fii«e\r. T IS'I3 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ox THE FISHERY LAWS OF THK UNITED KINGDOM, INCLUDING %[{ ihj €\^M) coalman anb 3a fisim} gets. WITH NOTES AND EXPLANATIONS. SECOND EDITION- JAMES PATERSON, Esq., M.A., OF TUB MIDDLB TEMPLE, BAREISTEK-AT-LAW, Lalt Vhaiifnaii of the Speciul Commissioners for English Fisheriet. SHAW AND SONS, FETTER LANE 1873. [All rights reserced.j LONDOK: PEINTED BY SHAW AND SONS/PETTEK LANE. T PREFACE TO THE 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shortly after the passing of the Salmon Fishery Act, 1861, which formed a new point of departure in the law, having repealed all the former Acts and introduced a uniform close season and more stringent penalties, and having also as a main object the extinction of fixed engines.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 Commis- sioners 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 IV PEEFACE. the Crown tlie legal member of tlie Special Commis- sioners 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 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 endea- vour 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. PREFACE. V 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 Com- mittee, accordingly prepared a Bill, embodying enact- ments 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, VI PREFACE. 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 discus- sion 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. J. P. Goldsmith Building, TEMrLU, Sejptember, lb73. PREFACE. 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, how- ever, 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 Vlll 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, regard- less 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 Legis- lature 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 at- tained, 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. PREFACE. IX 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. J. P. Goldsmith Buildings, Temple. November, 1863. CONTENTS. ENGLAND. PAGE CHAP. I. — EIGHTS OF FISHERY VIEWED GENERALLY . . 1 — 4 CHAP. II. — FISHERIES IN THE OPEN SEA 5 — 13 CHAP. III. — FISHERIES IN TERRITORIAL SEAS AND NAVI- GABLE RIVERS 14 —44 CHAP. IV.— DIFFERENT KINDS OF FISHERIES IN POINT OF LAW 45 — 69 CHAP. V. — RIGHT OF PROPERTY IN FISH, AND LARCENY AND COGNATE OFFENCES AS TO FISH . . 70 — 94 CHAP. VI. — CIVIL REMEDIES FOR OBSTRUCTION AND IN- VASION OF FISHERIES , 95 — 118 CHAP. VII. — THE LAWS OF AJJGLING 119 — 134 CHAP. VIII. — LiVWS AFFECTING SALMON FISHERIES . . . 135 — 162 SCOTLAND. CHAP. I. — FISHERIES IN THE SEA OTHER THAN SALMON 165—171 CHAP. II.— RIGHT TO SALMON GENERALLY 172 — 192 CHAP. III. — SCOTCH SALMON FISHERY ACT 193 — 210 CHAP. IV. — TROUT AND FRESHWATER FISH OTHER THAN SALMON 211—222 CHAP. V. — THE LAWS OF ANGLING 223 — 230 CHAP. VI. — THE TWEED AND SOLWAY FISHERIES . . . 231 — 244 IRELAND. STATUTORY VARIATIONS OF THE COMMON L.\W .... 247 — 286 APPENDIX OF STATUTES 289 — 338 ANALYTICAL TABLE OF CONTENTS. CHAPTER I. RIGHTS OF FISHERY VIEWED GENERALLY. PAGE Definition of Fisheiy 1 Sea and Private Streams — General Rules 2 Private Streams 2 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 III. 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 Sea 20 "\(\'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 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 Ratability of Fishery 6S xiv ANALYTICAL TABLE OF C02^ TENTS. 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 Abating Obstructions of Fishery 96 ANALYTICAL TABLE OF CONTENTS. XV 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 VII. 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 X\a 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 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 Definition of Fishery 170 ANALYTICAL TABLE OF CONTENTS. XVll CHAPTER IL rh;iit to salmon generally. P.\OE 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 Wcstbury, 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 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 h xviii ANALYTICAL TABLE OF CONTENTS. 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 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. 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 &2 XX ANALYTICAL TABLE OF CONTENTS. 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 Night— 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 Annual Close Time for Salmon 275 Close Season in Certain Excepted Counties 275 Fishing Wears in Close Time 276 ANALYTICAL TABLE OF CONTENTS. XXl I'A 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 APPENDIX. English Salmon Fishery Act, 24 & 25 Vret. c. 1 09 289 Salmon Exportation Act, 26 Vict. c. 10 308 Scotch Salmon Fisheries Act, 25 & 26 Vict. c. 97 310 Scotch Salmon Fisheries Amendment Act, 26 & 27 Vict. c. 50 . 323 Irish Salmon Fisheries Act, 26 & 27 Vict. c. 114 325 TABLE OF ENGLISH AND IRISH CASES CITED. Abbot of Strata Marcella, case of, 18. Aberdeen Arctic Company v. Sut- ter, 7, 9. Adley v. Eeeves, 93. Allen V. Donelly, 17, 19, 21, 116, 117, 130. Ashworth v. Brown, 117, 130. Bagoti;. Orr, 16, 91. Ball V. Herbert, 29. Bann, Fishery of, 33. Battishill v. Kead, 140. Bealey v. Shaw, 139. Beaufort, Duke of, v. Mayor of Swansea, 104. Beauman v. Kinsella, 109. Bennett v. Costar, 115. Bidder v. Local Board of Croydon, 141. Bird V. Higgenson, 57, 59, 131. Bland -y. Lipscomb, 57, 115, 130. Blundell -y. Catterall, 15, 21, 29. Booth V. Clive, 83. Botts V. Ackroyd, 84. Braham v. Watkius, 83. Breese V. Jerdain, 83. Bridge v. Grand Junction Com- pany, 97. Bridger v. Ilichardson, 76, 91, 92. BuUbrook v. Goodere, 98. Bute V. Grindall, 68. Caledonian Railway Company v. Colt, 149. Carlyon v. Lovering, 139. Carter v. Murcot, 16. Chad V. Tilsed, 19. Charter v. Graeme, 83. Chester Mill Case, 36. Child V. Greenhill, 72, 111, 113. Colchester, Mayor of, v. Brooke, 19, 93, 97. Cornwell v. Sanders, 82. Cowlam V. Slack, 57. Cox V. Reid, 83. Darley v. R. 96. Davies v. Maun, 97. Dawes v. Hawkins, 19. Devonshire, Duke of, v. Hodnet, 21, 38. Devonshire, Duke of, v. Smith, 41. Dimes v. Petley, 97. Eaton V. Swansea Water Com- pany, 140. Embleton v. Brown, 84, 162. Embiy v. Owen, 139. English V. Burnell, 5Q. Evans v. Macloughlan, 79, 83, 282. Evans v. Rees, 104. Fennings v. Lord Grenville, 7, 8. Fontleroy v. Aylmer, 111. Gateward's case, 56, 115. Gibbsu. WooUiscot, 47, 52. Graham v. Ewart,. 68. Grand Uiiiou Canal Company v. Ashby, 67. Gray v. Bond, 31. Grey's case, 70, 71, 72. Hamilton v. Marquis of Donegal, 40, 42, 51. Hargrave v. Lord Congleton, 56, 114. Harmond v. Pearson, 95. Harrison v. Leaper, 137. Haseldine v. Grove, 83. Hayes v. Bridges, 57, 58, 61. ENGLISH AND IRISH CASES CITED. XXUl Haylock v. Spark e, 84. Hayward ex p. 83. Heddy V. Whcelhouse, 18. Hermann v. StMieschal, 83. Herbert v. Lau^hhiyn, 100. Hipkins v. Birmingham Gas Com- pany, 138. Hodgson V. Little, 156. Hogarth v. Jackson, 8. Holford V. BaUey, 49, 54, 57, 60, 67, 111, 114, 116, 131. Holtbrd V. Pritehard, 59, 67, 131. Hopkins v. Robinson, 57, 131. Horn V. Thornliorough, 83. Howell V. Reynolds, 111. Hughes V. Buckland, 81, 83. Hull, Mayor of, v. Horner, 104. Jacklin v. Fitch, 83. James v. Saunders, 84. Jones V. Nichols, 83. — V. Taylor, 82. — V. WUlianis, 97, 107. Kinnersley v. Orpe, 49, 104. Lamb v. Newbiggen, 68. Lambert i>. Strotlior, 112. Leary v. Patrick, 84. Leatt V. Vino, 82. Legg V. Pardoe, 82. Leniel v. Harslop, 57. Lester v. Barrow, 84. Lifford's case, 30. Lisle V. Brown, 88. Little V. Wingfield, 17, 18, 104, 106, 107. Littledale v. Scaith, 8. Lloyd V. Jones, 115, 130. London, Mayor of, v. Perkins, 116, 130. Londres, Alderman de, v. Hast- ing, 60. Lopez V. Andrews, 104. Lynn Regis, JVlayor of, v. Taylor, 30, 92. — Mayor of, v. Turner, 32. Malcolmson v. O'Dea, 17, 21, 22, 23, 24, 38, 54, 104. Maldon, Mayor of, i^. Woolvet, 91. Mallock V. Eastly, 72. Marshall v. Nichols, 12. — V. Ulleswater Company, 49, 65. Martins v. Upcher, 83. Miner v. Gilmour, 138. Jlorden v. Porter, 207. Moulton V. Wilby, 146, 148, 149, 267. Murgatroyd v. Robinson, 140. Newport Bridge, Re, 153. O'Neill V. Allen, 17, 103, 110. : Ordeway v. Ornie, 56. Orford, Mayor of, v. Richardson, 17, 19, 112. Padwick v. Knight, 29, 92. Paget V. Mills, 60. Parker v. Mitchell, 140. Patrick v. Greenway, 116. Payne v. Tliorogood, 9. Pease v. Chayter, 142. PoUexfen v. Crispin, 112. Pretty v. Butler, 57. Proser v. Hyde, 83. R. V. Alresford, 64, 100. — V. Boultbee, 83. — V. Bradford, 88, 137. — V. Carlyon, 69. — V. Carradine, 88. — V. Cheltenham Commissioners, 83. — V. Corden, 75. — V. Cridland, 82. — V. Curran, 282. — V. Daman, 75, 77. — V. Eaton, 83. — V. Edwards, 75. — V. Ellis, 30, 61, 62, 63, 68, 69. — V. Glover, 76. — V. Hertfordshire Justices, 83. — r. Hodges, 74. — V. Hunsdon, 72, 76. — V. Long, 282. — V. Lovett, 77, 145. — V. Mallinson, 75. — V. Marshall, 76. — V. Mayor of London, 18. — V. MeJlani, 83. — V. Ogdcn, 96. — V. Old Alresford, 64, 100. XXIV SCOTCH CASES CITED. K. V. Riobmond Justices, 83. — V. Rishton, 83. — V. Eoss, 88. — V. Scott, 77, 145, 147, 158. — V. Sleap, 144. — V. Steer, 72, 76. — V. Stimpson, 127. — V. Watts, 95. — V. Wetwang, 76. — V. AVoodrow, 144. Reid V. Coker, 83. Reynell v. Cliampernoon, 99. Richardson v. Mayor of Orford, 112. Robinson v. Waddington, 154. Roe V. Ireland, 104. Rogers v. Allen, 17, 21, 57, 59, 91, 103, 131. Sampson v. Hoddinott, 140. Scratton v. Bro-\\Ti, 63. Seymom- v. Courtenay, 47, 52, 59, 68, 91, 111, 131. Simpson V. Unwin, 152. Skinner v. Chapman, 8. Smith V. Kemp, 47, 52, 60, 111, 113. — V. Miller, 110. J— V. Willcs, 113. Snape v. Dobbs, 66. Somerset, Duke of, v. Fogwell, 21, 49, 57, 61, 64, 67, 111, 131. Stockport Water Company v. Potter, 141. Sutton V. Moody, 86, 111. Tarry v. Newman, 82. Taylor v. Nesfield, 84. Tinnery v. Fisher, 56. Tyson v. Smith, 92. Upton V. Dawkins, 72, 113. Vivian i;. Blake, 17, 113. Vooght V. Winch, 110. Waddy v. Newton, 100. Ward'i). Cresswell, 101, 115. Ward V. Robins, 140. AVarren v. Matthews, 21, 96. AVeld V. Hornby, 39, 51. Wenman v. Mackenzie, 104. AVickes v. Clutterbuck, 75, 76. AVickham, v. Hawker, 57. Williams v. Adams, 82. — V. Blackwall, 147. — V. AVilcox, 36. Wilson V. Mackreth, 114. Wine V. Rider, 112. Wisdom V. Hodgson, 80. Wright V. AVilliams, 139. York, Mayor of, v. Pilkingtou, 116, 130. Young V. Hichens, 102. — V. Higgen, 154. Yoimg Jacob, 9. TABLE OF SCOTCH OASES CITED. Abercrombie v. Breadalbane, 190. Aberdeen AVhale Company v. Sutter, 165. Addi-son v. Row, 165. Agnew V. Mayor of Stranraer, 167. Arbuthnot v. Scott, 175. Ashburton -y. Mackenzie, 186, 218. Atholl, Duke of, v. Wedderburn, 182, 191. Bennett v. Hinchly, 210. — v. Jones, 243. Carnegie v. Brand, 183. — V. Magistrates of Bre- chin, 182. — V. Ross, 182, 183. Chisholme v. Eraser, 176. Colquhouu V. Magistrates of Dum- barton, 182. — V. Duke of Montrose, 168, 190. Copland's Trustees, 182. Cunningham v. Taylor, 182. Dalgleishi;. Duke of Atholl, 182. Damie, 198. SCOTCH CASES CITED. XXV Dirom v. Littles, 182. Dun, 198. Easton v. List, 207. Erskine, Earl, v. Magistrates of Stirling, 232. Evans v. JMaclanglilan, 208. Ewcu V. Guthrie, 198. Ferguson -y. SlurcfT, 228. Fife V. Banff, 191. — V. Gordon, 182. Forbes v. Earl Kintore, 188. — V. Leys, 183. — V. Smith, 182, 188. Frazer v. Dufi", 182. Ganiniell v. Woods and Forests, 172, 173, 174. Gemniill v. Kiadcll, 229. Gordon v. JMoray, 191. Graham v. Dixon, 182. Grant -y. Duke Gordon, 168, 175. — V. MacWilliam, 178, 182. Gray v. Magistrates of Perth, 1 88. Gray, Lord, v. Sime, 182, 183. Guthrie v. Dunbar, 174, 188. Hall V. Whillis, 167. Hay V. Provost of Perth, 177, 179, 184. Henderson v. Johnson, 243. Hoyle V. MacCunn, 187, 188. Hutchinson^. DuudeeWhale Com- pany, 165. Inverness, Magistrates of, v. Duff, 175. Johnstone v. Gibson Craig, 190. Johnson v. Stott.s, 175. Kinnoull v. Hunter, 183. Kintore, Earl, v. Forbes, 183, 190. Lawsonv. Jepp, 210. Leith'u. Leith, 191. Littlejohn v. Stratton, 175. Maedouald v. Fai-quharson, 192, 216. Macinroy v. Duke of Atholl, 189. Mackenzie v. Davidson, 189. Mackenzie v. Gilchrist, 190. — V. Home, 183. — V. Hou.ston, 182, 190, 191. — V. Renton, 176. — V. Rose, 216, 225, 226. — V. Sutherland, 188. — V. Syme, 183. Macjdiail v. Campbell, 210. Macpherson v. Macpherson, 191. Maitland v. Macclcliand, 167. Matthew v. Blair 187. Monzies v. Meazies, 191, 192. Miller, 198. MUler V. Blair, 188. Milne v. Smith, 174, 175, 186, 231, 232. Monmusk v. Forbes, 188. Montgomery v. Findlay, 198. — V. Watson, 191. Munro v. Ross, 183. Murray v. Magistrates of Kirkcud- bright, 232. — V. Earl Selkirk, 182. Portland, Duke of, v. Gray, 167. Queensbeny, Duke, v. Annandalc, Marquis of, 182. Quecnsberry, Duke, v. Stormont, 175. Ram.say 1?. Kellies, 166, 167. — V. Roxburgh, Duke, 176, 179. Richardson v. Hay, 191. Richmond, Duke, y. Dempster, 215. Robertson v. Mackenzie 175. Ross V. Duke of Sutherland, 183, 194. — V. Robertson, 191. Roxburgh, Duke, v. E. Home, 232. Russell, 198. Scott V. Gillies, 175. Sinclaii" ■y. Murray, 190. — V. Dutiu.s, 191. Somcrvillc,Lord,i'.Smith,228,229. Sutlierlaiid, Duke, v. Ross, 174, 175, 176, 211. Walker v. Jones, 243. Woods & Forests 7;. Maitland, 167. XXVI TABLE OF ENGLISH STATUTES REFERRED TO. Magna Charta, Hen. IH. c. 20, pp. 20, 35. 17 Ed. n. St. 1, p. 25. 25 Ed. in. c. 4, p. 37. 2 & 3 Ed. IV. c. 6, p, 9. 2 Hen. VI. c. 15. 1 Eliz. c. 17, p. 25. 3 Ch. I. c. 4, § 4, p. 26. 1 Geo. I. St. 2, c. 18, p. 26 ; §§ 2, 4, 5, 6, 7, 9, p. 27. 48 Geo. in. c. 110, p. 28. 50 Geo. in. c. 108, p. 9. 55 Geo. III. c. 94, p. 28. 1 Geo. IV. c. 103, p. 28. 1 & 2 Geo. IV. c. 79, p. 28. 5 Geo. IV. c. 64, p. 28. 1 Wm. IV. c. 54, p. 28. 2 & 3 Wm. IV. c. 71, pp. 30, 103 ; § 2, p. 140. 3 & 4 Wm. IV. c. 22, § 10, p. 95. 5 & 6 Vict. c. 97, § 2, p. 84. 6 & 7 Vict. c. 97, pp. 11, 13, 28. 9 & 10 Vict. c. cccxlvi. pp. 26, 44. 10 Vict. c. 17, § 61, p. 89 ; §§ 62, 63, p. 90. 10 & 11 Vict. c. 91, p. 28. 11 & 12 Vict. c. 43, § 31, p. 81 ; §§ 9, 14, p. 83. 11 & 12 Vict. c. 44, §§ 1, 2, 6, 10, p. 84. 11 & 12 Vict. c. 63, § 80, p. 90. 14 & 15 Vict. c. 26, § 6, p. 28. 14 & 15 Vict. c. 56, p. 28. 18 & 19 Vict. c. 3, p. 11. 18& 19 Vict. c. 101, pp. 13, 44; § 1, p. 94. 18 & 19 Vict. c. 121, §§ 23, 24 ; p. 90. 20 & 21 Vict. c. 43, p. 83. 21 & 22 Vict. c. 69, p. 28. 22 & 23 Vict. c. 69, pp. 44, 73. 24 & 25 Vict. c. 96, § 24, pp. 71, 109, 123, 125 ; § 103, pp. 77, 86, 161 ; § 25, pp. 79, 86, 98, 125, 126 ; § 26, pp. 91, 92 ; §99, p. 81 ;§120, p. 82 ; §§ 106, 107, 108, 109, 110, pp. 82, 124 ; §§101, 112,113, 115, 116, p. 83; § 115, p. 84 ; §§ 117, 118, 121, p. 85. 24 & 25 Vict. c. 97, § 32, pp. 87, 137 ; § 52, p. 31 ; §§ 58, 56, 60, 61, p. 89. 24 & 25 Vict. c. 109 (Salmon Fish- eries Act) § entire, p. 289 ; § 1, p. 289 ; § 2, p. 289 ; § 3, p. 289 ; § 4, p. 289 ; § 5, p. 136 ; § 6, p. 291 ; §7, p. 292; §8, pp. 133, 143 ; § 9, p. 144 ; § 10, p. 144 ; § 11, p. 146; §12, p. 147 ; §13, p. 149 ; § 14, pp. 133, 149 ; § 15, pp. 133, 149, 150 ; § 16, p. 151 ; § 17, pp.133, 152, 154; § 18, p. 153 ; § 19, pp. 152, 154 ; § 20, p. 156 ; § 21, pp. 133, 156, 157 ; §22, p. 157; § 23, p. 158; § 24, p. 158 ; § 25, p. 158 ; § 26, p. 158; § 27, p. 159; § 28, p. 159 ; § 29, p. 159 ; § 30, p. 159; § 31, p. 160; § 32, pp. 160, 302 ; § 33, p. 302 ; § 34, p. 302 ; § 35, pp. 134, 142, 161 ; § 36, I). 162 ; § 37, p. 162. 26 Vict. c. 10 (Salmon Exporta- tion Act), p. 308. 26 & 27 Vict. c. 125, p. 26. xxvu TABLE OF SCOTCH STATUTES REFERRED TO. Old salmon statutes, p. 178. 44 Geo. III. c. xlv. (Solway Act), § 9, p. 243 ; §§ 1, 2, 4, 6, 7, 9, 12, 15, p. 244. 9 Geo. IV. c. 39, § 11, p. 208; §§ 9, 12, 13, p. 208; § 9, p. 209. 3 & 4 Vict. c. 74 ; §§ 1, 2, 3, 4, p. 168. 7 & 8 Vict. c. 95, §§ 1, 2, 3, 4, p. 206. 8 & 9 Vict. c. 26, § 3, p. 219 ; § 4, p. 219. 10 & 11 Vict. c. 92 ; §§ 1, 2, 3, 4, p. 169. 20 & 21 Vict. c. cxlviii. (Tweed Act), §§ 10, 17, 18, 36, 37, 79, 80, 81, p. 233 ; §§ 38, 39, p. 234 ; §§ 48, 49, p. 236 ; §§ 50, 61, 52, 53, 54, 5.5, 61, p. 237 ; §§ 56, 57, 58, 59, 60, p. 238; §§ 13, 14, p. 239 ; §§ 65, 66, 68, 69, 70, 72, p. 240 ; §§ 73, 74, 75, 76, p. 241 ; §§ 82, 83, 84, 85, 87, 88, 92, 95, 96, 97, 98, p. 242. 22 & 23 Vict. c. Ixx. (Tweed Act), § 2, p. 232 ; §§ 6, 7, 8, p. 235 ; §§ 10, 11, p. 236 ; § 12, p. 238 ; §§ 62, 6.3, 64, p. 239 ; §§ 15, 17, p. 240; §16, p. 241 ; §§18, 20, p. 242. 23 & 24 Vict. c. 45, § 1, p. 212 ; § 2, p. 217 ; § 3, p. 218 ; § 4, p. 220 ; § 5, p. 221 ; §§ 6, 7, 8, 9, 10, 11, p. 222 ; §11, p. 226. 23 & 24 Vict. c. 92, p. 170. 24 & 25 Vict. c. 72, p. 170. 25 & 26 Vict. c. 97 (Scotch Salmon Act) entire, pp. 310—322 ; §§ 4, 5, 6, p. 194 ; § 4, p. 232 ; §§ 6, 7, 8,9, p. 194; §§6, 11, p. 224; §6, p. 243; §§7, 10, 34, p. 196 ; §§12, 13, 22,34, p. 198; §§5, 11, 12, 26, p. 225; §§ 14, 15, 19, p. 199 ; §§ 17, 18, p. 200; §§ 19, 20, 21, 22, 24, p. 201 ; §§ 22, 25, p. 202 ; §§ 27, 29, 32, 33, p. 203 ; §§ 27, 34, p. 204 ; §§ 27, 28, p. 242 ; § 28, 29, 30, 32, p. 205 ; §§12, 34, p. 241 ; § 33, pp. 194, 243. 26 & 27 Vict. c. 50 entire, p. 323 ; § 1, p. 199 ; § 2, p. 201 ; § 3, p. 243. TABLE OF IRISH STATUTES REFERRED TO. p. 257 ; §§ 32, 33, 34, 36, p. 259 § 13, p. 260 ; § 62, p. 265 §§ 18, 19, 21, p. 268 ; § 106, p. 270 ; §§ 75, 76, p. 271 ; § 78, p. 272 ; §§ 20, 65, 66, 103, p. 273; §§ 73, 74. 80, p. 274; §§ 33-35, p. 276; §§ 31, 69, p. 277 ; §§ 36, 77, p. 278 ; § 36, p. 279 ; §§ 71, 72, p. 280 ; § 28, p. 281 ; § 87, p. 282 ; §§ 82, 88 ; p. 283 ; §§ 83, 84, 85, S6, p. 284. 7 & 8 Vict. c. 108, § 7, p. 255 ; §§ 5, 6, p. 259 ; §g 94, 95, 96, 98, 99, 100, 101, 102, 103, 104, 105, 107, p. 285. 8 & 9 Vict. c. 108 § 15, p. 255 ; §16, p. 2.57; §19, p. 259; §§20, 21, p. 260 ; § 14, p. 262 ; §§ 7, 8, p. 266; § 5, p. 268; §§ 11, 12, p. 273; §10, p. 280. XXVlll IRISH STATUTES EEFEREED TO. 9 & 10 Vict. c. 114, § 1, p. 275 ; p. 276 ; § 34, p. 278 ; §§ 35, 36, §§ 2, 3, p. 276. 46, p. 279 ; § 47, p. 285. 11 & 12 Vict. c. 92, §§ 6, 17, 23, 26 & 27 Vict. c. 114 (Irish Sal- p. 250 ; § 27, p. 253 ; § 42, mon Act), entire, p. 325 ; § 29, p. 259 ; §§ 8, 10, 13, p. 261 ; p. 249 ; § 27, p. 250 ; §§ 14, 1-5, § 21, p. 262 ; § 28, 29, 30, 31, 17, 32, 33, 34, 35, 36, 37, 38, p. 264 ; § 23, p. 265. 39, 40, 42, p. 251 ; § 26, p. 261 ; 13 & 14 Vict. c. 88, § 1, p. 260 ; §§ 8, 13, p. 266 ; § 7, p. 266 ; §§ 5, 11, p. 249 ; §§ 6, 7, 9, 13, §§ 4, 14, p. 267 ; §§ 6, 44, p. p. 250 ; § l,p. 252 ; § 8, p. 253 ; 268 ; §§ 3, 9, 10, 11, 12, p. 269 ; § 41, p. 258 ; §§ 7-12, p. 265 ; § 24, p. 271 ; § 16, p. 272 ; § 23, §§ 14, 15, 16, 17, p. 267 ; § 43, p. 277 ; §§ 20, 22, 25, p. 279 ; p. 268 ; §§ 39, 40, p. 270 ; § 44, § 18, 280. p. 272; § 36, p. 274; § 45, ERRATA. Page 20, 13th liue from top, for defendatur read defendantur. Page 26, 6th line from top, for § 1 read § 4. Page 27, {n. 1) add, And see stat. 33 Geo. II. c. 27. Page 69, 3d line from top, for yet is read yet it is. Page 215, 5th line from foot, for Inglis, C. J. read Inglis, L. J. C. A TREATISE FISHERY LAWS OF THE UNITED KINGDOM. EXGLAXR CHAP. I. RIGHTS OF FISHERY VIEWED GENERALLY. DEFINITION — SEA AND PRIVATE STREAMS— GENERAL RULES— PRIVATE STREAMS — PUBLIC RIVERS — DIFFERENT KINDS OF FISHERY. Definition. — A fishery is properly defined as the right of catching fish in the sea, or in a particular stream or water; and it is also frequently used to denote the locality where such right is exercised. Sea and Private Streams — General Rules. — The sea is 'primd facie open to all the public for the purpose of fishing, and a stream not navigable is ju-imd facie exclusively confined to the use of the owners of the soil subjacent. The water, and all that is in it, is in the former case common to the public to use freely ; while in the latter case it is exclusively the i)roperty of one or two individuals, or at least so far thuir property that no other person can take the fish that are found there. Be,tween these extreme limits many qualifi- B 2 FISHERY LAWS OF ENGLAND. cations are introduced. In certain parts of the sea itself, and navigable rivers, an individual may prove his right to exclude all other persons from fishing there ; while in a private stream the original owner may have granted away the right of fishing therein to another person or other persons, either jointly with himself or exclusively of himself. Private Streams — General Rules. — The owner of a field in which is a pond is presumed to be also the owner of the pond and all that is in it. He may keep and catch what fish he pleases there, and is exclusively entitled to them. In a private stream or river, the owner of the adjacent land on both sides is also pre- sumed to be the owner of the stream, so far as regards the right of catching all the fish therein. He is not indeed the absolute owner of the water of the stream itself, for he is not entitled to use up the current, or to foul it, or unnecessarily to retard it or alter its plight and volume, for that would be to injure the rights of the riparian owners further down. Nevertheless, as far as the right of fishing, which is one of the uses of running water, is concerned, he is entire master within his own limits, and can catch as many of the fish as he can find, by whatever means he thinks proper, unless some statute prohibits him, and under the qualifications to be afterwards mentioned. The reason of this right of fishing in a private stream being an exclusive and absolute right is, that as he is the owner of the land on both sides, and also of the land subjacent, no one else can come there without being a trespasser, and thus there is nobody who can prevent him doing what he FISHERY \aEWED GENERALLY. 3 likes with his own. Tliere is, however, this qualification to the right, even at common law : that inasmuch as most streams run into the sea, and many fish come from the sea upwards into the stream, those proprietors nearest the sea cannot, by engines, apparatus, or other extraordinary means, intercept and monopolize all tlie fish, some of which would otherwise pass upwards into the waters of the upper proprietors. Each must, to a certain extent, allow his neighbour fair play and equal chances. In this sense, all tlie owners on the line of a stream have a common interest in the right of fishing those fish which come from the sea ; and this common interest arises out of the nature of the thing itself, as in a state of nature a stream is not separated into distinct physical portions having no mutual intercommunica- tion. It will be found that this equality of interest is often disturbed by the erection of wears and similar encroachments. Where the land on one side of a private stream belongs to a different owner from that on the other side, the presumption of law is, that the soil of the stream up to the middle belongs to each owner on his own sid(\ and the right of each to fish exclusively in liis own half of the stream is one of the rights incidental to Ms ownership. Public Rivers.— '\^\ih. regard to a public navigable river, the presumption of law is the same as it is in regard to the sea, viz. that the soil or bed belongs to the Crown, l)ut this does not in any May prevent all the subjects from fishing therein, for aU have equal rights. Nevertheless, it will be afterwards seen that an B 2 4 FISHERY LAWS OF ENGLAND. individual may acquire an exclusive right of fishery even in a public river, or in part of the sea. Kinds of Fisher}/. — The law of England is hopelessly confused in regard to the terms which distinguish the different kinds of fishery ; and no ingenuity can recon- cile the authorities. But, as will be afterwards shown, upon a due regard to first principles and the better authorities, the following definitions of the current terms are those which will be established and here used. There are four descriptions of fishery. A common fishery is that kind of right which all the public have alike to fish in the sea or a navigable river. A several fishery is the right of an individual to fish exclusively in a particular water, and it is not necessarily united with the right to the soil, though originally all owners of the bed of a river or water must have had a several fishery in such water as a constituent part of the right of property, until they parted with it to another. A free fishery is the right of fishing along with other indi- viduals in a water. A common of fishery is the right of a person to fish in waters of which the soil belongs to a different person, and is analogous to a common of tur- bary or pasture. In reality, a free fishery and a common of fishery scarcely differ, except in the mode in which the right was acquired. These distinctions will be further explained in the sequel. FISHERIES IN OPEN SEA. CHAP. II. FISHERIES IN THE OPEN SEA. THE OPEN SEA, WHAT— FI.sHERY, HOW REOXTLATED — INCIDENTS OF SUCH FISHERY — NATURE OF RIGHT OF FISHERY — WHAT MAY BE FISHED, AND HOW— CONVENTION WITH UNITED STATES — CONVEN- TION WITH FRANCE. The Open Sea. — In treating of fishery in the sea, a dis- tinction must be made between what is properly called the open sea, and what may be called the territorial sea, or mare clansum, i. e. the sea which is in a certain sense the property of the nation to which the adjacent continent or island belongs, such sea being vested in the Crown, or in the sovereign authority as represent- ing the nation. With regard to the limit from the shore to which this right of property in the territorial sea extends, it seems to be agreed by jurists that this limit is three miles.^ And the same limit is fixed upon in the convention between Great Britain and France which regulates the use of the fisheries between their respec- tive shores ; the fishermen of each countiy having the exclusive right of fishing M'ithin three miles from 1 Yattel, 128; Selden, 182; Martens, 161. 6 FISHEEY LAWS OF ENGLAND. their own shore undisturbed "by those of the other country. The same limit is uniformly adopted by the Coiu't of Admiralty in administering the law with respect to the rules of the sea in British waters. Fishery, hoiv regulaUd. — The open sea thus defined, i. c. that part of the sea beyond three miles from the continent, is equally available to all comers from every part of the world ; whereas the subjects of one country are not entitled to fish within the territorial sea of another country without a licence from the Crown or sovereign authority. And such is the rule adopted by English law.^ When disputes of a private character arise in the open sea between the fishermen of different countries, the solution of these disputes is regulated by the law of nature, or rather by what has been called custom, for some custom, founded more or less on the law of nature, of necessity springs up at a particular place, adapted to the circumstances, and this custom is held to be bind- ing as between British and foreign subjects. This rule is adopted as the only fair and impartial course, for as each fisherman would naturally act according to the law of his own country, which would be entitled to as much and no more weight than that of the other countries from which his competitors come, a custom which belongs to the law of neither, but which is peculiar to the locality, and by which all may agree to be bound without jealousy, becomes a substitutionary or secon- dary law, binding on all who act under it. Such a custom, however, in order to be binding, must be clearly 1 Selden, Mar. CI. B. II. c. 21 ; Hale, De Jur. Mar. c. 4. DISPUTES IN WHALE-FISHING. / understood by all those who frecjueiit the locality in question.^ The origin and necessity of this rule were thus ex- plained by Chambre, J.'^: — " There must of necessity be a custom in these things to govern the subjects of England, as well amongst themselves as in their intercourse with the subjects of other countries. The usage of Green- land is held to be obligatory, not only as between British subjects, but as between them and all other nations. I remember the first case upon that usage which was tried before Lord Mansfield, who was clear that every person was bound by it, and said that, were it not for such a custom, there must be a sort of warfare per- petually subsisting between the adventurers ; and he held it strongly binding from the circumstance of its extending to different nations. The same necessity must prevail in the South Seas, although the fishery has not been so long in use, in order to regulate our intercourse with the French, Americans, and others who resort thither. A few persons may, by compact among them- selves, for a particular reason renounce any advantages, and subject themselves to any disadvantages that they please ; and this would bind all those who assent to it, but not those who are no parties to the compact." Such local customs accordingly have often been ac- cepted and acted on by the Courts of this country. Thus, at the Clallipagos Islands, opposite South America, it was a custom that whoever first struck a whale with a droug, or loose harpoon, was entitled to receive half 1 Aberdeen Arctic Company v. Sutter, 4 Macq. Ai\ C. 2 Fcnnlmjs v. L. GrcnviUc, 1 Taunt. 247. 8 FISHERY LAWS OF ENGLAND. of the produce from the party who ultimately killed it.^ At the Greenland Whale Fishery the ruling custom was held to be, that the first harpooner who struck the fish was entitled to the property of the fish only if he continued to hold the whale by the line attached to the harpoon ; but if his line broke, and a subsequent har- pooner from another ship finished the capture by ob- taining possession, the latter was entitled, for it was then a loose fish.^ In a later case the custom was proved to be subject to the qualification, that to entitle the first harpooner who struck the fish to the property, he must have kept tlie fisli entangled in his lines until it was captured ; ^ but he was not divested of this contingent right to the property by a volunteer coming up and officiously striking the fish, thereby causing it to struggle and break from the first line.* Such local customs require to be proved, and they will be found to vary from time to time ; for as the origin of the custom is referable solely to convenience and common consent, this must obviously vary according as the experience of the parties directly interested enlarges. All that is required is, that the custom be clearly un- derstood and generally adopted by those who resort to the locality. Where a custom has prevailed in a locality, some difficulty is sometimes felt in ascertaining within what area or geographical limits the custom applies. Thus, it is difficult to define the area of the Northern Whale * FenningsY. L. Grenville, 1 Taunt. 248. 2 Lilthdale v. Scaith, 1 Taunt. 243 n. 3 Hogarth v. Jackson, M. & M. 58 ; 2 C. & P. 595. * Skinner v. Cluqnnan, M. & M. 59 ». INCIDENTS OF OPEN SEA FISHING. 9 Fishery ; and in a recent case, wlierc it was disputed whether Cumberland Inlet was part of this area, the Court held that jJ^'imu facie it was, and that it was there- fore incumbent on those to prove the fact, who alleged that the custom of fast and loose which was well estab- lished at the Northern Whale Fishery either never existed at Cumberland Inlet, or was displaced by some other custom which was well understood there.^ hicidcnts of Fulling in O'pen Sea. — It seems that in ancient times a licence to go to the whale fishery was exacted by officers of the Admiralty, but a statute was passed declaring such exactions illegal, and subjecting the party so exacting to a fine.^ With regard to seamen binding themselves to go on board whaling ships, a summary power of enforcing the contract was given to justices of the peace by a statute of 1810.^ But that statute is now substantially re- pealed by the provisions of the Merchant Shipping Acts, which put whaling ships on the same footing as any other ships. It was once held that fishing boats ^vere exempted from the usual incident of seizure in time of war, out of respect to the industrious order of fishermen em- ployed in them; but in principle this exception has been held untenable, and they are treated like other vessels.* And so important was deemed the trade, that fishermen engaged in the fisheries of the kingdom were by statute specially exempted from impressment.^ ' Aberdeen Arctic Company v, Sutter, 4 [Macq. H. L. C. 2 2 & 3 Ed. VI. c. 6. 3 50 Geo. III. c. 108. ■• Young Jacob, 1 Rob. Ad. 20. 5 Payne v. Thorogood, 1 M. & S. 223. 10 FISHERY LAWS OF ENGLAND. Nature of Right of Fishery in Open Sea. — It is of little consequence to discuss the exact nature or correct legal denomination of the right of fishing in the open sea. The utmost that can be done is to give it a name, merely for purposes of classification. It has been generally called a common fishery, or a public common of fishery, ■which means merely that all can fish in common in the open sea ; all have equal rights ; one is as good as another, and no one is entitled to exclude another. This seems to be the definition wliich the words com- mon fishery ought properly to receive. A common of fishery is another right which will be explained here- after, and differs from a common fishery in precisely the same manner as a highway, which is often called a public easement of way, difi'ers from a private easement of way. What may he Fished, and Hoio. — With regard to fishing in the open sea, there is no limit imposed by the common law or international law either as to the descrip- tion of fish that may be caught or the means of catching them. The whole contents of the ocean are open to the ingenuity of the fishermen. All that comes to their net is their own, and when brought home there are now none of the somewhat frivolous restrictions on their sale wliich once prevailed, and fishermen are treated like other merchants at open markets. It is only when disputes occur with other fishermen in the open sea that this absolute right admits of qualification, for in that case the rules of fair play and the authority of any local custom, as above described, must govern such disputes. As regards each fisherman, when the WHAT MAY BE FISHED IN OPEN SEA. 11 rights of others are not directly interfered with, he can fish where and how he pleases. It is true that statutes, more or less ancient, have passed from time to time regulating some matters re- lating to particular fisheries in the open sea. The chief object of this legislation was the supposed necessity of giving encouragement to such fisheries, and the ex- pedients resorted to were bounties and privileges to those who engaged in them, at the expense of the State. Thus, numerous statutes were passed in favour of the Southern Whale Fishery, the Greenland Whale Fishery, the North Sea and Iceland Fisheries; but nearly all these Acts have been repealed or have expired by effluxion of time, since new views of legislation have gradually become predominant, and artificial stimulants given to trade are discountenanced. It is therefore unnecessary further to notice them, or to notice any other statutes affecting the open sea fisheries, except so far as the statutes affecting the territorial sea fisheries may extend to them; and the subject will be most conveniently treated under the head of territorial sea fisheries. Convention with United States. — With regard to the fisheries on the coast of North America, it may be merely noticed that a convention was carried into effect between the United States and Her Britannic IMajesty under the statute 18 & 19 V. c. 3. The details, which refer to the North American coasts, are of an interest too remote from our immediate purpose to require further notice. Convention ivith France. — A stat. G & 7 V. c. 79, em- 12 FISHERY LAAVS OF ENGLAND, bodied a convention between Great Britain and France as to the mutual rights of their respective subjects in the interjacent seas when engaged in the fisheries. Ee- gulations are laid down as to the time, place, and mode of fishing. The subjects of each country are entitled to fish exclusively within three miles from their own shore. The Board of Trade may make bye-laws, a copy of which is to be deposited with the clerk of the peace, the collectors of customs, and at the coast-guard stations adjacent. The coast-guard officers are to enforce the provisions. Every person assaulting or obstructing any person authorized to enforce the Act, may be con- victed and fined by any justice of the peace in 5Z. or imprisonment for twenty-one days. The justices of the peace of the nearest county to the place where the offence was committed, or of the place to which the offender is brought, have jurisdiction to award penalties against British subjects, and also against French sub- jects committing offences within the limits of the British fishery, i.e. three miles from low-water mark ; and where a French suliject commits an offence beyond the British limits, he may be brought into the nearest English port, where he is required to make depositions before a justice, a copy of which is to be sent to the British consular agent at the French port. Where the breach of the rules and bye-laws by a French subject within British limits causes damage to a British subject, a justice of the peace may award compensation (sect. 14). The remedy under this statute is exclusive of all other remedies competent at law.^ 1 Marshall v. Nichols, 18 Q. B. 882. CONVENTION AS TO FISHERIES. 13 This French convention was revised in 1867, and con- siderable alterations made, all of which tended towards abolishing the former restrictions on sea fishing. The Sea Fisheries Act, 18G8 (31 & 32 V. c. 45 ; see post, p. 462), accordingly repealed the Act 6 & 7 V. c. 79, while re-enacting most of the sections, and it incorporated the new convention. The opportunity was taken to repeal all the old Acts, which embodied man)'^ confused enactments as to meshes of nets, close season, sale of fish, and young sea fish. This Act (which extends to Scotland and Ireland) does not affect salmon, but makes the fishing of all other sea fish practically free. One or two qualifications exist as to seine fishing in Cornwall (§ 68), and as to interference between drift-net and trawl-net fishing. (See Convention, ^;o5^, pp. 495 — 502.) A slight altera- tion is made in the short close season as to oysters (see post, p. 496) ; but the Irish oyster fisheries are excepted from the Act, and left to be dealt with under the Irish Fishery Acts. 14 FISHERY LAWS OF ENGLAND. CHAP. III. FISHERIES IN TERRITORIAL SEAS AND NAVIGABLE RIVERS. GENERAI; EIGHT OF PUBLIC TO FISHERY — EXCLUSIVE EIGHT OF A SUBJECT TO FISHERY IN THE SEA — HOW ACQUIRED — WHETHER CKOWN SINCE MAGNA CHARTA CAN GRANT SEVERAL FISHERY IN SEA — WHAT FISH MAY BE CAUGHT IN SEA — -CROWN'S RIGHT TO EOYAL FISH — YOUNG FISH OTHER THAN SALMON — HERRING, COD, LING, ETC. — PILCHARDS — RIGHT OF FISHERMEN TO USE SHORE, ETC. — DAMAGE DONE WHILE FISHING — OBSTRUCTION TO NAVIGATION — FISHERY IN PUBLIC NAVIGABLE RIVERS — WEARS AND FIXED AP- PARATUS — LEGALITY OF WEARS — STATUTES AS TO WEARS — FIXED NETS — ILLEGALITY OF WEARS AND FIXED NETS AT COMMON LAW —SALE OF FISH. General Right of Public to Fishery. — The right to fish in the British or territorial seas, and in all public navigable rivers in England, belongs prima facie to all the public of the United Kingdom. As regards the soil beneath the sea and navigable rivers, this is prima facie vested in the Crown, and the right of fishing was also originally vested in the Crown, but has long since ceased to be so, except in an imperial or titular sense, i.e., in so far only as the Crown is the representative of the public, and the Crown's right does not in any way qualify or restrict the absolute right of the public to fish within the limits. The Crown has now no more right to exclude the public SEVERAL FISHERY IN SEA. 15 from fishing there than the owner of the soil of a high- way has to exchide the piihlic from walking upon or using that higliway. " Many of the king's rights," as Bayley, J. observes, " are to a certain extent for the benefit of his subjects, and that is the case as to the sea, in which all his subjects have the right of navigation and of fishing, and it is so in highways along which all his subjects have the right of passage, and the king can make no modern grants in derogation of those rights." ^ The subjects of a foreign state have not the same right to fish in the territorial seas as native subjects, but require a licence from the Crown, as already stated.^ Exclusive Right of Subject in Sea and iniblic Rivers. — As regards the right of the subjects of the United Kingdom to fish in the territorial seas and all navigable rivers, the rule is, that prima facie every subject is absolutely entitled to fish there. But though this is the general rule, it is nevertheless competent for an individual subject to establish his exclusive right to fish in arms of the sea and navigable rivers ; in other words, to exclude the public. The onus prohandi is, however, always upon such individual to prove affirma- tively this exclusive right. " The right of fishing in the sea," says Hale, C. J.' " and the creeks and arms thereof, is originally lodged in the crown, in like manner as the right of fishing in a private or inland river is originally lodged in the 1 Blundcll V. CattcraU, 5 B. & Aid. 304. 2 See ante, p. 6. ^ De Jur. Mar. p. 1, c. 4. 16 FISHERY LAWS OF EXGLAND. owner thereof. But altliougli the king is the owner, and, as a consequent of his propriety, hath the primary right of fishing in the sea or creeks and arms thereof, yet all the king's subjects in England have regularly a liberty of fishing in the sea and the creeks and arms thereof as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers where the king or some particular subject hath gained a pro- priety exclusive of that common liberty, either by the king's charter or grant, or by custom and usage or prescription." So Lord Mansfield also says, ^ " In navigable rivers the proprietors of the land on each side have not the fishery, but it is common. It is 'priTnd facie in the king, and is public. If any one claims it exclusively, he must show a right. If he can show a right b}" prescription, he may then exercise an exclusive right, though the presumption is against him unless he can prove such a prescriptive right. Here it is claimed and found ; it is therefore consistent with all the cases that he may have an exclusive privilege of fishing, although it be in an arm of the sea." Yates, J, added, "What is otherwise common may, by prescrip- tion, be appropriated. Moreover the case of the river Banne (Davis 55) was well decided, and it appears by it that the Crown may grant a several fishery in a navi- gable river where the sea flows and reflows, or in an arm of the sea." ^ ^ Carters. Murcot, 4 Burr. 216. ^ See also tlie i)oiiit assumed in Lord Fitzwalter's case, 1 Mod. 106 ; 3 Keb. 242 ; Bagot v. Orr, 2 B. & P. 479 ; Mayor of Orford v. ORIGIN OF SEVERAL FISHERIES IN SEA. 17 Holo acquired. — As to the origin of several fisheries in the sea, Hale thus explains it : ' — " Although the king hath primd facie this right in tlie arms and creeks of the sea communi jure and in common pre- sumption, yet a subject may have such a right. And this he may have two ways. 1. By the king's charter and grant ; and this is without question. The king may grant fishing within a creek of the sea, or in some known precinct that hath known bounds, though within the main sea. ... 2. The second right is that which is acquired or acquirable to a subject by cus- tom or prescription. A subject may have by prescrip- tion the interest of fishing in an arm of the sea, in a creek or port of the sea, or in a certain precinct or extent lying within the sea." After giving " precedents touching such rights of fishing in the sea, and arms and creeks thereof, belonging by usage to subjects, the most ■whereof appear to be by reason of the property of the very water and soil wherein the fishing is, and some of them even within the ports of the sea," he adds, " Whereby it is admitted though 'jpi'i^nd facie an arm of the sea be in point of propriety the king's, and primd facie it is common for every subject to fish there, yet a subject may liave by usage a several fishing there, exclu- sive of that common liberty which otherwise of common right belongs to all the king's subjects." This right of excluding the public from the common Ricliardson, 2 H. Bl. 182 ; Rogers v. Allen, 1 Camp. 309 ; Vivian V. Blake, 11 East, 2G3 ; O'Neill v. Allen, 9 Ir. C. L, Rep. 132 ; Allen V. Donnelly, 5 Ir. Ch. Eep. 229 ; Little x. Wakefield, 8 Ir. C. L. Kep. 279 ; 11 lb. 63 ; Malcolmson v. O'Dea, 9 H. L. Cas. ^ De Jur. Ular. c. 5. 18 FISHERY LAWS OF ENGLAND. fisheries of the sea and navigable rivers is thus based on a grant, actual or supposed, by the Crown, the right of the Crown to such fisheries being said to have been originally part of the prerogative of the Crown.^ What- ever may have been the origin of this right, it is too late to dispute it, as the proposition has been assumed in so many cases. Not only is it competent for an individual to establish this exclusive right to fish in the arms of the sea and navigable rivers, but it is some evidence to warrant a presumption of a legal grant that the party has exercised the right unquestioned for a space of thirty years and upwards.- The right of fishing in a navigable river or the sea is thus a franchise originally granted by the Crown. A well-known distinction exists between such as upon forfeiture may exist in the Crown, and therefore may be capable of regrant, and such as cannot exist in the Crown, but only in a grantee from the Crown, and therefore become actually extinct upon forfeiture.^ A warren, park, fair, market with toll, are instances of the former ; these the Crown may hold as a subject may, but would not have them generally by its prerogative. The franchises of waif, estray, wreck, are instances of the latter, which, having been granted out in their particular limits by the Crown, and the grant being forfeited, merge in the Crown's general prerogative right, and do not any longer exist as separate franchises. It 1 Com. Dig. Prerog. D. 50 ; 2 Rol. Ab. 170, L 20 ; Dav. 56. 2 lAttU V. Wingfield, 11 Ir. Co. L. Rep. 63 ; 2 & 3 Wm. IV. c. 71, § 1. 2 Case of the Abbot of Strata Mercella, 9 ,Rep. 24 a ; Heddtj V. Wheelhotise, Cro. Eliz. 501 ; R. v. Mayor of London, 1 Show. 230. SEVERAL FISHERY IN SEA. 19 has not been clearly decided to wliich of these classes the franchise of several fishery in the sea belongs.^ There is a ground on which it has sometimes been said that an individual may acquire an exclusive right of fishing in the arms of the sea or navigable rivers — viz. tluit of custom or usage — the foundation of which is some supposed ancient agreement between an indi- vidual and inhabitants of the district, whereby the latter, for some supposed consideration, abandoned on behalf of the public their corinnon law rights to the individual owner. ^ It is, however, difficult to see how this ground can now be sustained, for it is obvious that no agreement of any number of local inhabitants can ever bind the public ;^ and it is well settled that, as regards the analogous public right of a highway, the maxim " once a highway always a highway " applies, and no proof of nonuser is allowed to disprove the existence of a highway.* The right of an exclusive fishery in the sea is gene- rally coupled with the exclusive ownership of the shore between high and low water mark, which it is well settled may exist in the subject as a grantee of the Crown, either in connexion with the adjacent land or separately therefrom. But though a subject has an exclusive property in the soil of the shore, it does not follow that he has an exclusive right of fishery there, for 1 Mayor of Colchester v. Brooke, 7 Q. B. 3.39. 2 Co. Litt. 113, a.b.; Chad v. Tilscd, 5 Moore, 185; Mayor of Orford V. Richardson, i T.R. 439 ; Co. Litt. § 169, 170; Lib. Intrat. i39 ; Plowd. Case of Mines. 3 Per Brady, L.C. in Allen v. Donclly, 5 Jr. Cli. Kep. 2-14. * Dawes \. Hawkins, 8 C.B. N.S. 848. G 2 20 FISHERY LxVWS OF ENGLAND. the two riglits are separable. He may possess one or both or neither, and in general it will be a question of construction of the ancient grants under which he claims, explained by the user subsequent to their date, what is the measure of his right. Riglit of the Cronm since Magna Charta to grant Several Fishery in the Sea. — Though it is no longer an open question whether the Crown could make a valid grant to a private individual of a several fishery in the sea or a navigable river, yet it has been doubted whether the Crown could do so after Magna Charta. The great charter of Hen. III. (1217) c. 20, says, " Nulla riparia de cetero defendatur nisi ilia quas fuerint in defenso tempore Henrici regis avi nostri per eadem loca et eosdem terminos sicut esse consueverunt tempore suo." " No banks shall be defended from henceforth but such as were in defence in the time of King Henry our grandfather, by the same places and the same bounds as they were wont to be in his time." Of this head of the Charter, Coke says,^ " That is, that no owner of the banks shall so appropriate or keep the rivers several to him to defend or bar others, either to have passage or fish there, otherwise than they were used in the reign of Hen. II. This statute, says the Mirror, is out of use, for several rivers have been appropriated and put in defence which used to be common to fish in and use in the time of Hen. II." The above passage has been generally construed as restricting the right of the Crown to exclude the public in future from their common law right of fishing in tlic sea and navigable rivers. And it 1 2 lust. 30. rJdllT OF CROWN SINCE MAGNA CIIAKTA. 