A Treatise on the Fishery Laws of the United Kingdom, Including All the English Salmon and Sea Fishery Acts. With Notes And Explanations

Front matter

A Treatise on the Fishery Laws of the United Kingdom, Including All the English Salmon and Sea Fishery Acts. With Notes and Explanations

A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE ENGLISH SALMON AND SEA FISHERY ACTS.

WITH NOTES AND EXPLANATIONS

Preface

SECOND EDITION.

The first edition of this work was published shortly after the passing of the Salmon Fishery Act, 1861, which formed a new point of departure in the law, having repealed all the former Acts and introduced a uniform close season and more stringent penalties, and having also as a main object the extinction of fixed engines.

That Act was soon found to be very imperfect, and the Act of 1865 was next passed, which created Fishery Districts and Conservators, and also Special Commissioners to decide the many questionable rights then claimed to fixed engines. That Act in turn was found defective, and the Act of 1873 was passed, of which the main object was to confer on Boards of Conservators the power to make bye-laws so as to vary the close season, which the Act of 1861 had made uniform.

The author of this work having been appointed by the Crown tlie legal member of tlie Special Commissioners for English Fisheries, was mainly responsible for the decision of the various questions reserved for their adjudication, and for carrying out the first two Acts as far as the rules of law permitted. It was no doubt an important point gained or the future management of the Salmon Fisheries, that so many unsettled claims of right should be got rid of once for all. But in the course of these inquiries it

A Treatise on the Fishery Laws of the United Kingdom, Including All the English Salmon and Sea 1 Fishery Acts. With Notes and Explanations. James Paterson

2 A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE...

soon became apparent that the greatest of all the obstacles to the restoration of these fisheries had not yet been grappled with, and compared with which, all that had gone before was merely surveying the threshold of the subject. The obstructions to the passage of salmon caused by dams and weirs of all kinds erected in our best salmon rivers excluded the fish from about three-fourths of their natural breeding-grounds, and though it is very important to secure a fair distribution among the parties interested of such fish as exist, and to protect them till caught, it was much more important to endeavour to multiply tenfold or twentyfold the stock for distribution. It was easy to deal with future dams and weirs. The difficulty was how to deal with those that existed and had already obtained possession of all the best positions, and yet were insurmountable to fish.

Unless salmon can migrate to and fro between the sea and the upper waters of rivers, they are nothing. There had long prevailed an impression that it was now impractieable to seeure a fishway without more or less injuring the existing mills and na Tlgation and other interests dependent on the dams in rivers. The subject, however, was closely examined by a Select Committee of the House of Commons in 18G9-1870; the mechanism of a watermill, so far as the dam was necessary to it, was taken to pieces, and legal and engineering evidence brought to bear of a searching kind never before made known to Parliament or treated of in print. WTien the matter was analyzed and simplified, it was seen that there was no conflict whatever between mills and fishways, and both could co-exist with undiminished efficiency; and the mode of carrying out these views was made plain and easy to practical men.

Mr. Dodds, M. P., the chairman of the Select Committee, accordingly prepared a Bill, embodying enactments calculated to remove this last difficulty out of the way of the Salmon Fisheries for the future. But it was found that his Bill was too much in advance of its time, and that this precision of new knowledge had not yet penetrated the legislative mind. IIcuco, at last only a few of the clauses of that Bill, of secondary value,

Averc taken out, and coupled with a large admixture of other material calculated to make a Bill pass, a Bill was, after great delay, and at the eleventh hour, passed, without almost any notice. Having passed, it will be for the courts, for justices of the peace, and for the parties interested, at their leisure, to interpret and apply it. This Act is the third of the recent instalments of legislation on Salmon Fisheries, and raises the number of lengthy sections to 170.

Though the author, when called upon for a second edition of his work, found little to alter in the text upon the general law, notwithstanding considerable discussion of some important points in recent decisions, the subsequent enactments rendered further explanations indispensable. He found that the most useful mode of assisting those desirous of information was to print all the Acts in their order, with copious notes and explanations on au their leading provisions; and that is here done. The Sea Fisheries Act of 1868 is also included. A copious Index to the midtifarious details is added, which will render the work, it is hoped, a tolerably complete practical guide to all concerned in the subject.

