions are ably digested by Mr. Hargrave in his learned note above referred to, but that
distinguished lawyer thought proper to leave the question open to future discussion. It would seem, however, to be settled, that a fishery in a navigable river, described in an ancient grant "separalem piscariam,” is an incorporeal and not a territorial hereditament; but that where the terms of the grant are unknown, the owner of a several fishery would be presumed to be owner of the soil (b). And the case of The King v. Ellis (c) shows, that particular privileges in the grantee are inconsistent with a mere incorporeal fishery.
It was decided in the case of Scratton v. Brown (d), that a grant by the lord of a manor, (possessing the franchise of a fishery,) of a messuage, &c. and certain sea-grounds, oyster layings, shores, and fisheries, with full and free liberty to fish, dredge, and lay oysters thereon, did not convey a mere privilege and easement only, leaving in the grantor the general property in the soil, but the soil itself, and that the operation of the words “sea grounds” was not qualified and restricted by the superadded words “oyster layings,” “liberty to fish," &c.
The grant in the last-mentioned case described the sea grounds, &c. to be bounded by the high and low water marks; and the Court of B. R. held, that those words were to be construed with reference to the rule of common law upon the subject of accretion (e); and that as
(y) 2 Sid. 8, cited 2 Bl. Com. 40. (6) The Duke of Somerset v. Fogwell,
(2) See 2 Bl. Com. 40; Upton v. Daw- 5 Barn. & Cress. 875. kin, 3 Mod. 97; Comb. 11; Peak v. (c) Sup. n. (a). Tucker, cited Carth. 286, marg.; but see (d) 4 Barn. & Cress. 485. Salk. 637.
(e) This case is therefore confirmatory (u) Co. Litt. 122 a; Bract. f. 208 b. of the decision of The King v. Lord YarAnd see Mr. Hargrave's note  to Co. borough, 3 Barn. & Cress. 91,4 Dow. & Ry. Litt. 122 b. Where a person exercising 790, ante, pt. 1, pp. 32, 33, that land grathe right of fishing in the river Severn, dually and imperceptibly added to the debetween certain limits within a manor mesnes of a manor by the alluvion of oose, bordering on the river, under a grant sand, &c. belongs to the lord, and not to froin the crown, also exercised the privi- the king, and so is distinguishable from the lege of landing nets on the beach, and case of large spaces of land left by the driving stakes, the Court of King's Bench sudden retirement of the sea; and from considered that some territorial right passed that of the land of a subject rendered unby the grant, and that the party was there distinguishable from the foreshore by the fore rateable under 43 Eliz., but expressed gradual encroachment of the sea; Hull a clear opinion that a mere incorporeal and Selby Railway, in re, 5 Mee. & Wel. fishery was not within that statute; The (Eq.) 327. King v. Ellis, 1 Mau. & Selw. 652.
It was held, in Perrott v. Bryant, 2 You.
the high and low water marks shift, the property conveyed also shifts, for that land between high and low water marks can only vest in a subject as the grantee of the crown, and that the crown by a grant of the sea shore would convey, not that which at the time of the grant was between the high and low water marks, but that which from time to time should lie between those two termini.
It has been adjudged that every subject may fish in navigable rivers, the king's prerogative right being confined to whale and sturgeon (f); and that the rule extends even to arms of the sea (g), unless an exclusive right exists by prescription (h).
The reader is reminded that in the case of The Mayor & Commonalty of Orford v. Richardson, Lord Kenyon (the other three judges of the Court of B. R. concurring) held, that there may be a prescriptive right in a subject to a several fishery in an arm of the sea (i); and that in the case of Rogers v. Allen (k), Heath, J. held, that a several fishery in a navigable river may pass as appurtenant to
When a river, not navigable, runs between two manors, and is the meer and boundary of the manors, each lord has a moiety of the river and fishery (l).
And when no manorial franchise is claimed in an inland river, not navigable, the right of fishery is in the proprietors of the land on either side, as owners of the soil or bed of the river, and generally extends ad filụm medium aquæ (m).
The franchise of free chase, free warren, and free fishery may, the author apprehends, like other franchises, be lost by non-user or
& Coll. 61, (which was a suit against boat- tion, and had been applied to establish an owners for tithe of oysters,) that the cir- exclusive right over an arm of the sea, cumstance that property situate on the that could not destroy the right of the sea shore, between a sea side town and subject.” the sea, had not been assessed to the poor In the case of Williams v. Wilcox, 8 rates of the parish in which the town was Adol. & El. 314, it was held that the pasituate, was very slender evidence of the ramount right of the subject to navigate property not being within the parish. public rivers extends over every part
() Ante, p. 653, n.(n); and see stat. thereof; that prior to Magna Charta the 17 Ed. 2, c. 11, de prerogativá regis. crown had no power to make a valid grant
(g) Warren o. Matthews, 6 Mod. 73; in derogation of such public right, but that S. C. 1 Salk. 357; Anon. 1 Mod. 105 ; the 4 sect. of 25 Ed. 3, c. 4, rendered ante, p. 664.
legal all weirs erected prior to Ed. 1. (h) Carter v. Murcot, 4 Burr. 2162; (i) 4 T. R. 439; Hargr. Tr. 19. 4 T. R. 439, in The Mayor, &c. of Orford (k) 1 Campb. 312; see this case on a v. Richardson; and see Bagott v. Orr, 2 point of evidence, ante, pt. 1, p. 505. Bos. & Pul. 472. In the case of Chad & (1) Davis's Rep. 155; 1 Mau. & Selw. Tilsed, 2 Brod. & Bing. 406, (ante, p. 661, in The King v. Ellis. 785,) Dallas, C. J., observed, that “if the (ni) Carter v. Murcot, ubi sup.;
and see usage had been only of forty years' dura- Davis's Rep. 155.
abuser, as well as by surrender to the crown (n); but we have seen that minor prescriptive rights exercisable by the lord of a manor will continue, notwithstanding the Court Baron should be lost (o).
(n) Cro. Jac. 155; 12 Mod. 271 ; 1 of the one only which has been misused; Chit. G. P. 224. And see as to misuser, contrà, if the one is wholly dependent on ante, p. 660. But the misuser of one of the others; Br. Franchies, pl. 14. several franchises, not dependent on each (o) Ante, pt. 1, p. 6. other, is not a forfeiture of the whole, but