21 is much more natural so to construe it than to assume as has "been hinted by a learned judge, that " it was levelled rather against the acts of the subjects, who from ownersliip of tlie adjacent lands or otherwise sought to assert rights over the rivers, than to amount to a restriction of any right or prerogative of the Crown." * Many dicta support the construction that the Crown's right was restricted by the above clause in ]\Iagna. Charta.^ The difiiculty has arisen chiefly in cases where a grant of the Crown exists subsequent to Magna Charta, but there is nothing to show whether it is a new grant or a continuation of some grant which may have existed prior to Magna Charta. AVherever evidence is given of the user of a several fishery for a long period of time, as for two centuries, " it is not too much to presume,' as Hayes, J. well said in Malcolmson v. O'Dca, " after the lapse of all that time, and after all that was done during a long period, that the Crown had in it what it under- took to grant, and that the subject of the grant was vested in the Crown as parcel of its ancient inheri- ance rather than as a bare trust for the public ; this latter suggestion conveying, as it does, not only the imputation of having asserted a falsehood, but also the 1 Per Hayes, J. Malcohnson v. O'Dca, 14 Ir. C. L. (not yet reported). 2 Per B.nyley, J. Duke of Somerset v. Fogicell, 5 B. & C. 884 ; 2 BI. Com. 39 ; Hale's De Jure Maris, 18 &c. ; dictum in Roijcrs v. Allen, 1 Camp. 268 ; Holt, C. J. Warren v. Maitheus, 1 Salk. 357 ; 6 Mod. 73 ; Bushe, C. J. Duke of Devonshire v. Hodnct, 1 Hnds. and Br. 331 ; Brady, L.C. in Allen v. Donclhj, 5 Ir. Ch. R. 244 ; the tenor oi Blun- dell V. Cattcrall, o B. «& Aid. 268 ; the majority of the Irish judges in Malcohnson v. O'Dca ; assumed by Willes, J. and House of Lords iu the last case, 9 L. T. N. S. 93. 22 FISHERY LAWS OF ENGLAND. imputation of a gross breach of trust on the part of the Crown and its advisers." ^ The result seems to be that which was well expressed in the same case by O'Brien, J.'^ " Since Magna Charta the Crown could not lawfully abridge the right of the public to fish in any tidal and navigable part of a public river, nor create de novo a several and exclusive fishery in any such part which had not, previous to Magna Charta, been appropriated for that purpose, and from the right of fishing in which the public had not before that time been excluded ; although if such several fishery had been created previous to Magna Charta it might be subsequently granted by the Crown. Indeed, the contrary doctrine would be attended with very serious results. If a several and exclusive fishery in a tidal navigable river could be created de novo by the Crown at any time after Magna Charta, why should not the Crown have the same power now ? It is true, as a general rule, that the grant of a several fishery after Magna Charta, together with clear and satisfactory proof of subsequent use and enjoyment of that fishery under the grant, are grounds for presuming that the Crown was entitled to make such grant, and was then seised of such several fishery, and that accordingly such several fisliery had existed before Magna Charta." The view that a grant subsequent to Magna Charta is good evidence of a grant prior to Magna Charta has been confirmed on a more recent occasion ^ by the House 1 Per Hayes, J. Malcohnson v. O'Dea, 14 Ir. C. L. ^ Malcohnson v. 0''Dea, 14 Ir. C. L. a Mcdcolmsmi v. O'Dea, 9 H. L. Gas. ; 9 L. T. N. S. 93. mnilT OF CROWN SINCE MAGNA CHAIITA. 28 of Lords, -which adopted the opinion of Willes, J. who says, " That a several right of fishery in a public navi- gable river may lawfully exist is clear. The soil of navigable tidal rivers, so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery ^9?'i??wt facie in the public. But for Magna Charta, the Crown could by its prerogative exclude the public from such primd facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the Great Charter left untouched all fisheries which were made several to the exclusion of the public by act of the Crown not later than the reign of Henry II. If evidence be given of long enjoyment of a fishery to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is not that you say this is a usurpation, for it is not traced back to the time of Henry II. but that you presume that the fishery, being reasonably shown to have been dealt with as property, must have become such in due course of law, and there- fore must have been created before legal memory." The precise meaning of this chapter of INIagna Charta was a good deal discussed in the recent case iu Ireland already referred to,^ in the course of which some of the preceding opinions of learned judges were given, and which arose in this way. The plaintiff brought an action for breaking and entering his several fishery in the river Shannon, and the defendant set up as a defence ^ Malcohnsoii v. O'Dca, 1-i Ir. C. L. R. 24 FISHEKY LAWS OF ENGLAND. that tlie river was a navigable river, and the public had a right to fish there. The plaintiff put in evidence a patent of Queen Elizabeth, purporting to grant the several fishery in question; and the defendant con- tended, among other things, that the sovereign since Magna Charta had no power, by patent or otherwise, to create a several fishery in a navigable river. It was held in the Court of the Irish Exchequer Chamber that the grant by Elizabeth, and user under it, were no evi- dence of a errant before Ma^rna Charta. But the House of Lords reversed this judgment, and held that the fact of the Crown dealing with such a right in the days of Elizabetli v,'SiS 2Jrimd facie evidence that the right had orisinated in -a le^al manner ; that is, had been exer- cised before the date of Magna Charta.^ What Fish may he caught iri the Sccc. — Prmwu facie any one of the public may catch in the sea and navi- gable rivers every kind of fish or inhabitant of the main without any restriction or qualification ; and where an individual in the manner before mentioned has ac(j[uired an exclusive or several right of fishery in these places he also may do the same. But there is an exception at common law, and confirmed by statute, with regard to what are called royal fish. Certain statutes, more or less ancient, also imposed restrictions as regards young fish ; but these are now nearly all repealed, and the chief restriction now in force applies to salmon, which will be treated of separately.'* Croions Right to Royal Fish. — At common law, the ^ See Malcolmson v. O'Dea, 9 L. T. N. S. 93 ; 9 H. L. Cas. 2 See post, Chap. VIII. CROWN 8 UrORT TO ROYAL FISH. 2o Crown's right to the royal fish caught in the territorial seas was recognised as a franchise' The right was confirmed by statute, for 17 Ed. II. st. 1 (a.d. 1321), enacts that the king shall have wreck of the sea through- out the realm, whales and sturgeons taken in the sea or elsewhere within the realm, except in certain places pri^dlegcd by the king. Hale^ includes the porpoise as a royal fish, and also great fish that come under no known denomination; but he seems to refer to what was the law before the above statute. Certain customs also once prevailed as to dividing the whale, and giving the head to the king and the tail to the queen. It is to be observed that it is only whales and sturgeons caught within the realm which so belong to the Crown; in other words, within the limit of the territorial seas ; and hence, if the whales are caught in the open sea, as in the Greenland Fisheries, they belong not to the Crown, but to the first taker, according to the rules or customs in force in those localities.^ This franchise of the Crown as regards whales and sturgeons may be conveyed to the subject, who may accordingly establish his right to the royal fish by grant or by prescription. By prescription he may have the right either in gross, or as appurtenant to an honour, manor, or hundred.^ Youny Fish other than Salmon. — The statute 1 Eliz. c. 17 imposed restrictions on the taking and killing of young fish and spawn, including salmon. That was a temporary Act, which was finally made perpetual by 1 PI. Com. 315; Staun. Pi-crog. c. 11; Bract. 3, 3, 5 ; Britt. 26 b. 2 Dc Jur. Mar. c. 7. ^ Sfc ante, p. 7. * Hale, Do .lur. Mar. v. 7. 26 FISHERY LAWS OF ENGLAND. 3 Cli. I. c. 4, § 1. But the Salmon Fisheries Act, 1861, 24 & 25 Yict. c. 109, Schcd., after repealing the statute of 1 Eliz. C.17, so far only as regards salmon, in the next sentence repealed the 3 Ch. I. c. 4, § 1, which was the only enactment which kept 1 Eliz. alive and made it perpetual. Hence the sole prop of the statute 1 Eliz. c. 17 was thereby taken away; and though this may have been partly due to inadvertency, yet the result is that no part of it is any longer in force ; for though the Statute Law Revision Act, 26 & 27 Vict. c. 125, seemed to treat the Act of 1 Eliz. c. 17 as still unrepealed as regards other fish than salmon, the Statute Revision Committee (after the first edition of this work, pointing out the circumstances) have treated 1 Eliz. c. 17 as repealed in toto, and omitted it altogether in the revised edition of the statutes published in 1870. All the other statutes, which were very numerous, and imposed or continued restrictions on the catching of young sea fish as well as young river fish, have been repealed by the Salmon Fisheries Act, 1861, and the Sea Fisheries Act, 1868. The result therefore seems to be that there is now no restriction in force as to catching young sea fish, and the only restrictions as to river trout, char, and eel^ are to be found in the Salmon Fisheries Acts relating specifically to these three kinds of river fish, the reference to which will be found in the Index. There may, however, stiU be some outstanding restrictions as to river fish contained in one or two local Fishery Acts not yet repealed or not mentioned in the Salmon Fishery Act of 1801, and in any case of doubt this point should first be ascertained. Herriiifj, Cod, Ling, ^'c. — The older statutes con- tained various enactments as to several sea fish by name, SEA FISH HERRING. 27 such as herring, mackerel, cod, and ling, both as to tlic mesh of net used in fishing for such sea fish, and as to the close time during which their capture was pro- hilnted. All the restrictions, however, as to the catching of herring, both as to time and size of mesh of the nets used, have been abolished by the Sea Fisheries Act, 18G8, and the same remark applies to all other sea fish round the English and Welsh coast. The only qualifi- cation now existing is as to the interference caused between drift-net fishing and trawl-net fishing, as to which the French convention contains some specific enactments, but which are mainly calculated only to secure fair play between the fishermen. (See post, pp. 495 — 498.) There is also still some restriction as to Scotch herring fisheries left untouched by the Sea Fisheries Act, owing to separate statutes being passed for Scotland as to herring, and which are not entirely repealed as regards Scotland. (See post, p. 508; also 30 & 31 Vict. c. 53.) Oysters are subject to a separate consideration, beino- more or less part of the soil, and from the earliest times specially mentioned and protected by enactments suited to their nature. They still remain separately treated, being subject to the Larceny Act and the Sea Fisheries Act, 1868. (See post, pp. 90—94.) Sea Fish ivithia Salmon Fishery Districts. — Though, however, there is now practically no restriction Avliat- ever on fishing in the sea for all kinds of fish, whether old or young fish, other than salmon, a power is given to salmon fishery boards to control to a small extent by means of l)yc-laws, sea fishing within fishery districts if prejudicial to salmon fisheries. (See 36 & 37 Vict. c. 71, § 39, sub-sect. 11.) Until, however, such bye-laws shall be passed, the law will remain as above stated. 28 FISfiEET LAWS OF ENGLAND. Though wears and fixed nets have long been used for catching sea fish on the sea-coast in various parts of England and Wales, these will be found to be generally illegal ; though, owing to nobody having interfered with them or having felt aggrieved by them, they have not been brought to the test of any judicial decision. There is no special mode of deciding the legality of these fixed engines, as the jurisdiction of the English Fishery Com- missioners was confined to engines for catching salmon. {See post, ]).38S.) Pilchards. — The pilchard fishery carried on in the bay of St. Ives, in Cornwall, is in its minutest details regulated by the statute 4 & 5 Vict. c. vii., which repealed a prior statute on the same subject. All the older Acts on the subject of pilchards have been repealed by the Sea Fisheries Act, 1868, This last Act contains only one section (§ 68) specially aj)plicable to pilchard fishing, and it also prohibits drift and trawl-nets interfering with seine fishing on the Cornish coast. {See post, p. 490.) This seems the only kind of sea fish as to which special legislation is now retained, and as the mode of carrying on this fishery is somewhat complicated, and requires the co-operation of a large body of fishermen, it would be impracticable to secure the fishermen against constant molestation without a special code of laws being provided for it, as is done for the bay of St. Ives with great care by the above local statute of 4 & 5 Vict. c. Ivii. Ri(/hts 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 of USE OF SHORE IX FISHING. 29 their fisliciy, citli'n- in tho way of fixing their nets by stakes, drying their nets, drawing them ashore, or otherwise. Such a right wouhl bo 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 inci- dent 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 ^ 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 Holroyil, J. in Blunddl v. CattcraU, 5 B. & Aid. 299. " Yearbook, 8 Ed. IV. 19. 3 De Port. Mar. 80. •* See also, per Holroyd, J. in Blunddl v. Caiterall, 5 B. & Aid. 296. 5 Ball y. Herbert, 3 T.K. 253. 6 See also Blundell v. CattcraU, 5 B. & Aid. 295. 7 Yearbook, 13 Hen. VIII. 15 b. 8 Supra, Bro. Abr. Customs pi. 46. 9 Ye;>rbook, Tr. 15 Ed. IV. f. 29 A. pi. 7 ; Blundell v. CattcraU, 5 B. & Aid. 295 ; Padickk v. Knight, 7 Exch. 861. 30 FISHERY LAWS OF ENGLAND. and ill another case to dig gravel on the shore for ballast.^ 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 itseK 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 h ; LiffordCs case, 11 Rep. 52 ; 1 Wms. Saund. 323 n (6) ; Shep. Touch. 89. 3 2 & 3 Win. IV. c. 71. DOING D.UIAGE IN FISHING. 31 accompanying facts ; and the presumption in favour of a gi-ant 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 cir- cumstances proved in the present case were sufficient to leave to a jury as circumstances from which the know- ledge of the owner, and his acquiescence on the suppo- sition of a preceding grant, might fairly be presumed." ^ Damage done while Fishing. — Where a person hondjide exercising his right of fishery does damage to adjoining property, he is expressly exempted from punishment under the Malicious Injuries 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 hond fide he cannot be punished as for a criminal offence in a summary way by justices of the peace. Fishing as an Ohstrudion to Navigation. — The right of fishery in the sea and navigable rivers is subordinate to the right of navigation, and where both are incom- patible 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 B. & B. 6tj7. ^ Auuu. 1 Ciimpb. 517 ii. 32 FISHERY LAWS OF ENGLAND. is ample room for a navigating vessel to pass, it ought to do so, Avithout 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 neces- sary for navigating vessels to interfere with the fishing vessels. Where the rights of both parties are incom- patible, the above rules must be observed; the navi- gator 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. Fishing in Piiblic 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, 2rrimd facie, it would seem to be generally regulated by tlie test whether the tide ebbs and flows. Hale observes that an arm of the sea is where the sea flows and re- flows.^ Lord Mansfield observed,^ " How does it appear that this is a navigable river ? The flowing and re- flowing 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. It can scarcely be doubted that there are, or may be, places where the tide does not flow and reflow, and yet ^ De Jur. Mar. p. 1, c. 4. 2 Mayor of Lynn V. Turner, Cow}). 86 ; LofTt. 556. WEARS. 33 are navigable rivers. In such a case the law seems to be, that, though the river may be navigable, and thereby a highway for the Queen's subjects as far as navigation is concerned, yet as regards the riglit of the public to fish there, that is bounded by the limit of the flow of the tide. This seems to follow from the authorities.^ Wears and Fixed Apparatus for Fishing in Riccrs. — The right to make use of the shore is, as has been seen, not an incident of a right of fishing in the sea, or a public navigable river, for the shore beyond high-water mark is private property, and sometimes the foreshore is so also. Nor, on the other hand, would the owner of the shore be entitled to fix any apparatus to his land, stretching into the sea, so as thereby to facilitate and enlarge the right of fishing which he has as one of th,e public. If he were to do so, this would be a nuisance ^ Hale (De Jui-e Maris, c. 2, p. 8) sa3-s : "For as the common high- ways in the hind are for the common hind passage, so these kind of rivers, whether fresh or salt, that bear boats or bai'ges, are highways by water ; and, as the higliways by laud are called altoe vice rcgicc, so those public rivers for iiublic passage are called fluvii regales, and liaut streams Ic roy ; uot in reference to the propriety of the river, but to the public use ; all things of public safety and convenience being in a special manner under the king's care, supervision, and protection. And, therefore, the report in Sir John Davies of the Piscary of the Bann, mistakes the reason of those books that call them streams Ic roy, as if they were so called in respect of propriety, as 19 Ass. 6, Dy. 11 ; for they are called so, because they are of public use, and under the king's special care and protection, whether the soil be his or not. " In the case of the Fishery of the Bann, Dav. 57, it is said: " Every ua%'i- gable river, so high as the sea ebbs and flows in it, is a royal river, and the fishery of it is a royal fishery, and belongs to the king by his pre- rogative ; the reason for which the king hath an interest in such navi- gable river so high as the sea flows and ebbs in it is, because such river participates of the natiu'e of the sea, and is said to be a branch of the sea so ftu- as it flows." D 34 FISHEEY LAWS OF ENGLAND. and an obstruction to navigation, and also -to other fishermen, who, if tliey found the apparatus prevented them exercising their own public rights of fishery, might abate it. If, however, the owner of the shore, as fre- quently happens, has a several fishery in the sea or mouth of a river, there is nothing to prevent him making use of the shore in this manner, provided only he does not interfere with the navigation. It is seldom, however, that any structure or permanent apparatus is attached to the sea shore, where the sea is open, though a practice has existed from the most ancient times of erecting wears in navigable and other rivers, the object of which was to facilitate the catching of fish. The right at common law of a riparian owner, who is owner of the several fishery in a navigable river and the bed of the river, to erect a wear, by which is meant a fixed structure in the bed of the river, the object of which is, either by means of an apparatus which there catches them, or by impeding their progress, to prevent all or nearly all the fish from passing upwards to the fisheries of the upper owners, is left somewhat obscure in the authorities. The obstruction, so far as it hinders the navigation, may be said to be clearly a nuisance, and as the interests of navigation are paramount, this effect ought first to be considered ; but so far as it affects only the fisheries of the other owners of the river, there is also ground for saying it is illegal — at least a cause of action at common law. Such a doctrine seems to be assumed in several cases. The Crown, however, seems, in ancient times, not only to have granted a several fishery to an individual in navigable rivers, but also to STATUTES AS TO "WEARS. 35 have granted to tlie subject tlie rv^ht to erect a wear, and this was found so prejudicial tliat jMagna Charta contained an express clause on the subject. The effect of that statute on the existing law is stated by Hale.* 1 Hale (De Jur. Mar. c. 5) says : " Though the king hath primd facie the riglit in tlie arms and creeks of the sea, comtmaii jure, and in common presumption, yet a subject may have such a right. And this he may have two ways : — 1. By the king's charter or grant, and this is without ([ue-stion. 2. The second right is that which is acquired or acquirable to a subject by custom or ])rescription." After referring to a case, he proceeds : " Ujion which record these things are observable : — 1. Tliat a sulyect may by prescription have a wear in the sea, and con- sequently have an interest below the low-water mark, for probabl)- wears be such. 2. That yet, if it be a nuisance to the passage of ships, it may be abated. In many considerable arms of the sea that were na\4gable rivers, and flowed and reflowed with salt water, divers persons had wears and local fishing sluices. It is true that by the statute of Magna Charta, c. 23, 'omnes kidelli deponantur decetero penitus per Thamisiam et Medwayam per totam Angliam nisi per cos- teram maris,' — 'AH wears from henceforth shall be utterly put down by Thames and Medway, and through all England, except by the sea-coast.' And this statute was seconded with others that were more effectual, viz. 25 Ed. III. c. 3 ; 1 Hen. IV. c. 12 ; 12 Ed. IV. c. 7. And by force of these statutes, wears that were prejudicial to the pas- sage of vessels were to be pulled down, and accortlingly it was done in many places. But that did no way disaffirm the propriety, but only remove the annoyance, which, as before is shown, was not to be allowed in an inland river, if it be a common passage. The exception of wears upon the sea-coasts, and likewise frequent examples, some whereof are before mentioned, make it appear that there might be siich private interests, not only in point of liberty, but in point of propriety, on the sea-coast, and below the low-water mark, for such were regularly all wears. But as by the statutes 25 Ed. III. c. 4 ; 45 Ed. III. c. 2; 1 Hen. IV. c. 11, and other statutes, the erecting of new wears and enhancing of old is provided against in navigable rivers ; and by other statutes particular i)rovisit)n is made against wears new or old erected on particular posts ; so, by the statute 3 Jas. I. c. 12, all new wears erected upon the sea-.shore, or in any haven, harbour, creek, or within five miles of the mouth of any haven or creek, are prohilnted under a penalty. But in all these statutes, though they prohibit the thing, yet they do admit that there may be .';uch an interest lodged in a subject, not only in navigable rivers, but even in the ports of the sea D 2 3G FISHERY LAWS OF ENGLAND, Statutes as to Wears. — Coke, in reference to this clause of Magna Cliarta, says : " Kidelli is a proper word for open M^ears, whereby fish are caught, and it appeareth by GlanviL that this purpresture was for- bidden by tlie common law, purpresture meaning the en- croaching or making several to oneself that which ought to be common to many." ^ The "kidelli " did not mean such wears as might obstruct the navigation.^ Whether, therefore, wears are illegal or not at common law, they may still be lawfully maintained, and their legality is imdoubted, if they are of ancient origin. The right to maintain a wear in a public navigable river came in question in a case in 1838, as to the river Severn.^ A wear existed on that river between Worcester and Shrewsbury which was claimed by the plaintiff, and the defendant threw it down as a nuisance, on the ground that it obstructed the navigation. This trespass was the cause of action. The plaintiff at the trial gave evidence of the antiquity of the wear, beginning with Doomsday- itself, contiguous to the shore, though below the low-water mark, whereby a subject may not only have a liberty, but also a right or propriety of soil. But yet this that I have said must be taken with this allay, which I have in pjart premised : — 1. That this interest or right in the subject may be so used as it may not occasion a common annoyance to passage of ships or boats ; for that is prohibited by the common law, and these several statutes before mentioned, ■viz. erecting new wears, enhancing old, fixing of pikes or stakes and the like, in order to fishing ; for the jtis jmvahcni that is acquired to the subject, either by patent or prescription, must not prejudice the jus publicum ■wherewith public rivers or ai-ms of the sea are afi"ected for jjublic use. 2. That tlie fishing that a subject hath in this or any other private or public river or creek, fresh or salt, is subject to the laws for the con- servation of fish and fry, which are many." ^ 2 Inst. 2 Chester Mill Case, 10 Eep. 137 b. 8 Williarns v. Wilcox, 8 A. & E. 314, ANCIENT WEARS. 37 book, and contended tliat, whatever be the power of the Crown in modern times, there was a right in the Crown before Magna Charta, to erect or grant to a subject the right to erect a wear, even tliough it might obstruct the navigation. The main question, therefore, was, as to whether the right of the Crown, even before Magna Charta, to erect wears was sul)ject to the paramount right of the public to have freedom of navigation. The Court inclined to hold that, at com- mon law, the power of the Crown, even before J\Iagna Charta, was subordinate to the right of the subject to free navigation, and that the Crown could not by any grant derogate from this public right of navigation, and that such grants must give way whenever the interests of navigation required it. The Court, however, also held that the passage in the Great Charter as to Idddli did not apply to wears which obstruct navigation, but only to open wears for catching fish. That that statute, therefore, left the law as it stood before, and wears would have been illegal altogether, but for a subsequent statute of 25 Ed. III. c. 4, which directed the destruc- tion of all wears which had been set up in the time of Edward I. and subsequently. This statute, the Court held, was a compromise of existing interests illegally acquired, and impliedly legalized all Avears made before that time, though, in strictness, tliey were illegal at common law. They were not only protected against the specific measures mentioned in that act, but ren- dered absolutely legal. Hence, it follows, that if a wear in a public navigable river be shown to be as ancient as the statute 25 Ed. III. it is lesal. 38 FISHERY LAWS OF ENGLAND. It sometimes happens that the documentary evidence of Crown grants does not proceed Lack so far as Magna Charta ; nevertheless, if there is clear evidence of user back for a certain period, and evidence of a several fishery existing in the Crown at the furthest point, this will be presumptive evidence that the fishery was originally granted before Magna Charta. Thus, when the Duke of Devonshire brought an action of trespass for breaking his several fishery in the Blackwater, in the county of Cork, he produced a patent of James I. which granted to his predecessors the soil and bottom of the river which was a navigable river, and enjoyment under the patent was shown. The Court held that this was evidence that the Crown was seised in fee of the soil and bottom and of the several fishery at the time of the making of the patent. Bushe, C. J. observed : " It is urged that there can be no grant of a several fishery in a navigable river since Magna Charta, but that position is not correct; such a fishery, indeed, cannot since that time be created, but, if it has existed before, it may be granted now, and non constat but that James tlie First was seised of a several fishery at the time of his grant, which would have passed by his patent." ^ So, with respect to the several fishery in the river Shannon, at Limerick, it was held that the existence of a grant of Elizabeth (there being no antecedent evidence), coupled with subsequent user, was good evidence of a grant by the Crown before Masna Charta.'^ 1 D. of Devonshire v. Ilodnctt, 1 H. & Br. 332. 2 Malcoh/isuH V. O'Dea, 9 H. L. Cas. ; see ante, pp. 21, 22. ANCIENT WEAKS. 39 In another case' in 180G, the plamtiff sued the defendant for damaging his right of fishery in tlie river liibble by wrongfully continuing a wear ur (l;im across the river lower down, by which sahnon and other fish were prevented from coming to the plaintiff's fisheries and spawning there, &c. The facts proved were, that the defendant was entitled, according to the evidence of title he produced, to maintain a wear at the spot in question, but this wear had been made of brushwood, whereas he had lately converted it into a stone wear of solid masonry. When the brushwood wear existed the salmon could pass through it, but after the stone wear was substituted they could not do so, except occasion- ally at high flood. Lord Ellenborough, C. J. said: " The erection of wears across rivers was reprobated in the earliest periods of our law, and they were considered as public nuisances. Magna Charta and subsequent acts so treated them, and forbade the erection of new ones, and the enhancing, straitening, or enlarging of those which had aforetime existed. I remember that the stells erected in the river Eden by the late Lord Lonsdale and the Corporation of Carlisle, whereby all the fish were stopped in their passage up the river, were pro- nounced in this Court to be illegal and a public nuisance. Though twenty years' acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisimces, though of longer standing." Judgment was therefore given for the defendant. 1 Wcki V. Ilornhj, 7 Eiist, 195. 40 FISHERY LAWS OF ENGLAND. In an Irish case^ the point was raised directly. Tlie Marquis of Donegal, who was seised of the sole and several fishery in Loughneagh and the river Bann, hronght an action against Lady Hamilton, who was a lower proprietor on the Bann, for keeping divers cuts, wears, and traps across the river, hy means of which the trout, salmon, and other fish which would have come from the sea, were prevented from coming into the plaintiff's fishery. Both parties held under grants from the Crown, the grant to the plaintiff being the prior grant. The question was elaborately argued several times in the Irish Courts, and ultimately before the Irish House of Lords, and judgment was given for the plaintiff.^ 1 Hamilton v. M. of Dooiegal, 3 Eidg. P. C. 267. ^ Fitzgibbon, L. C. in an elaborate judgment, says : "Here it is to be considered what are the respective rights of the pro2>i-ietoi's of these fisheries, and what is the injury which the plaintiff complains of as done to his rights. And as to the first, it is clear that the plaintiff, as proprietor of the upper fishery, has a right to the full possession of the water, the element of his fisheiy, in the same state, plight, and con- dition in which he enjoyed it at the time when the corporation under whom the defendant derives obtained their grant from the Crown. He has a right to a free passage for fish from the sea into his fishery ; and he has a right to catch as many fish as he can catch, by his industry and art, which find their way into his fishery. It is clear that the defendant has the same rights as proprietress of the lower fisherj^ She has a right to the same full possession of the water for a free passage for fish from the sea into her fishery ; and she has a right abstractedly to catch every fish which finds its way into her fishery, which she can lay hold of hy her art or by her industry. But in the exercise of this right she cannot alter the .state, plight, or condition of the water of tlic plaintifi"s fishery from the state, plight, and condition in which lie enjoyed it at the time when the corporation, under whom she derives, obtained their grant, to the injury of the plaintiff's fishery. Nor can she stop or obstract the passage of fish from the sea into the plaintiff's fishery in any manner not essentially necessary to enable her to exercise her right of catching fish in their passage up the river. WEARS AND FIXED NETS. 41 Another illegal obstruction to fisheries was the prac- tice of attaching nets to the posts on river banks, l)y day and night, across rivers, which destroyed the brood and fry of fish. An ancient statute,' so far back as 1423, prohibited this practice ; but that statute has been repealed by the Salmon Fisheries Act, 1861, though the restriction is renewed by sect. 11 of the latter Act. The practice, therefore, so far as other fish than salmon are concerned, rests on the common law, and it seems to be illegal at common law on the same ground as wears are. It is to be borne in mind also that wherever there is a peculiar protection to salmon, all fish of the same size have generally some benefit from it indirectly. Wears and Fixed Nets illegal at Common Lavj. — In no case, either in England, Ireland, or Scotland, has the point been distinctly raised, w'hether the erecting of a wear or other fixed apparatus in a river, and which is Tliis, then, being in my jmlginent a fair statement of the riglits of the parties, plaintitf and defendant, it remains only to be considered what the injuiy is of which the plaintilf complains as the gi-oiind of this action. The injury stated is, that by means of four cuts, wears, and traps, kept and maintained upon the rocks in the defendant's fishery, divers large (piantities of salmon and trout and other fish, which other- wise would, during the time aforesaid, have come from the sea and that part of the river Bann which lies below the plaintiff's fishery, into it, were obstructed and hindered from coming into it, by reason whereof the plaintilf's fishery is prejudiced and damaged and lessened in value. The verdict finds that the fish were obstructed and the rapidity of the current in each of the openings between the cuts or traps was such as to prevent, t)bstvuct, and hinder as many fish from going from the sea into tlie plaintiff's fishery as formerly. If the obstructions alter the course of the element, I have no hesitation in saying that that would maintain an action." See also Duke of Devonshire v. Smith, Ale. & Nap. 442. 1 2 Hen. -VI. c. 15. 42 FISHERY LAWS OF ENGLAND. not objectionable as obstructing the navigation, but wliicli obstructs the fish from passing upwards, is a ground of action at common law to a riparian owner further up the stream. In Scotland, as will be seen, the common law has long been merged in the ancient statutes which govern the subject. The nearest case is the Irish case already referred to,^ where an upper pro- prietor was held to have a good cause of action against a lower proprietor for constructing a wear which had the effect of obstructing the fish. But in that case the jury found, as a fact, which was relied on by the Lord Chan- cellor, that the wear altered the current of the water so as to prevent the passage of the fish. Probably all wears must, in the same sense, necessarily alter the current of the water, and therefore an action would be sustainable. But on the other ground also, namely, that of obstruction of the fish, a wear seems on prin- ciple to be a good cause of action to other riparian owners. So far as salmon are concerned, the question is now practically provided for by the Salmon Fisheries Act ; but as regards other fish, and where the Salmon Act does not apply, the question may still arise, and therefore is of some importance, seeing that there may be wears which do not substantially alter the current of the river, and in that respect stand on the same footing as fL\ed nets. That both wears and fixed nets, and all other appa- ratus which prevent fish passing to and fro, are iUegal at common law, and form a good ground of action, seems to follow on principle. A fishery is merely one of the ^ Hamilton v. M. of Donajal, 3 Kidg. P. C. 267. WE.UIS AT COMMON LAW. 43 natural uses of the water to whicli all riparian owners are entitled. Other uses of water are the use of it to water cattle, to drive a mill, for household purposes, &c. ; and it seems to be a principle of the common law that each is entitled to a moderate and not an excessive user. If any one riparian owner abstract the water to such an extent that he substantially alters the plight and volume, thereby injuring riparian owners further down the stream, it is well established that he is liable to an action at the suit of the latter. That is a case of excessive user, which can only injure those towards whom the current flows, and not those from whom it has already flowed, and who had previously had their use of the water. But a fishery is in its nature enjoy- able wherever the fish have free passage. The right of a riparian owner may be injured by the acts of other riparian owners, both above and below liim, but more fre(iuently by those beneath him, seeing that fish are in some way connected with and come from the sea. If, therefore, one riparian owner fix a net or erect a wear which entirely obstructs the fish, he necessarily deprives the upper riparian owners from deriving from the water one of the uses to which they are entitled. Though one riparian owner may, by fishing by net or rod at all hours, and by means of servants and assistants, almost use up the fish as effectually as by keeping fixed nets, this kind of user could not properly be a cause of action, just as one owner who has a large number of cattle would not be liable to an action at the suit of another who has no cattle, and so takes no use of the water. But it is otherwise where a total obstruction occurs. Hence, even 44 FISHERY LAWS OF ENGL.iND. independently of any statute, any fixed apparatus in a river or stream wliich prevents the fisli going up to the other riparian owners, is a good cause of action at common law, as it deprives him of one of the natural riparian rights. Sale of Fish. — Many ancient statutes were passed for the purpose of protecting the markets for fish against foreigners. Now all fish imported into Great Britain and Ireland are free from Customs' duty.^ Billingsgate is a free and open market for the whole- sale and retail sale of all sorts of fish.'^ It is regu- lated chiefly by a local Act, which recites many public Acts which were passed with reference to it, and it is now only subject, like other markets, to local bye-laws. Formerly a toll of 2s. per cargo was levied on fishing-boats passing the Nore, but that is now abolished.^ M8 & 19 Vict. c. 101. 2 9 & 10 Vict. cccxlvL 3 22 & 23 Vict. c. 69. DIFFERENT IvINDS OF FISIIEKIES. 45 CHAP. IV. DIFFERENT KINDS OF FISHERIES IN POINT OF LAW. CONFUSION AS TO TERMS— STATE OF THE AUTHORITIES AS TO DEFI- NITIONS — DEFINITION OF SEVERAL FISHERY — MODE OF USER OF FISHERY — FREE FISHERY — DISTINCTION BETWEEN FREE AND SEVERAL FISHERY — COMMON OF FISHERY — DIFFERENT KINDS OF COMMON OF FISHERY — ASSIGNABILITY OF RIGHT OF FISHERY — NOT AN EASEMENT — WHETHER FISHERY PASSES AS APPURTENANT TO LAND — FISHERY MAY BE SUBDIVIDED — GRANT OF FISHERY, WHAT KIND IS MEANT — WHETHER GRANT OF FISHERY CARRIES SOIL — RESULT OF AUTHORITIES — FISHERY GRANTED BY STATUTE — LEASE OF FISHERY — ORDINARY LEASE OF LANDS WITH WATER — FISHERY IN STREAMS OF A MANOR — RATABILITY OF FISHERY. Confusion as to Terms. — In the sea and navigable rivers the soil is in general vested in the Crown, and the public has merely a right of fishery there, or an individual may have the exclusive right of fishing in certain localities. In such a case it is not veiy material to consider the nature of the right. But in private streams and waters it is necessary to distinguish between the different kinds of riglit wliich may exist as regards the fishery, several phrases being current in the books and reports, such as a common fishery, a free fishery, a several fishery, a fishery in gross, and a cominou of fishery. Tlie.'ie phrases are not 46 FISHERY LAWS OF ENGLAND. very clearly defined and distinguished from each other. Judges, commentators, and reporters, indeed, differ so essentially as to some of these, that no human intel- ligence can perhaps now reconcile them. State of the Authorities as to Dcfinitio7i of Terms. — The chief difficulty consists in precisely distinguishing the phrases " a free fishery " and " a several fishery." The other phrases seem capable of a fixed meaning. Coke says,^ "A man may prescribe to have scpa- ralcrti piscariaiii in such a water, and the owner shall not fish there, but if he claim to have communiam. piscarice or liheram inscariam, the owner of the soil shall fish there ; all this has been resolved." Again,^ "If one be seised of a river, and he grant a several fishery "'in the same and make livery of seisin secun- dum formam chartce, the soil does not pass, nor the water, for the grantor may take water there, and if the river become dry he may take the benefit of the soil, because a particular right only passed to the grantee, and the livery being secundum formam chartce, cannot enlarge the grant. And if a man grant aquam suam, the soil shall not pass, but the piscary within the water shall." Other authorities are less clear,^ 1 Co. Litt. 122 a. 2 Co. Litt. 4 h. 3 Hale (De .Jur. Mar. c. 1) : " 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." Again : ' ' Fi.shery may be of two kinds ordinarily, viz. the fishing with the net, which may be either as a liberty without the soil, or as a liberty by reason of and concomitance with the soil or interest or propriety of it ; or, otherwise, it is a local fishing that ariseth by or from the propriety of the soil ; such are gurgites, wcares, fishing-places. WHAT IS A SEVEIJAL FISHERY. 47 Hargravc, in a note to Co. Litt. 122a, comments on tlie contrast between Coke and Blackstoue's descriptions bracliirc, strachia?, &c. which are the very soil itself, ami so frequently agreed in our hooks." — Harg. Tr. 18. In the Yearbook, 17 Ed. IV. 6 pi. 5, Brian, C. J. says : " There is a <;^eat difference between a several and a free fisher}", for no man can liavc a several fishery unless it be in his own soil, but I may grant a free fishery to twenty persons in my own pool." Holt, C. J. observes {Smithv. Kemp, 2 Salk. 6-37): " There are three sorts of fisheries : 1. Several fishery ; and there, he who had the fishery was owner of the soil, and therefore it is a good plea in an action brought by him that it is libcrum tencinentum. 2. Free fishery, which is where the right of fishing is gi-anted to the gi-antee, and such gi'antee hath a property in tlie fish, and may bring a possessory action for them without making any title. 3. Common piscary ; and this was to be resembled to the case of other common, and he disallowed the authority of 1 Inst. 122." Again {Gibhs v. Woolliscot, 3 Salk. 291), Holt, C. J. says : "A man may have a free fishery in his own soil, as, for instance, he may have a river in his manor, and another may have a riglit of fishing there with him." Lord Mansfiekl, C. J. says {Seymour v. Courtenay, 5 Burr. 2816) : "This could not be a free fishery because no one possessed a co-ex- tensive right- with the plaintifl", and there could be no pretence for calling it a common of piscary. Consequently it was a several fisherj". " " To constitute a several fisheiy it is requisite that the party claiming it should so far have the right of fishing, independent of all others, as that no person should have a co-extensive right with him in the sub- ject claimed. " — Ibid. Blackstone (2 Bl. Com. 39) says : " A free fisheiy or exclusive right of fishing in a public river is also a royal franchise. This differs from a several fishery, because he that has a several fisheiy must also be [or at least derive his right from] * the owner of the soil, which in a free fishery is not recpiisite. It diflTers also from a common of piscarj' before mentioned, in that the free fi.shery is an exclusive right, the common of piscaiy is not so ; and, therefore, in a free fisher}-, a man has a property in the fish before they arc caught, in a common of inscaiy, not till afterwards. Some, indeed, have considered a free fishery not as a royal franchise, but merely as a private gi-ant of a liberty to fish in the several fisheiy of the gi-antor. But to consider such right as originally a flower of the prerogative till restrained by * The words within brackets were not in the earlier editions. 48 FISHERY LAWS OF ENGLAl^TD. of the terms used, and says that, " according to Coke, ownership of the soil is not necessarily included in a several fishery, and that common of fishery and free fishery are the same thing." And in referring to cases which seem to favour the opposite view, he says, " At the utmost, the cases cited only prove that a several piscary is presumed to comprehend the soil till the contrary appears, which is perfectly consistent with Coke's position that they may he in different persons, and indeed appears to us the true doctrine on the suhject. As to a free fishery, though for the sake of distinction it might he more convenient to appropriate free fishery to the franchise of fishing in public rivers by derivation from the Crown, and though in other countries it may be so considered, yet from the language of our books it seems as if our law practice had ex- tended this kind of fishery to all streams, whether private or public, neither the register nor other books professing any discrimination." In a recent case the doctrine of Coke seems to have been adopted as regards a several fishery. An elaborate discussion on the sub- ject of what is meant by a "several fishery" was enter- tained in a late case, by the Court of Exchequer Chamber, Magna Charta, and derived by royal grant previous to the reign of Richard I. to such as now claim it by prescription, and to distinguish it as we have done from a several and a common of fishery, may remove some dlDQculties in respect to this matter with which our books are embarrassed ; for it must be acknowledged that the rights and distinc- tions of the three species of fishery are very much confounded in our law books, and that there are not wanting respectable autliorities which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery ira])lies uo exclusive right, but is syno- uymous with common of piscary. " DEFINITION OF SEVERAL FISHERY^ 4-9 and it was held tliat a several fishery was 2'^rimd fade to be assumed to be in the soil of the owner of the fishery, but it might be in the soil of another, and to an action of trespass for fishing therein liherum tcnementum was a good plea, to which the plaintiff must reply by showing a grant of a several fishery, or a prescriptive right to one.' In Kinnersley v. Orpe, Doug. 56, the question was raised, but not decided, whether a person who had the exclusive right of fishery, but without the soil, could declare on a several fishery. The last and most recent case'"* follows up the doctrine that primd facie the conveyance of a several fishery carries A\ith it the soil. Definition of Several Fishery. — It thus appears that, according to the authorities, it is difficult to give any precise meaning to the two kinds of fishery called several and free fishery. It will therefore be necessary to look at the nature of the right itself, in order to arrive at that definition which is most consistent with the soundest authorities. A several fishery is the largest right of fishery known to the law. AVhoever is the owner of the soil beneath a river not navigable is also entitled to the exclusive fishery in the superincumbent water, and for want of a more definite name this is called his several fishery ; and priiml facie the owner of a several fishery is the owner of the soil also, for the former right is originally an incident of the latter.'' 1 HolfordY. Bailey, 13 Q. B. 426, 8 Q. B. 101(3. 2 Marshall v. Ulu-su-rttcr Co. 8 L. T. N. S. 41(3. 