PREFACE.

A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE ENGLISH SALMON AND SEA F

The imminent decay of the Salmon Fisheries of the United Kingdom lately attracted general attention, and induced the Legislature to pass separate statutes for England, Scotland and Ireland, so as to put the law on a better and permanent footing.

The rivers and streams abound in fish, which are not only equally attractive for purposes of sport and of food, but which have this superiority over game, that from their being in constant communication with the sea, they partake of its illimitable qualities in tlieir powers of reproduction. The riparian owners, however, have exclusive access to most of the waters. Holding the key of the situation, they monopolise the means of capture. As between themselves, they have been distinguished for unneighbourly cupidity. The common law undoubtedly was too easy in its tenets, for it allowed each to catch all the fish he could, by

Vill PEEFACE.

whatever means he pleased, provided these were not such as to destroy and annihilate the neighbours’ share of the common subject-matter, and even this check there was no efficient machinery for enforcing. Each accordingly sought to do what he liked with his own part of the river, and often selfishly resorted to wears, dams, and fixed engines, with the view of driving every living inhabitant of the waters into his own net, regardless of the impoverishment of his neighbour. This practice, though in strictness of law illegal, had become too firmly settled to be easily put down by the Courts, or the older statutes. The decay of the fisheries having then become conspicuous, it was necessary for the Legislature to intervene on grounds of public policy, and, witli an eye to the benefit of all parties, to restrain the suicidal policy of the riparian owners, making it no longer possible for each to do what seemed good in his own eyes. The Salmon statutes have only one common object, which is more or less imperfectly attained, viz. to secure fair play to the instincts of the fish. All that the fish need is a free run, and if they have this, their numbers will amply suffice for every purpose of pleasure or of business.

The author has viewed the subject, so far as the Ifnited Kingdom is concerned, as a whole, and has endeavoured to reduce to some order what lias hitherto been proverbial among lawyers for its confusion. The common law of England and Ireland is the same, and their statutory law of poaching fish is also now the same. The other statutes still abound in differences of detail, and Scotland also, in many respects, stands apart; yet in the leading enactments they all agree, and the defects of the one law may often be corrected by a view of the merits of the others.

As Angling is " a license of pleasure rather than of profit,” the author has been at some pains to single out and treat separately the chief points of law Avhich bear on that favourite pursuit of contemplative ease.

ANALYTICAL TABLE OF CONTENTS.

Chapter I. Rights Of Fishery Viewed Generally

PAGE

Definition of Fisheiy 1

Sea and Private Streamsa General Rules 2

Private Streams 2

A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE...

Public Rivers 3

Kinds of Fishery 4

Chapter II. Fisheries In The Open Sea

Definition of Open Sea 5

Fishery, how Regulated 6

Rules as to Whale Fishing 6

Incidents of Fishing in Open Sea D

Nature of Right of Fishery in Open Sea 10

"What may be Fished, and how 10

Convention with United States 11

Convention with France 11

CHAPTER IIL.

FISHERIES IN TERRITORIAL SEAS AND NAVIGABLE RIVERS.

General Right of Public to Fishery 14

Exclusive Right of Subject in Sea and Public Rivers. 15 How Ac( uired 17 ANALYTICAL TABLE OF CONTENTS. XIU

PACE

Right of Crown since Magna Charta to grant Several Fishery in "(?Tiat Fish may be Caught in the Sea 24

Cro vii’s Right to Royal Fish 24

Young Fish other than Salmon 25

Herring, Cod, Ling, c 27

Pilchards 28

Rights of Fishermen in Sea and Public Rivers, as to adjacent Land 28 Damage done while Fishing 31

Fishing, as an Obstruction to Navigation 31

Fishing in Public Navigable Rivers 32

Wears and Fixed Apparatus for Fishing in Rivers 33 Statutes as to Wears 36

Ancient Wears, Evidence as to 39

Wears and Fixed Nets illegal at Common Law 41

Sale of Fish 44

Chapter IV. Different Kinds Of Fisheries In Point Of Law

Confusion as to Terms 45

State of the Authorities 46

Definition of Several Fisherj’- 49

Mode and User of Fishery 50

Free Fishery 51]

Distinction between Free and Several Fishery 53

Common of Fishery 54

Different kinds of Common of Piscary 57

Nature of Right and its Assignability 57

Fishery not an Easement 57

ATREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE ENGLISH SALMON AND SEA FISHERY

Whether Fisheiy will pass as appurtenant to Land 57 Fishery may be Subdivided 59

In Grant of Fishery, what kind is meant 59 Whether Grant of Fishery carries the Soil 60 Result of Authorities 65

Fishery Granted by Statute 66

Lease of Fishei-y 67

Ordinary Lease of Lands including Water 67 Fishery in a Manor 68

Chapter V

RIGHT OF PROPERTY IN FISH, AND LARCENY AND COGNATE OFFENCES AS TO FISH.

PAGE

Right of Property in Fish 7

Fisli in a Trunk or Pond 71

How far Larceny may be Committed 71 Statutory Offences of Poacliing Pish 73

Effect of Enactment 74

Place of Offence 74

Form of Conviction and Indictment 75 "WTietlier Manual Possession of Fish is necessary to the Offence. 76 Poaching Fish not near a Dwelliug-house 76 Several Offences on One Day 77

"Who may Prosecute for Poaching Fish 77 Arresting Fish-Poachers 77

Seizing Fish-Poachers’ Implements 79 Abettors of Fish-Poaching 81

Mode of Prosecuting Poachers 81

Procedure before Justices 82

Officers of Ai-my and Navy Poaching Fish 83 Right of Property in Poached Fish 85 Malicious Injuries to Fisheries 87

Destroying Fishponds 88

Poisoning of Waters 89

Other Enactments against Fouling Water 89 Stealing Oysters 90

Oyster Spawti 91

Separation of Oysters from Floating Fish 91 Navigating near Oyster Beds 92

Corporation Property in Oyster Beds 93

Close Season as to Oysters 94

Chapter VI

CIVIL REMEDIES FOR OBSTRUCTION AND INVASION OF FISHERIES. Owners of Fisheries Clearing River 95

If Quo Warranto lies to try Right to Fishery 96

6 A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE...

Abating Obstructions of Fishery 96

PAGE

Distraining Nets of Trespassers 98 Ejectment 100

Remedies by Action 100

Obstructions of Common Fishery 101

Proof of Ancient User 103

Two Competing Grants 106

Opposite Riparian Ovvuei-s 108

Non-user of Fishery 109

Remedies as to Several Fishery 110

Remedy as to Free Fishery 112

Obstnictions of Common of Fishery 114 Remedy in Court of Chancery 115 CHAPTER VIL.

THE LAWS OF ANGLING.

No Right at Common Law to Angle in another’s Waters. 119 Anglers, as Poachers, how Punished 122 Angling in the Daytime 123

When Anglers may be Apprehended 124 Anglers’ Rod and Tackle, when Seizable 125 Remedies against Angler Poaching 126 Claim of Right to Angle 127

Claims of Inhabitants of Towns to Angle 128 Right to the Fish Angled 130

Purchase or Lease of Rod Fishing 131 Angling Salmon’. 132

Chapter VIII. Laws Affecting Salmon Fisheries

Salmon Laws Generally 1S5

Poisoning Salmon Rivers 136

Legalized Nuisances which Poison Rivers 138 Stopping Illegal Rights 141

Who may Prosecute 142

Claim of Right to Poison a River 142 Fishing Salmon with Lights, Spears, c 143 Using Fish-roe as Bait 144

Xa ANALYTICAL TABLE OF CONTENTS.