3 D. of Somerset v. Fogwell, 5 B. & C. 875 ; Hoi ford v. Bailey, 13 Q. B. 444; Marshall v. Ullcsicatcr Steam Co. 8 L. T. N. S. 416. E 50 FISHERY LAWS OF EXGLAXD. But the owner of the soil aud fishery may gi-ant the several fishery to another by deed without passing the soil, though it will be a question of construction, if there is any ambiguity attending a particular case, whether the soil did not also pass, or at least such use of the soil as is necessary for the use of the fishery. The result of the best authorities, and of a sound consideration of the nature of the subject-matter, seems to be this : A several fishery is the exclusive right of fishing in a certain place. It belongs 2^'rimd facie to the owner of the soil beneath, as an incident of such ownership of the soil. Though strictly speaking this use of the superincumbent water is included in the ownership of the soil, yet it may be separated from that ownership and conveyed by deed to a third party, who is a stranger to the soil. In the sea and navigable rivers a several fishery does not result from ownership of the soil, whicli is in the Crown, but from ancient grant of the Crown, as far back as Magna Charta, or, from what implies a grant, a prescriptive user. In private rivers and streams a several fishery is one of the riparian rights. Mode of User of Fishery. — ^The owner of a several fishery is |>ri??i4 facie entitled to catch as many fish as his ingenuity or industry admit, provided he has the whole stream ; but inasmuch as the right of a private -fishery, in the event of other owners being entitled to parts of the same stream, is to some extent held in common, and an immoderate user by any one will pre- judice the rights of the others, he is at common law, as we have already stated, bound to exercise his right FREE FISHERY. 51 in the usual way, and so as not to injure or anniliilate the rights of his neighbours. Hence, though as far as his right to the soil goes, he would be entitled to erect a wear or siuiiUir contrivance adjoining liis own lands, yet if it has the effect of stopping all the fish, or sensibly preventing them from passing upwards to the upper proprietors, he will be liable to an action on the case.^ And so, if he kept a net constantly fixed across the stream, having a similar consequence, this would also be a ground of action. But if he confines himself to net or rod fishing, in the way usual among fisher- men, there is no limit to the extent to which he may catch the fish by this means. If the owner and his servants be constantly at work with rods and nets, they may by mere industry destroy as many fish in the eoui'se of a few months as are likely to be destroyed by a wear or fixed net in a shorter time, and thus the two kinds of user are only in one sense degrees of the same thing ; yet the exercise of the right in the former manner is held to Ije legitimate, and its excess is no ground of action, whereas the latter is not so, notwith- standing the result to the other parties is identical, or nearly so."'* As regards salmon, the Salmon Fisheries Act contains various provisions on the subject of fixed nets and wears, which are to be treated of in a separate chapter. Free Fishery. — The term free fishery, as has been seen in dealing with a several fishery, is used so loosely h\ 1 Hamilton v. Marquis of Donegal, 3 Ridg. P. C. 267, ante, p. 40 ; Weld V. Hornby, 7 East, 195, ante, p. 39. 2 Hamilton v. Marqtcis of Donegal, 3 Ridg. P. C. 267. e2 52 FISHERY LAWS OP ENGLAND. the authorities, that no definite meaning can be at- tributed to it. Lord Mansfield said it was a right of fishery whicli was co-extensive with the rights of others.^ Coke seems to favour the same definition, for he says : "If a man prescribe to have scparaUiyi 2^i^caTiam in a water, the owner sliall not fish there ; but if a man claim to have communiam piscarice, or libcram pisca- riam, the owner of the soil shall fish there." ^ So in the Yearbook, Brian, C. J. says : " There is a great difference between a several and a free fishery, for no man can have a several fishery unless it be in his own soil ; but I may grant a free fishery to twenty persons in my own pool."^ Holt, C. J. gives two definitions; the latter is this : " A man may have a free fishery in his own soil, and another may have a right of fishing therewith him."* Blackstone admits^ that the books are embarrassed with difficulties on this subject,® and defines it as an exclusive right of fishing in a public river, and that a man has a property in the fish there before they are caught. But Hargrave observes,^ that both parts of the definition are open to dispute. There being, therefore, little precision in the autho- rities, it is necessary to revert to first principles. We have seen that where A has the soil, and has not parted with the right of fishery in the superincumbent ^ Seymour v. Courtcnay, 5 Burr. 2814. * Co. Litt. 122 a, ante, p. 46. 3 17 Ed. IV. 6 pL 5. * Gipfs V. Woolcott, 3 Salk. 291 ; see another account, Smith v. KemjJ, Salk. 637. 5 2 Bl. Com. 39. ^ See ante, p. 46. ' Note to Co. Litt. 122 a. FREE AND SEVEKAL FlSIIEllY. 53 water, wliicli is a riglit appurtenant to the soil, lie lias a several iisliery in such Avatur, except where it is a navigable river or the sea, and where prima facie the whole public may fish. But if A grant to B, a stranger, the right of fishing along with A, then A and B will have each a free fishery there. A may grant such a right to several persons in lilvc nuiuner, each of whom will have a free fishery. Such a grant can only be made by deed, and it will depend on the words of the grant whether and how far A, after making a grant to B, can afterwards make a similar grant to C, D, and others, seeing that the more persons there are who share in such a right the less valuable does it become. It is probably owing to this incident that a free fishery is not often met with. It closely resembles a common of fishery, and the chief distinction between them seems in reality to be in their origin, the free fishery being generally traceable to a specific deed or grant, and the common of fishery being the growth of time and imme- morial user, which imply a grant. Distinction hctivecn Free and Several Fishery. — The chief distinction between a free fishery and a several fishery is, that two or more persons concurrently and jointly hold the former, whereas the latter is exercised by one person exclusively. A free fishery, unlike a several fishery, implies no ownership of the soil It is, however, an incorporeal hereditaiiieiit, and can only be conveyed by deed.^ The remedies for its obstruction and invasion will be stated aftenvards.^ The above distinction between the terms free and ^ Sec post, p. 57. " See cliaptor VI. 54 FISHEKY LAWS OF ENGLAND. several fishery is recognised in the opinion of the judges in a recent case/ where "VYilles, J. observes : " Some discussion took place during the argument as to the proper name of such a fishery, whether it ought not to ha\'e been called in the pleadings, following Blackstone, a ' free ' instead of a ' several ' fishery. This is more of the confusion which the ambiguous iise of the word ' free ' has occasioned from as early as the Yearbook, 7 H. 7 P. fo. 13, down to the case of Hoi ford v. Bailey, 13 Q. B. 444, where it was clearly shown that the only substantial distinction is between an exclusive right of fishery, usually called several, sometimes free (used in ' free warren '), and a right in common with others, usually called ' common of fishery,' sometimes ' free ' (used as in free port). The fishery in this case is sufficiently described as a several fishery, which means an exclusive right to fish in a given place, either with or without the property in the soil." For tlie reason already stated, the retention of the words several or exclusive fishery, and free or common of fishery, is advisable, and in that sense those words are uniformly used in this work. Common of Fishery. — A common of fishery is the right of fisliing in waters which belong to the lord of the manor, and is on the same footing as other commons. A common is a right which is almost invariably asso- ciated with existing manors, and is traceable to the customs which originally governed those manors, the practice having been for the lord to allow each of the tenants of the manor to pasture cattle or cut tuif on the ^ Mulcohnson v. O'Dca, 9 H. L. Cas. ; ante, jx 23. COMMON OF FISHERY. 55 wastes, or to fish in the river or lake of the manor, the right being appendant or appurtenant to the copyhokl estate, and in some rare cases being severed therefrom and associated with the person or in gross. It is a very inconvenient right, for it is seldom capable of being easily apportioned and expanded with altered circum- stances. The fishery of the manor must necessarily be a fixed quantity ; and if the lord were constantly carving out new plots of ground, and letting it to copyhold tenants, each being allowed to fish in the lord's water, the fishery must necessarily in time become dimi- nished, and ultimately exhausted, for each fresh addition of a tenant is 2yro tanto a diminution of the rights of the previously existing tenants. Thus if a manor happen to be situated in a place which suddenly becomes populous, and the land is taken up for building pur- poses, the new tenants would ir)SO facto be entitled to the right of fishery, if they were made tenants of the manor in the usual way, for the custom would extend to them, in which case the previous tenants would liave an action against the lord for surcharging the fishery, if they found their right of fishery prejudiced. Hence the lord's power to increase indefinitely the copyhold tenants nmst necessarily be limited, so as not to diminish the equal rights of the previously existing tenants. If the river or lake is large enough to satisfy the reasonable requirements of all the tenants, ancient and new, there is no harm done, but otlierwise if the right of the ancient tenants is practically prejudiced by the fishery being overworked or surcharged. At the same time, in estimating the inconveniences of such rights as 5G FISHEEY LAWS OF ENGLAND. the common of piscary, it is also to be recollected that tlie extent of user of the commonable right is always qualified by custom, and is restricted to certain periods of the year, and to the usual modes of fishing ; and moreover, except in the case of commons in gross, the quantity of fish which can be lawfully taken is co- extensive with the reasonable requirements of the house- hold. Therefore, taking all these considerations together, it is obvious that the right of common of piscary is one which in itself is necessarily limited in its nature, and exists almost exclusively by the ancient custom of manors, and is seldom created by modern deeds. It is, however, competent to grant a right of free fishery by deed, which nearly resembles a common of piscary.^ Different Kinds of Common of Piscary. — A common of piscary is of three kinds : common appendant, common appurtenant, and common in gross. A common ap- pendant is a right inseparably annexed to the possession of a particular house, and the extent of the right is measured by the reasonable requirements of the family. It is a right of a permanent nature attached to a house, and is not available to mere inhabitants or lodgers, but is restricted to him who has an estate or interest in the liouse.^ Hence it is that the inhabitants of a vill or city cannot prescribe for such a right, as there would be an uncertain measure of claimants.^ A common of piscary appurtenant is a right claimed ''■ See Ilargravc v. L. Co'iujlctmi, 12 Ir. C. L. 362, as to au analogous case of common of turbary. ^ Gateward's case, 6 Eep. 59 a. 8 Ordeway v. Orme, 1 Bulst. 183 ; Tinnery v. Fisher, 2 Bulst. 87 ; English v, Burnell, 2 Wils. 258. NATURE OF KIGIIT OF FISHERY. 57 by a person in respect of a house not necessarily con- nected, by way of tenure or otherwise, with the locality of the iishery. The right must have been granted by deed within the time of legal memory/ It may also be severed from the house and land to which it is ap- purtenant.2 Common in gross is a right claimed by a person, not in respect of any land, but under a grant or, what is equivalent, by prescriptive user,^ Nature of Right, and its Assignability. — The nature of a right of fishery proper is an incorporeal hereditament, and as such can be conveyed only by deed.'* A licence of fishing is distinct from the right of iishery, and is at most only a justification for what would otherwise be a trespass. A licence is revocable at will, and in order to be binding, even for an hour, must be granted by deed.^ Fishery not an Easement. — The right to a fishery is classed among profits a prendre, and not among ease- ments ; *^ and a several fishery in a navigable river may pass as appurtenant to a manor.^ Whether Fishery vHll iklss as appurtenant to Land. — Much discussion arose in an Irish case, whether a fishery could be claimed by prescription, as appurtenant 1 Cowlam V. Slack, 15 East, 108 ; Prcifi/ v. Butler, 2 Sid. 87. 8 Leniel v. Ilnrslop, 3 Keb. 66 ; ffai/cs v. Bridges, 1 1\. L. & S. 390. a Co. Litt. 122 a ; 2 Inst. 477 ; 4 Rep. 38. * Ihckc of Somerset v. Fogwell, 5 B. & C. 875 ; Bird v. Iliggenaon, 2 A. & E. 696. » Per Parke, B. in Holford v. Bailcij, 13 Q. B. 426 ; Hopkins v. Robinson, 2 Lev. 2. ^ Bland v. Lipscombc, 4 E. & B. 713 u ; Wickluua v. Hawker, 7 M. & W. 63. ' Rogers v. Allen, 1 Camp. 311. 58 FISHERY LAWS OF ENGLAND. to land, aud it was hekP that it could. Ontliis subject Finucane, J. tlms lucidly expounded the matter : — " The question is, whether an exclusive right of fishing for oysters can be prescribed for as appurtenant to land, and whether it can be prescribed for as appurtenant to anything but that on which it is to be used. To consti- tute an appurtenance, nothing is necessary but that the principal and the adjunct should not be cj'nsdem generis, and that they be capable of union without repugnance or inconsistency. One corporeal hereditament cannot be appurtenant to another corporeal hereditament, be- cause they pass by the same solemnities, and there is no reason why one should be the principal more than the other ; but incorporeal inlieritances of every kind may be appurtenant to corporeal, and corporeal to incorporeal ones, provided there be no inconsistency. Whether they be capable of being so united must depend on their several natures, and the terms of the grant by which they are, or are supposed to be created, for appurtenance is founded on gi^ant, or on prescription, which supposes a grant. ... In fact, the true test of congruity l)ctwcen the principal and the adjunct is not the advantage whicli either may derive from tlie other, but the propriety of the relation between them, which may be found out by considering whether they so agree in nature and quality as to be capable of union witliout any incongruity. This is Hargrave's opinion ; " so it is laid down in 2 Mod. 144, a rent or any profit a iJrendre may be appurtenant to a manor. Now what advantage can 1 Hayes v. Bridges, 1 II. L. & S. 390. 2 Co. Litt. 12G h, in noils. OKANT OF FISIIKKY. 59 a manor as a manor derive from such a rent ? Xone. The same reasoning will apply to a fishery. If it is a common of fishery that is claimed, it may be well con- fined to taking for private use, because otherwise the other commoners may be deprived of the benefit of their C(jmmon. It may be therefore argued that such a fishery could be claimed only as appurtenant to a house, but there can be no reason for confining it to a house where the exclusive right is claimed, because the fishery nmch exceeded the quantity necessary for the consump- tion of the house. So that a fishery may be claimed as appurtenant to any corporeal inheritance as well as a liouse." Fishery may he Suh-divi'clcd. — A right of fishery is capable of sub-division into parts, and the party entitled to the complete right may let part of it, reserving the rest to himself, just as a tenant of lands may let the game, wliicli implies the right of entry to shoot. Tims an oystery may be let out of a general fishery.^ And so he who has a general fishery may let the rod and line fishing only ; and if possession has been had, he can recover the rent under an indehitatus count for use and occupation, though there has been no grant by deed.^ In Grant of a Fishery, vjhat Jcind is meant. — "\Miere a person having a several fishery grants to another his fishery, without specifying what kind of fishery, the whole several fishery will ]iass, l)ecause the grant will be taken most strongly against thi; grantor. A case in ^ Seymour v. Courtenay, 5 Burr. 2814; Rogers v. Allen, 1 Camp. 309. " Holford V. Pritchard, 3 Exch. 793 ; Bird v. Iliygenson, 2 A. & E. ()96. 60 FISHERY LAWS OF ENGLAND. 1657 ^ clearly shows this, where it was said : " It was resolved that if one who has a several fishery grant a free fishery, the grantee has a free fishery along with the grantor, but if he grant his fishery without saying more, the entire piscary will pass." ^ In one case Lord Paget had granted to the defen- dant the mill, with all waters, streams, &c. necessary for working the miU, and usually held and enjoyed therewith, except and always reserved to the said Lord Paget, his heirs, &c, the right and privilege of fishing in the waters of the said miU. At the time of the grant Lord Paget had a sole fishery in these waters. The Court held that " if there were words in the Eng- lish language which wiU not admit of doubt, they are these. Lord Paget had water for a mill, and he had a sole fishery, and he grants the mill, with the water for the mill, reserving the fishery, and the question is, whether the whole right of fishing is reserved, or whether a new right is created by it." The Court held the whole fishing was reserved.^ Whether Grant of Fishery carries the Soil. — Where a lease or deed specifies merely the fishery or the fishings, without other terms, it is a question of construction whether the soil passes along with the fishery ; and it seems prima facie that the soil does not pass.^ There are, however, conflicting authorities,^ or rather there is 1 A Idcrman de Londrcs v. Hasting, 2 Sid. 8. 2 See also Co. Litt, 4 b, 122 « ; ante, p. 46. 8 Lord Paget v. Milks, 3 Doug. 43. 4 Co. Litt. 4 b. 6 riowd. 154 a ; Smith v. Zewy;, 2 Salk. 637 ; Ilolford v, Bailei/, 13 Q. li. 444 ; 8 Q. B. 1016. GR.VNT OF FISHERY. 61 a looseness of language on this subject corresponding to the looseness of meaning attached to the words several fishery. Bayley, J. says it may be true that the owner of a several fishery must be presumed to be the o\vner of the soil, where the terms of the grant under which he claims are unknown ; but when they appear, and are sucli as convey an incorporeal hereditament only, tlie presumption is destroyed.^ And in a previous case he said : " I should doubt very much if the grant of a fishery would convey the soil and everything under- neath it, such as all the minerals, though I can conceive that it may pass so much of the soil as is connected with the fishery." 2 Another reason why the word fishery should not be held to carry the soil is this : inasmuch as it is settled that a fishery is capable of being split into a fishery for oysters, for floating fish, for salmon, &c. it would follow, if it be construed to draw the soil, that by such grants it may be conveyed to as many persons as there are different kinds of fish.^ Tlie point whether the soil passed with the grant of a fishery has hitherto chiefly been raised in questions on the construction of ancient deeds taken in connexion with the subsequent user. The mode of construing and ascertaining the nature of the right of fishery was thus stated by Bayley, J. : " In order to form a judgment whether this was a gi'ant of a mere incorporeal hereditament or not, we must look at the terms of the grant, and in wliat manner the 1 D. of Samcrsct v. Fofprdl, 5 B. & C. 875. » R. V. Ellis, 1 U. & S. 665. ^ Per Fiimcane, J. in Ilaijcs v. Bridges, 1 Kidg. L. & S. 420. 62 FISHERY LAWS OP ENGLAND. grantee lias from time to time exercised the thing granted. Now it appears that he has exercised, not merely the right of fishing, but of landing his nets on the beach, or any part of the bed of the river, wherever he thought fit; and he also has been used to drive stakes into the ground for the purpose of affixing his net to them. There is, however, no privilege granted by the deed to use the beach or bed of the river for any such purpose ; there is none at least granted in express terms. But it is said it would pass as incident to the grant ; and if it were necessary to the exercise it might and would pass as incident ; but to say that is begging the question, because it is assuming that it is necessary ; but of that the sessions were the proper judges.^ There are many instances of these rights of fishery being exercised without landing nets on the beach or bed of the river, or driving piles into the ground, such as the fisheries in the Thames, the Southampton and other rivers, which are carried on by means of boats alone for that purpose. Therefore it is not a necessary incident to such a right as this that the party should have the privilege of landing nets on the beach or of driving stakes. If, then, this be not an incidental privilege, nor one which is granted in express terms, to what else can the exercise be referred except to its being a grant of a fishery of such a nature as conveyed at least the surface of the soil."^ A deed which conveyed " a messuage, tenement, boat- house, &c. and all the sea grounds, oyster-layings, shores ^ The case in liaml was an appeal against a finding of justices. 2 Per Bayley, R. v. Ellis, 1 M. & S. 666-7. GRANT OF FISHERY. 63 and fisheries," was held to convey the right of soil in the sea-shore between high and low water mark, and not merely the oyster fishings.^ In another case, a deed granted " all that our fishery of the halves and halvendoles, with the fishings called Unlawater, with the appurtenants to the lialves due and accustomed, within the river Severn, with all ro}'al fishes there to be taken." The Court held this passed the soil, because whatever " the halves and halven- doles " precisely meant, they distinctly appeared to be of the nature of land, and the words " royal fish " also implied that the ownership of the soil went with it. At all events, the Court held there was sufiicient doubt to prevent them disturbing the. order of sessions, which rated the fishery as including land.^ In like manner where, under an agreement, a tenant held the fishery of a pond containing sixty acres, called Alresford Pond, with the grates, &c. and also all the spearsedge, Hags, and rushes growing in and about the said pond, 1 ScmUoii V. Bmicn, 4 B. & C. 845. "It seems to me," sauI Bailey, J. "the word sea-ground alone would liave passed the soil, l)ut then the words ' oyster layings ' are introduced, and it is said that IVom those words it is to be inferred that, by the words 'sea grounds,' it was intended to convey a privilege of laying oysters only. I think, however, that these additional words may have been introduced be- cause the grantor was uncertain as to the nature of the right which he had actually derived from the Crown." Holroyd, J. also observed, that in a grant it was not very material which of the parts stands first. And Littledale, J. said that the words "oyster layings" would not of itself have passed the soil, but coupled with the word "shores" it would. ^ R. V. Ellis. 1 M. & S. 652. Le Blanc, J. in that case relied on the expression "halves and halvendoles" being explained by the usage of the fishermen under it, for they used nets which lay on the beach or bed of the river, and sometimes they affixed one end of the net to a pole stuck into the bed of the river. 04- FISHERY LAWS OF ENGLAND. and the right of cutting the sedge growing on land adjacent, &c. it was hekl that he was rateable to the poor, and that it might be taken that the fishery and the soil passed together.^ In the case of the fishery of the Bann,^ it appeared that the king had the fishery of the Bann, a navigable river, as parcel of the ancient inheritance of the Crown, and James I. by letters patent granted to Sir E. McDonnell, in fee, the territory of Eout, parcel of the Co. Antrim, and adjoining to the river Bann, in that part where the fishery was ; and by the letters patent the king granted " omnia castra, messiiagia, &c. piscarias piscationes aquas aquarum cursus," &c. ; and it was held that the fishery of the Bann did not pass by the grant of the land adjoining and by the general grant of all piscaries, for that it was a royal fishery, not appur- tenant to the land, but a fishery in gross, and was by itself part of the inheritance of the Crown, and that general words in a grant by the king would not pass such a special royalty, which belonged to the Crown by prerogative.^ The most recent case on this subject was where the plaintiff brought an action of trespass against the 1 Buller, J. said : " The fact of letting a fishery is sufficient, and we must presume that the soil passed along with it." And Ashurst, J. said : ' ' There is no doubt that a fishery is a tetiement, and that tres- pass will lie for an injury to it, and it may be recovered in ejectment." This last observation is, of course, loosely expressed, for everything depends on what is meant by " fishery." The case only proves that, where the words are somewhat uncertain, and the sessions find the fact that the soil passed, the Court above will not reverse that finding without very clear words of grant. — R. v. Alrcsford, 1 T. R. 358. ^ Davis 55. 3 D. of Somerset v. Focjincll, 5 B. & C. 875. GRANT OF FISIIEllY, 65 defendant for breaking his several tishoiy in Ullswater lake. In proof of his title, the plaintilf produced a deed of feoffment, dated 1741, conveying to his predecessor a fishery in the locus in quo, on payment of a yearly rent of 4rZ. to the lord of the manor. On this deed of feoffment Kvery of seisin was duly made. The Court held that the fishery must be taken to mean a several fishery, and so presumably included the soil thereof. The Court held that construction confirmed by the fact tliat a feoffment with livery of seisin indorsed would not be appropriate to the conveyance of an incorporeal right, although it miglit if the livery was secundum formam chartcc so operate ; moreover, a free rent of M. was incapable of being reserved out of an incoqjoreal inheritance by a common person. Result of Authorities. — Though it may now be taken as concluded by the above authorities that a grant of a several fishery, if nothing is known as to the ownership of the soil, will impliedly carry the soil, yet the result seems to be opposed to sound principle.^ 1 That point was strongly jiut in the above case of Marshall v. Ulls- watcr Co. by Cockbiirn, C. J. "It is admitted on all hands that a several fishery may exist iudc]tendeutly of the ownership of the soil in the bed of the river. Wliy, then, should such a fishery be considered, in the absence of negative jiroof, as carrying with it the property in the soil? On the contrary, it seems to mo that there is every reason for holding tlie opposite way. The use of water for the purpose of fishing is, when the fishing is united with the ownership of the soil, a riglit incidental and accessory to such owniership. In a gi-ant of the land, the water and the incidental and accessory right of fishery would necessarily pass with it. If, then, the intention be to convey the soil, why not convey the land at once, leaving the accessory to follow ? Why grant the accessory, that the principal may follow in- cidentally ? Sui'ely such a proceeding would be at once illogical and unlawT^er-like. The gi-eater is justly said to comprehend the less ; F 66 FISHERY LAWS OF ENGLAND. Fishery granted hy SicUitte. — Sometimes the right of fishery is entirely the creature of agreement between the parties, and must depend on the construction of the deed. Thus, where a canal Act provided that the owners of the lands on which a reservoir was made might let all the water out once in seven years, for the purpose of taking the fish therein, and the Act also said that all the owners of lands through which the canal was made should have the right of fishery in so much of the canal as should be made over their lands respectively, it was held that the meaning was not that all the owners should have a tenancy in common in the fish caught on emptying the reservoir, but that each should take what- ever fish might be left on his own soil, each having a several fishery on his own land.^ So in a case where a canal was made through a manor, it was enacted by the local statute that " the lord of the manor should have the right of fishery of and in so much of the canal, cut, and reservoir as shall be made in, over, or through the common or waste lands but this is to make the converse of that proposition liold good. A grant of land carries with it, as we all know, the minerals which may be below the surface. But who ever heard of a gi'aut of the miueraLs carrying with it the general o^vnership of the soil ? Why shoidd a different principle be applied to a gi-ant of that which is above the surface of the soil, as the gi'ant of the minerals is a grant of that which is below it ? Nor should it be forgotten that the opposite doctrine involves the startling and manifest absurdity that, should the water become dry, or be diverted from natural causes, the fishery, which was the primary and principal ol)ject of the grant, would be gone, and the property in the soil, which only passed incidentally and as accessory to the grant of the fishery, would remain." To the above illustrations may be added the analogous case of the game of an estate, a grant of which does not carry the soil. , 1 Snape v. Dobbs, 8 Moore 23. LEASE OF FISHERY. 07 within the manor, and the owner of any other lands should have the like right of fisheiy in so much of the canal or collateral cut as shall be made in, over, or tlirou^^h Ills lands." It was held that the words " commons or wastes" meant those commonable lands of which the soil was in the lord, and not open fields, where owners have rights of severalty ; and that the lord had a right of fishing only in the canal or cut over his lands, and not in the reservoir.^ Lease of Fishery. — A several fishery may be let to a tenant at a fixed rent, in the same manner as the shootings or game. Both are incorporeal hereditaments, and can only be granted by deed. Nor can a valid and irrevocable licence to fish be granted, even for an hour, except by deed. 2 But the fishery may be let by verbal agreement; and even where no rent has been agreed upon, the landlord is entitled to sue the tenant for a reasonable rent under an indchitatus count for use and occupation.^ Ordinary Lease of Lands including Water. — In the ordinary case of a lease of lands including waters or streams, the right of fishery is necessarily implied as part of the general right to the soil and water, unless the lessor specially reserve it. If, therefore, there is no special reservation of the right of fishery, the tenant and not the landlord will be the party entitled to the fishery. Properly speaking, the right cannot be reserved by the lease ; but, what is practically the same thing, 1 Grand Union Canal Co. v. Ashby, 6 H. & N. 394. 2 Per Taike, B. in Holford v. Bailey, 13 Q. B. 426 ; Duke of Somerset v. Fogivcll, 5 B. & C. 875. 3 Eolford V. Pritchard, 3 Exch. 793. F 2 68 FISHERY LAWS OF ENGLAND. the reservation is construed as a regrant by tlie tenant to the landlord.1 Indeed, a reservation is equal to a grant.2 The reason why a tenant of lands has the right of fishery in the waters or streams of the farm is, that the lease gives the exclusive possession of the hanks, and of the riparian rights attaching to them, and fishery is one of these rights, and the lessor could not, without express power being reserved, come on the lands to exercise the rights of fishery. Fishery in a Manor. — With regard to a river, stream, or water within a manor, there is no presumption that the several or free fishery therein belongs to the lord of the manor; on the contrary, the presumption is in favour of the owners of the adjacent land.^ Ratahility of Fishery. — A mere fishery proper, that is, an incorporeal hereditament, is not ratable to the poor under 43 Eliz. But if the fishery is coupled with the right to the soil, as it may be under a grant gene- rally of the fishery, accompanied by proof of use of the soil for nets and stakes, then it is liable to the poor- rate in respect of the profits attaching to it.* Bayley, J. however, doubted whether a grant of a fishery would convey the soil, and everything beneath it, such as the minerals, though he conceived that it might pass so much of the soil as is connected with the fishery .^ Whether the mere grant of a fishery carries with it a 1 See Graha7)i v. Ewnrt, 7 H. L. Cas. 331 ; Paterson's Game Laws, p. 16. 2 Per L. Mansfield, Seymour v. Courtney, 5 Burr. 2817. ' Lamb v. Newbiycjin, 1 C. & K. 549. * R. V, Ellis, 1 M. & S. 6.52. See also, Bute v. Grindall, 1 T. R. 388. « R. V Ellis, 1 M. & S. 666. EATABILITY OF FISIIEKY. 69 right to the soil as iiicidcutal tlioruto, which it woukl do if tlie right to the soil were necessary to the exercise of the right of fishery, yet is a question of circumstances whether the fishery can be carried on without the use of the soil.^ And though the fishery itself may not be ratable, the tithe of fish is ratable on tlie lands of the lay impropriator.'^ No tithe is due for fish of common right but it may be by custom.^ ^ R. V, Ellis, 1 M. & S. 666. " R. V. Carlyon, 3 T. K. 385. 3 Anon. 6 Mod. 223 ; Cro. Cas. 264, 339 ; 1 Lev. 179 ; 1 Sid. 278 ; 1 Vent. 5 ; 5 Bac. Ab. 63 ; 5 Com. Dig. ' Dismes. ' 70 FISHERY LAWS OF ENGLAND. CHAP. V. RIGHT OF PROPERTY IN FISH, AND LARCENY AND COGNATE OFFENCES AS TO FISH. lilGHT OF PROPERTY IN FISU — HOW FAR LARCENY MAY BE COM- MITTED AS TO FISH — STATUTORY OFFENCE OF POACHING FISH BY 24 & 25 VICT. c. 96, § 24 — effect of enactment — waters not ADJOINING DWELLING-HOUSES— ARRESTING FISH-POACHERS — SEIZING fish-poachers' IMPLEMENTS — MODE OF PROSECUTING POACHERS — RIGHT OF PROPERTY IN POACHED FISH — MALICIOUS INJURIES TO FISHERIES — DESTROYING FISHPONDS — POISONING OF WATERS — STEALING OYSTERS — OYSTERS GENERALLY. Right of ProiKrty in Fish. — The nature of the property in fisli caught in a several fishery depends on the size and nature of the water. If the water is a pond enclosed in the owner's grounds, in which the fish can be caught more or less at pleasure, the property in such fish is vested in the owner of the fishery, and they are more like chattels, or are in the category of re- claimed beasts kept in confinement.^ Accordingly, if a person take such fish he is liable to an action of trespass, or in certain cases is guilty of larceny. Where the water is large and the fish therein are fcr(£ ncdurae (for the question is one chiefly of degree). Grey's case, Owen, 20. RIGHT OF PROPERTY IN FISH. 71 there is also an offence in the nature of larceny com- mitted in certain cases nnder 2-i & 25 Vic. c. 9G, § 24 ; hut cases not within the common law definition of larceny, nor within that Act, are regulated hy com- mon law. Fish in a Trunk or Pond. — It is obvious that fish in a trunk, net, or small enclosed space where they can be taken at the will of the owner, are subjects of property ; they are wild animals reduced into possession, or kept in confinement. Accordingly larceny at common law may be committed as to these, seeing that they are fit for food ; and so it has frequently been held.^ But as to a pond or small lake, where fish are kept, the question will depend upon the size of such pond. According as the })ond is small or large the owner can only take them with less or more difficulty, it being a question mostly of time, and cases may be supposed where there is really no substantial distinction between fish in a pond and fish in the sea or a river as regards their natural liberty. If the test of its being a subject of larceny is, that the pond is enclosed in private property, then larceny may equally be committed of fish in a lake of several miles extent, because the fish cannot get away in one sense, and if the test be the facility of catching the fish, it is obvious that, as between a pond or lake and a river there is very little difference in this respect, it being indeed a question of time in all cases, except, perhaps, where they are in a trunk or very small pond, when they can be taken at will, Ilow far Larceny may he Committed. — It is obvious 1 Grey's case, Owen, 20. 72 FISHEEY LAWS OF ENGLAND. some sncli line must be drawn in order to decide whether or not the fish are capable of larceny.^ In all the autho- rities it will be found the word pond is not defined, whereas the whole question must obviously turn on the size of it. The distinction is therefore very loosely drawn, and while on the one hand all the authorities seem to agree that fish in a trunk may be subjects of larceny, no one attempts to define how large the pond or lake must be where larceny ends.'"^ 1 East (PL Cro. 610) observes : "It has been doubted wlietlier, at common law, larceny can be committed of fish in a poud. It is admitted that it may be if they be confined in a trunk or net, because they are then restrained of their natural liberty. And it seems difficult not to extend the application of the same reason to the case of fish in a poud, the pond being private enclosed property, and the fish liable to be taken at any time, according to the pleasure of the owner. Lambert (274) says : ' Fishes in streams and rivers are nullius Tjona, ct vccupanti concedimtur; ' but he and others agree that it maybe felony to take them in a trunk, stew, or pond, for a man hath such a possession of them that, by their restraint they cannot, without help, use their nature and forsake him. So Lord Coke says larceny maybe committed of fish in a trunk or pond, because they are not at their natural liberty, but, as it were, in a pound. Hawkins (c. 33, s. 25), considers it clear that the taking of fish out of a pond is felony. " 2 Thus Hale (1 Hale P. C. 510-11) says : " Larceny cannot be com- mitted of things that are ferce naturce, unreclaimed, and nullius in bonis, as of deer or conies, tliough in a park or warren ; fish in a river or pond ; wild fowl, wild swans, plieasants. But of young pigeons in a dovecot, fish in a tnmk or net, larceu}' may be committed." Various other authorities leave undefined the distinction as to what is the size of pond in which larceny of fish may be committed. See 49 H. & M, p. 14, pi. 9, 10 ; 18 Ed. IV. fol. 8, ph 7 ; Lamb. 269 ; Cromp. 33 b ; Pult. 131 ; Dalt. 349, 350 ; 1 Hale, 510 ; Grey's case, Owen, 20 ; Child v. Grccnhill, Cro. C as. 553 ; Mallocke v. Easthj, 3 Lev. 227 ; Upton v, Daukin, 3 Mod. 97 ; R. v. Steer, 6 Mod. 183 ; 1 Hawk. c. 33, § 25, 26, 27. In R. v. JIunsdon, East, P. C. 6*11, which was an indictment under a statute 5 Geo. III. c. 14, for entering a garden and stealing from a pond, it was the opinion of some of the judges that, if the indictment had been at common law for felony, it should have described what sort POACHING FLSir. 73 Statutory Offences of Poaching Fish. — Seeing that the offence of taking fish in a several fishery amounts at common law to larceny only in those cases where the place is a trunk or very small pond, the size of which is indefinite, though there must obviously be a limit somewhere, it was necessary that a statute should enact penalties so as to protect the fisheries in places where larceny could not be committed. Accordingly the Larceny Act, 2-i & 25 Vict. c. 90, § 2-i, contained such an enactment.^ of a iiond it was, that it might appear on the face of the indictment that taking fish out of such a pond was felony. 1 "Whosoever shall unlawfully and wilfully take or destroy any fish in any water which shall run through or be in any land adjoining or l)elonging to the dwelling-house of any person being the owner of such water, or having a right of fisliery therein, shall be guilty of a misdemeanom-. " And whosoever shall unlawfully take or destroj', or attempt to take or destroy, any fish in any water not being such as hereinbefore men- tioned, but which shall be private property, or in which there shall be any private riglit of fishery, shall, on conviction thereof before a Justice of the Peace, forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money, not exceediug 5^., as to the Justice shall seem meet. " Provided, that nothing hereinbefore shall extend to any person angling between the beginning of the last hour before sunrise, and the expiration of the first hour after sunset : but whosoever shall, by angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, unlawfully and wilfully take or destroy, or attempt to take or destroy any fish in any such water as first mentioned, shall, on conviction before a Justice of the Peace, forfeit and pay any sum not exceeding 51. ; if in any such water as last mentioned, he shall, on the like conviction, forfeit and jmy any sum not exceeding 21., as to the Justice shall seem meet ; and if the boundary of any parish, township, or vill shall happen to be in or by tlie side of such water, as it is in this section before mentioned, it shall be suflicient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto." — 2-i & 25 Vict. c. 96, § 24. 74 FISHERY LAWS OF ENGLAND. . Effect of Enactment. — The effect of the enactment 24 & 25 A^ict. c. 96, § 24 is to alter the common law in some cases, where otherwise larceny would have been capable of being committed, and to reduce the offence from larceny to a misdemeanour. Thus, where the fish have been taken and destroyed in a pond adjoining to and belonging to a dwelling-house, if the pond was small, larceny, as already stated — that is, felony — would be committed ; but now, whether the pond be small or large, and even though it is not a pond but part of a stream, if it fulfil the description of a water adjoining the dwel- ■ ling-house, the offence committed is a misdemeanour. Place, of Offence. — In order to commit this offence the water must belong to or adjoin the dwelling-house of the person who is owner of the water or the owner of a fishery therein. " To adjoin " in this sense must mean a moderate contiguity in point of local distance, and without intervening fences,^ and " to belong to " seems to imply that the water is held or let with the house under the same tenure or lease, or at least that both the house and the fishery belong to the same owner, though it seems they need not be both occupied by the same person. If the water is a pond in the private grounds attached to the house, there can be no difficulty in holding the offence committed there, even though the distance be more or less according to the size and style of the house. But where the water is a running stream, which must necessarily extend to a great distance, as no test is given whereby to determine where the line is to be drawn at which the stream ceases to adjoin or 1 R. V. Ilod'jcs, ]\L & M. 341. POACHING Fisn. 75 belong to the house, the safer course will be to resort to the next clause of the same section, which declares the offence in respect of "water not being such as liereinbufore mentioned." This, which is an offence punishable by fine of 51. and the value of the fish, may be committed in all waters which do not adjoin or belong to any dwelling-house, provided such water is private property or in which tliere is a private right of fishery. In short, this description seems applicable to all streams which are not navigable rivers, and what- ever be the description of fish taken. The words also include even navigable rivers and the sea, wherever an individual has a several fishery at the spot in question, as may well be the case.^ Form of Conviction. — The conviction must be drawn up with reasonable certainty as regards the place and the circumstances of the offence.^ Form of Indictment. — An indictment for fishing by 1 Where a conviction for fishing without consent of the owner stated the locus to be " in part of a certain stream whieli runnpth between B in tlie parish of A in the county of W, and C in the same parish and county," it was quashed because it did not appear, and the Court would not assume that tlie intermediate course of the stream between the two termini where the ofl'ence was alleged to have been committed, was in the county o W, and within the jurisdiction of the convicting magistrate. R. V. EdwariU, 1 East, 278. The conviction ought to state that the defendant had not the licence or consent of the owner of the fishery. R. V. Mallinson, 2 Bun-. 679 ; 2 Ld. Ken. 384 ; R. v. Daman, 2 B. & Aid. 378 ; R. v. Cordai, 4 Burr. 2279. The warrant of commitment must show all that is material to con- stitute the offence, though the conviction may have been quite regular ; and though the same precision in the warrant of commitment is not necessary, still enough must be stated to show an authority to imprison. Wickcs V. CliMcrbiick, 2 Bing. 483. ' See mpra. 76 FISHEEY LAWS OF ENGLAND. force of arms wdtliout licence, and unlawfully, unless there was a riotous assembling for the purpose, is not sustainable at common law, as already stated, and it requires a statute to make it good.^ Wlidlicr Manual Possession of Fish is necessary to the Oj^ence. — The first offence, viz. that of misdemeanour, consists in taking or destroying ; and it is to be ob- served, that something short of catching the fish alive or dead will amount to the offence of " taking." There need not be manual possession acquired ;- and the means used are wholly immaterial. No mere attempting to catch the fish will amount to that offence ; at the same time, if they are caught either by hand, by rod, or net, or in any other manner, the offence will be complete. The only qualification as to means is as regards angling during certain hours specified ; and all that is then done is to reduce the offence of anghng during those hours from misdemeanour to a penal offence. Mere taking of fish for scientific purposes, or, it seems, even for pur- poses of removal to other waters, was not a crimiual offence under the older Acts.* Poaching Fish not near a BvMlling-housc. — As re- 1 R. V. Marshall, 2 Keb. 594, In an indictment under 24 & 25 Vict. c. 96, § 24, for stealing or taking fish, it is not necessary to allege the number of fish taken. R. v. Wctwancj, 1 Lev. 203, nor that they were the goods and chattels of the owner. R. v. Hunsdon, 2 East, P. C. 61L R. V. Steer, 6 Mod. 188. Indeed, unless they are in astewpond or trunk, they are not goods and chattels, though, if they arc in a close pond, they might be called ;«sccs sui. R. v. Steer, 3 Salk. 189, 291. The indictment should state that the place was water in land ad- joining or Ijclonging to the dwolling-liouse. Wickcs v. Cluttcrhtck, 2 King. 483 ; 10 Moore, 63 ; R. v. Sadler, 2 Chitt. 519. 2 R. V. Glover, R. & R. 269. * Bridger v. Richardson, 2 M. & S. 568. POACHING FISH. 77 gards the second offence specified in 24 & 25 Vict. c. 96, §24, viz. that of taking fish in waters other than those adjoining a dwelling-house, it is to be obser\''ed that the offence consists not only in actually taking or destroy- ing, but attempting to do so. In order to prove this offence, therefore, circumstantial evidence will in general be sufficient. Thus, in the analogous case of pursuing game, the Justice may mfer the offence was committed from evidence that the person was seen going about a field with a dog and gun, and acting like one looking for game.^ So, if a man is seen near a river or stream, in the attitude of fishing, this will be some evidence of tlie offence, though weak evidence. Several Offences on One Day. — There can only be one offence committed on one day, though there may be several takings, or attempts to take fish on the same day, for the penalty is not afSxed to the number of fish taken, or of the times attempted.^ Wlw may Prosecute for Poacliing Fish. — Any person may prosecute for poaching fish under this enactment, for the penalty is not declared to be forfeited to the owner of the fishery or water, and there are no equiva- lent words. In the older statutes it was otherwise.' Arresting FisJi-PoacJiers. — The Larceny Act gives ex- press power to any person to arrest fish-poachers, if caught in the act.* The arrest may be made without a 1 Paterson's Game L. 5 ; R v. Scott, 8 L. T. N.S. 662. 2 R V. Lcvett, 7 T. R. 152. * R y. Daman, 2 B. & Aid. 378 ; R v. Cordcn, 4 Burr. 2279 ; and see Paterson's Game L. 55, as to the analogous cases uuder tlie Game Acts. * By the 24 & 25 Vict. c. 96, § 103, any person found committing any 78 FISHERY LAWS OF ENGLAND, warrant, except only as regards angliug-poacliers by day. Thougli only the owner of the ground or fishery, and no other person, can, under the 25th section,^ demand and seize the fishing implements, any person whatever, though a stranger, has power to arrest the poacher him- self, under the 103d section. But the poacher can only be so arrested when found committing the offence ; that is, he must be found on the spot — or near it — where he has been actually poaching. If, therefore, the poacher has left the place, and got to the highway or into anotlier field, the power to arrest can no longer be exercised. The party arresting has no right to seize and keep the fishing implements, unless he is also the party author- ized to do so by the 25tli section.^ Nor can the party arresting seize and take possession of the fish poached, for these belong to the poacher, unless in the case (which must be very rare) where they were taken out of a small pond or trunk, as to which larceny would be capable of being committed at common law.' The words in the section " together with such property " obviously offence punishable eitlier upon indictment or upon summary convic- tion by virtue of this Act, except only the offence of angling in the day- time, may be immediately apprehended without a warrant by any person, and forthwith taken, together with such property (if any), before some neighbouring Justice of the Peace, to be dealt with according to law ; and if any credible witness shall prove upon oath before a Justice of the Peace a reasonable cause to suspect that any person has in his posses- sion or on his premises, any property whatsoever, on, or with respect to which any offence punishable either upon indictment, or upon sum- mary conviction by virtue of this Act, shall have been committed, the Justice may grant a warrant to search for such property, as in the case of stolen goods. 1 Seejjost, p. 79. 2 See post, p. 79. 3 See ante, p. 72. POACHING FISH, 79 do not apply to poached fish, for these were not " property " before they were caught, and when caught they belong to the poacher, and therefore a search war- rant cannot be obtained to get at poached fish. Those words refer to the ordinary case of goods stolen provided for in previous parts of the Larceny Act. When arrested, the poacher must be taken within a reasonable time before a neighbouring Justice. The arresting party may hand over the poacher to police constables, and detain, or leave him in charge at the nearest police station, or any other convenient place, under the charge of others, while he goes in search of a Justice of the Peace.^ Some statutes fix a maximum time, such as twelve hours, for taking the arrested party to a Justice ; but as no time is here mentioned, it is enough that there is no more delay than is reasonable in the circumstances. Sciziiuj Fish-Poachers Implements. — The statute 24 & 25 Vict. c. 96, § 25, gives power to seize the poacher's fishing implements. '^ The power to seize these imple- ments is in derogation of the common law, and therefore 1 Evatis V. MadmujhUn, 4 L. T. N.S. 31 ; 4 Jlacti. Ap. C. 2 " If any person sliall at anytime be found lisliing, against the pro- visions of this Act, the owner of the gi-ounJ, water, or fishery, where such ofTentler shall be so found, his servant, or any person authorized by liini, may demand from such offender any rod, line, hook, net, or other implement for taking or destroying fish whieli sliall then be in his possession, and, in case such ofieuder shall not immediately deliver up the same, may seize and take the same from liim, for the use of such owner. Provided, that any person angling, against the provisions of tliis Act, between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, from whom any imple- ment used by anglers shall be taken, or by whom the same shall be so delivered up, shall, by the taking or delivering thereof, be ex- empted from the payment of any damages or penalty for such angling. " —24 & 25 Vict. c. 9(5, § 25. 80 FISHEEY LAWS OF ENGLAND. must be strictly coustrued. At common law, tlie owner could neither arrest a trespasser, nor seize liis fishing implements. This section gives no power to arrest the poacher, but it is given by sect. 103.^ In exercising the special power given by this section to seize the imple- ments, it will therefore be necessary to observe the qualifications under which it is given. The persons entitled are the owner of the ground, water, or fishery, and his servants ; and therefore if, as may well be, the ground or fishery is let, the occupier would not be en- titled, for there is no definition of the word owner which includes occupier. The demand must be made on the spot where the poaching takes place, and therefore if the poacher has left the water and the ground, he is beyond the reach of seizure. The demand must first be made in a reasonable manner before the seizure can be made by force ;^ and no more force is to be used than what is necessary. When seized, the fishing implements belong absolutely to the owner of the ground or water who seizes them, and who can thereupon do what he likes with them. The seizure of the implements is a remedy over and above the misdemeanour or penalty incurred by the illegal fishery ; but as regards anglers during the hours specified, if the rod, &c. are seized, no other remedy can be resorted to. In exercising the statutory power of arresting poachers, it may well happen that the servants of the owner of the fishery may assault and imprison the trespasser at a place which, tliough near, is not within the limits of 1 Ante, p. 77. 2 Wisdom V. Hoclson, 3 Tyr. 811, POACHING FISH. 81 their master's fishery. Thus, for example, the game- keepers of Colonel Pennant took into custody a man fishing at night in the Menai Straits, near the mouth of the river Ogwen. An action having been afterwards brought for the false imprisonment and assault, the question was, whether the defendants were entitled to notice of action ; the jury having found that the spot where the arrest took place was a few yards beyond the limits of the fishery, but that the defendants ho7id fide and reasonably believed that the fishery extended to that spot, the Court held that the defendants were en- titled to notice of action in such circumstances. This decision does not show that no action will lie, but merely that if an action is brought, the usual notice of action (one month's notice) must be first given, so that the defendants may have an opportunity of tendering amends for the wrong they had inadvertently done.^ Abettors of Fish Poaching. — Though persons who abet fish poaching are not liable to be apprehended, still they may be proceeded against by summons before a Justice ; and they are liable to precisely the same pun- ishment as the poachers themselves.^ Mode of Prosecuting Poachers. — If the poacher has not been apprehended in the act of poaching, and so taken at once red-handed before a Justice, the only mode of proceeding against him is by laying an information before a Justice at petty sessions where the ofi'ence was committed. A summons will then be issued, calling upon the party to appear at a day to be named, when 1 Hughes v. Buckland, 15 M. & W. 346. " 24 & 25 Vict. c. 96, § 99, G 82 FISHERY LAWS OF ENGLAND. the prosecutor must be in attendance "with his witnesses to give evidence ; and if the defendant do not appear, a warrant will then be issued for his apprehension.^ 1 24 & 25 Yict. c. 96, § 105 ; 11 & 12 Yict. c. 43. The details of tlie procedure before the Justices are as follows : By 24 & 25 Yict. e. 96, § 120, the procedure is to be under Jervis's Act, 11 & 12 Yict. 0. 43. Procedure before Justices. — It sometimes happens that a person prosecuted for poaching asserts that he had a legal right so to fish. There is no express provision in this statute by which a defendant who bona fide claims to fish where he has fished under siich supposition of right, is entitled to oust the jurisdiction of the Justices. No express provision, however, was necessary ; for in all cases detenninable before Justices, it is competent to a defendant to set up this claim. Thus, i he bond fide claims a title to the fishery, the Justices, if satisfied of the bona fides, ought to stay their hands, and leave the matter to be settled by an action at law. Per Crompton, J. R. v. Cridland, 7 E. & B. 853 ; Jones V. Taylor, 1 E. & E. 21 ; Legcj v. Pardoe, 30 L. J. 108 M. C; Leatt V. Vine, 30 L. J. 207 M. C. The Justices must, however, be satisfied of the boncv fides, and hence must have some reasonable evidence of the ground of the claim, for they are not to be stayed by every idle assertion of a defendant in such cases. Williams v. Adums, 30 L. J. 109 M. C. The claim must be also set up by the defendant in his own right. Comioell v. Sanders, 26 J. P. 757. The penalties are to be paid to the party aggrieved, 24 & 25 Yict. c. 96, § 106, which means to the owner or occupier of the fishery, and if he is not knowTi, then to the clerk of the petty sessional division, 11 & 12 Yict. c. 43, § 31. The defendant may be committed for non- payment of the penalty, 24 & 25 Yict. c. 96, § 107. The form of commitment for non-payment of a penalty is given in 11 & 12 Yict. c. 43, sched. 1. The Justice may, if it is a first offence, discharge the defendant on his making satisfaction to the party aggrieved for damages and costs, 24 & 25 Yict. c. 96, § 108. If the party has paid the penalty, or it has been remitted by the Crown, this is a bar to all other proceedings for the same cause, 24 & 25 Yict. c. 96, § 109. — The defendant's release from other proceedings mentioned in this section, however, only takes effect where the party suing is the same party who had instituted the proceedings for a summary conviction as in- former. Tarry v. Newman, 15 M. & W. 654. If the penalty exceeds 51. or the imprisonment exceeds one month, or the conviction took place before one Justice only, the party may appeal to the next quarter sessions, 24 & 25 Yict. c. 96, § 110. And if either party choose (and POACHING FISH. 83 Officers of the Army and Navy Poaching Fish. — The Annual Mutiny Act contains an enactment that every ill case of conviction, whatever may have been the amount of penalty inflicted) he may demand a case to be stated to one of the superior courts under 20 & 21 Vict. c. 43. The conviction shall not be re- moved by certiorari, 24 & 25 Vict. c. 96, § 111. Tliis section, how- ever, only applies where there is jurisdiction in the Justices, and does not prevent a certiorari where there is no jurisdiction, Evans v. Mac- loughlan, 4 L. T. N.S. 31. And it only precludes the defendant, and not the prosecutor, from appljnng for a certiorari, for the statute does not bind the Crown, which acts through the prosecutor, R. v. Boulthce. 4 A. & E. 505. So the section does not apply where the Justices are interested, R. v. Cheltenham Com. 1 Q. B. 467 ; R. v. Justices of Hertfm'dshire, 6 Q. B. 753, unless the defendant waived the objection. Ibid ; R. v. Rishton, 1 Q. B. 479 ; R. v. Justices of Richmond., 24 J. P. 422. The conviction mu.st be ti-ansmitted by the committing Justice to the next quarter sessions, 24 & 25 Vict. c. 96, § 112. Another .similar enactment is contained in 11 & 12 Vict. c. 43, § 14, which is only a directory provision. Charter v. Graeme, 13 Q. B. 216. If the Justices unduly delay drawing up the conviction they are liable in an action of damages, Proscr v. Hiide, 1 T. R. 414 ; R. v. Medium, 3 Bm-r. 1720 ; R. V. Eaton, 2 T. R. 285. A mandamus does not lie to the Justice's clerk to transmit the conviction, for it is the duty of the Justices themselves, Ex. p. Hayivard, 27 J. P. 102. "Where an action is brought against a person for anything done in pursuance of the Act, the venue shall be laid in the county of the offence ; one month's notice may be given, &c. 24 & 25 Vict. c. 96, § 113. In order to determine when a thing is done in pursuance of the Act, it is essential that the party act bond fide in the belief that some statute protected him in enforcing the law, though he may not know precisely which statute. And it is not essential that he act reason- ably, for bona fides may exist without reasonableness of conduct : Hermann v. Seneschal, 12 C. B. N.S. ; 26 J. P. 598 ; Read v. Coker, 13 C. B. 850 : Booth v. Clive, 10 C. B. 834 ; Hughes v. Buckland, 15 M. & "W. 346. And it is a question for the jury whether the party acted bond fide in the circumstances. Ibid ; Haseldine v. Grove, 3 Q. B. 997 ; Cox v. Rcid, 13 Q. B. 558 ; Braham v. Watkins, 16 M. & W. 77 ; Horn V. Thornborough, 3 Exch. 846. The notice of action should state clearly and explicitly the time and place of the alleged illegal act, so as to show it was illegal : 11 & 12 Vict. c. 44, §9 ; Martins v. Upchcr, 3 Q. B. 662 ; Brecse v. Jcrdain, 4 Q. B. 585 ; Jones v. Nichols, IS M. & W. 361 ; Jacklin v. Fitche, 14 M. & W. 381. The main facts G 2 8-4 FISHEEY LAWS OF ENGLAND. officer who shall without leave in writing from the per- sons entitled to grant such leave, take, kill, or destroy any should be stated, but tlie subordinate facts need not be so, Lmry v. Patrick, 15 Q. B. 266. The notice should also state in what coui't the action is to be brought, as well as the plaintiff's name and place of abode, and those of his attorney (if any), 11 & 12 Vict. c. 44, § 9. If the action is against a Justice, the notice should also state the cause of action, that the Justice may know whether the alleged illegal act was one done by him as a Justice, or in excess of jurisdiction, as pointed out by 11 & 12 Vict. c. 44, §§ 1, 2 ; Taylor v. Nesfield, 3 E. & B. 724. If the Justice acted not as a Justice, or if the defendant was not a Justice in fact, no notice is necessary, James v. Saunders, 10 Bing. 429 ; Lester v. Barroiv, 9 A. & E. 654. The notice of action may be given before the quashing of the conviction, though the action cannot be brought till after it, Haylock v. S2)arkc, 1 E. & B. 471. If the act done was within the jurisdiction of the Justice, then the declaration must allege malice, and want of reasonable and probable cause, 11 & 12 Vict. c. 44, § 1. And in that case the conviction need not be set aside before the action is brought. But if the act was done without, or in excess of jurisdiction, the declaration need not allege malice, yet the conviction must be quashed before action brought, 11 & 12 Vict. c. 44, § 2. If the Justice has doubts aljout his acting he may refuse to act until compelled by the Court of Queen's Bench, in which case he will be protected from an action, 11 & 12 Vict. c. 44, § 6. Where a con- viction and warrant of conviction were drawn up with blanks for costs at the time of the imprisonment, this being a mei-e irregularity, no action will lie unless malice is alleged, Botts v. Ackroyd, 28 L. J. 207 M. C. The action must be brought in the superior Court, at least if the defendant insist, 11 & 12 Vict. c. 44, § 10. If the plea of not guilty by statute is jileaded, the particular statute must be stated in the margin, Eule PL T. T. 1853. Full costs mean taxed costs, 5 & 6 Vict. c. 97, § 2. Offences committed mthin the jurisdiction of the English Admiralty are to be punished as if they were committed in the place where the offender is apprehended or in custody, 24 & 25 Vict. c. 2Q, § 115. In offences puni.shal)le summarily, the shore between high and low water mark is within the ordinary jurisdiction of the county Justices, Embleton v. Brovm, 30 L. J. 136 Q. B.; 25 J. P. 38. In indictments for a subsequent offence, it is enough to allege generally a previous conviction at a certain time and place, and which is provable by cer- tificate, 24 & 25 Vict. c. 96, § 116. When the offender is convicted of an indictable misdemeanour, he may be fined, and ordered to find EIGHT OF rnOPERTY IN POACHED FISH. 85 game or fish in the United Kingdom of Great Britain and Ireland, shall for every such offence forfeit the sum of 5?.^ The J\larinc Mutiny Act contains an enactment pre- cisely the same. Right of Property in Poached Fish. — In those cases where fish in a fishery are not protected by the before- mentioned statutory enactments, the only reliance must be on the common law. As already stated, it is only where the fish are in a trunk or small pond that the taking of them can amount to larceny. In other cases, the highest offence a trespasser can commit is a mis- demeanour, if he take the fish in a pond or private fishery adjoining a dwelling-house, and an offence punishable by summary conviction and fine in fish- eries not adjoining a dwelling-house. In all the cases except where a larceny is committed, the poacher or trespasser is at common law entitled to keep the fish he catches, for the property in them vests in him by virtue of the general rule that he who first catches a wild animal is entitled to the property thereof, even though such animal is caught by trespassing on another's ground, and by committing an offence. This rule, which was laid down by the Eoman law, has been adopted by the law of England, and neither the Larceny Act, nor any other Act, alters it. The statute does not enact that the fish so caught shall belong to the owner sureties to keep the peace, 24 & 25 Vict. c. 96, § 117. Hard labour may be added as a piuiisliment for any indictable ofience, 24 & 25 Vict. c. 96, § 118. The Court may allow the costs of the prosecution for any indictable misdomcauour under the Act, as in cases of felony, 24 & 25 Vict. c. 96, § 121. ^ The mode of procedure is under Jervis's Act, 11 & 12 Vict. c. 43, which, for this pui-pose, is made applicable to Scotland as well as Ireland. 86 FISHERY L.VWS OF ENGLAND. of the fishery or of the soil ; all it does is to empower the owner of the fishery and his servants, not so much as to seize the fish if found in his possession, but only to seize and confiscate the fishing implements used by the poacher, if the poacher can be found on the fishery,^ and to arrest him in certain circumstances.'^ With regard to game, the same general rule applies, except that there is a qualification to this extent, that if a poacher or trespasser start and kill, or catch game on one and the same person's lands, then the property in such "ame vests in the owner of the land, — a doc- trine laid down by Holt, C. J. in Sutton v. Moody, 1 L, Raym. 250.^ There is no trace of any such qualifi- cation as the doctrine of rationc soli having ever been recognised with reference to wild fish, and therefore the rule seems to remain unqualified at common law, that the poacher who catches fish even on another's private fishery (except where the offence is larceny) is the owner of such fish. He may incur penalties, or even commit a misdemeanour in catching them, but when caught, the property in the fish so caught is his own, and the owner of the fishery or the soil cannot by action or any other remedy recover the fish. Moreover, it is to be observed, that there is no power given by any statute relating to fish, to seize the poached fish from a poacher, as there is in relation to game in certain circumstances.'^ The above doctrine as to fish generally applies to salmon, for the Salmon Fishery Act does not by any 1 24 & 25 Vict. c. 96, § 25 ; ante, p. 79. 2 24 & 25 Vict. c. 96, § 103 ; cmte, p. 77. ' Paterson's Game Laws, p. 17 ; also Christian's Game Laws on this point. Holt'.s doctrine, being an exception, is not likely to be extended. * Ibid, p. 64. DESTROYING FISHPONDS. 87 general clause enact that the poacher shall not be entitled to the fish he catches by his illegal trespasses. The statute is mainly cUrected against the lawful owners of the fisheries catching the fish by means which are declared illegal, and does not generally affect poachers. Nevertheless, in a few specified offences under that Act, the poacher, as well as the owner of the fisheiy, using certain illegal means there specified, is declared to for- feit the fish so caught.^ Malicious Injuries to Fisheries. — Fisheries, as already stated, are to a great extent protected by the Larceny Act against invasion Ijy poachers ; tliey are also pro- tected by the Malicious Injuries Act, 24 & 25 Vict, c. 97, § 32, from wilful injuries.^ This enactment creates 1 Such as using dams — not ancient fishing dams — for catching salmon, 24 & 25 Vict. c. 109, § 12 ; catciiing in the head-race or tail- race of a mill, ibid ; catching unclean salmon, § 14 ; or young salmon, §15; catching salmon in annual close time, § 17 ; or weekly close time, § 21 ; but as to the last case, anglers are excepted. See the Act in Appendix, and Chap. VIII. 2 " "Whosoever shall unlawfully and malieiou.sly cut tlirough, break down, and otherwise destroy the dam, floodgate, or sluice of any fish- pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish iu such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or shall unlawfully and maliciously put any lime, or other noxious material, in any such pond or water, with intent thereby to destroy any of the fish that may then be, or that may thereafter be put therein, or shall unlawfully and maliciously cut through, break down, or otherwise destroy the dam or floodgate of any millpond, reservoir, or pool, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable, at the dis- cretion of the Court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years, or to be im- prisoned for any tenn not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male undei the age of sixteen years, with or without whipping. " — 24 & 25 Vict c. 97, § 32. 88 FISHEKY LAWS OF ENGLAND. three offences : 1. The destroying a fishpond with intent to take the fish. 2. Putting lime or other noxious material in the water with intent to destroy the fish. 3. The destroying a dam or flioodgate. The last offence has no immediate bearing on a fishery, and need not be specially noticed. Destroying Fishpond. — The offence of destroying a fishpond consists in maliciously cutting through the dam, &c. of a water where there is a private fishery, but the intent, or at least the consequence, must be the loss or destruction of the fish. The older statute of 9 Geo, I. c. 22, now repealed, was held to apply to wanton mischief, but not to cases where the cutting was used as a means of catching the fish ;^ but now the latter case is expressly included. There is no necessity that the water be a pond kept for breeding the fish, though the former Act of 5 Geo. III. c. 14, § 1, was so restricted.^ Nor need the water be fenced off and enclosed, as was necessary under 5 Geo. III. c. 14, § 3.^ The mischief done must be such as is reasonably calculated to cause the loss or destruction of the fish. It is not, however, necessary tliat any of the fish should have been actually destroyed, if either the intent existed, or the means used was reasonably calculated to destroy the fish.'* Poisoning of Waters. — Tlie poisoning of waters in which there is a private right of fishery, with lime and similar 1 R. V. Ross, R. & R. 10. 2 R. V, Carradinc, R. & R. 205. ' Lisle V. Brotmi, 1 Mai-sh. 127. * R. V. Bradford, 24 J. P. 374 ; 8 Cox, C. C. 309. POISONING FISHERIES. 89 matter, vnth. intent to destroy the fisli, is declared to be a misdemeanour. The word " material " mentioned in this enactment, seems comprehensive enough to in- clude eveiything, ejusdem generis, with lime put into waters with malicious intent, and which has a tendency to kill fish. The malicious intent is to be inferred from the conduct of the parties in the circumstances, though no malice against the particular owner of the fishery need be proved.^ Abettors in such an offence are punishable like the principal offenders.^ No intent to injure a particular person need be alleged in the in- dictment,^ AVlienever a person is found committing the offence, he may be immediately apprehended without warrant by any peace officer, or the owner of the pro- perty injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring Justice of the Peace, to be dealt with according to law.* The provisions as to procedure under this enactment are identical with those under the Larceny Act."* There is a special enactment in the Salmon Fishery- Act, protecting salmon waters.*^ Other Enactments against Fouling Water. — Besides the specific enactments above stated, for the protection of fisheries, there are some other enactments, which, though not primarily intended for the benefit of fisheries, may sometimes be brought in aid of them. Thus, the Waterworks' Clauses Act "^ imposes a penalty of 5Z. and M58. '' §56. =* §60. * §61. ' Ante, p. 82. 6 Sec post, Ch. YIII. 7 10 Vict. c. 17, § 61. 90 FISHEEY LAWS OF ENGLAND. 20?. a day upon all who throw rubbisli into, or other- wise foul a stream, reservoir, or aqueduct belonging to a water company ; and gas manufacturers who cause or suffer to flow into such waters their gas washings, forfeit 2001. and 20?. per day.^ So putting filth or rubbish into waters under the manau'ement of a local board of health, is punishable with a penalty of bl and 205. per day.- So gas manufacturers who foul " any aqueduct, pond, or place for water," incur a penalty of 200Z. and 201. per day, which must be sued for within six months after the offence.^ Stealing Oysters. — In order to protect oysters from poachers, the Larceny Consolidation Act contains a special enactment* 1 10 Vict. c. 17, § 62, 63. 2 11 & 12 Vict. c. 63, §80. 3 18 & 19 Vict. c. 121, §§ 23, 24. ■* "Whosoever shall steal any oysters or brood from any oyster bed, laying, or fisheiy, being the property of any other person, and suf- ficiently marked out or known as such, shall be guilty of felony, and being con\acted thereof, shall be liable to be punished as in the case of simple larceny. "And whosoever shall unlawfully and wilfully use any dredge, or any net, instrument, or engine whatsoever, within the limits of any oyster bed, laying, or fi.shery, being the property of any other person, and sufficiently marked out or known as such, for the purpose of taking oysters or oyster brood, although none shall be actually taken, or shall unlawfully and wilfully with any net, instrument, or engine, drag upon the ground or soil of any such fishery, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable, at the dis- cretion of the Court, to be imprisoned for any term not exceeding three months, with or without hard labour, and with or without solitary confinement. " And it shall be sufficient in any indictment to describe, either by name or otherwise, the bed, laying, or fishery, in wliich any of the said offences .shall have been committed, without stating the same to be in any particular parish, town.ship, or vill. " Provided that nothing in the section contained shall prevent any OYSTER BEDS. 91 Oyster Spawn. — By the ancient statutes 13 Rich. II. St. 1, c. 19, and 17 Rich. II. c. 9, the spawn or brood of oysters were protected from destruction. At first it was contended that oysters were not fish within the meaning cf those Acts, but were rather part of the soil to whicli they adhered.^ But those statutes have been repealed entirely by the Salmon Fishery Act, 2-4 & 25 Vict. c. 109, and now there is no restriction on the taking of oyster spawn by the party who is entitled to fish for the oysters. SejMrafion of Oysters from Floating Fish. — "Whoever has a right to fish in a particular water, has a right to take all kinds of fish without distinction. It is a com- mon practice to let the oyster fishery separately from the right to take the floating fish, in which case each fisherman must use due care not to injure the other's rights.- Oysters differ chiefly from other fish in the cha- racteristic that they adhere more or less to the soil, and they were not comprehended within the description of " sea-fish " in the older statutes, that expression being 2)rimd facie interpreted to mean floating fish.^ "With regard to such shell-fish as are found on the shore, there is no general right of the public to take these, any more than there is a right to take sand or sea- weed, lor both are part of the soil ; * though as regards person from catching or fishing for any lloating fish witliin the limits of any oyster fishery with any net, instrument, or engine adapted for taking floating fish only." — 24 &. 25 Viet. c. 96, §26. 1 Muijor of Mahlon v. Woolvet, 12 A. & E. 13. - Seymour Y. L. Coiirtcnaij, 5 Burr. 2S14; Eoijcrs \. Allen, 1 Camp. 309. 3 Bridger v. Richardson, 2 M. & S. 568. •* Bagot V. Orr, 2 B. & P. 472. 92 FISHERY LAWS OF ENGLAND. sand, a custom may be established by the inhabitants of a particular vill, or parish, to take or dig sand to repair highways, to ballast ships, &C.'- Oysters in reality are cultivated like a trade, and may be classed either with chattels, or wild animals tamed, and hence the penalty for stealing property when visibly marked out and appropriated, is severe. Nevertheless, there must be proved against the poacher some know- ledge that the oysters are the property of some indivi- dual. It was held under an old statute of 3 Jas. I. c. 12, that taking oysters in order to remove them to another quarter, was not within the description of those who used a destructive engine ; ^ but under the 24 & 25 Vict. 96, § 26, if the taking is felonious, or wilfully and unlawfully, the object is immaterial. Navigating near Oyster Beds — When an oyster bed is situated in a navigable river, where vessels are in the practice of navigating, it often happens that injury is done by grounding of the vessel. The rule is, that those who navigate are entitled to go upwards and downwards, though they might not be able to reach the port or the deep water in one tide without grounding, and even if such grounding subjected them to com- pensation for injuiy done, that does not affect the nature of the right in respect to time of enjoyment. The river being a highway, the p\iblic have a right to use it at all times. It is possible that unreasonably large masses of oysters deposited in the bed of a navigable 1 Padwicky. Knight, 7 Exch. 854 ; Mayor of Lynn Rcrjis v. Taylor, 3 Lev. 160 ; Tyson v. Smith, 9 A. & E. 406. * Bridrjer v. Richardson, 2 M. & S. 568. OYSTER BEDS. 93 river may amount to a nuisance^ and olistruct tlic navi- gation. ^ Nevertheless, those avIio navigate are bound to use due care and skiU, so as to avoid doing more damage than is actually necessary, and if they wilfully run against oyster beds which they know to be at a particular spot^, and which they might have avoided, they are liable to an action on the case. Corporation Vroperty in Oyster Beds. — Oyster fisheries frequently belong to corporations who have power under some grant or custom to make bye-laws for the regula- tion of the fishery. In such cases illegal bye-laws are sometimes made, an instance of which occurred in the case of the Free Fishery of Whitstable.^ This company held the oyster fishery within the manor and royalty of Whitstable, Kent, from time out of mind as tenants under the lord, on payment of a certain annual rent. The lord held a court of dredging, Avhich used to make orders for regulating the company and oyster fishery, ■svith fines and penalties for the breach of such orders. They made a bye-law that no freeman should send oysters to market from any other ground than that of the company, under a penalty of 10/., and until such penalty were paid, he should be excluded from all shares of the profits. It was held that this bye-law was illegal and void, for, assuming the power to im- pose penalties, this superadded an extraordinary mode of recovering payment, which went beyond the law. Bay ley, J., said the effect of such a bye-law would be to mulct the party to the whole extent of his profits. * Mayor of Colchester v. Brooke, 7 Q. B. 339. = ILid. » Adley v. Eeei-es, 2 M. & S. 53. See also mila v. Eunt, 15 C. B. 1, aud^OiY, p. 175. 94 FISHERY LAWS OF ENGLAND. however great they may be^ supposing he had not the means of paying 10/. Close Season as to Oysters. — Oyster fishing under the convention between Great Britain and France^ 31 & 32 V. c. 5 {see post, p. 496), opens on 1st September, and closes with the 15th June in each year. This close season is confined to the part of the sea included between a line drawn from the North Foreland Light to Dunkirk, and a line drawn from the Land's End to Ushant. Dui'ing that period it is unlawful to have an oyster di'edge on board any boat in that part of the sea, unless tied up and sealed by the Customs authorities. In all other parts of the sea there is no restriction on oyster dredging as regards the time of the year. I\Iany enactments are contained in the Sea Fisheries Act, 1868, 31 & 32 Y. c. 45, calculated to protect oyster beds more efl"ectuaUy, and in addition to the enact- ments of the Larceny Act specified, a)ite, p. 90. These enactments will be found at length, post, p. 471, together with the provisions authorizing grants by the Board of Trade of a several oyster and mussel fishery in the sea-shore. OBSTRUCTING FISHERIES. 95 CHAP. VI CIVIL REMEDIES FOR OBSTRUCTION AND INVASION OF FISHERIES. OWNERS OF FISHERIES CLEARING EIVKR — IF QUO WARRANTO LIES TO TRY RIGHT TO FISHERY — ABATEMENT OF OBSTRITCTIONS — DIS- TRAINING NETS OF TRESPASSERS— EJECTMENT — REMEDIES BY AC- TION — OBSTRUCTIONS OF COMMON FISHERY— PROOF OF ANCIENT USER — TWO COMPETING GRANTS — OPPOSITE RIPARIAN OWNERS — NON-USER OF FISHERY — REMEDIES AS TO SEVERAL FISHERY — REMEDY AS TO FREE FISHERY — OBSTRUCTION OF COMMON OF FISHERY — REMEDIES IN CHANCERY. Owners of Fishery clearing River. — It has been said by Hawkins,! that " if a river be stopped, to the nuisance of the country, and none appear bound by prescription to clear it, those who have the piscary, and the neighbour- ing towns who have a common passage and easement therein, may be compelled to do it." But no authority is given for this statement as regards the owner of a piscary ; and even the owner of a sunken sliip wliit'h obstructs the navigation is bound to do nothing more than erect a buoy over the place.^ 1 1 Hawk. r. C. c. 75, § 13. • Harmond v. Pearson, 1 Camp. 615 ; R. v. Watts, 2 Esp. 675. If owing to a wear in a navigable river becoming stopped up, annoyances should be caused to adjoining owners, the Commission ere of Sewers may have jurisdiction to compel a repair. ." & 1 A\'m. IV. c. 22, § 10. 96 FISHERY LAWS OF ENGLAND. If Quo Warranto lies to try Right to Fishery. — There seems no authority for the dictum that a quo warranto lies to try the right to a several fishery/ Abating Obstructions of Fishery. — The right of abating a nuisance is incident generally to all substantive rights of property. Blackstoue observes," " Whatever unlaw- fully annoys or does damage to another is a nuisance, and such nuisance may be abated, that is, taken or removed by the party aggrieved thereby, so as he commits no riot in the doing of it. If a house or wall is erected so near to mine that it stops my ancient lights, which is a private nuisance, I may enter my neighbour's land, and peaceably pull it down. Or if a new gate be erected across the public highway, which is a common nuisance, any private individual passing that way may remove it. And the reason why the law allows this private and summary method of doing one's self justice is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice." The 1 Though Holt, C. J. threw out a dictum which may have been ap- plicable to former times ( Warren v. Mathcios, 1 Salk. 357) that a qico vjarranto might be brought to try the right of the grantee under the Cro^\^l to an exclusive fishery in the river Exe, it is not likely the Court of Queen's Bench would, in the exercise of its discretion, give leave to issue such a writ in modern times. Per Bayley, J. in E. v. Ogden, 10 B. & C. 233. In modern practice the writ is confined to cases of usurping an office, whether created by charter alone, or by the Crown with the consent of Parliament, provided the office be of a public nature and a substantive office. Barley v. the Queen, 12 CI. & F. 541. This rule is the less likely to be relaxed, seeing that other remedies are available. ^ 3 Bl. Com. 5, ABATING OBSTRUCTIONS TO FISHERY. 97 generality of tliis statement has been materially con- tracted by modem decisions. For it has been held that in the case of a nuisance on a highway, a private individual cannot of his own authority abate it, unless • it does him a special injur}^, and lie can only interfere with it so far as is necessary to enable him to exercise his right of passing along the liighway, and no further J. And in the case of a private nuisance, for example, leaving filth near the windows of a dwelling-house, one cannot resort to the remedy of abatement without first giving notice, unless the party was tlie original wrong- doer, or was guilty of some default in not performing some obligation incumbent on him. 2 In short, to justify taking the law into one's own hands, there must be some pressing danger to life, health, or liberty, which cannot, without serious detriment, wait to be redressed by the ordinary course of an action or other civil remedy. In this \dew an abatement is a remedy which requires such delicate handling to escape the consequences of the least abuse, excess, or oppression, and is so seldom legitimate, except in very strong and peculiar cases, that it is not to be recommended as a remedy at alL It will be seen that, as regards its application to rights of fishery, it is in general available only where the removal of the obstruction or nuisance is a matter of pressing urgency, which rcquhes a remedy other than what is usual in other wrongs. If, for example, a lessee 1 Dimes V. Pctlaj, 15 Q. B. 276 ; Davic3 v. Mann, 10 M. & W. 546 ; Mayor of Colchester v. Brooke, 7 Q. B. 339 ; Bridge v. Grand Junction R Co. 3 M. & W. 244. - Jones V. Williams, 11 M. & "\V. 176. H 98 FISHEKY LAWS OF ENGLAND. of a fishery exercises tlie right of fishery as a necessary livelihood or trade, and an obstruction of the right, by the construction of a wear or otherwise, prevents its exercise, he might be justified in resorting to this remedy. Or if a tenant of a manor has a common of piscary for the sustenance of his family, he may in some cases require to abate a nuisance, taking care, however, not to interfere with the soil, which he has no right to do. But in the ordinary case, as between proprietors of a fishery in a private river, the necessity of abating a nuisance will seldom be justifiable, since an obstruction can scarcely be supposed to press upon life, health, or liberty ; therefore the ordinary remedies by action or suit must be preferred. Even though engines are used which are illegal by statute, this gives no right to any person to abate them as nuisances if not nuisances at common law. Thus no one, not even the conservators, without express autho- rity under some statute, can destroy the engines, and seize and carry away the fish so caught ; they can only pursue the remedy given by that statute.^ Express power, however, has been given by the Salmon Fisheries Act to the owner of a fishery or the subjacent land to seize the nets, &c. of poachers."-'' Distraining Nets of Trespassers. — It has been said hat the owner of a several fisheiy can at common law distrain the nets and implements of trespassers damage feasant. There is, however, weak authority for this ^ Bulhrook v. Goodere, 3 Burr. 1768. " 2 24 & 25 Vict. c. 96, § 25, ante, p. 79. DISTRAINING FISHING-NETS. 99 doctrine.! It cannot be safely laid doMii that the nets, fisliing-rods, &c. of trespassers on a several fishery can at common law be seized and taken from the trespasser by the owner of the fishery, even where he is also owner of the soil ; the utmost that can be done hrevi manu is to push the trespasser with his implements off the locus in quo. But the Larceny Act, 24 & 25 Vict. c. 96, § 25,2 as already stated, gives a limited remedy of this kind. The only remedy at common law is an action of trespass. And it need scarcely be observed that d fortiori the owner of a free fishery, or a person having only a common of fishery, can still less take the law into his own hand, 1 Rcyndl v. Champernomi, Cro. (.'as. 228, ■which is as follows : — " Trespass for taking and cutting of his nets and oars. The defendant justifies, for that he was seised in fee cf a several piscary ; and that the defendant, with divers others, endeavoured with their oars to row upon his water, and with their nets to catcli his fish ; and for the safe- guard of his fishing he took and cut the nets and oars, &c. Thereupon the plaintifi' demurs. It was moved by Whitlock that this plea is not good, for he cannot by such colour cut the nets and oars. And of this opinion was all the Court, for the reason supra. But he might have taken the nets and oars and detained them as daviacje feasaiit, to stop their further fisliing. "Whereupon it was adjudged for the plaintifi'." This was at most an obiter dictum. It may be assumed that the owner of the several fishcrj- had also the soil. Now to justify a detainer daiaage feasant, the nets and oars must have been doing the mischief of themselves ; whereas the report oljviously assumes some one was at the time using the nets and oars, in which case the utmost remedy the common law would allow would be, to entitle the owner of the fishery to use force in pushing or driving away the party so trespa,ssing, and his implements along \n\\\ him. But the chattels in question could not be taken, unless they were at the moment actually obstructing the owner of the fisheiy in his user of the fishery, in wliich case it would more properly be called the abatement of a nuisance than the detainer of things damage feasant. At all events, the chattels could not be taken in invitmn of the party using them as a seizure and detainer of damage feasant generally implies. a Ante, p. 79. h2 100 FISHEEY LAWS OF ENGLAI^D. and seize the fisMng gear of trespassers in tlie manner above described. Ejectment. — The action of ejectment is the remedy for recovering possession of a corporeal tenement when the party has the right of entry. Ejectment, however, will not in general lie for a fishery, for ijrimd faeie a fishery is only a profit a 'prendre. Ejectment will lie in those cases only where the soil covered with water is claimed, for the soil will carry the fishery with it if they have not been dissevered.^ The observation of Ashurst, J. that ejectment lies for a fishery,^ no doubt had reference to a case where the soil and fishery went together. Remedies hy Action. — The ordinary civil remedies for obstructions or invasions of the right of fishery are actions of trespass and trespass on the case, and in equity injunctions and bills of peace. It depends on the nature of the right, and the nature of the invasion or nuisance, which of the two actions at law is the appropriate remedy ; though the importance of dis- tinguishing between the two forms of action no longer exists, since different forms of action may be joined together. It will be recollected that rights of fishery are sub- stantially of three kinds. First, there is the common fishery, which is the right of every member of the public to fish in the sea and navigable rivers without obstruction in all parts thereof, except where some ' Wadibj V. Ncvjtcm, 8 lilod. 276 ; Herbert v. Lawjlilmjn, Cro. Cas. 492. » n.y. Old Alrcsford, 1 T. E. 358. See ante, p. 64. OBSTRUCTING COMMON FISHERY. 101 individual lias a legal right to a several fishery there. Secondly, there is the several fishery, which is the exclusive right of fishing either in a part of the sea or in a navigable river, or in a private stream ; it may or may not be accompanied with the right to the soil. Thirdly, there is the free fishery, being a right of fishing concurrently with one or more other individuals. And a common of piscary is substantially the same right, the distinction chiefly consisting in the supposed origin of these two rights respectively, the place where the fishery exists being the soil of another. Ohstrudions of Common Fishery. — First, obstructions of common fishery. The sea and navigable rivers being open to aU the public, each person has an equal right to fish in all parts, except where a several fishery of ancient origin legally exists.^ The rights of all being equal, it follows that no individual can acquire a prescriptive right to fish in any particular part of the sea or stream. The maxim will be, first come first served. If one fisher were to interfere with another, it could only be by persisting in fishing too near a spot where aiiotlier has first taken up his position, and thereby wilfully preventing him exercising his legitimate rights. The person so interfering would be liable to an action on the case, if not to an indictment. No person in modern times can set up prescription as the foundation of a right to attempt to fix nets, or construct a wear or trap in a particular spot" in the sea or a navigable river, any more than a man can prescribe for a right of constantly ^ See antCy p. 17, et scq, 2 Ward V. Cresswell, WUles, 265. 102 . FISHERY LAWS OF ENGLAND. standing in a particular spot in a highway. As such attempt tends to obstruct all others who may wish to fish in the same spot, he would not only be liable to an action on the case by any person specially injured, but he may be subjected to an indictment on the prose- cution of any person whatever, though for obvious reasons such a remedy has probably never been re- sorted to.^ In regard to conflicts between the public and indi- viduals, the burden is on the individual who claims a several fishery in the sea or a public navigable river, to 1 A case of some nicety as to tlie exact form of remedy arose in this way ( Young v. Hichens, 6 Q. B. 606) :— The plaintifiF was fishing for Ijilchards, and had drawn his net partially round the fish, leaving a space of ahout seven fathoms open, which he was about to close with a stop-net. Two boats belonging to the plaintiff" were also stationed at the opening, and splashing the water about, for the purpose of terrify- ing the fish from passing through this opening. At this time the de- fendant rowed his boat up to the opening, and so prevented the plaintiff taking the fish. The plaintiff" brought an action of trespass, on the ground that he had at the time acquired possession of the fish, and that the defendant took them from him ; and so the point arose whether the circumstances amounted to custody or possession by the plaintiff of the fish. The Court held there was no possession by the plaintiff. Lord Dennian said, "It appeared almost certain that the plaintiff would have had possession of the fish Imt for the act of the defendant ; but it is ([uite certain that he had not possession — he had not acquired actual power over the fish. It might be the defendant acted unjusti- fiably and did a wrongful act, for which he might be liable in a proper fonn of action." Tatteson, J. :— " We cannot support the plaintiff's issue, unless we are prepared to say that all but reducing into possession is the same as reducing into possession. Whether the plaintiff has any cause of action at all is not clear ; possibly there may be a remedy under the statutes," Wightman, J. added, "If the property in the fish was vested in the plaintiff by his partially enclosing them, but leaving an opening in the nets, he would hi entitled to maintain trover for fish whicli escaped through that very opening." This case occurred when forms of action were important. PROVING ANCIENT USER. 103 show that he has enjoyed the fishery from time imme- morial, and hence ancient user is the main point of dispute. Proof of Ancient User. — The chief substantial inter- ference with a common fishery is where a wear or similar contrivance exists. As already stated, such wears are j^'^i'^nd facie a nuisance, and illegal ; but if they have existed from a period antecedent to Magna Charta, under a grant from the Crown of the right, they are legal. If, therefore, the owner of a wear were indicted for an obstruction, or if, as would be the more convenient remedy, an action on the case were brought against him, or if his wear were pulled down, and he brought an action of trespass, he is bound to ^Dlead and prove his title or prescriptive user, which presumes a title. Such a prescriptive right may be appurtenant to a manor.i In proving the title, possession as of right for thirty years and upwards is a prima facie title.^ But the case will be weak unless ancient titles are produced, recog- nising or assundng a grant from the Crown, as well as evidence of long enjoyment.^ In such cases the i)rin- ciple applicable is, that where a person is shown for a series of years to have been in the undisputed enjoy- ment of property, or of any of its rights, incidents, or immunities, exercising the rights of property, and per- forming its duties, as it is not easy to believe that a person would thus be left by the true owner long and freely to enjoy what was not his own, a jury will be J Rogers V. Allen, 1 Camp. 309. 2 2 & 3 Wm. IV. c. 71. 3 O'Neill V. AlUn, 9 Jr. C. L. Rep. 182.' 10-i FISHERY LAWS OF ENGLAND. allowed to presume a grant, or surrender, or release, or even a matter of record, according to tlie nature of the case.^ In regard to all ancient grants and documents, modern usage is evidence to show what was the meaning of such grant or document, whenever a question arises as to what passed by a particular grant.