PAGE

Salmon Nets 145

Fixed Engines 146

Fishing Dams 147

Gratings in Artificial Streams 149

Taking Unclean Fish 149

Taking Young of Salmon 150

A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE ENGLISH SALMON AND SEA FISHERY

Disturbing Salmon Spa Tiing 151

Close Times 151

Home Office Varjing Close Time 152

Selling Fish in Close Time 153

Exporting Salmon during Close Time 155

Fixed Engines in Close Time 156

Weekly Close Time 156

Regulations as to Fish-passes 157

Eegulations as to Fishing Wears 159

Central Authority of Home Office 159

Conservators of Salmon Waters 160

Justices Granting Search Warrants 160

Apprehending Offenders 161

Procedm’c and Penalties 161

SCOTLAND. CHAPTER I.

FISHERIES IN THE SEA OTHER THAN SALMON.

Open Sea Fisheries 165

Territorial Seas and Navigable Rivers 165

Crown’s Riglit to Whales 165

Other Fish than Salmon 165

Right of Public to Fish in Sea 166

To what Extent an Individual may have Exclusive Right. 167

Oysters, Lobsters, Shell Fish at Common Law 167

Grant of White Sea Fishing by Crown 167

Navigation Paramount to Fishing 168

Oyster Fisheries Protected against Theft )y Statute 3 4 Vict. c. 74 168

Mussel Fisheries Protected by Statute 10 11 Vict. c. 92. 169

Herring Fishimics 169

ANALYTICAL TABLE OF CONTENTS. XVII

CHAPTER IL rh; iit to salmon generally.

Right to Salmon in Seas and Rivers 17-

Salmon is inter regalia 172

Fishing Salmon by Net 174

Salmon Fishing must be derived from Crown 174

Mode of Fishing at Common Law in Rivers 176

Common Law as to Salmon, how far Superseded by Statute. 177 Result of Statutes and Common Law as stated by Lord

Westbury, L. C 17D

Net and Coble Fishing for Salmon 183

Bei-moncy Boat Fishing 185

Net Fishing between Opposite Riparian Owners 186

Right of Fisher to use Banks and Shore 187

Use of River Banks 188

Boundaries of Fisheries 188

Remedy between Owners of Fisheries 189

A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE...

Remedy by Interdict 190

Fishing of Locality Lands 191

Fishing in a Lake 191

CHAPTER IIL

SCOTCH SALMON FISHERY ACT, 1862.

Modern Salmon Acts Generally 193 Fishery Districts 194

Fishery Commissioners 194

Annual Close Time for Salmon 195

Weekly Close Time for Salmon 195

Illegal Modes of Fishing 196

Offences as to Salmon 196

Selling Salmon in Close Time 197 Salmon-roe 198

Poisoning Rivers 198

Duties of Fishery Commissioners 199 Fishery District Boards 200

Powers of District Boards 201

Assessments by District Boards 202 Seizure of Forfeited Articles 203

Three or more Poaching Salmon by Night 204 PAGE

Procedure to Recover Penalties 204 Poachers of Salmon 205

Apprehension of Poachers of Salmon 207 Procedure and Penalties for Poaching 208 Enactments as to Procedure 209 CHAPTER IV.

TROUT AND FRESHWATER FISH OTHER THAN SALMON.

Common Law as to Trout Fishing 211 Fishing Trout with Nets 212

Right of Trout Fishing 213

What were Legal Modes of Fishing Trout hefore 1860. 214 Right of Tenants of Land to Fish Trout 215 A Decision on this Point Questioned 216 Close Time 217

Trespassing to Poach Trout 217

Power to Seize Nets, c. of Poachers 218 Power to Apprehend Poachers 219 . lustices Interested in the same Water 220 Procedure against Poachers of Trout 221 Recovery of Penalties 221

Appeal against Conviction 221

Application of Penalties 222

Limitation of Actions 222

Interpretation of Terms 222

ATREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE ENGLISH SALMON AND SEA FISHERY

CHAPTER V.