^ Proof of modern user, carried back as far as living memory can be reasonably expected to apply it, is evidence from which still more ancient user may be inferred ; and unless there be something in the nature of the subject-matter or in the other evidence to encounter the inference, or to suggest the necessity of other proof, may be evidence from which a jury may presume prescriptive title. Again, in favour of long possession, a jury will be justified in presuming a grant or patent from the Grown, or even an Act of Parliament.^ Ancient leases of a fishery are good evidence for a claimant, for they are acts of ownership, showing the ancient state of the possession.* So bills and answers in chancery between parties litigating the title may be admissible.^ And so verdicts in former actions, but not an award, unless the party or his predecessors were privy to such award." 1 Per Hayes, J. and Greene, B. Little v. Wingfidd, 11 Ir. C. L. Rep. N.S. 63; Mayor of Hull v. Horner, Cowp. 102; Lo2)czy. Andrew, 3 M. & Ry. 329 a ; Roe v. Ireland, 10 East. 284. 2 Duke of Beaufort v. Mayor of Swansea, 3 Exch. 413. 3 O'Neill V. Allen, 9 Ir. C. L. Rep. 132. 4 Mulcolmson v. O'Dea, 9 H. L. Cas. ; 9 L. T. N.S. 93. 5 Ibid. 6 Wenraan v. Mackenzie, 5 E. & B. 447 ; Evans v. Rees, 10 A. & E. .151 ; Kinnersley v. Orx)e, 2 Doug. 517. PROVING ANCIENT USER. 105 As a general rule, ancient grants when vague are construed mainly by the light of subseciuent usage.^ 1 In an action of trespass for lircaking and entering a close covered with water, tlie defendant pleaded that it was an arm of the sea, where all could fish. At the trial ancient grants of wreck were produced by the plaintiff, who proved that for forty years and upwards ho raised au embankment, used the seaweed and gi-avel, and the inhabitants of Poole had never made any opposition. Dallas, C. J., Chad v. Tilscd, 5 Moore, 185, laid down the law thus :— " Where a grant has been pro- duced, no usage, however long, can alter or countervail the terms of such grant, for what is done under usurpation cannot constitute a legal usage. The fundamental rule laid down is, that when an ancient grant contains general words, the best exposition of it is by constant and uninterrupted usage. Unless, therefore, an usage and enjoyment for forty years can be shown to have originated in usurpation, it is evidence from which usage anterior to that time may be presumed. Here the modern usage, as connected with the ancient, affords a strong exposition of the meaning of the original gi-ant of Henry II. The general rule is, that if the language of a grant be obscure, or its con- struction doubtful, general usage may be resorted to to expound, although not to controul or contradict the instrument, and such usage is a strong practical exposition of the meaning of the parties. Ancient grants, therefore, are to be construed by evidence of subsequent usage, however general such grants may be, reducing it to a mere question of fact as to the mode of right, which has been generally and usually exercised. I also agree that if usage be traced no higher than forty years, and applied to establish an exclusive right over an arm of the sea, uch general usage for that j'criod would not put an end to or destroy the rights of the public to lish there, but for the last forty years the evidence adduced at the trial was as strong as it possibly could be to establish the plaintilfs claim as to the usage since that time, as the wall was then raised by J\lr. Sturt, from whom he purchased, and the embankment made in the sight of the corporation and all tlie inliabi- tants of the town of Poole, and his was a strong act of ownership. . . . It has been asked if the Corporation of Poole had been in confederacy with Mr. Sturt when the wall was built, and did not choose to inter- fere with the subsequent usurpation by him and the plaiutilf, whether it would deprive the fishermen of that town of their right to tish over the locus in quo ? Certainly not. But if it touched the interest of all the inliabitants of Poole, and so general a right had before existed, it must then be presumed as a matter of course that any usurpation of that right had before existed." And Kicliardson, J. said, "An usage of forty years' duration is not only evidence for that period, but atl'ords a 106 nSHEEY LAWS OF ENGLAND. Two Comijcting Grants, — It sometimes happens tliat t^^•o competing grants from the Crown are set up. In such a case it is for the jury to presume from the evidence whether there had not been a sub-grant from the predecessor of one of the parties to the other. Thus in the river ]\Ioy, in Sligo, the plaintiff in a case gave evidence of a urant from the Crown which covered the whole right claimed, but there were proofs of adverse user in the defendant supported by parole evidence. The Court held that the difficulty could be got over by presuming that the plaintiff's ancestors made a sub- grant to the defendants, which was lost.^ presumption of a similar and anterior usage if nothing be sliown to the contraiy. " 1 Little V. Wingfidd, 11 Ir. C. L. R. 81, 2. In this case a written grant was overthrown by parole evidence of adverse user, and on this last point O'Brien, J, observed: — "In the present case it does not appear how the legal origin of the long possession and enjoyment of the fishery claimed by the defendant can be accounted for except on the presumption of a gi-ant. And, in my opinion, it is not necessary in leaving the question of a presumption of the grant to state either the names of the parties by whom or the time when such grant should be presumed to have been made. Instances may occur in which an uninterrupted possession andenjoyment of an incorporeal hereditament for over two hundred years would l)e established without being able to show the period, or to account for the commencement or origin of such possession. In such a case the presumption of some grant having been made would be almost conclusive, and yet it may be impossible from the length of time to furnish the jury with any materials whatever for • 12. ANGLING SALMON. 133 salmon-roe for purposes of fishing any fisli whatever, incurs a penalty of 21. for each offence.^ Though it is illegal for other persons to use a gaff for catching salmon, yet it may be lawfully used as auxihary to angling with a rod and line.- An angler is not liable to a penalty like other fishermen, if he angle for salmon in the head race or tail race of any mill, or within fifty yards below any dam where such mill or dam has no legal fish-pass attached.^ An angler is not, however, exempt for taking imclean or unseasonable salmon and the young of salmon,* and he forfeits his rod and line also, when committing these offences.^ He is also pro- hibited from angling for salmon during close time, except that he is privileged to fish tw^o months longer than those who fish with other means. The angler's close season for salmon extends from 1st November to 1st Feljruary following, whereas for other fishermen the close season is from 1st September to 1st February, unless the local season has been altered : *'' but, strange to say, he cannot sell the' fish so caught by angling in the montlis of September and October, though he may make presents of them." Tlie angler is also privileged as regards the weekly close time, viz. from twelve o'clock noon on Saturday till six A.M. on Monday morning, all the year round, for if otherwise entitled he incurs no penalty for angling during that interval.^ 1 24 & 25 Vict. c. 109, §9. See Appendix, amX post, p. 144. 2 Ibid. § 8. 3 n,ia. § 12. 4 ILid. §§ 14, 15. 5 Ibid. 6 Ibid. § 17, post, p. 151. ' Ibid. § 19. 8 24 & 25 Vict. c. 109, § 21. It is thus no offence to angle salmon on Sundaj'. Nor is it an offence in Ireland ; but it is so in Scotland. 134; FISHERY LAWS OF ENGLAND. It is scarcely necessary to observe that the close season applies only to salmon, for as to all other fresh- water fish there is no close season, and therefore they may be fished all the year round. It is also important to observe that no power is given by the Salmon Fisheries Act to apprehend persons com- mitting the above offences. The ordinary procedure is to issue a sunmions to the party, convening him before Justices of the Peace where the offence was committed.^ 1 The procedure is under Jervis's Act, 11 & 12 Vict, c, 43 ; 24 & 25 Vict. c. 109, §35. As to penalties, &c. see next chapter. SALMON FISHERIES. 135 CHAP. VIII. LAWS AFFECTING SALMON FISHERIES. SALMON LAWS GENERALLY — POLSONING SALMON RIVERS — LEGALIZED NUISANCES WHICH POISON RIVERS — FISHING SALMON WITH LIGHTS, SPEARS, ETC. — USING FISH-ROE AS BAIT — SALMON NETS — FIXED EN- GINES — FISHING DAMS — GRATINGS IN ARTIFICIAL STREAMS — TAKING UNCLEAN FISH— TAKING YOUNG OF SALMON — DISTURBING SALMON SPAWNING — CLOSE TIME— HOME OFFICE VARYING CLOSE TIME— SELL- ING FISH DURING CLOSE TIME — EXPORTING SALMON DURING CLOSE TIME— FIXED ENGINES IN CLOSE TIME — WEEKLY CLOSE TIME — RE- GULATIONS AS TO FISII-PASSES— REGULATIONS AS TO FISHING-WEARS — CENTRAL AUTHORITY OF HOME OFFICE — CONSERVATORS OF SALMON- WATERS — JUSTICES GRANTING SEARCH-WARRANTS— APPREHENDING OFFENDERS — PROCEDURE AND PENALTIES. Salmon Lairs GciuraUij. — The statute laws relating to salmon have recently been revised and consolidated by the Salmon Fisheries Act, 2-i & 25 Vict. c. lOO.i At common law there is no difference between salmon and other fish, but owing to the supposed importance of this fish as an article of food, it has been singled out for protection by the legislature. Nevertheless, the statute contains only a part of the entire laws governing the subject, and does not deal with the ordinary offence of I The statute is priiited in the Aj^pemlix. 136 FISHERY LAWS OF ENGLAND. poaching salmon. It either supplies deficiencies in the common law, or varies the common law, and as a general rule, the statute introduces peculiarities in the law as to salmon which are not applicable to other fish. The chief object of the statute is to prevent owners of fisheries from doing what they like with their own, that is, it prevents them from killing salmon at certain times, and by certain kinds of means, in order to secure fair play to the fish and to the adjoining owners, and with a view to the public interest. It may be safely assumed that the law, as previously stated, applies equally to salmon as to other fish, except so far as varied by what follows in this statute. The statute repeals nearly all local Acts, all the previous Acts as to salmon, and others also.^ The Tweed and Solway are governed by separate statutes. Poisoning Salmon Rivers. — The statute (section 5) imposes fines on persons poisoning salmon rivers, but exempts those who claim a legal right so to do, in which case all they require to show is, that they have used the best reasonable means to neutralize the poison they send into the river. ^ Tlie section jprimd facie subjects to a penalty all who knowingly put poisonous matter into waters " containing salmon, or any tributaries thereof." Therefore the waters include the sea, mouths of rivers, and even tributaries where no salmon may be usually found. The test of poisoning is one of quantity, and of course the quantity of matter must be greater to poison fish in a large river than in a small stream. But it is not necessary that the fish be actually ^ See ante, p. 26. ^ See other enactments as to fouling rivers, ante, p. 89. POISONING SALMON RIVERS. 137 killed, if the quantity was reasonably calculated to kill fish which at the time might be there.'^ If any fish whatever are killed, whether salmon or not, this is conclusive evidence of the killing power of the quantity put in the stream. The word " tributary," however, must be reasonably constnied, so as to mean merely that part of the tributary stream which imme- diately adjoins the salmon water, otherwise it would include all streams whatever, for all streams are triT)u- taries, in one sense, of a salmon water. The tributary need not contain salmon in order to be protected. In order to constitute the offence, it is not necessary to prove any malice in the defendant, or intent to kill or poison the fish, malicious offences being provided for by another enactment of the Malicious Injuries Act, 24 & 25 Yict. c. 97, § 32 ; - but it must be proved that the defendant either personally put in, or ordered the matter to be put into the water, whatever may have been his motive, provided he had otherwise no legal right so to do. If, for example, a servant did the act without the master's knowledge or interference, the servant and not the master is liable to the penalty. It is not necessary that there should be a several fishery in the water poisoned ; it is enough that salmon fre- quent the water which is poisoned. The words "permit to flow," are extensive in their meaning, and in effect make the person an insurer that 1 See R. V. Bradford, 24 J. P. 374 ; Bell's C. C. 26S, where analogous words were so construed. - Ante, J). 87. '* Hari'ison v. Leapcr, 26 J. P. 373. 138 FISHEEY LAWS OF ENGLAND. the poisonous matter shall not flow into the water. This was at least the case where a manufacture was permitted, under a similar enactment to the above, and hence it is no defence that the party used great care, and was not actually aware of the specific cause of the matter flowing.-^ But Cockburn, C. J. doubted whether an individual can be said to suffer or permit a thing to be done, when he has taken every care to pre- vent it, or until an opportunity has been afforded him to repair the injury.^ Legalized Nuisances %vhicli Poison Rivers. — The fifth section expressly saves the rights of persons who act bond Jide in putting offensive matter into rivers and streams in the exercise of a legal right to do so. Hence it is necessary to consider in what circumstances, and to what extent, this prima facie nuisance may become legalized. The common law gives no right to any person to pour offensive matter into streams so as to prejudice the rights of those living nearer the sea. The mere fact of a person having land adjacent to a stream gives only the right to that person to use the water for ordi- nary purposes ; for example, for household use, or for cattle, or irrigation : but a riparian proprietor has no right to diminish the volume of water to an injurious extent, or to alter its plight or volume.^ The lower proprietor is entitled to have the use of the same volume and plight of water, as near as may be, as the * Ilipki-ns V. Birmingliayn Gas Co. 6 H. & N. 250. 2 Il,id. 255. 3 Miner V. Gilnumr, 12 Moore, P. C. 131. EIGHT TO POISON KIVEKS. 139 upper proprietor had, and if this right of the lower proprietor is injuriously affected by what the upper proprietor has done, the latter is liable to an action on the case ; a familiar illustration of tliis right being that of a mill owner suing an upper proprietor for diverting or abstracting the water to a sensible and injurious extent. This right of the lower proprietor to have the stream sent down to him in a pure state is, however, obviously one of degree, for it cannot be said that a riparian proprietor who merely drains into a large river is liable to an action at the suit of a lower proprietor.^ The degree and extent of the pollution must be con- sidered relatively to the size of the river, and no doubt draining into a stream is not an unreasonable use of a stream at common law, being, indeed, a natural opera- tion, which would be less of a nuisance than allowing the matter to dispose of itself by exposure to the air. If, however, an upper proprietor has been allowed without disturbance or objection to drain offensive liquid, or put matter into a stream for a period of twenty or forty years, he is said to have acquired a prescriptive right to do so for ever thereafter.^ This fifth section, therefore, does not interfere with or annihilate such a right ; all it does is to require him to prove that he has used the best practicable means within a reasonable cost to render harmless the liquid or solid matter so permitted to flow or to be put into the water. In order to show that the unusual and unlawful use made by one riparian owner 1 Embrcij v. Oiccn, 6 Exch. 372. « Bealcy v. SJuiic, C East, 214 ; Wright v. Williams, 1 M. & W. 77 ; Carhjon v. Lovcring, 1 H. & N. 789. 140 FISHERY LAWS OF ENGLAND. "has not been ucquiesced in, proof may be given that an action had been brongbt and a verdict obtained against the party fonling the water, or that he was convicted.^ When a riparian owner has long used without inter- ruption the stream in a way which is not justified by his natural right, a presumption arises that he has obtained a grant from the riparian owners beneath him.^ This grant is seldom capable of direct proof, but uninter- rupted user for forty years is conclusive proof of it, or at least gives the party enjoying it after that time an absolute and indefeasible right so to use the water in the same way for ever after, unless it shall appear the same was enjoyed by some consent or agreement, by deed or writing.^ And even after twenty years' unin- terrupted user, the claim to continue so to use it is not defeated by merely proving that it was first so used at some time prior to such twenty years."^ The twenty years begin to count only from the time when sensible injury accrued to the one party from the excessive user of the other party.^ The enjoyment of the right of polluting a stream thus amounts to an inchoate title, and must continue uninterrupted up to the commencement of the suit." If the party polluting a river has no legal title as above explained, then he is liable to an action at law by ' Eaton V. Swansea Water Co. 17 Q. B. 267. * Samj)son v. Hoddinot, 1 C. B. N.S. 612 ; Murgatroyd v. Robinson, 7 E. & B. 391. 3 2&3 Wm. IV. c. 71, §2. * Ibid. ■' M unjatroyd v. Robinson, 7 E. & B. 391. 6 Ward V. Robins, 15 M. & W. 242 ; Battisliill v. Read, 18 C. B. 7 ; Parker v. MitcMl, 11 A. & E. 788. EIGHT TO POISON RIVERS. 141 the parties iujured, and in the action an injunction may also be chiimed.^ But the most effectual remedy in the first instance will be a proceeding before Justices under this statute, when, if necessaiy, an action may be brought. If the fishery is injured by matter being poured into the water, and the injury is not accidental, but Kkely to continue, the owner of the fishery may also apply to the Court of Chancery for an injunction to restrain the proceeding. Thus, where the plaintiff was owner of a trout fishery in the river "VVandle, and the Local Board of Health carried on extensive operations in deodorising the sewage of Croydon, but did it so unskilfully as to permit poisonous matter to flow into the river, and so to kill the fish, the Court granted an injunction." A Court of Common Law may also grant an injunction, as subsidiary to an action of damages, in all cases where a Court of Equity would grant an absolute injunction. Stoppin(/ Illegal Rights. — Though if the owners of the fisheries object and interrupt any riparian owner in the attempt to acquire a legal right to poison the stream they "v\'ill thus prevent him from ever acquiring it, yet if they remain quiescent for twenty years, and submit to the nuisance, they will be barred in future in like manner from afterwards disputing the right. The Act (section 5, last clause) makes no difference in this respect, so that it will always rest on the owners of fisheries themselves to prevent such a prejutlicial right 1 Stockport Water Co. v. Potter, 7 H & N. 1(50. I'oke says au actiou lies for auy spcciiil damage to a several fishery, as by erectiug a dye- house, or other nuisance, 9 Rep. 59. ^ Bidder v. Local Board of Health of Croydon, 6 L.T. N.S. 778. 142 FISHEEY LAWS OF ENGLAND. being acquired and rendered indefeasible at their expense. WJio may Prosecute. — Any person whatever, whether interested or not, may institute proceedings for recovery of the penalties for poisoning rivers, as well as for other offences in the Salmon Fisheries Act. The prose- cutor is entitled to a portion of the penalty, not exceed- ing half, if the Justices think fit.^ Claim of Right to Poison a River. — Wlien a person is summoned before Justices for the offence of poisoning a salmon water, it is not enough to oust the jurisdiction of Justices that the defendant asserts that he has a legal right to poison the stream. He must give some prima facie evidence to the Justices, so as to satisfy them that there is some foundation for the claim, such, for example, as his having done so for twenty years openly. If the Justices erroneously conclude that he has no legal right, and convict him, they are never- theless not liable to an action, unless malice is alleged, and unless it is proved that there was no evidence before the Justices which could have led them so to find that the claim was unfounded.^ In order to entitle the defendant to have the matter determined by a Court of Law, instead of by Justices, he must comply with the requisites stated in section 6, viz. prove that he had done his best, and tliat it would cost above 100^. to remedy the matter. The Justices must be satisfied that the costs of preventing the nui- sance will exceed 1001 and slight evidence of this 1 24 & 25 Vict. c. 109, § 35. " Pease v. Chaytor, 27 J, P. 309 ; 32 L.J. M.C. 12L KIGHT TO POISON RRTIES. ].43 should be accepted, for the fidl proof must be resented for the jury afterwards. If the defendant comply with what is required in the beginning of section 6, the Justices have no option as to staying the proceedings. A stay of proceedings then occurs as a matter of course. And they have no power to deal with costs, as these form part of the costs of the action. It is not, how- ever, compulsory on the complainant to proceed by action. If he does, he can choose his own superior court. He merely issues a summons. The question to be tried will be settled by consent, or by a Judge at chambers, according to the practice under the Common Law Procedure Act, 1852, § 42, d scq. It is obviously intended that the jury should dispose conclusively of all questions of damages. The Justices will settle what security should be given by the defendant, which ought to be sufficient to cover the penalty and costs in the event of his losing the verdict (section 7). If the defendant do not defend, judgment will be entered up by default. If nothing is agreed as to costs, the costs shall follow the event.^ The decision of the jury is conclusive as to the question involved in the continued existence of the nuisance. Fishing Salmon vnth Lights, Spears, &c. — No person, whether the owner of a salmon fishery or a trespasser, is permitted to fish with lights, spears, gaffs, stroke- halls, snatches, or the like instruments, or even to have such things in his possession, with intent to catch salmon.- The offence, therefore, is not merely actually using lights or spears for catching salmon, but having 1 C. L. P. Act, 1852, § 48. « 24 & 25 Yiot. c. 109, § 8. 144 FISHERY LAWS OF ENGLAND, in one's possession these articles with intention to use them. This latter offence is one which gives a wide discretion to Justices, but they must be governed by- reasonable considerations. The mere possession of the articles of themselves is not illegal ; the intent makes all the difference. The question, therefore, will be one of circumstantial evidence as to the character of the party possessing them, the account he gives, the time and place when he is found in such possession, &c. The Justices must have circumstances before them from which they can reasonably infer the intent to use them at the time, which means also not a future, but a present time. A person might even be found guilty who was found in his house with these implements, preparing to start, provided he intended forthwith to use them illegally. Possession of an illegal kind always implies that the party knew of the things, for an unconscious possession is not a guilty possession.' These offences can only be committed with respect to salmon, and no other fish, for at common law one can catch fish by any means he thinks proper. The instruments are forfeited, i. e. the Court can destroy them or sell them, and apply the proceeds in the same way as the penalty .- Using Fish-roe as Bait. — It is a criminal offence for any fisher, whether the owner of a fishery or a poacher, to use fish-roe for fishing, or to buy, or sell, or have salmon-roe in one's possession.^ The first offence applies to fish-roe used for fishing; the second offence to salmon- 1 Per Aldeison, B. in R v. Woodrow, 15 M. & W. 404 ; B.v. Sleap, 1 L, & C. 44. 2 Seei5os<, 24 & 25 Vict. c. 109, § 35. ^ jb^. § 9, SALMON-EOE, 145 roe. Tlie word fish not being defined by the statute, the obvious meaning of the first clause is, that the roe of any fish wliatever is not to be used for the catching of any fish whatever, so that other fish than salmon are here protected. The only offence as to the roe of other than, salmon-fish, is the using it for fishing, and there- fore it is no offence to buy or sell it, or to use it for other purposes than fishing. But as to salmon-roe the statute is more strict, and not only the buying, selling, or exposing to sale, but the possessing of it for any purpose whatever is an offence, the possession being a possession with knowledge. Scientific and other legiti- mate purposes are expressly excepted. The penalty being incurred for each offence, the rule is, that only one offence can be committed on one day, if there is merely a repetition of acts of the same kind ; as for example, using fish-roe for fishing the whole day long would be only one offence.^ But buying salmon-roe, or selling it or exposing it for sale, or possessing it, is each a distinct offence, and may be separately punished, imless it is the same identical salmon-roe which is the subject- matter of each transaction. If a person were to buy some salmon-roe, offer to sell some to A, then sell some to B, and keep the rest, it seems he may be guilty of four offences on one day, Salmon Nets. — No person, whether the owner of a fishery, or a poacher, is entitled to fish salmon with a net less than two inches from knot to knot, otherwise he forfeits the nets and incurs a penalty of ol.- The 1 R. V. Lovctf, 7 T. K. 152 ; R. v. Scott, 27 J. P. 420. - 24 & 25 Vict, c. 109, § 10. L 146 FISHERY LAWS OF ENGLAND. offence consists either in taking, or attempting to take salmon with illegal nets. The nets and tackle become forfeited provided a conviction takes place, and then may be disposed of as stated in sect. 35. No offence under this section is committed by a person who has in his possession a net of the illegal size, provided it is not used in taking or attempting to take the fish. But a search-warrant may be obtained to seize such nets under sect. 34, if there is reasonable evi- dence or probable cause to suspect they have been used illegally. Fixed Engines. — It is an offence to use fixed engines of any description in any waters for the purpose of catching salmon.' The engine is forfeited as well as the salmon caught, and a penalty of 10/. a day is incurred besides. This section has nothing to do with fishing wears or fishing mill-dams, which are dealt with in the twelfth section.2 All possible waters which salmon frequent are comprehended in the phrase, inland or tidal waters. Fixed engines, by the interpretation clause, sect. 4, include stake-nets, bag-nets, putts, putchers, and all fixed implements or engines for catching or for facili- tating the catching of fish. Where there is no several fisheiy, but the public generally are entitled to fish, they are prohibited by this section from using fixed engines, whether they have been accustomed to do so from time immemorial or not. The section confers a power on any one of the public, whether interested or not, to destroy a fixed engine, and therefore he is not liable to ^ 24&25 Vict. c. 109, §11. 8 Mmlton V. Wilby, 8 L. T. N.S. 284 ; 32 L. J., 164 M. C. FISHING DAMS AND WEARS. 147 an action of trespass for doing so.^ As to the for- feiture, seejiosf, 24 & 25 Vict. c. 109, § 35. As already explained, not only wears, but any fixed engine which sensibly prevents the passage of fish to the upper streams, is illegal at coniiuon law ; but on the construction of the statutes affecting wears, it is now settled that wherever the engine or fixed apparatus can be traced to the period of Magna Charta it is legal.- AU owners in this position are expressly exempted from this penalty. Fishing Dams. — No lishiug mill-dam or fishing wear is legal except it be ancient, and even ancient fishing wears must have a free gap, and ancient fishing mill- dams must have a proper fish-pass ; and no fishing is allowed in the head or tail race of a mil), or within fifty yards below a dam, unless these have a fish-pass.^ As already stated, no wear or dam for fishing is legal unless its origin can be presumed to be older than Magna Charta.'* This section makes illegal all other wears, and rentiers it necessary to have fish-gaps and passes attached to those which are legal. Only one offence can be committed on one day, whether any salmon be caught or not ; but the penalty of 11. per salmon actually caught is over and above the 5/. incurred for the substantive offence. As to the disposal of the for- feited traps, nets, and salmon, see post, 24 & 25 Vict, c. 109, § 35. 1 Williams v. Bl.ackwall, 8 L. T. KS. 252 ; 32 L. J., Hi ExlU. ^ See ante, p. 37. 3 24 & 25 Vict. c. 109, § 12. * Sec ant"., p. 37. 5 See R. V. Scott, 27 J. P. 420. L 2 148 FISHERY LAWS OF ENGLAI^D. Dams, tliough not ancient, are not made illegal by this section merely because they have no fish-gap or pass, provided they are not used for catching salmon ; and therefore they may also be legally used for catching other fish, provided they are not illegal at common law. They are illegal at common law if they sensibly impede the fish from passing up the stream to other pro- prietors. The fish-pass for an ancient fishing dam must not only be approved by the Home Office, but must have a flow of water constantly moving through it, so as to let the salmon pass up and down. The second heading of this section applies to dams which are not fishing dams and to mill-races, and contains an absolute prohibition against catching salmon at the places mentioned in any manner, except by rod and line, unless there is a regular fish-pass attached ; and even if the owner of the mill-dam refuse his consent to the attaching of a fish-pass, the owner of the fishery will nevertheless be prohibited from so fishing. Thus where the owner of a fishery had a salmon cage built upon a spur of masonry, beside a wear or a dam which had no fish-pass, but it belonged to another person, and he took salmon out of the cage with a hand net, he was held rightly convicted, though he could not compel the owner of the dam to attach a fish-pass ; ^ and it seems his proper course would be to apply to the Home Office to order a fish-pass to be attached to the dam.^ A difficulty may arise, where the fishery belongs to one person and the wear to another, in saying that the 1 MouUon V. Wilhy, 8 L. T. N.S. 284 ; 32 L. J., 164 M. C. ^ Per Martin, B. ibid. UNCLEAN SALMON. 14-9 wear is used for catching fisli ; Lut it seems to come within tlnit description.^ The section has thus the effect of taking away from the owner of a fishery valuable property without compensation, for it pro- hibits liim from using his fishery in the same way that he may have used it from time immemorial." Gratings in Artificial Streams. — Where a salmon stream communicates with a canal or artificial channel used to supply towns with water, a grating must be put across such channel to prevent the salmon or young salmon passing.^ If the grating has not been put up and maintained as required by this enactment, a civil remedy also exists against the company or persons, and the owner of an adjacent fishery who is injured by the neglect of duty may bring an action on the case.* This enactment is obviously intended only to apply to channels where the water of the salmon river descends or runs out, and not to channels from which the water descends into the salmon river.^ Talcinrj Unclean Fish. — Xo person, whether the owner of a fishery or not, is allowed to take, buy, or sell or possess unclean or unseasonable salmon, excepting accidents and scientific purposes." The offence of wil- fully taking unclean salmon implies knowledge of the condition of the salmon. If accidentally taken, they should be returned to the water. " To take," does not ^ Per Bramwell, B. Moulton v. Wilby, 8 L. T. N.S. 285, supra. " Per Bramwell, B. ibid. 3 24&25 Vict. c. 109, §1-3. * Caledonian R. Co. v. Colt, 3 L. T. N.S. 252 ; 3 Macii. H. L. 833. ' ^d&post, §15. « 24 & 25 Vict. c. 109, §14. 150 FISHERY LAWS OF EXGLAND. imply manual possession of or dominion over the fisb. The buying seems to be one offence, selling another, &c. even though in reference to one and the same indi- vidual fish, and the penalty attaches upon each fish bought, &c. ; thus cumulative offences may attach to one fish. The expression " forfeit " is properly appli- cable only to fish in one's possession, and hence has no meaning in reference to fish already sold, and which have been delivered to the buyer ; in short, one can only forfeit what he buys but not what he sells. Though, therefore, the possessing is subject to a penalty, the property of salmon bought is so far his that it would seem to be larceny in a third party to take it from him. No penalty is put upon each fish bought, the word " bought " being probably by oversight omitted, and therefore he who buys such a salmon merely forfeits it, but incurs no penalty. Taking Young of Salmon. — It is an offence to take, destroy, buy, sell, or possess, obstruct or injure the young of salmon, or disturb a spawning bed.^ There is no definite age implied in the expression " young of salmon," which is defined in sect. 4.- This is, however, now the only enactment protecting the young of fish, the older statutes being repealed by this Act,^ and therefore at common law any person may take the young of other fish without restriction. The third offence, " placing a device obstructing the passage," is difficult of interpretation. It must mean a sub- stantial obstruction, but the device need not extend to 1 24 & 25 Vict. c. 109, § 15. ^ gee Appendix. 3 § 30, ante, p. 36, SALMON SPAWNING. 151 the whole width of the stream, nor is there any restric- tion as to where the device is to l)e put. Tlie ol)ject in view was probably to render illegal any gratings put across the tributary streams of salmon rivers, which would have the effect of obstructing the young salmon from going upwards. In order to convict of the third offence, it is not necessary to prove the actual obstruction, if in the ordinary course of things the device is calculated so to obstruct young of salmon coming there. As to what is done with forfeited property, see post, sect. 35. Disturbing Salmon Sjxmminff. — The wilful disturbance or catching of salmon when spawning, or near their spawning beds, is punishable with a fine of ol. ; but catching salmon for scientific purposes is excepted. ^ It might be a question how far persons legally entitled to fish trout, or any other freshwater fish, and doing so near spawning beds of salmon, would be within this penalty and other penalties of this Act ; but it seems they would not. Trout fishing may be a much more valuable right than salmon fishing at the spot in question ; and even if it were not, there is no trace in the law of England (as there is in the law of Scotland) of the doctrine that salmon fishing is a paramount right to which other freshwater fishing must yield. The word " wilfully " is the essence of the offence, and implies an absence of bona fides; but if the party were hondjide exercising his right of trout fishing, he seems not to be withm this section of the statute. Close Times. — The close time for salmon fishing is fixed by the statute, and it is illegal to fish salmon 1 24 & 25 Vict c. 109, §16. 152 FISHERY LAWS OF ENGLAND. between the 1st day of September and the 1st of Feb- ruary following, inclusive, or for anglers to fisb between 2d of November and the 1st of February following, both inclusive.^ The fish are forfeited, and the penalty in- creases with the number of fish caught. The offence consists in catching or killing during the close season, or attempting to do so ; but it is no offence to keep, for purposes of food, the fish caught on the few last days of the fishing season for some days after the close season commences,^ and a margin of three days more is also given for buying or selling by sect. 19. As there is no close time as to trout and other fish than salmon, it is possible that salmon might be caught accidentally during close time by those who are legally exercising their right of fishing for other fish, and in such case no offence would be committed." But if the evidence shows that the fisher- men were fishing merely colourably for trout, &c., and were in reality in pursuit of salmon, this defence will naturally be viewed with suspicion, and will require clear evidence. There can only be one offence com- mitted under tMs section on one day, but the penalty will be increased according to the number of salmon actually caught.* The anglers have an extension of the fishing season for two months, viz. September, October and 1st November. Home Office varying Close Season. — Power is given to the Home Office to vary the close season for salmon 1 24&25 Vict. c. 109, §17. ^ Simpson v. Umvin, 3 B. & Ad. 134. *.See ante, p. 151. •» See R. V, Scott, 27 J. P. 420. SALMON CLOSE TIME. 153 fishing.^ Tlie Home Office cannot interfere unless on the application of tlie Justices in quarter sessions, after the preliminary notices mentioned, and the Home Office has a discretion to refuse to alter.^ The phrase " ex- tend or vary " is an inartificial expression. The proper fiieaning would be " extend or contract" the close season, otherwise the word "^'vary" would be insensible. Never- theless, taking the whole of the section together, the context is such that the introduction of the words " or vary " is clearly insensible ; the rest of the clause uses the phrase, " the extension of such time," " close time so extended," showing that power was only given to the Home Office to extend and not to shorten the close season. The section is also badly drawn, inas- much as it leaves it uncertain whether the Home Office, after once exercising the power to extend the close season, can only vary that extension on a like appli- cation of Justices ; the section omits the words " on a like application of such Justices" in the last clause. Another defect in the section is, that no provision is made for suspending a copy of the Home Secretary's order in some public local situation, so as to be easily accessible to fishermen and anglers, as well as the local public, and thereby inform them of the change. But probably this power will seldom be exercised by the Home Office at all, as uniformity of the law is always desirable. Selling Fish clunng Close Time. — It is illegal to bu}', sell, expose for sale, or possess salmon between the 1 24 & 25 Vict. c. 109, §18. « See i?e Newport Bridyc, 24 J. V. 133 ; 29 L. J., 32 Q. B. 154 FISHEEY LAWS OF ENGLAND. 3d September and 2d February following.^ As remarked,^ there is no offence committed in keeping fish after close time has commenced for purposes of food ; but this section makes it an offence to sell, buy, or keep for purposes of sale between 3d September and 2d February following. As regards the computation of time, seeing that the statute does not say that the 3d September and 2d February are to be calculated as inclusive, those days must be reckoned as exclusive. Such is the result of the only authorities on this mode of construing a statute, espe- cially where it is penal.^ Hence it is legal to buy and sell salmon on the 3d September as well as on the 2d February. It will be recollected that though it is legal for anglers to catch salmon in September and October, by sect. 17, yet it is by this clause illegal for the angler to sell or for the public to buy his fish. This may have been an oversight in the statute ; but whether or not it was so, the angler will incur a penalty for making profit of his talents and skill during those two months. There is, however, nothing to prevent him making presents of angled salmon, or to prevent his friends thankfully receiving them, or even making gifts of other things in exchange. The language is peculiar as to the imposition of the penalty, and differs from the other sections. Never- theless the proper construction seems to be that a party 1 24 & 2.5 Vict. c. 109, § 19. 2 Ante, p. 152. 3 Ycncng v. HUjcjen, 6 M. & W. 49 ; Rohinsnn v. Waddington, 13 Q. B. 753. See analogous enactment, Paterson's Game Laws, 4. EXPORTING SALMON IN CLOSE TIME. 155 can only coiiiinit one offence of the same kind, as buying, selling, &c. on one day, Imt tliat the penalty increases according to the number of salmon bought, sold, &c. As to forfeiture, see post, sect. 35. A person who sells or buys during close time salmon Avhich has been caught in foreign countries, or in Ire- land or Scotland, commits no offence ; but the onus is cast on him of proving that the salmon he sells, «fec. was really caught out of England or Wales. For this purpose he must be prepared to produce the invoice, or other mercantile voucher, as part of the evidence that they were purchased or obtained from abroad, and from whom. Exporting Salmon during Close Time. — The offence of exporting salmon during close time was not included in the Salmon Fisheries Act of 1861, but was dealt with by the Act 26 Vict. c. 10.^ The latter Act makes ex- portation illegal, provided the fish were caught during close time. The Act contemplates that English-caught salmon may always be legally entered for expoi-tation between 2d February and 3d September, inclusive ; but exportation in England at other times is not illegal of salmon caught legally in Scotland or Ireland, for the Scotch and Irish close times do not coincide with the English close time. Though anglers may, as already observed,- fish for salmon in England during September and October, they are liable to a penalty for selling them during those months ; and as exportation is illegal where%'er selling is illegal, it follows that they cannot export the salmon ' See Appendix. - Ante, p. 154. 156 FISHEKY LAWS OF ENGLAND. angled during those months. They are thus driven to consume them in person, or by the mouths of their friends and donees. Fixed Engines in Close Time. — All proprietors of fixed engines must remove their apparatus of boxes, cribs, &c. within thirty-six hours after the commencement of close season, i.e. of 1st September, so as to allow the fish free course, otherwise the engines are forfeited, and 10?. per day is the penalty.^ The word fishery is not defined in the Act, but it means such a right as can be used, with the aid of certain machinery, where machinery is legal.^ The sec- tion in effect renders illegal every kind of obstruction or temporary fixture of the nature indicated. Thus, where the owner of a mill-dam, and of a fishery had certain locks in the dam, which could be used for catching fish, and when down obstructed the fish, this was held an obstruction within this section.^ Where the occupier is summoned, it is enough to prove that he acted de facto as the occupier. A fixed engine is defined by the Act, sect. 4, to include stake- nets, bag-nets, putts, putchers, and all fixed implements or engines for catching or for facilitating the catching of fish. Weekly Close Time. — Not only is an annual close time of five months prescribed ; but during the open or fishing season, a space of nearly two days is given, i.e. from 1 24 & 25 Vict. c. 109, § 20. ' See ante, p. 37. 3 Hodgson v. Uttle, 8 L. T. N.S. 358 ; 32 L. J., 220 M. C. By sect. 34 the fixtures may he seized. SALMON FISH-PASSES. 157 12 noon on Saturday to 6 a.m. on Monday, for the fish to have a free run.^ Hence no fishermen are allowed to fish for or catch fish during this weekly close time by any means whatever except by rod and line. The penalty is a forfeiture of the net or movable instrument used, and a penalty of 51, and 11 per fish taken. Anglers are thus the only persons privileged to fish between Saturday noon and Monday morning, 6 a.m. They may, if otherwise entitled, lawfully fish on Sundays ; though it is an offence punishable by a fine of 51 to kill or pursue game on Sunday. - The owners of putts or putchers are not obliged to draw them up during weekly close time, but they must let down a net or other device so as to put them out of gear during those hours.^ And the owners of all fisheries where fixed engines are lawfully used, shall leave all their cribs, boxes, or cruives open during the weekly close time, under a penalty of ol, and 1/. per fish caught, besides forfeiting such fish.* Regulations as to Fish-passes. — A dam is defined by the Act, sect. 4, to mean all wears and other fixed obstructions used for the purpose of damming up water. Wherever a dam legally existed at the time of the Salmon Fisheries Act, the proprietor of a fishery may serve notice on the owner of the dam, that he intends to apply for the consent of the Home Office to affix a 1 24 & 25 Vict. c. 109, § 21, - ratcrson's Game Laws, pp. 3, 4. 3 24 & 25 Vict. e. 109, § 21. * Ibid. §22. 158 FISHEliY LAWS OF ENGLAND. fish-pass to sucli dam, stating the plan and specifica- tions ; ^ and the Home Office may hear both sides before deciding. It is absohitely requisite that the Home Office shall hear the objections of the owner of the dam before deciding, and tlie Court of Queen's Bench will grant a mandamus, if necessary, to the Secretary of State to hear such objections. The chief objection will be that the fish-pass will injure the milling power, but this will not be conclusive, for compensation may be recovered for such injury. The discretion of the Home Office in the matter of consenting to a fish-pass is absolute, and cannot be interfered with by a court of law, provided only the Home Secretary has fairly taken the objections into consideration. When a fish-pass is once authorized, penalties are imposed on all persons who interfere with the construction or maintenance of it.2 The expense of erecting the fish-pass falls on the owner of the fishery. In aU dams made in salmon waters after 1861, or raised or altered after that date, which obstruct salmon, a fish-pass, of a form approved of by the Home Office, must be made at the expense of the person making or altering the dam.^ Whenever a legally constructed fish-pass is attached to a dam, the sluices must be kept shut (except when used for milling purposes, or in case of cleaning, or of a flood, or other necessary occasion), so as to allow the water to flow tlirough the fish-pass, under a penalty of 5s. jjer hour.'* 1 24 & 25 Vict. c. 109, §§ 23, 24. ^ Thid. § 23. 3 Ibid. § 25. ' Ibid. § 26. SALMON FISHING WEARS. 159 Regulations as to FisMnrj Wears. — A fishing wear is defined by the Act (sect. 4) a dam used for the exclusive purpose of catching, or facilitating the catching of fish. In all fishing wears which are legal {i.e. which have had a legal origin before Magna Charta,^) and which at lowest water extend more than half-way across the stream, a free gap must be made of a size, and form, and situation prescribed by the statute, which can only be departed from by authority of the Home Office.- The owners of such a wear were bound within twelve months after 1st October, 1861, to make such a gap under a penalty of 5Z. per day. The gap must also be maintained under a penalty of II. per day;^ and any alteration or obstruction, or contrivance to deter the fish from entering the gap, is punishable by a penalty of hi. and upwards.* The boxes and cribs used in fishing-wears or fishing mill-dams (i.e. dams used partly for fishing and partly for milling purposes), must be of a certain situation, and the bars or inscales of the heck or upstream side sliall not be nearer each other than two inches, imder a penalty of 51. per day, and the same must be main- tained under a penalty of IZ. per day.^ Spurwalls, &c. more than twenty feet from the upper or lower side of the box or crib, are always pruhil)itod, under a penalty of 11. per day.*^ Central A utliority of Home Office. — The Home Office is invested with the general superintendence of the 1 See ante, p 37. 2 24 & 25 Vict. c. 109, § 27. 3 Ibid. ^28. * Ibid. Ibid. § 29. « Ibid. § 30. 160 FISHERY LAWS OF ENGLAND. salmon fisheries tliroiigliout England and Wales, It has power to appoint and remove from time to time two inspectors, and assign them duties and salaries.^ The Home Otiice shall lay before Parliament the annual report of the inspectors.^ Conservators of Salmon Waters. — The Justices at any general or quarter sessions, may appoint conservators or overseers to enforce the Salmon Fisheries Act. No power, however, is given to these conservators to enter private grounds or waters, except where a searcn- warrant has been granted,^ and therefore they have none. Their duty will be chiefly to act as detectives and prosecutors ; and in truth a conservator or over- seer has no greater powers than any one of the public would have, except that he may be employed to execute a search-warrant, as is described in the next clause. Justices Granting Search Warrants. — The power of a Justice of the Peace to grant a search warrant, depends, as in other cases, on an information on oath, and the warrant must specifically describe the premises that are to be searched. It is scarcely necessary to observe that a search warrant applies only to places and things, and does not authorize the apprehension of the person who committed the offence. The places are j^laces where a breach of the Act has been committed, or where illegal nets or engines, or salmon illegally taken, are concealed. What are illegal engines, and what are salmon illegally caught, are described in the previous 1 24 & 25 Vict. c. 109, § 31. ^ Ibul, § 32. ^ See next clause. APPREHENDING OFFENDERS. IGl sections of the Act. At common law all the salmon caught l)y illegal means would belong to the person who caught them, and it is only where the statute expressly says that the salmon so caught shall be for- feited, that he loses this property in the salmon. Salmon illegally caught in this sense means salmon caught by means of the illegal engines, and at the illegal times specified in the Salmon Fisheries Act, but does not include salmon poached or caught by trespassers in a private fishery, as to which the poacher retains the property, for the Larceny Act does not say the fish are forfeited.^ Apprehending Offenders. — There is no power given by the Salmon Fisheries Act to apprehend offenders, even where they are caught in the act ; but the Larceny Act gives such power to any person to apprehend offenders under that Act, i.e. persons fishing in private fisheries without leave, if found offending." Procedure and Peiudtics. — All offences must be pro- secuted within six months after the offence is com- mitted.^ The penalties are to be paid as follows : such part, not exceeding half, as the Justices may order, to the informer, the rest as provided by Jervis's Act, 11 & 12 Vict. c. 43. All forfeitures, i.e. all salmon illegally caught, illegal nets, &c. are to be sold as the Justices may direct, and the proceeds applied in the some way as the penalties."' Offences committed on ^ See ante, p. 85. " 24 & 2.T Vict. c. 96, § 103, ante, \\ 77. ^ 24 & 25 Vict. c. 109, § 35, ami the procedure is uudur Jervis's Act, 11 & 12 Vict. c. 43. * 24 & 25 Vict. c. 109, § 35. M 162 FISHERY LAWS OF ENGLAND. rivers clmding counties may be tried in either county.i Offences committed on the sea coast beyond the juris- diction of Justices, may be punished by the Justices of the county adjoinmg such sea.^ The ordinary jurisdic- tion of Justices extends to the shore between high and low water mark.^ 1 24 & 25 Vict. c. 109, § 36. 2 Ibid. §37. 3 Embleton v. Brmon, 30 L. J. 136, Q. B. SCOTLAND. SEA FISHERIES. 1 G5 SCOTLAND. CHAr. T. FISTTEEIES IN THE SEA OTHER THAN SALMON. OPEN SEA FISHERIES — TERRITOKIAL SEAS ANP NAVIGABLE RIVERS — crown's RIGHT TO WHALES — OTHER FISH THAN SALMON — NAVIGA- TION PARAMOUNT TO FISHING— OYSTER FISHERIES — MUSSEL FISH- ERIES — HERRING FISHERIES — DEFINITION OF FISHERY. Open Sea Fisheries. — The law of Scotland as to fishing in the open sea, as contradistinguished from the terri- torial sea, does not differ from the law of England, and the customs as to whale fishing are the same.^ Territorial Seas and Navigable Rivers. — As regards the territorial seas and navigable rivers, the law differs in material points from the law of England. Crown's Rigid to Wlmlcs. — As regards the right of the Crown to whales caught within the territorial seas, the right extends only to whales of a large size.- Othcr Fish than Salmon.— The law of Scotland, like the law of England, recognises the right of tlie public 1 See ante, p. 5. Iliitchiason v. Dundee Wlialc Fishery Co. 5 Jlurr. 164 ; Ersk. 2, 1, 6 ; Aberdeen Whale Co. v. Slitter, i Macq. H. L. Cas. 355 ; Addison v. Roiv, 3 Paton, 334, 2 Ersk. 2, 1, 10 ; Stair, 2, 1, 33. 166 FISHERY LAWS OF SCOTLAND. to fish in the sea and in public navigable rivers without any restriction, except as to salmon, which, as will be seen, is singled out from all other fish, and stands on its own footing. So far as regards other fish than salmon, the public are entitled to fish without any other re- striction than is imposed by the Herring Fishery Acts ; but even those Acts treat all the public alike, and only restrain fishing by certain nets and appliances, on grounds of public policy ; whereas in England, even in the sea and public navigable rivers, the public may be excluded by an individual from fishing any kind of fish.^ In Scotland there is no such title competent to exclude the public from the right of fishing for sea fish other than salmon. The Crown, it is true, seems to have had power to grant the exclusive fishery of oysters and mussels, which adhere to the soil. Hence a general grant of land adjacent to the sea cum piscationibus would include oysters and mussels, provided the grantee had for forty years and upwards exclusively exercised the right of taking these ; - and statutes protect such fisheries from depredation.^ The question, however, as to oysters, cannot be said to be settled, and the point was recently raised, whether the Crown had power to make a grant of oyster fishings in the seas surrounding the shores of Scotland, and whether the right to such fisheries still remains in the Crown, except it has been granted away to a subject, as is the case with regard to ^ See ante, pp. 15, 24. » Bcmsey v. Kellics, 5 Br. Sup. 445 ; 2 Hailes, 723 ; 1 Stair, 2, 1, 5 Ersk. 2, 6, 17. 3 3 & 4 Vict. c. 74 ; 10 & 11 Vict. c. 92. SEA FISHEEIES. 167 the salmon fisheries in the adjacent seas. The action was dismissed for want of a proper defender, without any opinion l)eiiig expressed.^ With regard to lobsters, it has been held that the right to lo])ster fishing, wliieli requires no landing on the shore, belongs to the public, and not to the owner of the adjacent shore ; and it is doubtful whether forty years' possession of lobster fishings, under a general grant of fishings in the sea, or even an express grant from the Crown of lobster fishings, will support the exclusive right ; - and the public can- not be excluded from taking limpets, cockles, whelks, and small sliell-fish and sea-weed below high-water mark, though the owner of the shore has a grant of fishings in salt and fresh water, and a barony bounded by the sea.^ As to floating fish other than salmon, thougli the Crown has sometimes granted the white sea fishings, the validity of such grant has never yet been ' judicially recognised, and has generally been doubted.* Hence, even though the salmon fishing in the sea or a navi- gable river belong exclusively to an individual, the public have nevertheless the right to fish for other fish in the same locality, provided that they do not sub- stantially injure such salmon fishing. 1 Maitland v. MacClelland, 21 Dec. 1860, 33 Sc. J. 102 ; Commis- sioners of Woods and Forests v. Maitland, 21 Dec. 1860, 33 Sc. J. 102. A grant of oyster fisliing in a loch, gives the right of exclusive posses- sion ; Agneiv v, Mayor of Stranraer, 2 S. D. 42. * D. Portland v. Gray, 11 S. D. 14. There seems to be a close season for lobsters from 1st June to 1st September, 9 Geo. II. c. 33, § 4. 3 llall V. WhilUs, 14 D. B. M. 325. ■» Ramsay v. Kellies, 5 Br. Sup. 445. Per Hope, J. C.IIall v. Whillis, 14 D. B. M. 325. 168 FISHERY LAWS OF SCOTLAND. Navigation 2'>aramount to Fishing. — It may also be noticed that the puhlic right of navigation, as com- pared with the right of fishing, is the paramount right ; and where fishing is incompatible with that, the right of the fisher must give way to that of the navigator.^- Oyster Fisheries. — The general law as to fishing oysters in Scotland has been amended by statute. A statutory enactment protecting oysters from larceny (which formerly existed in England in 7 & 8 Geo. c. 29, § 36, now in 24 & 25 Vict. c. 96, § 26) was extended to Scotland by the 3 & 4 Vict. c. T^.^ 1 Colquhoun v. D. Montrose, M. 12827 ; Grant v. D. Gordon, 9 Mar. 1802, F. C. 20 Feb. 1782 F. C. 2 " If any person in Scotland shall wilfully and knowingly take and carry away any oysters or oyster brood from any oyster bed, laying, or fishei-y, being the property of any other person or persons, body corpo- rate or politic, and sufficiently marked out or known as such, every such ofiender shall be deemed guilty of theft, and being guilty thereof shall be liable to be sentenced to imprisonment not exceeding the term of one year."— 3 & 4 Vict. c. 74, § 1. " And be it enacted. That if any person shall unlawfully and wil- fully use any dredge, or any net, instrument, or engine whatsoever, within the limits of such oyster fishery in Scotland, for the purpose of taking oysters or oyster brood, although none shall be actually taken, or shall with any net, instrument, or engine drag upon the ground or soil of any such fishery, every such person shall be deemed guilty of an attempt to commit theft, and being convicted thereof shall be liable to be punished by fine or imprisonment, or both, as the Court shall award ; such fine not to exceed twenty pounds, and such imi^risonment not to exceed three calendar months."— § 2. " Provided always, and be it enacted, That nothing in this Act con- tained shall prevent any person from catching or fishing for any float- ing fish within the limits of any oyster fishery, with any net, instru- ment, or engine adapted for taking floating fish only. " — § 3. "Provided always, and be it enacted. That nothing in this Act con- tained shall prevent or be construed to ])revent any person or persons from exercising any right which may now be lawfully exercised within the limits of any such fishery." — § 4. OYSTERS, MUSSELS, HEERINGS, 169 Mussel Fisheries. — Thougli in England mussels are not protected, like oysters, by penal enactments against depredation, tliey are protected in Scotland by statute 10 & 11 Vict. c. 92, which resembles the Scotch statute 3 & 4 Vict. c. 74, as to oysters.^ Herring Fisheries. — The herring fisheries in Scotland were governed by the same statutes as those in England up to 1860, when two Acts for Scotland alone were ' "If any person in Scotland shall wiiruUy, lcno\vin<;ly, and wrong- fully take and curry away any nnisstds or mussel brood from any mussel bed, scalp laying, or fishery, being the property and in the lawful occu- pation of any other person or persons or body corporate or politic, and sutHciently marked out or known as such, every such offender shall be deemed guilty of theft, and being guilty thereof shall be liable to be sentenced to imprisonment not exceeding the term of one year." — 10 & 11 Vict. c. 92, § 1. " If any person shall unlawfully use any dredge, or any net or in- stniment or engine whatso(!ver, or shall trespass within the limits of any mussel bed, scalp laying, or fishery in Scotland, being the property and in the lawful occupation of any other person or persons or body corporate or politic, and sufficiently marked out or known as such, for the purpose of taking mussels or mussel brood, though none shall be actually taken, or shall, with any net, instniment, or engine, or %vith the hand or otherwise, drag or fish upon the ground or soil of any such mussel bed, scalp laying, or fishery, every such person shall be deemed guilty of an attempt to commit theft, and being convicted thereof before the Sheriff of the County shall be liable to be punished by fine or imprisonment, or both, as the Court shall award, such fine not to exceed ten pounds, and such imprisonment not to exceed three calendar months." — § 2. •' Provided always, and be it enacted. That nothing in this Act con- tained shall prevent any person, lawfully entitled there to fish, from fishing for or catching any floating fish within the limits of any mussel fishery, with any net, instniment, or engine adajited for taking floating fish only." — § 3. " Pro^^ded always, and be it enacted, That nothing in this Act con- tained shall prevent, or be construed to prevent any ])erson from exer- cising any right possessed by such person of taking bait, or any other right which may now be lawfully exercised by such person within the limits of any such fishery." — § 4. 170 FISHERY LAWS OF SCOTLAND. passed.-^ As already stated, the legal method of catching herring is by drift-nets, having meshes of not less than an inch from knot to knot, or having thirty-six squares to the yard.2 Trawling for herring was introduced about the year 1838, and became a system in 1846, and was chiefly practised on the West Coast of Scotland. The trawl-net was used like the seine. Seining and trawling were rendered illegal by the Acts 14 & 15 Vict. c. 26, 23 & 24 Vict. c. 92, and 24 & 25 Vict. c. 72.^ A close time for herrings was also enacted for the West Coasts of Scotland up to Point Ardnamurchan, viz. from 1st January to 81st May, inclusive, and from the north of Ardnamurchan to Cape Wrath, from 1st January to 20th May, inclusive.* And persons selling herrmgs or her- ring fry, which they know to have been taken on the West Coast during close time, incur a penalty of 51. and forfeit the herring and boats.^ Definition of Fishery. — In Scotland the law of fishing, in point of nomenclature, has not been embarrassed by the unfortunate classification, which caused so much confusion in England, into common, several, and free fishery, and common of piscary. Those distinctions are entirely unknown. Tlie right of fishing, whether public, or several, or free, is merely called by the generic name ^ See as to the previous statutes, ante, p. 28. 2 48 Geo. in. c. 110, §12. 3 The report of the Koyal Commissioners on the operation of the Acts relating to trawling for herring on the coasts of Scotland, recom- mends that the restrictions on trawl fishing shouUl be withdrawn, and the fishermen left to clioose their own mode of hshiug. * 23 & 24 Vict. c. 92, § 4. 5 24 & 25 Vict. c. 72, § I. DEFINITION OF FISHERY. 171 cjf the fisliing or fishery, though tlic latter term is also frequently appropriated to the locality where the fishing exists. The rights, in point of substance, however, do not materially differ from those in England, for the dis- tinctions represented by those terms, when properly explained, exist in the nature of the subject-matter. 172 FISHERY LAWS OF SCOTLAND. CHAP. II. EIGHT TO SALMON GENEEALLY. RIGHT TO SALMON IN SEAS AND RIVERS — SALMON FISHING MUST BR DERIVED FROM CROWN — MODE OF FISHING AT COMMON LAW IN RIVERS — COMMON LAW, HOW AFFECTED BY OLD STATUTES — RESULT OF STATUTES AND COMMON LAW — NET AND COBLE FISHING FOR SALMON — NET FISHING, AS BETWEEN OPPOSITE RIPARIAN OWNERS — RIGHT OF FISHER TO USE SHORE — RIGHT OF FISHER TO USE RIVER-BANKS — BOUNDARIES OF FISHERIES — REMEDY BETWEEN OWNERS OF FISHERIES — REMEDY BY INTERDICT — FISHINGS OF LOCALITY LANDS — FISHING IN A LAKE. Rigid to Sahnon in Seas and River's. — The right of the public to fish in the territorial seas and navigable rivers is not in Scotland embarrassed by the statute of Magna Charta, which has no application there. The leading distinction is between salmon and all other fish, and the leading principle is, that the salmon fishing by net in- all the seas and rivers of Scotland belongs to the Crown until a grant can be shown to some individual. "There can be little doubt," says Lord Chelmsford, L. C.^ " that salmon fishings at an early period of the history of Scotland were regarded as possessing a peculiar value ^ Gammel v. Commissioners of Woods and Forests, 3 Macq. H. L. C. 455. SALMON FISHERY IN SEAS. 173 over other fishings, and were distinguished from them in a remarkable manner. They were classed inter regcdia. They were only capable of belonging to a subject by an express grant from the Crown, or by a grant of fishings generally, followed by siich an user of salmon fishing as proved that it was intended to be comprehended within the general terms of the grant." ^ This doctrine is a fundamental one, and was thus described by twelve Scotch judges in a recent case : ^ " According to the concurring testimony of all our law authorities, salmon fishing is considered as a beneficial right of property, and is held to be vested in the Crown ; or perhaps, speaking more properly, to remain with the Crown, unless it has been made the subject of special grant to a private party. It is needless to speculate on the circumstances from which this sus- ceptibility of appropriation took its rise — very probably from the value of the fish, combined with that pecu- liarity of its habits which rendered the operation of catching it, in a great measure, dependent or connected with the possession of the adjacent shore. But certain it is that by the law of Scotland it is a right of pro- perty, and, whether granted by or remaining in the Crown, a beneficial right." Accordingly, in the above case it was settled that the Crown has still tlic patri- monial right of fishing for salmon, not only in all the rivers of Scotland, but in the open coast surrounding 1 See also Craig, 1, 16, 24 ; 2, 8, 7 ; Ei-sk. 2, 1, 10 ; 2, (5, 17 ; Stair, 2, 1, 5 ; 2, 3, 39. BeU's Pr. § 646, 671. 2 Qammcll v. Commissioners of Woods and Forests, 3 Macij. II. L. C. 442. 174 FISHERY LAWS OF SCOTLAND. the land, unless it can be shown affirmatively that the Crown has granted away sncli right to the subject. The right, however, is confined to that kind of fishing which is carried on, not from ship-board, but by stake- nets, bag-nets, and by net and coble and other similar modes, all of which, it is a matter of notoriety, imply either the connexion of the apparatus with the coast, as in the case of stake-nets and bag-nets, or the use and possession of the coast as in the case of net and coble. In short, the modes of fishing on the coast, which are vested in the Crown, are those in which the use and possession of the coast is essential to the operation.' Therefore, when it is said that the Crown has also the exclusive right of fishing salmon in private rivers and streams, it must be understood with this limitation, that it is only such right of fishing as can be exercised by other modes than angling or rod-fishing, for the riparian owner has always the right of rod-fishing for salmon as well as for other fish, as an incident of his right of property. 2 Indeed, rod-fishing for salmon is a distinct and independent right, and no length of user of it will found a right of salmon fishing with nets, &c., even though there is a grant cum i^iscationibus? Salmon Fishinff must he derived from Crovm. — The leading principle of the common law, accordingly, is, that the right of salmon fishing by net and other means than angling must be derived from the Crown. The grant 1 Gammell v. Commissioners of Woods and Forests, 3 Macq. H. L. C. p. 454. 2 Bell's Pr. § 671. BuJce of Sutherland v. Ross, 14 S. U. 960; Guthrie V. Ihiiibar, 26 .June, 1855. 3 Milne v. Smith, 23 Nov. 1850, 13 D. B. M. 112. CROWN GRANT OF SALMON FISHERY. 17o may be either express — cum piscationibus salmonmn, or it may be general — cmn iJiscationihus only, provided in the latter case the possession under the grant has been of salmon fishing, for the user interprets and gives precision to what would otherwise be an indefinite right, and shows what was meant by the grant. The one kind of grant is quite as effectual as the other, if possession has accompanied the general grant. Hence a general grant of fishing, coupled with possession of salmon fishing, will prevail against a later express grant. ^ A Crown grant of cruive fishing has also been held good, though cruives are prohibited in some places by statute,- and cruive fishing has been held to be in- cluded in a grant of coble fishing, if followed by prescriptive possession of cruives.^ So dams have been recognised as legal if prescriptive possession has existed.* Tlie kind of possession required under a general grant from the Crown cum imcatioiiihvfi, in order to establish a right of salmon fishing witli net and coble, must be fishing with net or coble, or some kind which includes it. Thus, proof of mere rod-fishing for any length of time will not set up the right.^ But a practice ^ D. of Quccnsberry v. V. Stormont, M. 14251 ; Littlcjohn v. Stratton, 2 Paton, Ap. 19. ^ Grant v. D. Gordon, SI. 14297, 3 Paton, Ap. 679 ; Johnston v. Stotts, 4 Paton, 274. 3 Marquis of Inverness v. Buff, M. 14257. * Arhnthnot v. Seott, 4 Paton, 337 ; Scott v. Gillies, 5 Patou, 750 ; Robertson V. Mackenzie, M. 14290. 5 Milne v. Smith, 13 D. B. M. 112 ; D. SiUherlandv. Ross, 11 June, 1836, 14 S. D. 960. 176 FISHERY LAWS OF SCOTLAXD. for forty years and upwards of fisliing- with cairn- nets in the Tweed was held sufficient, because in the statute affecting the Tweed that mode of fishing was recognised as legal, if the net was attached to the banks, and, moreover, in the user the opponent's banks were openly used, which was the characteristic of the fishing by net and coble. ^ So mere fishing by rod and spear, or by hand-nets, will not suffice to set up a claim to fish by net and coble. If the practice is iUesal, no length of time can sanction it.^ Mode of Fishiiig at Covimon Law in Rivers. — It is difficult to ascertain the common law of Scotland as to how far one riparian owner can exercise his skill and industry as well as avail himself of fixed machinery. Probably the only limit is that which is imposed by the maxim, sic utere tuo vi alicmim nan Imclas. But such questions have not been left to the operation of the common law, for various ancient statutes have been passed which have given rise to a kind of secondary common law, and the result is that it is illegal to resort to any unusual method of catching the fish. Yet mere diligence or continuity of practice with the ordinary methods cannot be interfered with, though the real effect of that may be much the same as if some ex- peditious machinery or apparatus were invented which would have the effect of catching in an hour as many fish as the ordinary method would do in twelve hours or a week. If the party, for example, in the lower part 1 Raifisay v. D. lioxbimjh, 9 Feb. 1848, 10 D. B. M. 661 ; Chisholm V. Fraser, M. Ap. 14302 ; Sutherland v. Boss, 11 June, 1S36. * Mackenzie v. Henton, 2 D. B. M. 1078. COMMON LAW AS TO SALMON. 177 of a river uses all the diligence lie can in a lawful way, there is no common law or statute law to prevent him from catching every fish that attempts to ascend the river. The limitations on his power to do so arise from the habits of the salmon, and the limits to human .skill and dexterity. It cannot he said that no improvement is to he allowed in the old-established mode of using the net and coble, nevertheless the question always comes round to this, Is the alleged practice substantially different from that of net and coble ? '^ Common Law as to Salmon, how far superseded hy Statute. — As regards the question how far the statutes and common law go in the way of restriction, Lord Neaves - says : " It is perhaps not easy to determine how far the old Scottish statutes as to salmon were intended merely to provide for the free passage of the fish, and the preservation of the breed, or were also designed to enforce a system of fair play among the several and successive heritors of fishings in the river. It may probably be thought that there was a double object in view ; and it seems at least to be settled that any co-heritor of fishings in a river has a title and interest to object to the use of any illegal mode of fishing by any other heritor. Nor does it seem to be of any im- portance whether the illegality alleged arises from the express provisions of the statutes, or from the principles of common law, or even from that kind of common law which has been said in Scotland to spring up from the general import and tendency of the older statutes, 1 See Hai) v. Provost of Perth, 35 So. .Tur. 4(53. * Hay V. Mag. of Perth, 20 Dec. 1861. N 178 FISHERY LAWS OF SCOTLAND. where tlieir provisions are not literally sufficient to reach the case. There seems with respect to salmon fishings in a river to be such an amount of common interest in the several proprietors, as to give a title to any one of their number to challenge the operations of another, when conducted in a manner which the law does not sanction."^ So Lord Corehouse thus stated the general effect of the statutes : 2 " It is settled law that with the exception of cruives and yairs, every barrier or permanent erection placed in the channel of a river to obstruct salmon in ascending the stream, is illegal, whether the immediate object is to prevent their passage altogether, or to impede or delay it, so that they may be more easily taken below. Some of our statutes regarding this sub- ject are loosely and imperfectly expressed, applying in words only to the illegal modes of fishing practised at their dates. But the evident object of all of them is that which has now been stated. Accordingly, it has been recognised as such in various cases, and effect has been given to it uniformly. To mention one example, though none of the statutes is expressly appli- cable to stake-nets, which are essentially different from the old yairs, the Court had no hesitation in finding that those nets fell under the prohibitions. Indeed, 1 Tliesc old Scotch statutes are 1424, cc. 10, 11 ; 1427, c. 6 ; 1429, c. 22; 1457, c. 85 ; 1469, c. 38 ; 1477, c. 73 ; 1489, c. 15 ; 1503, c. 72 ; 1535, cc. 16, 17 ; 1563, c. 68 ; 1579, c. 89 ; 1581, c. Ill ; 1685, c. 20 ; 1696, c. 33 ; 1698, c. 3 : and the recent Scotch Sahnon Fishery Act does not exi)ressly repeal the old statutes, and therefore they are in force so far as not inconsistent witli the latter. 2 Grant v. McWilUam, 10 D. B. M. 666. COMMON LAW AS TO SALMON. 179 the jrcncval rule has been repeatedly hiid down that lishiii,-;- hy incaiis of any fixed machinery, or apparatus wliatever, or in any way except by net and coble' is illegal" ^ Result of Statutes and Common Law. — The result of these ancient statutes, and of the decisions, was thus authoritatively stated by Lord Westbury, L. C. after an elaborate review,^ to be as follows: "The principles which these Acts embody, and the objects which the ' "The common law, "says Hope, h.S.QARaiimtijw D. of Ruxhuryh, 10 D. B. M. 669) "will reach all kinds of obstmctiou in and across the river to the run of salmon ; and all practices either destructive to the breed of the salmon, or so noxious to their tastes and instincts as to deter them from ascending higher than suits the interests of the ])artj' using such practices {e.g. the sheet covered with pitch). But modes of fishing not obstructing the passage of the salmon, and not noxious, the common law will not reach or put down." "The common law," says Lord Dcas (//«// v. Provost of Perth, supra), "construed a grant of salmon fishing in a river as limited in respect of the mode or modes of fislung ; and if limited at all, it is easy to see how it must, almost of necessity, have come to be held, as I think it has been, from the earliest times downwards, that the limita- tion was to the ordinary mode or modes of lishing in such rivers as those to which the grants were applicable. Nothing more was under- stood to be authorized by the general gi-ant. All unusual modes of lisliiiig reipiired special gi-ants or possession suflicicnt to presume such grants, and the main object of the statutes was to remedy abuses which had ai-isen from these special grants or presumed gr;ints, but certainly not to infringe upon the common law in a wrong direction, by enabling the holders of general grants to fish in any way, however unusual, not struck at by the statutes. It is impossible attentively to read these statutes, penal throughout, and to lu)ld that they form the whole law api>licable to the ditlerent modes of salmon hshing in Scot- land. They may serve to show the spirit of the common law, but they ilo not exclude or supersede the common law, as is evident from many of the most authoritative decisions in the books which are not confined to the enforcing of these enactments, as they must have been hai>om v. Litles, M. 14282 ; Chrmt v. McWilliam, 10 D. B. M. 666 ; stake-nets and toot-nets — Carnegie v. Ross, 7 S. D. 284 ; I>al- gleish V. B. Athole, 5 Dow, 282 ; Graham v. Dixon, 6 Paton, 163 ; D. of Athole V. Wedderburn, 5 S. D. 153 ; dykes, Cunningham y. Taylor, Hume, 715 ; yairs, Fraser v. Duff, 8 S. D. 14, 5 W. S. 57 ; see Murray v. E. Selkirk, 2 S. D. 106 ; stent-uets fixed to an anchor in the stream — Colquhoun v. Mag. of Dumbarton, 4 Paton, 221 ; Mackenzie V. Houston, 25 May, 1830, 8 S. D. 796 ; or nets fixed to a stone — D. Qxieensberry v. M. Annandale, M. 14279 ; Coble Fishers of Don, M. 14287 ; fixed machinery — Lord Gray v. Sime, 9 July, 1835 ; sights erected in alreoflinmuis, i.e. embankments to make the river shallow at places, so that the fish may be seen passing over, Forbes v. Smith, 2 S. D. 721, 1 W. S. 583 ; a dike of loose stones with a basket in the middle, Fife v. Gordon, M. Ap. 14304 ; cairn-nets (except in the river Tweed) and stream-dykes. Grant v. McWilliam, 10 D. B. M. 666 ; nets in combination with stakes fixed in the alveus of the river, Colqu- Iwun v. D. Montrose, M. 14281, 14283 ; cruives sheeted with pitch, Carnegie v. Mag. of Brechin, M. 14288. So also jilacing a row of loose stones, not of any considerable size, in the bed of the river, and not across it, but merely 07i the edge of a ])0ol, to facilitate fishing hj net and coble, is illegal. Trustees of Coi^land, 13 June, 1810, F.C. Even a spear cannot be used in combination with a permanent barrier, per L. Corehouse, Grant v. McWilliam 10 D. B. M. 667. At a part of the Frith of Forth, two miles wide at full tide, but the proper channel being only half a mile wide, an enclo.sure of fifteen acres was made by stakes and netting at a distance of a mile and a •[uarter from the river-bank, and so contrived that it opened as the tide flowed, and shut when the tide ebljcd, keeping in all the salmon that might have entered during the Mowing of the tide. Besides this, a line of netting 812 yards long ran obli<[uely down the river, and served to direct the fish to the enclosure, as well as to take the fish coming down with the ebb tide. The meshes of the net were twelve inches in cir- NET AND COBLE FISHING, 183 Net and Coble Fisliing for Salmon. — The law, there- fore, may now be taken to be settled, that the only oumforenec. The Tipper ])ropriotors having complained of tliis, it was iirged iu defence that the net did not destroy the fry, and that it did not oceu))y the whole of the proper channel of the river ; but the Court held it contrary to the statutes, chiefly the Act 1583, E. Kinnoul V. Hunter, M. 14301. So, where a net was used in the Tay, of which one end was fixed to the shore, and the other moored in the water, hut which had no poke nor hag to entrap the tish, and was drawn every tide, the Court granted an interdict iu these terms: — "Interdict from fishing l>y means of nets stretched orstented in the river Tay, having tlie one end made fast to the shore, and the other fixed hy a mooring in the water, and re- maining stationary in the water, so as to obstruct the passage of the salmon, and force or decoy them into courts or enclosures of netting, within which they are caught ; and further interdict from using any fixed machinery for catching salmon, or any other mode of fishing than the ordinarj^ mode by net and coble." — Gray v. Sime, 13 S. D. 1089. The law as to rivers is distinct from tliat as to the sea, and there is, in fact, a separate code apjilicalde to each. Hence the owners of fish- ings on a river form a separate kind of community. Thus, where a river proprietor near the mouth of the river threw a wear across the river without leaving slaps in it for the passage of salmon, as required by the statute 1696, c. 33, it was held, nevertheless, that the owner of fishings in the adjacent sea had no title to complain and enforce the Act against the river-proprietor, though he alleged that, owing to the formation of tliewear, salmon had forsaken his fishery, Munro v. Ross, 7 July, 1846, 3 D. B. JI. 1029. So a river-proprietor has a right to "■omplain of a dam-dyke which obstructs the fish of the river, though he himself has erected .similar obsti'uctious, Forbes v. Leys, 9 D. B. M. 933, 5 W. S. 384. Where the statutes prohibit stake-nets within flood-mark, or where the sea ebbs and flows, they are diflicidt of appli- cation to particular localities where there is a disputed boundary between salt and fresh water, Ross v. Duke of Sutherland, 3 Bell's Ap. C. 315, 6 D. B. M. 425. And the space between the highest flood- mark and the lowest ebb-mark is not always to be ailhered to, and was held inapplicable to the Kyle of Dornoch. — Ibid. Stake-nets are ])ro- hibited in the mouths of rivers, as well as in the rivers, Mackenzie v. //orne, 16 S. D. 1286, but are not illegal iu the sea, or places not close to tlie mouths of rivers, and not necessarily obstructing the fish there, .yfackenzic v. Syme, 8 S. I). 1013 ; Carnegie v. Ross, 7 S. D. 284 ; Car- negie v. Brand, 4 W. S. 641 ; E. Kintorc v. Forbes, 4 S. D. 641, 3 W. S. 261. 184 FISHERY LAWS OF SCOTLAND. lawful ways of fishing are by the rod either from shore or a boat, or by net and coble, the essential feature of which last kind of fishing is that the net be not fixed, but held in the hand during the operation of fishing. The ordinary mode of fishing by net and coble is as follows : — The coble or boat goes out with the net in it. The fisherman in the coble begins to drop or pay out the net at any point he chooses, embracing within his sweep as much of the stream as possible, or the whole breadth of the stream if he can do so. A person on shore holds a rope attached to one end of the net, and that rope is of such length as is suitable for drawing the net ; the man with the coble makes a sweep, and arrives at a point farther down the river, and in the meanthne the person who had hold of the rope at the point from where the coble started, makes his way by walking along the bank of the river, or in the river, till he reaches the point at which the net is to be drawn on shore, and then both ends of the net are drawn in. It is not, however, to be tolerated that no improve- ment is ever to be made in all the stereotyped clumsy forms of using the net and coble which prevailed in ancient times, and that this is not the law was recently determined. This point was solved by the Bermoney boat case in the river Tay.^ In 1821, a practice of fishing called the Bermoney system was introduced in the river Tay, which the other proprietors objected to as illegal. This system was as follows : — A pin, or stake, or other ful- 1 Hay V. Provost of Perth, 35 Sc. Jur. 463 ; 34 So. Jur. 115. BERMONEY BOAT FISHING. 185 crum, is fixed in the alvcus of the river, while another pin or fixture is fastened in the bank lower down the stream. Between these two points a rope is extended, along which a boat called a Bcrinoney boat is made to play. In connexion witli the boat thus attached is another boat, being an ordinary coble, which, starting from the Bermoney boat at the point or pin fixed in the stream, carries out the net for fishing, into the current of the river. The tow-rope of the net is left in tlic Bermoney boat, and is taken back to land in that boat in the line of the Bermoney rope, while the outer end of the net is carried down the stream by the coble at a convenient sweep, and then landed near the pin on tlic shore, where the net is hauled in. The effect of this mechanism is, that the proprietor of the fishing can start witli his fishing coble from a point farther o.ut in the stream than the fishers could gain by wading, so that in a tidal river the parties using tl)is method can fisli longer in each day at the same place than would otherwise be possible, being enabled thereby to fisli not only when the tide is out, but when it has risen so high that no one could stand in the water where the Ber- money boat can reach. The Bermoney boat is thus equivalent to a gangway or towing-path projected into the channel, and affording an advanced basis for thence reaching the more central points of the stream when these would l)e inaccessible M'ithout such a contrivance. The legality of this method of fishing was discussed in the Court of Session, when tliat court held that it differed essentially from the ordinary mode of net and coble, and therefore was illegal. But on appeal, the 186 nSIIEEY LAWS OF SCOTLAND. House of Lords reversed the decision, and held that the Bermoney boat system was in reality not substan- tially different from the net and coble, for the essential characteristic of the net and coble fishing was, that the net should be not fixed, but held in the hand of the fishermen during the operation, and the appliance of the Bermoney boat contained the same feature. Net-fishing as hehueen opposite Ilijmrian Owners. — Where fishing is by net and col)le, it is the common practice, which parties on both sides have an interest to act on and preserve, that the sliot from either side is run out beyond the centre before the net is drawn in again to the side.^ This is, however, not a legal right, and cannot be insisted on by either of the opposite pro- prietors, except as matter of nmtual accommodation. Lord Medwyn observes : ^ " Although I believe that the arrangement as to the alternate shots may be held universal, as the only mode of carrying on fishings situated opposite to each other with the requisite ad- vantage and equality, and without constant squabbling and broach of the peace, I cannot say that I would hold it a legal right to be enforced by a court of law ; nor will it give any right to the one party to fish within the bounds of the opposite fishing, except for the net-fishing alone :" and as to rod-fishing, the learned judge thought the same was true. In a prior case, however, Lord Craigie said \^ " Where a party has a right of fishing, I conceive he is entitled to shoot his nets quite across 1 Milne V, Smith, 2.3 Nov. 18.50. ^ Milne V. Smith, '23 Nov. 1850, 13 D. B. M. 121. ^ Ashburton v. Mackenzie, 7 S, D. 849. RIGHT OF FISHER TO USE BANKS. 1 87 the river, and that it is an accessory of this right that he may draw his nets on tlie Lands ex advcrso of those from which he lias tlie right to fish ; " and other Judges seemed to concur, where there were two parties having the riglit to iish the river togetlier. Pioliahly imitual convenience will lead to this arrangement seldom being objected to on either side. Right of FisJier to use Bnnls and Shore. — The right of fishermen to use the banks for the purpose of fishing is not the same as to the sea as it is in rivers. Tii an old case^ it was said, " They who are infeft in salmon fishings by the king have thereby the right and })rivi- Icgc to draw their nets to the nearest land, and slay their fish upon the same, and to infix pales and trees upon the land adjacent to the river where the sea ebbs and flows, and to dry their nets upon them, and mend their nets ; and albeit the said land be boundml to the river, yet the heritors thereof must leave so much ley nearest the river-side as is necessary for the foresaid uses of the said fishings, and must neither till it nor dig dikes upon it, which may hindi'r the commotlity of said fishing in manner aforesaid." In a recent case, however, a Judge of great experience said that " There is no common law right of the fishermen in the sea to draw their nets on shore above high-water niai'k, and it is doubtful even if user or custom for more than forty years will presume a grant or dedication by the owner." ^ And where such use was alleged to be founded on the statute 29 Geo. II. c. 23, it was held tliat the use was 1 Matlmvv. Blah; M. 14263. ^ Per Hope, L. J. C. Hoyle v. McCann, 10 Dec. 185S, 31 Sc. Jur. 63. 188 FISHERY LAWS OF SCOTLAND. confined to the limits specified, but was equally avail- able to all persons fishing on the coast of Scotland.^ Use of River Banks. — But as regards rivers, a party entitled to the salmon fishing is entitled to access to the banks on both sides of the river in order to exercise his right, though this must be done in a way the least oppressive to the adjoining heritors.'* Lord Craigie said : " " A grant of salmon fishing gives as effectual a right to the grantee to make use of the adjoining banks for fishing as a disposition of property gives to a dis- ponee. It is an error to call it a mere servitude, for it is properly an accessory to that which is itself property ; at the same time it must be used with discretion." The other Judges concurred. But a right to use the river banks for rod-fishing is not implied in the right of net and coble fishing." Thus where A had a general grant of salmon fishings in a river with net and coble, and B had the land adjoining one side thereof, but had no grant of salmon fishing, it was held that A had not an implied right to go on jB's lands to fish salmon with tlie rod.^ Boundaries of Fisheries. — It is often difficult to ascer- 1 Hoyle V. McCunn, 13 Dec. 1858, 31 Sc. Jur. 63. 2 Monmusk v. Forbes, M. 14263 ; Forbes v. Smith, 2 S. D. 721 ; Miller v. Blair, 4 S. I). 214. See also Mackenzie v. Sutherland, 2 W. S. 158. 3 4 S. D. 218. * Forbes v. E. Kintore, 4 S. D. 650. 5 GiUhrie v. Dunbar, 26 June, 1855, 27 Sc J. 511. Where a party had a grant of salmon fishing in and round an island in a river, and another party had a grant of salmon fishing adjoining his lands oppo- site, and the channel was too narrow to admit of bcth fishing without mutually encroaching, the Court held they had an alternate right of fishing. Gray v. Mo(j. of Perth, 1 Paton, Ap. 645. BOUNDARIES OF FISHINGS. 189 tain the precise boundaries of a grant of salmon fisliing, and litigation between adjoining proprietors tliiis arises. In construing grants of tlsliing, it lias been held that a grant by A, the owner of the whole fishings in the river, to B, who was the owner of lands of *S', on one side of the river, of the privilege of salmon fishing as far as tlie lands of S extended, and no further," was a grant of the fishing only on one side of the river, viz. next to S, especially where no possession of fishmgs on the other side had followed.^ A grant by the Crown to A of lands lying along part of the shore of a salt-water lake or bay, " with the fishing of salmon in the bay," is a grant of the whole of the fishing throughout the bay, opposite to the lands of other proprietors, though these have a general grant of fishings but no possession.- The only title which can compete with an express grant of salmon fishings in such a bay is a special title of the same order, or exclusive possession on a habile title for the yeai'S of prescription. Lord Moncriefl' observed, that it Avas an entire fallacy to suppose tluit a title of salmon fishing, expressly given over all the limits of a certain bay or river within specified bounds, does not give a right to fish vx adverso of another man's lands witliout proof of prescriptive possession of so fishing.^ Reincdy hdur.oi Oivners of Fisheries. — Any proin'ietor of fishings in a river has a good cause of action or title to challenge any other person who resorts to illegal modes of fishing. An upper propiietor may sue ' Macinroy v. Btikeof A (ho//, 11 Juiu', 1S58, 30 Sc. Jur. 665. - i]fnckcnzic v. Davidson, 27 Feb. 1841, 3 D. B. M. 646. 3 Ibid. p. 657. 190 FISHEKY LAWS OF SCOTLAND. a lower proprietor, or vice versa ;i but proprietors of salmon fishings in an adjacent river have no right to complain of heritors who have a grant of fishing by net and coble from the Crown exercising snch right by stake-nets.^ It frequently happens that one proprietor commences an action of declarator against another, and it turns out that his title is weaker than that of his adversary, in which case the action is dismissed.-'' And a tacksman or proprietor of fishings on a river above a certain place cannot insist, by an action of declarator, that a pro- prietor lower down has no right to fish ex adverso of his own lands ; in short, one who has no right at the same place cannot insist on a proprietor producing his titles so as to show whether the latter has it or not.* Remedy ly Inter did. — An interdict (or injunction) may be applied for in the local Sheriff Court, as well as in the Court of Session, though in the former case no suit is competent which resolves itself into a com- petition of heritable rights, or involves questions of title. Hence a party who produced title to the land adjacent to a loch, and alleged exclusive possession to the fishing therein, was held entitled to an interdict from the Sheriff' Court against one who fished there, for the petitioner only claimed a possessory right.^ An 1 Ei-.sk. 2, 6, 15 ; Colquhoun v. D. Montrose, M. 14283. 2 E. Kintore v. Forbes, 4 S. D. 641, 3 W. S. 261. 3 Lord Abcrcromhy v. M. Breadalbanc, 18 July, 1843, 5 D. B. M. 1389. ■< Mackenzie v. Houston, 6 S. D. 359, 8 S. D. 117, 5 W. S. 422 ; Mcu:kenzie v. Gilchrist, 7 S. D. 297 ; Sinclair v. Murray, M. 14277. •^ JohnstmicY. Gibson Craig, .5 Mar. 1862. Thu.s also A, who lias a Crowu charter c%im inscationlbus, and avers FISHING IN LAKES. 191 interdict may be granted against the use of any mode of fishing except by net and coble.^ On the granting of an interdict, an account will be ordered to be kept of the fish taken till the riglit is tried ;•* and if necessary, the Court will order landmarks to be put up to divide the fishings.' Fisliiiuj of Localiti/ LaiuU. — The salmon fishing in a river being a valuable right, capable of being let sepa- rately from the lands, forms a valuable item in the yearly rent of the estate with which it is connected, and hence where a settlement makes it necessary to com- pute the yearly rent of an estate, in reference to certain provisions made to a widow or children, the value of the fishings must be included as an item, whether they are, in fact, let separately or not.* Fishing in a Lake. — The right of fishing in a lake, of which two or more are joint owners or common pro- prietors, may be alienated by any of the co-owners, or possessiou, is entitled to interim interdict against B fishing salmon within the limits of the charter, who has lands hut no such title, though he avers immemorial possession, Ross v. Robertson, 14 Nov. 555, 28 So. J. 5. So the owner of a loch and the salmon may ohtaiu interdict against any of the public who trespasses for trout fishing, Montgomery v. Watson, 28 Feb. 1861, 33 Sc. J. 312. On the other hand, where A has a general grant cum piscationilms, which the pos- session has not extended beyond a certain point, he will not succeed in claiming the fishing beyond that point merely because his opponent's right is doubtful, Richardson v. JIai/, 12 Mar. 1862, 34 So. Jui-. 383. ^ Mackenzie v. Houston, 8 S. D. 796 ; D. Atholl v. Wcdderhurn, 5 S. D. 153. Gray v. Sime, 13 S. D. 1089. 2 E. Fife V. Mag. of Banff, 8 S. D. 137. 3 E. Goi-don V. E. Moray, 2 Patou, Ap. 78. * Leith V. Lcith, 5 June, 1862, 34 Se. Jur. 523; Menzics v. Menzics, 10 Jl-ir. 1852, 14 D B. M. 651, 33 Sc. Jur. 718 ; Sinclair v. Duffus, 5 D. B. il. 174 ; Macphcrson v. Macpherson, 1 D. B. JI. 794, 5 Bell's Ap. C. 280. 192 FISHERY LAWS OF SCOTLAND. subdivided, provided tlie co-owner and his alienees do not take a larger right than the co-owner was himself entitled to.^ Where one of two co-owners of a loch has not had an exclusive possession, he cannot interdict the other from fishing merely because the other's title does not expressly include fishings.*'^ 1 Mcnzics V. Macdonakl, 2 Macfi- H. L. C. 463 ; 28 Sc. Jur. 453. 2 Macdonald v. Farquharson, 14 Dec, 1836, 15 S. D. 259. SCOTCH SALMON FISHEKIES ACT. 193 CHAP. III. SCOTCH SALMON FISHERY ACT, 1862. MODERN ACTS GENERALLY — FISHERY DISTRICTS — FISUERY COMMIS- SIONERS — ANNUAL CLOSE TIME FOR SALMON FISUING — WEEKLY CLOSE TIME — ILLEGAL MODES OF FISHING — OFFENCES AS TO SALMON — SALMON-ROE — POISONING SALMON-RIVERS — DUTIES OF FISHERY COMMISSIONERS — FISHERY DISTRICT BOARDS — POWERS OF DISTRICT BOARDS — ASSESSMENTS BY DISTRICT BOARDS— SEIZURE OF FORFEITED ARTICLES — THREE OR MORE POACHING SALMON BY NIGHT — PROCEDURE TO RECOVER PENALTIES — POACHERS OF SALMON GENERALLY — APPREHENSION OF POACHERS — PROCEDURE AND PENALTIES FOR POACHING. Modern Acts Generally. — The salinou fisheries of Scot- land long remained under the protection of the ancient statutes; but, in 1828, an Act^ for the preserv^ation of the salmon fisheries in Scotland was passed, and an Amending Act in 18-i4<.2 Though these Acts have not been expressly repealed by the recent Salmon Fisheries (Scotland) Act, 18G2, 24 & 25 Vict. c. 97, which came into operation on 1st January, 1863, they have been impliedly repealed almost entirely. By this last Act,^ the English Sahnon Fisheries Act, 1861, will be applied, ^ 9 Geo. IV. c. 39. 