THE LAWS OF ANGLING.

Angling Generally 223

Angling for Salmon 223

Illegal Angling for Salmon 224

Angling in Annual Close Time for Salmon 224 Weekly Close Time as to Salmon 224 Salmon-roe 225

Selling Salmon Angled 225

Title to Trout Fishing 225

Angling for Trout 226

Angling Trout from Highway 227

Trout Angling as regards Salmon 228 Angling as between Opposite Owners of Stream 229 ANAXYTICAL TABLE OF CONTENTS. XIX CHAPTER VI.

THE TWEED AND SOLWAY FISHERFES.

PAGE

The Tweod Generally 231

Special Statutes as to Tweed 232

Tweed Commissioners and Officers 233 Water Bailiffs 233

Justices, c. interested 234

Annual Close Time 234

Weekly Close Time 235

Having or Selling Fish iu Close Time 235 Removal of Boats and Nets in Close Time 236 Fixed Nets, Dams, c 237

Beating the Water 238

Stake and Bag-nets 238

Size of Meshes of Nets 238

Pout-nets or Rake-hooks 239

Wear-shot Net 239

Leisters and Spears 239

Poisoning River 239

Penalty on Fishers when not Entitled 240 Foul or Unseasonable Fish 240

Cleeks 240

Trout Fishers Catching Salmon 241 Destroying Spawn 241

Salmon-roe 241

Three or more Poaching by Night 241 Procedui-e 242

The Solway 243

Other Local Fisheries 244

IRELAND.

10 A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE...

Irish Fisheries Generally 247

Common Law as to Fisheries 248 Fishery Commissioners 248

Fishery Districts 249

Special Fishery Commissioners 251 Bye-Laws of Commissioners 252 PAGE

Meaning of Terms 252

Funds of District Board 252

Use of Shore by Herring Fishermen 352 Fishing Vessels Registered 254

Sea Nets 254

Sea Fish near "Wears 256

Oysters 257

Stealing Oysters 257

Power to Make Oyster Beds 257

Close Season for Oysters 259 Improvement of Oyster Beds 260

Bait Beds 260

Licence Duty on Engines 260

Scale of Licence Duties 261

Engines Injurious to Fish 262

Licensing Engines not enumerated in Statute 262 Licences for Engines, how obtained 264 Fishing without Licence 264

Fisheries subject to Annual Rate 265 Natural Obstructions in Rivei-s 265 Fishing Wears 265

Fixed Nets 267

Right to Stake and Fixed Nets 268 Bag-nets 268

Boxes and Cribs 269

Free Gaps 269

Otters, Spears, Gaffs 270

Cross Lines 270

Taking Fish in Mill-dams, c 270

Nets during Night in Rivers 271

Fishing by Nighta Disturbing Spawn 271 Nets near Mill-dams 272

Nets at Mouths of Rivers 272

Nets in Inland Rivers 272

Meshes of Nets for Salmon, Trout, and Freshwater Fish. 273 Spawn of Salmon, Trout, or Eels 273 Unclean Fish 274

Poisoning Rivers 274

A TREATISE ON THE FISHERY LAWS OF THE UNITED KINGDOM, INCLUDING ALL THE ENGLISH SALMON AND SEA FISHERY

Annual Close Time for Salmon 275

Close Season in Certain Excepted Counties 275 Fishing Wears in Close Time 276 ANALYTICAL TABLE OF CONTENTS. XXI1 PA!K

Annual Close Time for Trout 27 C

Close Season for Aiiffliiig *277

Close Time for Eels 277

Eel Fishery 277

Eemoval of Salmon Nets during Close Time 278 Fishing during Close Time 278

"Weekly Close Time for Salmon and Trout 279 Fishing in Annual or Weekly Close Time 279 Poaching in Private Fishery 280

Entering Lands to Fish 280

Obstructing Persons Fisliing Legally 280 Offenders bound to tell their Names 281 Ofitenders using Violence 282

Water Bailiffs 283

Procedure 285