2 7 & 8 Vict. c. 95. * See the Appendix. 194) FISHEEY LAWS OF SCOTLAND. after 1st January, 1865, to the salmon fisheries in the Solway Frith, situated in Scotland, and to the rivers flowing into the same, though the offences will be punishable under the Scotch Act.^ The Tweed still remains subject to separate Acts, called the Tweed Fisheries and Amendment Acts ; but three enactments in this Act extend to the Tweed, as afterwards noticed. Fishery Districts. — Each river in Scotland which flows into the sea, and its tributaries and the sea-coasts adjoining, are to form a fishery district. ^ Fishery Commissioners. — The Home Secretary has power to appoint three Commissioners, with a salary and travelling expenses, to continue in office not longer than three years.^ Their duties are : — 1. To define the limits of each river and estuary from the sea.^ 2. To fix the limits of the Solway Frith. 3. To fix the limits of each fishery district. 4. To fix a point on each river below which are the lower proprietors, and above which are the upper proprietors. 5. To fix the dates of the annual close time for each district. 6. To make general regulations as to the due observance of the weekly close time, the construction of cruives, the construction and alteration of mill-dams, or lades, or water-wheels, the meshes of nets, and obstructions generally to the passage of salmon. But these powers are not to interfere with vested rights of salmon fishing legally existing.^ 1 25 & 26 Vict. c. 97, § 33. * Ibid. § 4. 3 Ibid. § 5. * The difliculty of doing so at common law was shown in the cas of Ross V. D. Suiherlrxnd, 3 Bell's Ap. 315, 6 D. B. M. 425. 5 25 & 26 Vict. c. 97, § 6. CLOSE TIME FOR SALMON. 195 Annual Close Time for Salmon Fishing. — The annual close time for every district shall continue for 168 days.^ It shall apply to every mode of fishing, except angling where the close time for angling in a district has been made to commence later and end sooner. ^ The annual close time fixed by 9 Geo. IV. c. 39 was only 139 days, and therefore an extension will become necessar}'.^ The annual close time for the Tweed is from 14th September to 15th February following.* The Commissioners have no power to reduce or increase the annual close time, but merely have the power, when they do determine, to fix the commence- ment.5 As regards, however, the annual close time for angling, they may alter it at discretion, provided always it commences not earlier nor ends later than the close time as to other kinds of fishing.^ Weekly Close Time far Salmon. — The weekly close time, except for rod and line, shaU be from 6 p.m. on 1 25 & 26 Vict. c. 97, § 7. = Ibid. § 8. • 3 The Commissioners are in course of preparing bye-laws for the various fishery districts, and the close time proposed for net-fishing, &c. is from 27th August to 10th February inclusive ; but in some rivers the period likely to be adopted is from 10th September to 24th Fcbniary inclusive. In order to ascertain with certainty what period is fixed for each district, reference must be made to the Edin- hurcjh Gazette, or the sheriff clerk of the county, or the Fisheries Inspector's office. * 22 & 23 Vict. c. Ixx. § 6. 5 25 & 26 Vict. c. 97, §§ 6, 7, 9. 6 Ibid. §§ 6, 8. The Commissioners' bye-laws, in course of being prepared for each fishery district, are likely to fix the angler's close time as commencing on 16th October or 1st Novemlx>r, or intermediate days. But the angler must in each case, for certainty, refer to the Edinburgh Gazette, or the sheriff clerk of the county, or the Fisheries Inspector's oflice. 2 196 FISHERY LAWS OF SCOTLAND. Saturday, to 6 a.m. on Monday.^ The time must not be less than thirty-six hours, but the Commissioners may, on the application of the district board, or of any two proprietors of fisheries in the district, vary the period, i.e. vary the hour at which weekly close time shall commence.2 Illegal Modes of Fishing. — Nothing in the Salmon Fisheries (Scotland) Act, 1862, shall make legal the fishing, at any place, or by any mode, prohibited by any prior statute.^ This section applies to the Tweed.* See post, " Poaching of Salmon." Offences as to Salmon. — The statute (sect. 11) enu- merates a variety of offences, which are made subject to a fine of U. and 21 per fish caught illegally, besides forfeiting, at the discretion of the magistrate, every boat, net, rod, line, or other article used in fishing. Such offences are, fishing in close time, selling fish in close time, catching or possessing unseasonable salmon, or young of salmon, &c. According to this enactment, a penalty is incurred for fishing with rod and line during the angler's annual close time, when the Commissioners by their bye-laws have prescribed a time.^ In England, rod-fishing for salmon is illegal only in November, December, and January.^ Before a person can be sure wdiat are or are not offences under this section, he must find out whether the Commissioners have published any bye-law 1 Ibid. § 7. 2 25 & 26 Vict. c. 97, § 7. 3 Unci. § 10. 4 iind. § 34. « The bye-laws of the Commissioners on the subject are alluded to ante, p. 196, ^ Ante, p. 152. OFFENCES AS TO SALMON. 197 as to close time, size of net-meshes, and otlier matters indicated in this and the sixth sections. During the weekly close time, an offence is committed by angling for salmon on Sundays ; it is not so in England/ nor on the Tweed. ^ The clause as to selling salmon in close time is somewhat unreasonable, for it requires a party to ascer- tain not only the beginning and ending of close time in his own district, but in all the other fishery districts of Scotland — an inconvenience, however, which will probably be neutralized by the Commissioners making close time nearly uniform throughout Scotland, It is to be observed, also, that it is only the selling or offering of salmon for sale during close time that is an offence, and hence the party buying sabnon in close time com- mits no offence, though the purchaser of salmon in close time is in England subject to a penalty. ^ It will be no offence for persons in Scotland to sell in the Scotch close time salmon procured from England or Ireland or abroad, provided he is ready to prove that he procured them from those places. It is also to be observed, that the angler, whose close time is shorter than that of the net-fisher, is nevertheless prevented from selling the fish angled durino- tlie longer close time. It is the same in England.* It is no offence (as it is in England) ^ to buy or sell unseasonable salmon, provided the party has not the fish in his possession. 1 See ante, pp. 133, 157. - See post, Ch. V. 3 See ante (§ 19), p. 153. •» See ante, p. 154. ^ See ante, p. 14i). 198 FISHERY LAWS OF SCOTLAND. No offence is committed by allowing the young of salmon to go aside into canals, reservoirs, &c., nor is it the duty of any owner to erect gratings, &c., as in Ens:land ; -^ in order to do so the district board must have the consent of all the river or estuary proprietors, and even then the board has no compulsory powers over private property.** Salmon-roe. — All persons using, or possessing in order to sell, salmon-roe for fishing, incur a penalty of 2/., besides forfeiting the salmon-roe.^ Possessing or using salmon-roe for scientific, or other purposes than fishing, is no offence. Also using the roe of other fish for fishing is no offence in Scotland, though it is so in England.* This enactment applies to the Tweed fishery.^ Poisoning Rivers. — It is an offence to cause or permit to flow into salmon rivers poisonous matter, or saw- dust.*^ The common law as to the right of riparian owners to discharge foul matter into streams is sub- stantially the same as in England,^ but the prescrip- tive period for acquiring an absolute right to poison the waters is forty years.^ There is also an enactment in the Nuisances Kemoval 1 AnU, p. 149. 2 See § 22. » 25 & 26 Vict. c. 97, § 12. See the similar section of the English Act, ante, p. 144, and Appendix. * Ante, p. 145. 5 25 & 26 Vict. 0. 97, § 34. « Ibid. § 13. ^ See ante, p. 138. 8 Miller, M. 12823 ; Russell, M. 12823, 3 Paton. 403 ; Darnie, 4 S. D. 167 ; Dun, 15 S. D. 858. Montgomerie v. Findlay, 15 D. B. M. 853 ; Ewcn v. Guthrie, 10 D. B. M. 513. DUTIES OF FISIIEEIES COMMISSIONERS. 109 Scotland Act/ as to fouling rivers with gas wasliings, dye-stuffs, &c. Duties of Fishery Commissioners — The Fisheries Com- missioners are bound to visit and report on each river and estuary of Scotland, after giving notice by adver- tisement in the local newspapers." They were also bound, before 1st January, 1863, to make bye-laws, fixing the limits of estuaries, and the point of each river where upper proprietors are divided from the lower proprietors, due notice being given in the local newspapers, and after the bye-laws are made, and approved by the Home Secretary, they shall be published in the Edinhurgh Gazette, and other newspapers to be appointed by the Home Secretary.^ The Commissioners are also to make bye-laws as to the other matters specified in the sixth section of the statute, such as the close season, the use of cruives, &c.* but the time for doing so has been extended by 26 & 27 Vict. c. 50, § 1, until 1st January, 18G6. Before making such bye-laws, the Commissioners must give due notice to each district board, so as to allow the latter an opportunity of being heard on the subject ; and when the bye-laws are made, they are to be sent to the sheriff clerk, who is to publish them in the local newspapers. An opportunity of four months is given to persons interested, to make representations to the Home Secretary, and when approved, bye-laws are to be published in the Edinhurgh Gazette, and such other modes as the Secretary of State may direct. One of these other modes ought to be the painting of 1 19 & 20 Vict. c. 103, ^ 19. - Il.i.l. § 14. a Ibid. § 15. * See Appendix. 200 FISHERY LAWS OF SCOTLAXD. these bye-laws on a board, like a table of turnpike tolls, which may be fixed in the market-place, or other public place of resort, in all the towns and villages of the dis- trict, so that random fishermen, as well as residents, may have a ready mode of ascertaining points of such essential importance in the pursuit of fishing. The Fishery Commissioners have power to compel the attendance of witnesses before them, in the same way as courts of justice.^ Fishery District Boards. — Within three months after the bye-law of the Commissioners has fixed a district, the roll of proprietors is to be made up by the sheriff clerk, who is to call a meeting.^ The qualification of an upper proprietor is the property of a fishery valued at 20Z. and upwards, or of half-a-mile of frontage to the river or a tributary thereof, with a right of salmon fishing ; the qualification of a lower proprietor is the property of a fishery valued in the valuation roll at 20Z. and upwards. The sheriff is to decide the quali- fication in case of dispute. The upper proprietors are to meet and elect not more than three of their num- ber to be menfbers of the district board, and the lower proprietors are to do the same. In voting on this occasion, any proprietor of a fishery valued at more than 500Z. is to have one vote for every 500?. and a fraction of that sum, but not more than four votes in all. These two sets of elected members, together with the largest proprietor in value, who is the chairman, with a casting vote, constitute the district board. The board is to meet within ten days after their first elec- 1 Ibid. § 17. 2 25 & 26 Vict. c. 97, § 18. FISHERY DISTRICT BOARDS. 201 tion.'i And tlien the sheriff clerk is to give notice of the time of tlie first meeting, which may be hehl any time within twenty-one clays after the first election.^ If in the upper or lower division the number of pro- prietors is less than three, then the board is to consist of an equal number from each division, presided over by the largest proprietor as chairman ; if the largest proprietor be the sole upper or sole lower proprietor, . he is to have two votes, and if there be only one pro- prietor in a fishery district, he is to have all the powers of a board.^ A mandatory, appointed in writing, may act for the proprietor.'* The sheriff clerk is to be paid a reasonable remuneration by the district board.^ The district board may sue and be sued in the name of their clerk (who need not be the sheriff clerk, there being power to appoint any other person clerk).*^ If the board consist of more than six members, three shall form a (|Uoruni ; if less than six members, two shaU form a quorum.^ The district board continues in office for three years, but the members may be re-elected.^ Powers of District Board. — The district board is to have powers subordinate to the Fishery Commissioners, and these are confined chiefly to details of administra- tion, such as appointing and removing constables, water- bailiffs, watchers, and similar officers ; they may make arrangements with other district boards to keep a staff of officers in common, or with the police committee i 2.') & 26 Yict. c. 97, § 22. ^ 26 & 27 Vict. c. 50, § 2. 3 Il.i.l. § 19. •» It'id. § 20. ^ Ibid. § 21. « Il.id. § 22. ' Ibid. ^ 22. 8 Ilnd. § 24. 202 FISHERY LAWS OF SCOTLAND. of the county, for the payment of extra constables. But though the district board may " alter from time to time regulations for the preservation of the district fisheries," such regulations, besides requiring for their validity the approval of the Secretary of State, shall not interfere with any vested right of property, and shall not authorize any encroachment or trespass on private property.^ The approval of the Home Secretary, though necessary, does not establish the validity of such regulations, for that depends not on the views of the Home Secretary, but upon the law of the land. The district board, for example, could not alter the close time, nor the size of the meshes of nets, nor authorize any of their officers to enter the land of any proprietor for detective purposes. "Whether a particular proprietor is entitled to fish in a particular way, is a question of law, and not within the scope of the determination of any district board, or even of the Commissioners themselves, whose powers are subject to the same limit by the sixth section. The validity of a bye-law is often a nice ques- tion of law ; and any person prosecuted for a penalty imposed by any bye-law, which penalty cannot in any case exceed 21? may set up as a defence that the bye- law is illegal. Assessments hy District Boards. — The mode in which a district board raises the funds to pay the sheriff clerk, their own clerk and officers, is by assessing the pro- prietors of fisheries according to their value in the Valuation Itoll.^ If a fishery is not valued in the J 25 & 26 Vict. c. 97, § 22. ^ ji^ij, g 25. 3 Ibid. § 23. SEIZURE OF FORFEITED ARTICLES. 203 Valuation Eoll, but the proprietor claims to vote in tlie election of members of the board, then his fishery shall be taken to be of the value of 20^. In assessing the fishery proprietors the board has all the powers of Com- missioners of Supply, and are to proceed in the way pointed out by 20 & 21 Vict. c. 72 : that is to say, the assessment is payable for the period from Whitsunday to Whitsunday, and may be levied either on the pro- prietor or tenant ; but if the tenant pay the assessment he may deduct the amount from his rent.^ A summary warrant may be issued for recovery of the assessments^ Any dispute between the fishery board and the party assessed, as to the assessment, is to be settled by the sheriff on a written petition of either party, and his decision shall be final.^ Seizure of Forfeited Articles. — Wherever the Salmon Fisheries Act directs any net, rod, line, or other article to be forfeited the same may be seized by any constable, water-bailiff, watcher, or officer, and the sheriff or Justice may order it to be destroyed or sold, and the proceeds paid to the clerk of the board.* The articles which are declared to be forfeited are " every boat, net, rod, line, or other article used for taking salmon, and found in possession of the party at the time of the committing of the offence." The property is not for- feited until a conviction takes place ; but an inchoate forfeiture takes place when the offence is committed, and power is by the Act expressly given to certain persons to seize the above articles of property in certain circuni- ^ 20 & 21 Vict. c. 72, § 29. = Ibid. § 32. 3 Ibid. § 33. •« 25 & 2(3 Vict. c. 97, § 27. 204 FISHEEY LAWS OF SCOTLAND. stances. The power being in derogation of the common law must he strictly construed. It is only constables, water-bailiffs, watchers, or other of&cers appointed by the district board who can seize the things, and no other persons can do so. Even the owner or lessee of the fishery has no power to make the seizure. More- over, the articles can only be seized on the spot where the offence is being committed, and when they are in the poacher's possession, and hence if the poachers escape no seizure can be made.^ The salmon caught are not forfeited by this Act ; but by the 9 Geo. IV. c. 39, § 2, if salmon are caught during close time, whether by a poacher or not, they are forfeited. If the Justice before whom the offender is brought, or sheriff, so order, the forfeited property may be destroyed or sold; but if he make no order, it belongs to the constable, &c. seizing. Three or more Poaching Salmon at Nujht. — \Vhere three or more persons in concert illegally fish by night, i.e. between the expiration of the first hour after sunset and the beginning of the last hour before sunrise, in any river, or estuary, or the sea, they are liable to a fine of 5^. each, or to imprisonment for three months, according to the discretion of the Justice or Sheriff.^ Tliis enactment applies to the Tweed Fisheries.^ The enactment resembles a similar enactment as to poaching game by night.^ Procedure to recover Penalties. — The clerk of the dis- 1 See Paterson's Game Laws, as to similar enactments, Gi, 94. 2 25 & 26 Vict. c. 97, § 27. 3 Ibid. § 34. ♦ See Paterson's Game Laws of the United Kingdom, p. 101. POACHERS OF SALMON. 205 trict board or any other person may prosecute offences under this Act, and the Sheriff or two Justices of the place where the offence was committed have jurisdic- tion. Tlie convicted party may appeal, on finding security for costs and penalty, to the Court of Justiciary, under 20 Geo. II. c. 43, but there is no advocation allowed.^ The Sheriff may enforce S[)ecific performance of any bye-law of the Commissioners or district board." The party proceeded against may be ordered to pay the prosecutor's costs.^ Tlie penalties shall be paid to the clerk of the district board if he is the prosecutor, towards defraying the boar^l's expenses ; and, if other- wise, to be applied as the Justices or Sheriff shall direct. Poachers of Salmon. — The general offence of poaching salmon is punished by 7 & 8 Vict. c. 95, § 1, which, not being superseded by any similar enactment in the Salmon Fisheries (Scotland) Act, 1862, is still in force.^ 1 2.5 & 26 Yic-t. c. 97, § 28. 2 ji,;,! § 29. 3 Ibid. § 30. 4 l],i,i. § 32. ' "If any person not haviug a legal right or permission from the proprietor of the salmon fishery shall from and after the passing of this ,\et wilfully take, fish for, or attemiit to take, or aid or assist in taking, fishing for, or attempting to take, in or from any river, stream, lake, watci-, estuary, lirth, sea loch, creek, bay, or shore of the sea, or in or upon any part of the sea, within one mile of low-water mark, in Scot- laud, any sahuon, giilse, sea trout, whitling, or other fish of the salmon kind, such person shall forfeit and pay a sum not less than ten shillings and not exceeding five pounds for each and every such offence, and shall, if the Sheriff or Justices shall think proper, over and above, forfeit each and every fish so taken, and each and every boat, boat tackle, net, or other engine used in taking, fishing for, or attempting to take fish as aforesaid ; and it shall be lawful for any person employed in the execution of this Act to seize and detain all fish so taken, and all boats, tackle, nets, and other engines so used, and to give in- 206 FISHERY LAWS OF SCOTLAND. The statute 7 «& 8 Vict, was itself an amendment of the 9 Geo. IV. c. 39, § 3, which being defective was im- pliedly repealed by it. By this enactment, of 7 & 8 Vict., a person who fishes in another's fishery for salmon incurs a penalty " unless he has a legal right or permission." In order to ascertain whether he has a legal right it is to be recollected that though all salmon fisheries in Scotland belong either to the Crown or to a grantee of the Crown, that doctrine applies only to salmon fishing with the net and coble and other higher rights. But as regards rod-fishing no grant of the Crown is necessary, and therefore it i" seems to follow that it is one of the riparian rights. If so, then whoever is a riparian owner at the point in question has a legal right to angle for salmon there, though the net and coble fishing belongs to the Crown and its grantees. If there is no legal right in the above sense, then permis- sion from the proprietor is necessary not only to fish salmon with the net and coble, but even with the rod. formation thereof to tlie Sheriff or any Justice of the Peace, and such Sheriff or Justice may give such orders concerning the im- mediate disposal of the same as may be necessary." — 7 & 8 Vict. c. 95, § 1. " The regulations as to the recovery and application of penalties and the apprehension of offenders, and all other enactments and provisions of the Act 9 Geo. IV. c. 39, shall extend and apply to what is herein above enacted, and this Act shall be construed and applied in the same manner and in all respects as if it had formed part of the said recited Act."— Ibid. §2. "Nothing herein contained shall be construed as depriving any pro- prietor of salmon fishery of any right now by law vested in such pro- prietor to prevent any person from fishing either within or beyond the limits specified in the Act." — Ibid. §3. " Nothing herein contained shall affect the rights or propeiiy of the Crown. " — Ibid. § 4. APPEEHENDIXCJ POACHERS OF SALMOX. 207 The permission need not be in writing, Init must be clearly proved.^ And it must be obtained beforehand from the owner of the fishery, for in a similar enactment as to the Game Laws ^ it has been held that no ex post facto sanction or ratification by the o^vner after he hears of the illegal fishing will purge the offence.^ Therefore, where a person goes to fish in another's fishery for salmon without previously obtaining express permission from the owner, however well-founded may be his belief that the owner if asked would not refuse, commits this offence." It is true that in 1 & 2 Wm. IV. c. 32, § 30, the word " wilfully " is not inserted, but that word in reality means only knowingly, i. e. with knowledge that the fishery belongs to another, and therefore the enact- ment is substantially the same as the present. The penalty, however, is only incurred in rivers, streams, &c. and not in the sea, except it be within one mile of low-water mark. Therefore, a person may fish with nets for salmon at a greater distance than a mile from the sea-shore without committing any criminal offence under this section, though he may be liable in a civil action of damages to the proprietor. According to the construction given to similar enact- ments a person can only be convicted of one offence on one day, however numerous may be the acts of poaching on that day.^ Apprchmsicn of Poachers of Salmon. — Any person ^ Easton v. List, 1 Brown, Just. C. 95. * M & 2 Wm. IV. c. 32, § 30 ; Paterson's Game Laws, p. 56. s Mordcn v. Porter, 7 C. B. N.S. 88. * Ibid. * See ante, p. 77, 145. 208 FISHEKY LAWS OF SCOTLAND. may, without warrant, seize and detain a poacher of salmon.^ In order to justify the apprehension, the poacher must be found in the act of committing the offence, and on the spot where he offended. If he escape from the spot, and an interval of time has elapsed, the power to apprehend is gone, though it seems a poacher may, if found committing the offence, and then taking to flight, be pursued and seized jlagrante delicto. When seized the poacher must be taken before a Justice of the Peace with reasonable promptitude, and the apprehender may leave the poacher in the hands of the constable while he goes in search of the Justice, and no written plaint or information is necessary in such a case.^ Procedure and Penalties for Poaching. — The prose- cution for penalties must be commenced within six calendar months after the offence was committed ; and a conviction under the statute is complete satisfaction, and a bar of other proceedings.^ A Justice may act though interested in the fishery, if he or his tacksmen are not parties to the proceeding.'^ The penalty for poaching salmon shall go to the informer.^ The party 1 " And be it further enacted, That it shall be lawful for any person, without any warrant or other authority than this Act, hrcvi mcmu, to seize and detain any person who shall he found committing any offence against this Act, and to carry such person before any Justice of the Peace or other Magistrate, or to deliver such person to a constable, who is hereby required to carry such person before a Justice of the Peace or Magistrate, who shall forthwith examine and discharge, or commit such person until caution dc judicio sisti h -2 & 23 Viet. c. 70, § 8. 236 FISHERY LAWS OF SCOTLAND. lOs. and 21. for each fisli. But it is no offence to ha"ve or sell fish taken with rod and line between 15th Sep- tember and 30th November, and between 1st and 14th February inclusive.^ It may be observed that it is no offence to buy fish so illegally caught, provided the party has them not in his possession. It also appears that while on the Tweed an angler can sell his fish durinsj close time, he cannot do so in the other rivers of Scotland."'' Removal of Boats and Nets in Close Time. — On or before 17th September occupiers of fisheries must re- move their boats, nets, &c. except those used for angling, which may remain till 3d December.^ The penalty is 20/. and forfeiture of the boats, &c. If the boats, nets, &c. are not duly removed, a superintendent or water bailiff may seize and convey them away, and he may also at any time during annual close time enter on the fishery or fishing grounds, and without warrant search for boats, tackle, &c. concealed there, and if necessary break open doors to do so.^ So if nets, engines, or tackle are left in the river during annual or weekly close time the water bailiffs may carry them away, and the Commissioners may destroy them or return them to the owner.'' It shall not be lawful for any person other than an owner or occupier of a fisheiy in the river or otherwise entitled to fish for salmon therein, or having an exclusive right of fishing for salmon in any fishery beyond the river, or having a licence under the hand of 1 22 & 23 Viot. c. 70, § 10. a See ante, p. 197. 3 22 & 23 Vict. c. Ixx. § 11. 4 20 & 21 Vict. c. 148, § 48. 5 Ibid. § 49. TWEED FIXED NETS. 237 the clerk, to liavc in liis possession, within five miles from the river, any net or en<^ine of the description of those used for taking or killing salmon, &c. under a penalty of 20/. and forfeiture/ A search warrant may be oljtaincd on information on oath before a Justice or a Sheriii", and tlie water bailiff or constable may carry off all illegal implements so found.^ Feriy-boats are not to be used for fishing, under a penalty of 10/. and are to have the owner's name painted, under a penalty of 51.^ So private boats must have the owner's name painted thereon and numbered, and no boat which in the fishing season is generally and ordinarily used for fishing with nets shall be used for angling or rod-fishing ; offences against this section are punishable by a penalty of 5/. and seizure of the boat."* All boats used for fishing with nets are to be marked, so as to distinguish them from angling-boats and ferry-boats, under a penalty of 51. and seizure of the boat.'' Fixed Nets, Dams, &c. — Fixed nets and fixed engines are not to be allowed under a penalty of 20/., and 10/. per day, and 10s. per salmon so caught, and any two Commissioners may remove and take away such net or engine.*' But water-wheels and machinery for manu- facturing purposes are not to be affected by the Act.''' Mill-dams, dykes, wears, caulds, and other permanent obstructions shall be so constructed as to pennit the 1 20 & 21 Vict. c. 148, § 50. 2 ll.id. g 51. =» Ibid. § 52. ■* Ibid. § 53. « Ibid. § 51. 6 Ibid. § 55. 7 Ibid. § 61. 238 FISHERY LAWS OF SCOTLAND, free run of salmon in the ordinary state of the river. The Commissioners may cause the alterations to be made, and the expense thereof to be chargeable to the Commissioners if the dams, &c. existed before the Act, and to the owners if made after the Act. So rocks, stones, mud, and other obstructions in the river are to be removed by the owners of the soil or fishery.^ All cairns used for fishing with nets are to be removed.^ Hecks are to be placed in mill-leads with vertical bars three and a quarter inches wide, under a penalty of hl.^ Beating the Water. — Every person who beats the water or places, uses, or sets any white object or any net or other thing whatsoever, in, over, or across the river so as to prevent, or for the purpose of preventing, salmon from entering or from going up or down the river or any part thereof, or who in any other way or manner prevents or obstructs salmon from entering or going up and down the river shall, for the first offence, be liable to a penalty not exceeding 20/., and the net or object or thing so placed, used, or set may be seized and is forfeited.^ Stake and Bag -nets. — Stake-nets and bag-nets placed beyond the mouth of the river must be constructed and placed in conformity with the details given in the statute.® Size of Meshes of Wets. — No net is to be used in fishing the river of which the meshes shall be less than one and three-quarter inches from knot to knot (except 1 20 & 21 Vict. c. 148, § 56. ^ hm. % 57. 3 Ibid. §58. ■* IljiJ. §59. « Ibid. §60. ^ 22 & 23 Vict. c. 70, § 12. TWEED FISHING NETS. 239 lierring and shvimp-nets), under a penalty of 10/., and 10s. per salmon, and forfeiture of net and salmon.' Pout-nets or Rake-liooTcs. — Any person using a pout- net, rake-hook, or similar instrument to kill or take salmon, or having such in his possession within five miles of the river, incurs a penalty of 21., and lO.s. per salmon, besides forfeiture ; but scoop-nets used to take the fish out of stake or bag-nets are excepted.'* Wear-Shot net — Every person who shall shoot or work any wear-shot net in the river within the distance of thirty yards of any other wear-shot net already shot or being worked in the river before such last-mentioned net is fully drawn and landed, shall for every such offence be liable to a penalty not exceeding 5/.^* Leisters and Sjyears. — Every person who takes or kills salmon in the river by means of any leister or spear, or any such engine, shall for every such offence incur a penalty of 10/., and 10s. per fish, besides forfeiture.* So oveiy person who has in his possession, Mathin five miles from the river, any leister, spear, or similar engine of the description, &c. incurs a penalty of 2L and for- feiture." Poisoning River. — Every person who at any time lays or places in the river, or allows to fall or run or flow into the river any hot lime or refuse of gasworks or products thereof, or prussiate of potash, or any water in which green flax has been steeped, or any matter or thing which shall poison or kill any salmon or smolt 1 22 & 23 Vict. c. 70, § 13. a Ibid. §14. » 20 & 21 Vict. c. 14S, § 62. * Ibid. § 63. 5 Ibid. § 64. 240 FISHERY LAWS- OF SCOTLAND. shall for every sucli first offence be liable to a penalty not exceeding 51., and for every subsequent offence 10^., and 21. per day while it is continued/ So laying or placing cinders and rubbish subjects the party offending to a penalty of 40s.- Penalty on Fishers when not Entitled. — Any person illegally fishing in the river for salmon during the fishing season incurs a penalty of 10^., and 10s. for each fish, besides forfeiture of boat, net, tackle, &c.^ Every person who enters, or is found upon any ground adjacent or near to the river, or in or upon the river, with intent illegally to take or kill salmon, shall for every such offence be liable to a penalty not exceeding 5Z.4 This intent may be inferred by the Sheriff or Justice from the party having in his or any companion's possession nets or implements, and other circumstances.^ Foul or Unseasonable Fish. — Whoever during the fishing season knowingly takes or kills unclean or un- seasonable salmon incurs a penalty of 51. and forfeiture.*' Foul and unseasonable fish when taken must be imme- diately put back into the river with as little injury as possible.'^ But this last enactment does not apply to sea-trout, bull-trout, or whitling taken by means of the rod and line.^ Cleelcs. — Every person who shall between 15th Sep- tember and 1st May following, in fishing with a rod and line, use any cleek or instrument for landing fish 1 20 & 21 Vict. c. 148, §65. " Il)ul. §66. 3 22 & 23 Vict. c. 70, § 15. * 20 & 21 Vict. c. 148, § 68. 5 I>,i,l. § 69. « Ibid. § 70. ' Ibid. § 72. 8 ^2 &23 Vict. c. Ixx. §17. TWEED TliOUT FISHING. 241 other than a lauding net shall be liable to a penalty not exceeding 5/.' Trout Fishers catching Salmon. — If any person while in the act of fishing for river or fresh-water trout during the period when salmon may be lawfully taken and killed, t;d 4. M 2. ■' §§ 6, 7. •* 12. - § 15. « § 9. IRELAND. IRISH FISHERIES. 2-1-7 IRELAND. IRISH FISHERIES GENERALLY — COMMON LAW AS TO FISHERIES — FISHERY COMMISSIONERS — FISHERY DISTRICTS — SPECIAL COMMIS- SIONERS — BYE-LAWS — MEANING OF TERMS — FUNDS OF DISTRICT BOARD — SEA-FISHERIES — HERRING — OYSTERS — CLOSE SEASON FOB OYSTERS — LICENCE DUTY ON ENGINES — LICENCES, HOW OBTAINED — ANNUAL RATE ON FISHERIES — NATURAL OBSTRUCTIONS IN RIVERS — FISHING WEARS — FIXED NETS — RIGHT TO STAKE AND FIXED NETS — BAG-NETS— BOXES, CRIBS, ETC. — FREE GAPS — OTTERS, SPEARS, ETC. — CROSS LINES — TAKING FISH IN MILL-DAMS, ETC. — FISHING BY KIGHT — NETS AT MILL-DAMS, MOUTHS OF RIVERS, ETC. — MESHES OF NETS — SPAWN OF SALMON, TROUT, AND EELS — UNCLEAN FISH — POISONING RIVERS — ANNUAL CLOSE TIME FOR SALMON, TROUT, EELS, AND ANGLING— REMOVAL OF NETS, AND FISHING DURING ANNUAL CLOSE TIME — WEEKLY CLOSE TIME — ILLEGAL FISHING IN CLOSE TIME— POACHING IN PRIVATE FISHERIES— ENTERING LANDS TO FISH — OBSTRUCTING PERSONS FISHING — OFFENDERS BOUND TO TELL THEIR NAMES — OFFENDERS USING VIOLENCE — WATER BAILIFFS — PROCEDURE. Irish Fisheries Gencralbj. — The Irisli fisheries were regulated by many ancient statutes from the time of Edward IV. to George IV., which applied in some cases also to British fisheries ; but these were all repealed, so far as relates to Ireland, by the General Act, 5 & G Vict, c. 106, which consolidated and amended the law. Sub- sequent statutes have passed, which modify that statute, viz. 7 & 8 Vict. c. 108, 8 & 9 Vict. c. 108, 9 & 10 Vict, c. lU, 11 & 12 Vict. c. 92, 13 & U Vict. c. 88, and 24*8 FISHERY LAWS OF IRELAND. finally the Irish Salmon Fisheries Act, 26 & 27 Vict. c. 114. These statutes deal with fisheries in the sea as well as in rivers. The enactments are very voluminous and confused, being piled upon each other without method. Nevertheless, they are all to be read together as one Act. An attempt is here made to arrange the subject-matter, and give all the leading enactments now in existence which have not been repealed. It may be observed that the Larceny Act, 24 & 25 Vict. c. 96, which governs the law of poaching in England, extends to Ireland, and, of course, repeals those sections of the Irish Acts which dealt with that branch of the subject. Common Law as to Fisheries. — The common law as to the right of fishing in the sea, and navigable rivers and waters in Ireland, is entirely the same as that of England, and need not be here repeated. The law is the same as to the legality of wears at common law and under old statutes ; and, indeed, several of the cases already referred to as to wears are Irish cases. It is only so far as the modern statutes governing the Irish fisheries vary that law that it differs from the law of England, which has now a modern statute of its own which does not extend to Ireland. It will, therefore, be borne in mind, in what follows, that the common law of Ireland is the same as that of England, and still remains so, except where the following enact- ments qualify that law. Fishery Commissioners. — The statute 5 & 6 Vict, c. lOG, which repealed all the previous Acts, constituted the Commissioners of Public Works in Ireland, for the FISHEKY DISTRICTS. 24-9 time being, commissioners for the execution of that Act.^ They were empowered to appoint inspectors of fisheries, at salaries. The Commissioners of her Majesty's Treasury were empowered by 8 & 9 Vict. c. 108, to appoint and pay by sahary one person to be a Commis- sioner of Fisheries to be associated with tlie Commis- sioners of Public Works.2 By the 11 & 12 Vict. c. 92, the two existing inspectors of Irish fislieries were made inspecting commissioners, to act along with the Com- misioners of Public Works in the execution of the Fishery Acts ; and in future the appointment of the inspecting commissioners was vested in the Commis- sioners of her Majesty's Treasury. That Act also era- powered the Commissioners to divide Ireland into fishery districts. The recent Irish Salmon Fisheries Act, 26 & 27 Vict. c. 114, has transferred nearly all the powers of the former Irish Fisheries Commissioners to the Special Fishery Commissioners appointed under that Act. Fishery Districts.— By the Act 11 & 12 Vict. c. 92, the Commissioners were authorized to divide Ireland and the coasts and islands into fishery districts, and to subdivide each district into two or more electoral divisions, and so that conservators, who nuist reside or possess real property in the division, should be returned for each division.^ The conservators act gratuitously, and are to hold meetings, appoint clerks, inspectors, and water bailiffs.* The owners of several fisheries of the 1 5&6 Vict. c. 106, § 2. ^ n^jj gj, 3 13 & 14 Vict. c. 88, §5 ; 26 & 27 Vict. c. 114, §29. •• 13 & 14 Vict. c. 88, §§5, 11. 250 FISHERY LAWS OF IRELAND. value of 1001. and upwards are ex officio conservators/ The Commissioners may alter the districts from time to time, giving due notice thereof.^ All productive fisheries (whether several or not) are rated to the poor, and also pay licence duty.^ The party may appeal from the decision of the board of conservators to the assistant-barrister for the district, or to the then judges of assize.* The election of conservators is to be tri- ennial.^ Persons who have paid licence duties within any electoral district shall be entitled to vote for con- servators either in person or by proxy, according to value, viz. for duty under 21. one vote ; between 21. and 51. two votes; between 5^. and 10^. three votes; above 10/. four votes. Magistrates paying licence duty, and being owners of land abutting on rivers or lakes in any district, may act and vote as ex officio conservators.^ Three conserv^ators are a quorum at a district meeting ; matters are deter- mined by the majority of persons assembled ; the chairman, besides his original vote, has also a casting vote.'^ The constabulary have the powers of water bailiffs in enforcing the Fishery Acts as to close time, and destruction of spawn or unseasonable fish, &c.^ 1 11 & 12 Vict. c. 92, §6. 2 13 & 14 Vict. c. 88, § 6. " The fishery districts formed aretwenty- oue, viz. Dublin, Wexford, Waterford, Lismore, Cork, Skibbereeu, Baiitry, Kenmare, Killaruey, Limerick, Galway, Ballynakill, Bangor, Balliiia, Sligo, Ballyshannon, Letterkenny, Londonderry, Coleraine, Ballycastle, Drogh.ed.a,."—Iie2}ort of Irish Fishery Commissioners for 1862. 3 13 & 14 Vict. c. 88, § 7 ; 11 & 12 Viot. c. 92, §2-3. M3 & 14 Vict. c. 88, §9. ^ ibij. § 13. « 26 & 27 Vict. c. 114, § 27. 7 n & 12 Vict. c. 92, § 17. 8 7 & 8 Vict. c. 108, § 2. FISHERY COMMISSIONERS. 251 Special Fishery Commissioners. — The statute 26 & 27 Vict. c. 114, gives power to her Majesty to appoint three Comniissioners, to be styled Special Commis- sioners for Irish Fisheries, who are to have a seal.^ They are disqualified from sitting in Parliament.'- Their powers are to continue for two years only." They are paid by salaries.* Any one of them may do ordinary acts; but at least two must concur in ordering the removal of an illegal net or wear, though all must hear the cases as to these. ^ They may compel the attendance of witnesses, and examine on oath.^ Witnesses are punishable for perjury.^ Proceedings are not to abate by the death or discharge of a Commissioner.^ On the determination of their office their powers and duties are to devolve on two permanent inspectors of fisheries, to be appointed by the Lord Lieutenant.^ All the powers of the former, or Fishery Commis- sioners, are transferred to these Special Fishery Com- missioners, except as to the white sea-fish and oysters.^** They have power also to define the mouths of estuaries and rivers.^^ Though the Special Fishery Commissioners are not subject to be ordered or controlled by courts of law and equity in the ordinary way,^- yet, where any person feels aggrieved with any of their decisions, he may appeal to the Court of Queen's Bench in Ireland within seven days after the decision, in like manner as in appeals from Justices at petty sessions.^^ 1 26 & 27 Vict. c. 114, §§32, 33. * § 36. ' § 35. " § 38. ^ § 42. '« § 15. " § 17. = §34. » §37. 7 §39. 8 § 40. 1* § 40. " § 14. 252 FISHERY LAWS OF IRELAND. Byc-laivs of Commissioners. — In consequence of the exclusive powers given to tlie Commissioners to alter the close time and other details of the Irish fisheries, it is necessary, in order to ascertain the entire existing law affecting any particular county, to obtain a copy of the most recent bye-laws, wdiich are, or may be, varied from time to time. By the statute a copy of all bye- laws, rules, orders, and regulations made by the Com- missioners must be sent to each clerk of the peace, and notice thereof posted up at the usual j)lace for posting notices in the petty session district,^ and a printed copy for each district may be bought for one shilling.2 Meaning of Terms. — In the Irish Fishery Acts the words " estuary " and " bay " include harbours or road- steads ; "rivers" includes tributaries of rivers, and all other streams and watercourses ; " vessels " includes ships, boats, cots, cobles, or curraghs ; " fish " include oysters and oyster-brood ; " salmon " includes grilse, peall, sea-trout, samlets, par, and all other fish of the salmon kind, and the spawn and fry thereof ; " trout " includes pollar or fresh-water herring, and all fish of the trout kind, and spawn or fry thereof ; " net " includes all descriptions of tackle, trawl, trammel, stake, bag, coghill, eel, haul, draft, and seine nets, and all other engines or devices used for like purposes ; "fixed net" or " fixed engine " includes wears, stake, bag, stop, and still nets, and all other engines or devices used for like purposes.'^ ' r, & 6 Vict. c. 106, § 92. 2 Ibid. § 93. 3 l;j & 14 Vict. c. 88, § 1. HERRING FISHERIES. 253 Funds of the District Board. — All sums received for licence duties and rates, and from the sale of forfeited engines or nets, or instruments, and from penalties, are paid to the credit of the Fishery Commissioners, and applied in respect of each district ; and the treasurer, when one is appointed, keeps and jiays the same over to the board of conservators, for the purposes of the district.^ The treasurer of the district is to keep and pay over the duties and rates to the conservators of the year for which these were payable.^ Use of Shore hy Herrmrj Fishermen. — There is no close season in the Irish sea fisheries, except as to oysters. At common law there is no right in sea fisher- men to make use of the sea-shore, which belongs to individuals.^ But in Ireland a power has been given by statute in certain cases. " It shall be lawful for all fishermen and persons em- ployed by them to enter upon all such beaches, strands, and wastes on or adjoining the sea-shore, or any estuary, as may be necessary for the purpose of carrying on any herring or other sea fishing, and also to draw up and spread their nets and land their fish upon any such beach, strand, or waste : provided nevertheless, that they shall not erect any fixtures or fixed nets thereon, save as hereinafter provided.* " And it shall be la^\ful for all watchmen, directors, and guiders of fishermen, and all such fishermen them- selves, and such other persons as shall necessarily attend the nets or fishings at the times of fishing fur herrings, > n & 1-2 Vict. c. 92, § 27. "• r> k Q Viot. c. 106, § 3. 3 See ante, p. 28. ^ 13 & 14 Viet. c. 88, § 8. 2o-i FISHERY LAWS OF lEELAND. pilchards, and other sea fish, to enter and go into and upon any lands which do lie or adjoin near unto any- fishing place, fit, convenient, and necessary to watch and to draw or carry the fish on shore, and there to watch for the said fish, and to direct and guide the said fishermen which shall be upon the sea and sea- coasts for the taking of the said fish ; provided that no person shall be empowered or authorized by this Act to enter in or upon any enclosed garden, or any tillage land with a growing crop thereon.^ " If any person shall resist or forcibly obstruct any fisherman or person employed by him in entering upon and using in the manner and for the purposes aforesaid the said beaches, strands, wastes, and other lands, save gardens and lands with a growing crop as aforesaid, every person so offending shall for every such offence forfeit and pay any sum not exceeding 51." 2 Fishing Vessels Registered. — All fishing vessels on the coast of Ireland shall be marked and registered at the coast-guard station or custom-house office adjacent, under a penalty of 10/.^ Every boat, cot, or curragh, shall have the name of the owner, or of one of the owners, painted on a con- spicuous place thereof, under a penalty not exceeding 2^.* Sea Nets. — The restrictions on sea nets were contained in the statute 5 & G Vict. c. lOG. "And be it enacted, that no net or other engine covered with canvas, hide, or other material, by which unsizeable and young fish may be taken or destroyed, 1 5 & 6 Vict. c. 106, § 4. ^ Ibid. § 5. 3 Ilnd. § IG. * Ibid. § 81. SEA NETS. 255 shall be used on the sea-coast, or within any estuary, except for the purpose of dredging for slicll fish, and every person offending by such use of any such net or engine shall forfeit the same, and shall also for every such offence forfeit and pay any sum not exceeding 10^." ^ And no person shall, at any time between sunrise and sunset, set either in the sea, or within the tideway, in any estuary, any sea-net for catching herrings, or any trammel-net, unless specially authorized by a bye-law of the Commissioners, or leave any drag or other net in the water between sunrise and sunset, except seines or drift-nets for pilchards, or fish other than herring ; but all persons may use seine-nets for the catching of herrings, save in such places as may be forbidden by any bye-law of the Commissioners.^ " Every person who shall, between sunset and sun- rise, have set, either in the sea or within the tideway in any estuary, any such net as is hereby prohibited from being left set or in the water between sunrise and sun- set, shall before sunrise haul up and remove such net or nets ; and every person offending by not so hauling up and removing such net before sunrise, shall forfeit the net so set or in the water, and shall also forfeit and pay any sum not exceeding ol., unless it shall be proved to the Justice before whom complaint shall be made against such person, that he was prevented by sudden storm or stress of weather from hauling up and removing such net.3 1 5 & 6 Vict. c. 100, § Ck * 7 & 8 Vict. c. 108, § 7 ; 8 & 9 Vict c. 108, § 15. 3 5 & 6 Vict. c. 106, § 8. 256 FISHERY LAWS OF IRELAND. " Every person who shall use any trawl or trammel- net at any season or any place, either in the sea or within the tideway in any estuary, when or where the use of the same shall have been prohibited by any bye- law to be made as hereinafter mentioned, shall forfeit every such net so used, and shall for every such offence also forfeit and pay any sum not exceeding 20// " And whereas shoals of herrings and other fish are frequently prevented from entering bays and estuaries by persons setting nets at or across the entrance of such bays and estuaries : be it therefore enacted, that if any person shall set any net at or across the entrance of any bay or estuary in any place or at any time which shall be prohibited by any such bye-law, every person so offending shall forfeit and pay for each such offence any sum not exceeding 5/." " Sea Fish near Wears. — " Whereas soles, turbot, sprats, Jiake, and other white sea fish are now caught by means of wears in the tide- ways of certain rivers during the close salmon season, and it is expedient that such fisheries should, under certain restrictions, be permitted : be it enacted, that it shall be lawful for all persons now legally entitled by charter or prescriptive right to the use of such wears to continue to use them for the purpose of catching white fish, notwithstanding its being the close salmon season, provided they obtain the 1 5 &.6 Vict. c. 106, § 9. Trawling has been prohibited by bye-law of the Commissioners in several places, as Dublin Bay, East Coast, Dumlrum IJay, Belfast Lough, Lough Swilly, Donegal Bay, Galway Bay, Brandon Bay, Bantry Bay, Glandore Harbour, Waterford Har- bour, Wexford Coast. Trammel nets have been prohibited in Dnngarvon Bay and Inver Bay. — Report of Irish Fisliery Commissioners for 1862, 2 5 & 6 Vict. c. lOG, §10. OYSTERS. 257 licence of the Commissioners aj (pointed under tliis Act to do so ; and it shall be lawful to the said Commis- sioners to issue their licence accordingly, for such period as they may think proper ; provided, however, that all such wears shall be subject in all other respects to the provisions of tliis Act, and to such bye-laws and regu- lations as may be made in regard to them by the said Commissioners, pursuant to the powers reserved to them in this Act.^ Oysters. — The right to oyster beds in Ireland is the same at common law as in England; they go with the soil, and whoever is the owner of the soil is entitled to keep oysters there. Stealing Oysters. — The property in oysters and oyster beds is protected by the same statute as in England, viz. the Larceny Act, 24 & 25 Vict. c. 96, § 25.' Nothing in the Acts protects oyster beds lying below the level of the lowest spring tides, unless these are held by charter, grant, patent, statute, or prescription.^ Power to make Oyster Beds. — Power was given to owners or occupiers of lands adjoining the sea or any estuary, witli the consent of the Fishery Commissioners, to form oyster beds, and appropriate part of the shore for that purpose, but so as not otherwise to abridge the right of the public in other respects. The enact- ment was as follows : — " It shall and may be lawful for the owner or occupier of any land bordering on the sea or any estuary, with the permission in writing of the said Commissioners, or J 5 & 6 Vict. c. 106, §39. ■ AnU, p. 90. * 8& 9 Vict. c. 108, §16. 258 FISHEKY LAWS OF IRELAND. for any person or persons, with the consent of such owner or occupier, and with the permission in writing of the said Commissioners, to form or plant any oyster bed or laying on the shore adjacent to such lands, and either above or below the level of the lowest water- marks of spring tides, as the said Commissioners shall think fit ; and it shall be lawful for the several persons forming or planting any such oyster bed or laying to hold the same as private property, and to exercise an exclusive control over the same, and such oyster beds shall be entitled to the like protection as by the said recited Acts is provided in case of any other oyster beds or layings being the exclusive property of any person : provided always, that the forming and planting of such oyster beds as aforesaid shall not give any exclusive right or title to the occupancy of the said shore, except for the purpose aforesaid, or to the appropriation of any public banks or beds at present resorted to for oysters, but that the rights hereinbefore granted and conferred are to be considered as exclusively applying to places where no such public oyster beds at present exist ; saving to the Queen's most excellent Majesty and all the subjects of this realm the free and full exercise and enjoyment of all other rights of fishing or other rights whatsoever in or along the said shore, subject to the provisions herein contained." ^ Under this power twenty-five licences were granted up to March, 1863, and nine more were under con- sideration.2 1 13 & 14 Vict. c. 88, § 41. ^ See " Report of Irish Fisheries for 1862." OYSTERS. 259 Close Season for Oysters. — The close season for oysters is from 1st May to 1st September exclusive.^ Power, however, is given to the Commissioners to alter this period on inquiry.^ The Commissioners may also, on the application of any person interested in any oyster fishery in a particular locality, call a meeting of those interested in snch fishery, and after hearing and receiv- ing evidence, may appoint a period not exceeding the term of three years, within which it shall not be lawful to dredge for, take, catch, or destroy any oysters, or oyster brood in such locality ; such decision to be duly pub- lished.^ Power is also reserved to persons to dredge for and take oysters during close season from natural public beds below the level of lowest spring tides, during such part of the close season as the Commissioners may appoint* But persons who take or possess oysters for any other purpose, shall forfeit all the oysters, and incur the same penalty as is incurred for taking them in close season. If any person dredge for, take, catch or destroy, have in his possession, sell, or buy any oysters or oyster brood within the close season, he shall forfeit such oysters, and a sum not exceeding 51 for each offence, provided that nothing shall prevent tlie proprietor of any oyster bed, or any person deriving under him, from removing or laying down oyster brood during close season.'^ The minimum penalty is lO*.^ The penalties for stealing oysters are cumulative^ 1 5 & 6 Vict. c. 106, § 32. = Ibid. §33. 3 7 & 8 Vict. c. 108, §§ 5, 6 ; 5 & C Viet. c. 106, g^ 33, 3-1. •» 8 & 9 Vict. c. 108, § 19. ' 5 & 6 Vict. c. 106, § 36. 6 11 & 12 Vict. c. 92, § 42. " See a7iie, p. 90. s 2 260 FISHERY LAWS OF IRELAND. The Commissioners have exercised their powers of making bye-laws as to the oyster fishery on the coasts of Wicklow and "Wexford, Cork Harbour, Tralee Bay, Achill Sound, Clew Bay, Blacksod Bay, and Caiiing- ford Lough.^ Improvement of Oyster Beds. — The Fishery Commis- sioners may make bye-laws, rules and regulations to prevent the destruction and removal of small oysters and to regulate the mode of dredging.^ Owners or tenants of oyster beds may also appoint water bailiffs to watch the oyster beds and enforce the Acts, and such bailiffs shall have the same powers as those appointed by the Commissioners.^ Bait Beds. — A similar power is given to owners of land adjoining the sea or estuaries, with the consent of tlie Commissioners, to form bait beds for the purpose of increasing the means of procuring bait for the line fisheries, and these bait beds are protected like oyster beds.* Licence Duty on Engines, &c. — All engines, nets, instru- ments or devices whatsoever used for the taking of salmon, trout, pollen [i.e. freshwater herring, a species of trout as defined by 13 & 14 Vict. c. 88, § 1), or fish of the salmon and trout kind, or for the taking of eels, and all fixed salmon, trout, or eel fisheries within any district, or on or off the sea-coast thereof, shall, except as hereinafter provided, before the same be used in the said year or subsequent year, be duly licensed and rated 1 See the " Report of Irish Fishery Commissioners for 1862," p. 29. * 8 & 9 Vict. c. 108, § 20. ^ Ibid. § 21. * 5 & 6 Vict. c. 106, §13. LICENCE DUTIES. 261 in the manner hereinafter prescribed upon payment of the licence duty or rate hereinafter provided.^ The Commissioners have no power to exceed the following scale, but may reduce it in certain districts, except those relating to fixed engines.^ Scale of Licence Deities for each engine, net, instrument, or device used in salmon, trout, pollen, or eel fisheries in districts. £ 5. d. 1. Single salmon rods 100 2. Cross lines and rods 200 3. Snap-nets 1 10 4. Draft-nets or seines 300 5. Drift-nets 300 6. Trammel-nets, or draft-nets for pollen 1 10 7. Pole-nets 200 Licence Duties such as shall be fixed by Corn- Other nets, or similar engines not named j missioners or Conser- above J vators as provided by the Act 11 & 12 Vict, c. 92. 9. Bag-nets 10 10. Fly-nets 30 11. Stake-nets, or stake-wears (Scotch) 30 12. Head-wear 600 13. For every box, crib, cruive, or dnini-nct in any wear for taking salmon or trout 10 14. For every gap, eye, or basket in any wear for taking eels ^ 10 Yo be rated at ten per Note. — Fixed fisheries for salmon or eels claimed to be "several fisheries," whether fished by means of fixed wears with boxes. cent, on Poor Law Valuation, unless such per-centage be reduced llSUeU Uy lUeilllS Ul ll.VUU IVCai.-? HIUH uuac;^, jn^i-v.mi,ivj^v^ uv^ i.^m.vv/v» cruives, or rails for stopping the fish, or by ( by the Commissioners means of the lish being stopped by rocks or other natural or artificial obstructions, and taken by means of drait or other nets . . . or by the Conserva- tors, as provided by the Act, 11 &12 Vict, c. 92. 1 11 & 12 Vict. c. 92, §8. Ml & 12 Vict. c. 92, §§10, 13 ; 20 & 27 Vict. c. 114, § 26. 262 FISHERY LAWS OF IRELAND. Engines Injuriotis to Fish. — The Commissioners may by their bye-laws prohibit the use at any time or season of any engine or device for the capture of fish which upon inquiry they may deem to be injurious to the fisheries. 1 Licensing Engines not Enumerated in the Statute. — " For any engine, instrument, net, wear, or device what- soever not enumerated in the above schedule, and which may be proposed to be used for fishing for salmon, trout, pollen or fish of the salmon or trout kind, or for eels, it shall be lawful for the said Commissioners at any time before a board of conservators shall be formed, and after the formation of such board it shall be lawful for .such board of conservators for the district, as the case may be, to fix and determine the licence duty on payment of which the same may be used in such district, regard being had, as far as practicable, to the relative capability of capture and productiveness of the same, as compared with those set forth in the said schedule, and the rela- tive proportion of the duties therein set forth ; provided always, that the party proposing to use any such engine, instrument, net, wear, or device not enumerated in such 1 The duties actually charged for engines hitherto were considerably below those fixed by the statute, and vary in different fisheiy districts, the duty on salmon rods being usually ten shillings. The number of licences sold, and the duty obtained for engines in 1862, were as follow: — Salmon-rods, 1771, 907^.; cross-lines, 256, 320Z. ; snap-nets, 248, 267/.; draft-nets, 462, 9171.; drift-nets, 36, 72/.; trammel-nets, 128, 65/.; pole-nets, 34, 48/.; bag-nets, 252, 1016/.; fly-nets, 17, 59/.; stake-nets, 90, 877/. ; head-wears, 50, 93/.; boxes, cribs, &c. 71, 276/.; gap.s, eyes, &c. 250, 222/.; sweepers, 1, 3/.; cog-hills, 57, 41/.; loop- nets, 1, 1/. 8&9 Vict. c. 108, §14. LICENSED ENGINES. 263' schedule, shall previously give notice to some constabu- lary or coast-guard officer of the district, or to some inspector appointed under this Act, of his intention to use the same, who shall and is hereby required to for- ward to tlie said Commissioners, or the said conser- vators, as the case may be, a description thereof, as to its relative capability of capture as compared with the engines, instruments, nets, wears, or devices set forth in the said schedule, and shall furnish the name by whicli it shall be designated, upon which the Commissioners or the said conservators, as the case may be, may autho- rize the use of the same, upon payment of the licence duty which they may fix, and cause the same to be in- serted in the schedule of licences for the said district : "Provided always, that rods used singly for taking trout, perch, pike, or other fish, save and except salmon, shall not be subject to any licence duty under this Act : provided also, that if any person using a rod shall, under pretence or otherwise of fishing for trout, perch, pike, or other fish, take or kill salmon with such rod, such person shall be subject to a penalty of tlie like amount as the licence duty for the time being pay- able for a salmon rod, and the same shall be recoverable l)efore a Justice or Justices in like manner as other penalties under the said recited Acts or this Act. "Provided also, that all cross-lines used with a rod or rods for taking fish of any kind whatsoever shall be subject to the licence duty payable under this Act for the time being upon cross-lines and rods, until the same shall be altered as herein provided. "^ 1 11 & 12 Vict. c. 92, §21. 264 FISHERY LAWS OF IRELAND. Licences for Engines, hmu obtained, &c. — All licences are printed in the form prescribed by the Commissioners, and stamped with the seal of the district board, and are good only for the year in which they are issued.^ To alter or fraudulently counterfeit the same subjects the party to a penalty of double the amount of duty.^ Any person using an engine, net, instrument, or device, or having the same erected or in fishing order, or found with the same in his possession in or near any fishing place, or going to, or returning from fishing, shall produce to any of the Commissioners, or any of their officers, or any conservator of the district, or any in- spector, water bailiff, or officers or men of the navy, coast-guard, or constabulary, when demanded, the licence for the same ; sellers or manufacturers of the nets, &c. being exempted.^ No persons, except those named, are entitled to have the licence produced to them. The licences are sold by licensed stamp distributors, or persons appointed by the board.* But if any person shall have paid licence duty for a rod in any district, he requires no licence for a rod in any other district.^ Tiicences are to be sold to all persons demanding, with- out any question or objection.*^ Fishing without Licence. — Any person using or erecting any engine, net, instrument, or device whatsoever, with- out being duly licensed under 11 & 12 Vict. c. 92 and 13 & 14 Vic. c. 88, shall be liable to pay such penalty, not less than double, nor more than treble the licence duty whi'jh the engine, net, instrument, or device he 11 & 12 Vict. c. 92, §28. " Ibid. 3 Ibid. §29. * Ibid. § 30. 3 i5i^ § oQ_ 6 ii^ij § 31 FISHING WEARS. 205 shall have been so using ov erecting would for the time being be subject to, in addition to the forfeiture of the engine so used.^ Fisheries to he Subject to Annual Rate. — All sabnon, trout, or eel fisheries rated to the poor, shall, in each year, pay as an annual rate, in two half-yearly gales, on 1st February and Lit Jiily each year, such sum, in addition to the licence duty to be paid for engines, instruments, &c. as shall be equal to the amount of the difference between the oums paid by such respective persons for such licence duties, and the annual sum of ten per cent, upon the poor law valuation of such fishery, subject to alteration by the district board.- Natural Obstructions in Rivers. — If in any river reefs, or ledges of rocks, shoals, or other natural ob- structions prevent or impede the free yjassage and migration of salmon, trout, and other fish, antl hinder the approach and access of the same to the upper parts of the said rivers, or any lakes communicating there- with, and depositing their spawn therein, the Commis- sioners, on the application of a person interested in the fisheries in the river, may alter the bed so as to secure the free passage of salmon, trout, eels, and other fish, compensation being made to persons injured, and pro- vided no injury is done to mills or drainage.^ Fishing Wears. — In Ireland, as in England, wears are legal, if their origin can be traced up to the statute of 25 Edw. III.^ The Special Fishery Commissioners 1 13 & 14 Vict. c. 88, § 12. ^ 11 & 12 Vict. c. 92, §23 ; 13 & 14 Vict. c. 88, §7. =• 5 & 6 Vict. c. 106, § 62. •• Sec ante, p. 37. 266 FISHERY LAWS OF IRELAND. have power given them by the Irish Salmon Fisheries Act, 26 & 27 Vict. c. 114, § 7, to inquire into the. legality of all fishing wears, and remove all which are not legal, except that if the illegality consist in not having a free gap, and the owner undertake to make such gap, the wear shall not be prostrated. If the fishing wear is unlawful, the owner is bound, after a notice, to prostrate the same in thirty days, otherwise he will forfeit 50^., of which half shall go to the informer and half to the district conservators.* Before, however, abating a fishing wear as illegal, the Commissioners are to hear interested parties, as in the case of fixed engines.^ Similar powers as to abatement were given by the the statute 13 & 14 Vict. c. 88. Any person who complains of any wear, fixed net, or engine, may make his complaint, in writing, to the Commissioners, with particulars, as required by 9 & 10 Vict. c. 114, and they may summon the parties before them, and after hearing evidence, may make an order or decision, in writing, under their hands and seals, declaring that such wear, fixed net, or engine, or any part thereof, is a nuisance, and shall be abated and removed;^ and the Commis- sioners shall authorize some person to abate and remove the same, at the expense of the party summoned, who erected or used the same.* The party may appeal to >■ 26 & 27 Vict. c. 114, § 8. 2 ibid. § 13. ^ Where legal fishing wears have been maliciously injured, the person injured may apply, under 6 & 7 Wm. IV. c. 116, to Present- ment Sessions for compensation, and the Grand Jury may order com- pensation to be levied on the county, barony, parish, district, townland, or subdenomination thereof, as the Grand Jury shall direct. 8 & 9 Vict. 108, §§ 7, 8. 4 13 & 14 Vict. c. 88, § 14. FIXED NETS. 267 the Judges of Assize, or to the Court of Queen's Bench by special case/ No person other tlian tlie persons entitled shall place, erect, maintain, or use any wear, lixed net, or other contrivance for placing or erecting nets, or taking of fish on any parts of the coasts of Ireland, or on tlic bank or shore of any river or estuary wherein the tide ebbs and flows, or in the sea or tide- way adjoining such coast, bank, or shore, under a penalty of from II. to 101, and 10s. for every fish so taken and destroyed, and forfeiture of the wear, &c.^ To re-erect a wear, &c. after conviction, causes a forfeiture of the materials and of 10/., and of 21. per day.^ Fixed Nets. — All new fixed nets, i.e. nets not legally existing in 1862, are illegal, and any person may destroy them.* Tlie net and fish are forfeited, and a penalty of U. to 20/. per day is incurred.^ The Special Fishery Commissioners have power to inquire into and remove all fixed nets injurious to navigation, and all other fixed nets illegal on other grounds.*^ If a fixed net (other than a prohibited bag-net) had been in use in July, 1863, having been erected under the Act 5 & 6 Vict. c. 106, is not injurious to navigation, not a common nuisance, and not illegal at common law or under any statute, the Commissioners shall give a certificate of the situation of such net, and it will be Icaal' A fixed net includes a head-wear.^ 1 13 & 14 Vict. c. 88, § 15 ; 26 & 27 Vict. c. 114, § 14. 2 13 & 14 Vict. c. 88, § 16. * Ilml. § 17. * MouUon V. Wilby, 32 L. J. M. C. 164. 5 26 & 27 Vict. 0. 114, § 4. « Ibid. § 5. 7 Ibid. § 6. « Ibid. § 44. 268 FISHERY LAWS OF IRELAND. Stake-wears, stake-nets, and other fixed nets in the sea or tidal ways, must have clear openings in the pouches and traps, as provided by the Acts.^ All who use, when not entitled to use, stake-wears, stake-nets, bag-nets, and other fixed nets in the sea and tideways, forfeit 1 0^. besides the wear, and are liable to be ordered to remove it.^ Rigid to Stake and Fixed Nets. — By the Act of 1842, any person legally entitled to any several fishery on the sea-coast might lawfully fix or erect, subject to such regulations as the Commissioners might impose, any stake-wear, stake-net, bag-net, or other fixed net for the taking of salmon, provided that no right to the shore was, except for the purpose of attaching the nets, thereby conferred ; ^ and certain nets then existing were legalized. So owners in fee and tenants for a term, not less than one hundred years, of lands adjoining the sea- coast, were empowered to erect stake-nets and fixed nets to the shore adjoining the lands, provided no several fishery belonging to another person existed there.* But no stake-wear, head-wear, stake-net, bag-net, fixed net, or any contrivance for a net, should be lawful which obstructed the navigation, otherwise the Commis- sioners, after inquiry, might cause it to be abated .^ Bag-Nets. — All bag-nets, after July, 1863, placed in rivers or estuaries, or within three miles from the mouth of any river, were declared illegal, and the net and fish 1 13 & 14 Vict. c. 88, § 43. 2 8 & 9 Vict. c. 108, § 5. 3 5 & 6 Vict. c. 106, §§ 18,22,24. * Ibid. § 19. ' Ibid. § 21. A penalty was imposed on others than the owners of a several Jishery thus fishing within one mile^of the mouth of a river, §22. BAG-NETS — FREE GAPS. 269 caught are liable to be forfeited, and the owner fined 5/. to 20/. per day.^ But bag-nets legally existing within three miles of the mouth of a river, in the whole of which the owner has the exclusive right of catcliin2 salmon, are exempted.*^ Boxes and Cnbs. — In fishing wears and fishing mill- dams, the boxes and cribs used shall be of a certain situation and form prescribed by statute, under certain ])enalties.3 Every obstruction to the free passage of fish through each and every cruive, crib, or box, shall be removed within thirty-six hours after close time has commenced, under a penalty of forfeiture and 50/. and 51. per day, and a Justice may order the removal and sale thereof.'* Free GajJS. — Every fishing wear must have a free gap, or opening, according to the statutory form,^ and no compensation is to be given for any loss thus caused ;^ and the owner is boimd to make and maintain such free gaps, free from anything to scare the fish from entering, under heavy penalties/ Where a river is not more than forty feet broad, and a legal fishing wear exists, the Commissioners may, instead of requiring a free gap, order the weekly close time to be extended twenty-four hours. ^ The waste-sluices, waste-gates, or overfalls of the wears of any mill or factory, deriving their supply from 1 26 & 27 Vict. c. lit, § 3. Tlio Commissioners had powers given to them by 5 & 6 Vict. c. 109, to define the mouths of rivers, and they did so. See Rep. Irish FM. Com. /or 1862. They have further powers under 26 & 27 Vict. c. 114, § 17. " Ibid. 3 Ibid. §10. •» 5 & 6 Vict. c. 146, §37. => 26 & 27 Vict. c. 114, §9. « Ibid. ^ im § ^o. » n^jj g „ 270 FISHERY LAWS OF IRELAND. rivers frequented by salmon, shall, at all seasons of the year when such mills or factories shall not be used for milling purposes, be kept open, if no passage for fish be provided ; and when such passage for fish shall be provided, the sluices, and waste-sluices, waste-gates, or overfalls shall be kept down or shut, to force the water through the passage for fish.-^ Otters, S;pears, Gaffs. — In any freshwater river or lake it shall not be lawful, at any season of the year, to use, for the purpose of taking fish, any otter, lyster spear, strokehaul, dree-draw, or gaff, except when a gaff is used as auxiliary to angling, or where it is used by the owner or occupier to remove fish out of a legal wear or box. The penalty is 4?. to 101. besides forfeiture of the implement : eel-spears are excepted.^ Cross-Lines. — It shall not be lawful for any person (save the proprietor of a several fishery, or any person duly authorized by him, in writing, within the limits thereof) to take, catch, or fish for any salmon or trout by means of cross-lines in any river, and any person so offending shall forfeit and pay a sum not exceeding 5Z.^ Taking Fish in Mill-Dams, Watercourses, &c. — If any person shall, at any season of the year, in any mill-pool or mill-dam, or in any works appurtenant to any mill or factory, or in any watercourses leading the water to or from such mill or factory, place, lay, set, or draw any net, grate, creel, or other engine, or use any means or device whatsoever (save and except rod and line, used subject to the provisions of this Act,) for the purpose of 1 5 & 6 Vict. c. 106 ; 13 & 14 Vict. c. 85, § 39. « 13 & 14 Vict. c. 88, § 40. =* 5 & 6 Vict. c. 106, § 70. NIGHT FISHING. 271 taking, destroying, or obstructing any salmon or other fish, or tlie fry thereof, the person offending shall forfeit \0l. and such nets or other engines; and the owner or occupier of the mill or factory will be taken pmna facie to have incurred the penalty, unless it appear lie was ignorant of the acts done.^ In watercourses, cuts, channels, or sluices connected with salmon rivers, the occupier of such watercourse, &c. shall put at the point of divergence a grating or lattice, not exceeding two inches in the space ; and during the months of March, April, and May, and such other periods of the year as the brood or fry of salmon or trout shall be descending the river, there shall be placed or stretched over the entire surface of such grating a wire lattice or network, of such dimensions as eftectually to prevent the admis- sion of the fry, under a penalty of lOl- Ncts during Night in Rivers. — No net, except a landino'- net, shall be used in freshwater rivers to catch salmon or trout between eight p.m. and six a.m. of the foUowino- day, except in a several fishery next above the tidal How. Fishing hg Night — Disturbing Spauming FisJi. — If any person shall, between sunset and sunrise, have or use any light or fire of any kind, or any spear, gaff, strokehaul, or other such instrument, with intent to take salmon or other fish, in or on the banks of any lake or river, or if any person shall be found at any time chasing, injuring, or disturbing spawning fish, or fish in the spawning beds, or attempting to catch fish in such ^ 5 & 6 Vict. c. 106, § 75. s Ibid. § 76. s 26 & 27 Vict. c. 114, §24. 272 FISHERY LAWS OF IRELAND. places (except with rod and flies only within the lawful period), or damming, or teeming, or emptying any river or mill-race, for the purpose of taking or destroying any salmon or trout, or the fry thereof ; every person so offending shall forfeit all such instruments and a sum of 10^.1 Nets, &c. near Mill-Dams. — No person, though pos- sessed of a several fishery for twenty years next before 13 & 14 Vict. c. 88, is entitled to use a box, crib, cruive, net, instrument, or device for taking fish (except rods and lines only) within fifty yards of a mill-dam, unless such mill-dam has a regular fish-pass attached.^ Nets at Mouths of Rivers. — No person, except the owner of a several fishery, shall shoot, draw, or use any net for taking salmon at the mouth of any river which, is less than a quarter of a mile wide, nor within half a mile, seawards or inwards, from such mouth of the river ; nor shall any but the owner of a several fishery in the whole of a river and its tributaries, shoot, draw, stretch, or use nets at the mouth or other part of a river, if prohibited as being injurious to the free passage of fish by any bye-law.^ Nets in Inland Rivers. — In the inland and freshwater portions of rivers and lakes, no person, save the owner of a several fishery within the limits thereof, shall, at any period of the year, lay,- draw, make use of or fish v.-ith haul, draft, seine, or other net, for the taking of salmon or trout, unless in cases where a general public right of fishing for salmon with such nets, in the 1 5 & 6 Vict. c. 106, § 78. ^ 26 & 27 Vict. c. 114, § 16. ' 13 & 14 Vict. c. 88, §44 ; 5 & 6 Vict. c. 106, § 27. NET FISHING. 273 nature of a common f»f piscary, has been enjoyed for a space of twenty years next before 1842, under a penalty of forfeiting such nets and a sum not exceed- ing lO/.i Meshes of Nets for Salmon and Trout and Freshwater Fish. — N"o net for the taking of salmon or trout in the sea, estuaries, or tideways, or for the taking of any fish in the inland and freshwater portions of rivers and lakes, shall be used with a mesh of less size than one and three-quarter inches from knot to knot, to be measured along the side of the square, or seven inches, to be measured all round each such mesh, such measurements being taken in the clear when the net is wet ; and if any person shall use any net contrary to this provision, such person shall be liable to a penalty not exceeding 101, l^esides forfeiting such net.^ But the Commis- sioners may alter the size of meshes in certain localities by their bye-laws.^ The illegal nets may be retained till the hearing, when the Justices W'ill make an order as to their disposal.'* Spawn of Salmon, Trout, or Eels. — If any person shall wilfully take, sell, purchase, or have in his pos- session the spawn, smolts, or fry of salmon, or of trout, or of eels, or in any way or by any device wilfully obstruct the passage of the said smolts or fry, or injure or disturb any such spawn or fry, or any spawning bed, bank, or shallow where the same may be, such person shall forfeit ] 0/. for each offence, and also the nets or 1 5&6 Vict. c. 106, §65. - 8 & 9 Vict. c. 108, § 11 ; 5 & 6 Vict. c. 146, §§20, 66. =* 8 & 9 Vict. c. 108, § 12. ■• 5 & 6 Vict. c. 106, § 103. T 274 FISHERY LAWS OF IRELAND. engines used ;^ but there is no power to seize the spawn. Uiidcan Fish. — If any person at any time wilfully take, kill, destroy, expose to sale, or have in his possession, any red, black, foul, unclean, or unseasonable salmon or trout, such person shall forfeit and pay any sura. not exceeding 21. for every such fish so taken, &c. ; but fish caught accidentally and immediately returned to the water are excepted,^ There is no power to seize unclean fish. Poisoning Rivers. — If any person is found on the bank of or near any river with any deleterious matter in his possession, under such circumstances as shall satisfy the Court before whom he may be tried, that such person had employed, or was aboiit to employ, such deleterious matter for the capture or destruction of fish, the said Court is hereby empowered to inflict on such person a penalty not less than bl. nor more than lOZ. for every such offence; and any person found taking fish from any river or lake, where it shall be proved to the satisfaction of any Justice that such fish have been wilfully poisoned, shall be subject to a penalty of not less than 10s. nor more than 5/.^ Moreover, " No person shall throw, empty, or cause to run or flow into any river or lake, any dye-stuff or other deleterious or poisonous liquid, or shall tlirow into such river or lake any lim§, spurge, or other deleterious or poisonous matter, or shall steep in such river or lake any flax or hemp, under a penalty of 10^. for every such offence.^ 1 5 & 6 Vict. c. 106, § 73. See p. 278. ^ ibid. § 74. M3 & 14 Vict. c. 88, §36. See p. 87. ^ 5 & 6 Vict. c. 106, § 80. CLOSE TIME. 'Ito Annual Close Time for Salmon — Freshwater. — As regards rivers or lakes above the tideway, or portions thereof where the tide ebbs and flows (except in the counties afternamed), the close season for salmon com- mences on 15th September.^ As the close time must at least extend to 168 days, it follows that the last day of the close season is 1st March, inclusive, or in leap years 29th February. In Tidal Waters. — As regards the sea-coast, estuaries, and tideways, the close season for salmon commences on 1st September,^ and counting 168 days, the last day is the 15th February following. The Commissioners have no power to reduce the entire period of 168 days, though they may alter the time of commencing and ending the close season in other respects. By 5 & 6 Vict. c. 106, § 35, the close season cannot be otherwise altered by the Commissioners till three years elapse from the last change.^ Close Season for Salmon in Certain Exeeptcd Counties. — In any of the following counties, or on the coast 1 9 & 10 Vict. c. 114, § 1. 2 Ibid. 2 Varrjing Close Time in Fishery/ Districts. —hi the " Rexjort of the Irish Fishery Coinmissioners for 1862," a table is given, showing the tiines now fixed in the dilferent districts for the commencement and close of the fishing season for salmon and trout. As regards trout, those periods will remain in full force till altered. But as regards salmon, inasmuch as 168 days must now be allowed in all cases for the close season, it is only the commencement of the close season for salmon there specified that is in force ; and if the number of close days does not amount to 168, then there must be added* such a number to the end of the existing close season as will make up the number of 168. The latest changes made by the Commissioners in each dis- trict can only be ascertained with certainty by application to the Clerk of the Peace, or to the place in each petty sessions' district for posting up notices. T 2 276 FISHERY LAWS OF lEELAND. thereof, viz. the counties of Antrim, Tyrone, Donegal, Londonderry, Mayo, Fermanagh, Leitrim, and Sligo, no sahnon shall be killed, destroyed, or taken by any person from any river, lake, or estuary, or on the sea- coast, on or after 20th August.^ And counting the 168 days prescribed as the minimum by 26 & 27 Vict. c. 114, § 21, the last day of the close season in those counties is February .3d. Fishing Wears in Close Time. — An exception is made from the penalties of fishing in close time in favour of certain wears in February. The owners or tenants of ancient wears constructed in freshwater rivers above the ebb and flow of the tide, may use such wears during the month of February, and take salmon from the boxes, cribs, or cruives, or by drawing nets near such wears.- There is nothing in subsequent Acts which seems to repeal or to be inconsistent with this enactment. Annual Close Time — Trout Fishing. — The close season for trout fishing extends from 29th September to Feb- ruary 28th or 29th {i. e. the last day) following exclusive.^ And no fixed crib, cruive, box, or other device, nor any haul, draw, or other net of any description, shall be used for catching trout in any salmon lake or river between 1st and 29 th September, exclusive, or at such periods as may be fixed by the Commissioners for certain lakes or rivers.' The Commissioners have power to change the close season.^ 9&10 Vict. c. 114, §3. Mbid. §2. 3 13 & 14 Vict. c. 88, §45. * Ibid. §45. >* 5 & 6 Vict. c. 106, § 33-35. See note, ante, p. 275. In Lough Neagh, pollen or freshwater herring may bo caught by trammel or set nets of thread and yarn, between 1st March and 29th September, CLOSE TIME. 277 Close Season for Angling. — The close season for angling with single rod and line extends from 1st November to 1st February following, exclusive.^ The penalty for angling in close season is a sum not exceeding bl? The close season for angling extends only to salmon and trout ; for as to other freshwater tisli, there is no close season whatever, and therefore those entitled to fisli generally may fish any other kind of fisli all tlie year round. Eels are protected only against being caught by nets, baskets, &c. Angling is subject to the same restrictions as other modes of fishing, if not specially excepted, as it is some- times in the several enactments of the Irish Fisheries Acts.^ Close Time for Eels. — It shall not be lawful for any person whatever, between lOtli January and 1st July exclusive, to hang or fix any coghill, eel, or other net, or basket, or basket-work, in the eye, gap, or sluice of any eel, or other wear, in any river, or to make use of any other fixed engine for taking eels, or between 1st July and 10th January following, to keep or leave such net, basket, or other engine set, or in the water, in the eye, gap, or sluices of such eel or other wears, between sun- rise and sunset.* Eel Fisher//. — The fishing of eels is prohibited merely when pursued by the means and at the times above stated ; but as regards other means of catching them, 1 26 & 27 Viet. e. 114, § 23. = 5 & G Vict. c. 106, § 69. 3 See pp. 270, 272, 279. The law of pouuliing anglers is the same as in England, ante, p. 119 ; and see the euaetnieut, p. 2S0. •■ 5 & 6 Vict. e. 106, §31. 278 FISHEEY LAWS OF IRELAND. such means may be used at any time of tlie year, the rule being that eel fishing is open all the year round, except so far as is restricted by the above enactment.^ If any person during such close time shall place or hang any coghill, or eel-nets, or baskets, or other fixed modes of catching fish, in the eyes, gaps, or sluices of eel or other wears, he shall forfeit the nets, and lOZ. for each net ; and if any person shall hang such nets between sunrise and sunset during the open season for eel fishing, he shall forfeit the nets and 51 besides for each such net ; and proof of the person being occupier of the wear shall be prima facie evidence of the nets, &c. being hung by him.^ If the proprietor or tenant of any eel-wear shall take, or suffer to be taken therein any salmon or trout, or salmon or trout fry, or spent salmon, every such pro- prietor or tenant shall forfeit and pay for each and every such offence a sum not exceeding lO/.^ Removal of Salmon Nets during Close Time. — Every proprietor, lessee, or other person engaged in fishing for salmon by means of nets, of any kind or description, shall remove and carry away from any strand, or the banks of any river, or from the vicinity thereof, during the yearly close season all such nets, under a penalty of forfeiting such nets, and a sum between 21. and 10/.* Fishing, &c. during Annual Close Time. — If any person during the annual close season wilfully take or fish for, or aid or assist in taking or fishing for, any salmon or trout, he shall forfeit the fish, and the net or engine 1 See also Spawn, p. 273. 2 .^ & 6 Vict. c. 106, § 36. 3 Ibid. § 77. * 13 & 14 Vict. c. 35, §34. FISHING IN CLOSE TIME. 279 used.^ And any person who shall buy or sell, or expose to sale, or have in his custody or possession, any salmon or trout, or part or portion thereof, caught in the annual close time, shall forfeit such fish, or part of fish, and a sum not exceeding 21. for each such fish or part of fish.'^ And possession of a salmon or trout, or part thereof, during close time, shall be jjrimd facie evidence that the salmon or trout was caught during close time.^ Wccldy Close Time for Salmon and Trout. — No salmon or trout shall be fished for or taken in any way except by single rod and line between 6 a.m. on Saturday, and 6 A.M. on Monday following.* Any net, or other instru- ment, and any crib, box, or cruive used within that time for fishing, shall be forfeited.^ Salmon or trout caug-it for artificial propagation are always excepted.^ No person shall scare or obstruct the free passage of salmon or trout during the weekly close season, under a penalty of 21. to 10/. and forfeiture of nets or instru- ments used ; but fishers by rod and line are excepted.' And a penalty of lOZ. to 50/. shall be incurred by the person occupying or using such cribs, boxes, &c. during weekly close time.^ It follows that no penalty is incurred for fishing with the rod and line on Sunday during the open season. As regards other fish than salmon or trout, there is no restriction of a weekly close time. 1 5 & 6 Vict. c. lOG, § 36. 2 5 & 6 Vict. c. 106, § 36 ; 13 & 14 Vict. c. 88, § 35. 3 5 & 6 Vict. c. 106, § 36 ; 13 & 14 Vict. e. 88, § 36. * 26 & 27 Viet. c. 114, §20. » Ibid. « Ibid. § 22. " Ibid. § 25. M3& 14 Vict. c. 88, §46. 280 FISHERY LAWS OF lEELAND. Fishing in Annual or Weekly Close Time. — If a boat, cot, or ciirragh, found on or near waters frequented by salmon or trout has been used during annual or weekly- close time for fishing, the person so using shall forfeit hi. ; and on a second offence, the boat, cot, or curragh may be seized and forfeited, unless the boat belongs to another person who was not privy to such use.^ So nets illegally used during close season may be seized and removed by the constabulary or coast guards.^ But there is no power to seize the fish caught during weekly close time. Poaching in a Private Fishery. — There were various enactments in the Irish Fishery Acts directed against persons poaching in a several fishery ; but the Larceny Act (24 & 25 Vict. c. 9G, §§ 24, 25, 103 =^) applies to Ireland as well as England. There are, however, some enactments still outstanding in Ireland, which go beyond anything which exists in England. Filtering Lands to Fish. — If any person enter upon any lands or premises for the purpose or under the pre- tence of fishing or angling in any lake, river, stream, pond, or water, without authority in writing from the proprietor or occupier of such lands or premises, such person shall forfeit 21. for every such offence.* And any person removing, taking, using, or employing any cott, barge, boat, or vessel, without permission of the owner thereof, shall forfeit a sum of 2/.^ 1 26 & 27 Vict. c. 114, § 18. « 8 & 9 Vict. c. 108, § 10. 3 Ante, pp. 73, 77, 79. The procedure against poachers in Ireland under the Larceny Act is pointed out by the 14 & 15 Vict. c. 93, 24 & 2.5 Vict. c. 96, § 120. * 5 & 6 Vict. c. 106, § 71. Where the offence is identical with that described in the Larceny Act, the latter Act must be followed. Ibid. § 72. APPREHENDING OFFENDEKS. 281 Ohstrwding Persons Fishing Lcgalhj. — If any person shall resist or obstruct any persons lawfully engaged in fishing, or in proceeding to fish, or in returning from fishing, or shall wilfully and maliciously place any net or other engines with the intent and design to prevent fish from entering the nets of other persons set or placed in a legal manner, every person so offending shall for every such offence forfeit and pay any sum not exceeding 61. and every such net or other engine so placed shall also be forfeited.^ Offenders bo2ind to tell their Names. — " When any person shall be found, at sea, or on rivers, lakes, or other waters, or on land, offending against any of the provisions of this Act by the use of any illegal net, engine, or device whatsoever for the taking of fish, or by the use of any net, engine, or device prohibited at such time, or in any other manner, it shall be lawful for any oflicer or person hereinbefore empowered to enforce the provisions of this Act, or for any person interested in the fishery in which such illegal act may be committed, to require the person so found offending forthwith to desist from such offence, and also to tell his christian name, surname, and place of abode; and in case such person shall, after being so required, refuse to tell his real name or place of abode, or shall give such a general description of his place of abode as shall be illusory for the purpose of discovery, or shall wilfully continue such oflence, it shall be lawful for the officer or person so requiring as aforesaid, and also for any person acting by his order and in his aid, 1 5 &6 Vict. c. 106, §28. 282 FISHERY LAWS OF IRELAND. to apprehend such offender, and to convey him or cause him to be conveyed, as soon as conveniently may be, before a Justice of the Peace, to be dealt with according to law : provided always, that no person so apprehended shall on any pretence whatsoever be detained for a longer period than twenty-four hours from the time of his apprehension before he shall be brought before some Justice of the Peace ; and that if he cannot, on account of the absence or distance of the residence of any such Justice of the Peace, or owing to any other reason- able cause, be brought before a Justice of the Peace within such twelve hours {sic) as aforesaid, then the per- son so apprehended shall be discharged, but may never- theless be proceeded against for his offence by summon or warrant, according to the provisions hereinafter men- tioned, as if no such apprehension had taken place." ^ This enactment is almost verhatini the same as the enactment in the English Game Act, 1 & 2 AVm. IV. c. 32, § 31, and therefore is construed in the same way strictly.^ The persons named can alone make the demand, and it must be made on the spot. The demand of the name, &c. must be made before an attempt to arrest.3 The party, when arrested, can be arrested only by the persons described, viz. the water bailiff or officer, or the owner, but he can be detained by those assisting in the arrest while the party arresting goes in search of a Justice within the twelve hours."^ 1 5 & 6 Vict. c. 106, § 87. This section does not apply to poachers, who are to he dealt with as in England under 24 & 25 Vict. c. 96, ante, p. 73. ^ See Paterson's Game Laws, p. 59. 3 R. V. Long, 7 C. and P. 314 ; R v. Curran, 6 C. and P. 397. * Evans v. Macloughlan, 4 L. T. N.S. 31. WATEK BAILIFFS. 283 Offenders usinrj Violence. — " Where any persons, to the number of three or more together, shall be found by any officer of Her Majesty's navy, or of the coast-guard, or any water bailiff or peace officer, by violence, intimida- tion, or menace impeding or obstructing, or attempting to impede or obstruct, any other person or persons in the lawful prosecution of any fishery, it shall be lawful for such officer of the navy or coast-guard, or water bailiff, or peace officer so requiring, and also for any person acting by his order or in his aid, to apprehend such offenders, and to convey them before a Justice of Peace to be dealt with according to law; and every person so offending by such violence, intimidation, or menace as aforesaid, and every person then and there aiding or abetting such offender, shall, upon being con- victed thereof, forfeit and pay for every such offence such penalty, not exceeding twenty pounds, as to the convicting Justice shall seem meet, together with the costs of the conviction, which said penalty shall be in addition to and independent of any other penalty to which any such person may be liable for any other offence against this Act." ^ This enactment resembles the section in the Night reaching Act, 9 Geo. IV. c. 69, § %- Water Bailiffs. — Any person interested in the pre- servation of the fish of any river or lake, or any persons who have united themselves into a society for the pre- servation of the fisheries, or the owner or proprietor of any fishery in any river or lake, or the proprietor of any 1 5 & 6 Vict. c. 10(), § 88. - Patersou's Game Laws, pp. 93, 94. 284 FISHERY LAWS OF lEELAND. salmon fishery on the sea coast may appoint, during pleasure, by an instrument in writing of a given form, water bailiffs, whose appointment shall be endorsed by two Justices at petty sessions, and two Justices may also revoke such appointment.^ A person acting as water bailiff without having his appointment confirmed by Justices forfeits 10/.^ So the board of conservators may appoint water bailiffs who require no approval of Justices.^ The water bailiff has the powers of a constable, and shall be at liberty, without let or hindrance, to enter into and pass through or along the banks or borders of any lakes or rivers frequented by salmon or trout, or of the tributaries thereof ; and, with boats, to enter ali such lakes or rivers, and to enter and examine all wears, sluices, mill-dams, mill-races, and watercourses, and all standing, floating, or other nets whatsoever, and to seize all illegal nets, engines, and instruments whatsoever, when used illegally ; and the production of his certi- ficate of appointment shall be sufficient warrant for the water bailiff acting ; but the bailiff shall have no power to enter a garden enclosed, nor a dwelling-house or its curtilage, unless the ordinary road to a wear, dam, or dyke lies through the same, save when authorized by a Justice's warrant.* Justices may grant a search warrant on oath to authorize a water bailiff", or other officer appointed by the Commissioners, to enter dwelhng- houses or gardens, for the purpose of detecting offences, at such times in the day or night as the warrant shall mention ; but the warrant shall not continue in force J 5 & 6 Vict. c. 106, § 82. ^ Ibid. § 83. s 11 & 12 Vict. c. 92, § 36. * 5&G Vict. c. 106, § 84. PROCEDURE. 285 for more than a week.^ Officers of Her Majesty's cruisers and men of tlic coast-guard service may also act as constables, and board vessels to seize illegal nets or engines, &c.- Procedure, — Offences are to be determined by one or more Justices of tlie place where the offence was com- mitted.^ Where the offence is committed at sea the Justices of the counties or towns adjoining the coast have jurisdiction.'* Where the offence is committed in rivers, lakes, or streams forming boundaries between counties or districts, such offence may be prosecuted before any Justices of either district.^ The penalty may be recovered by distress and sale of the offender's goods, or if no goods, by imprisonment.*' Where the Com- missioners have executed works at the expense of the offender, such expenses may be sued for by civil bill, or by action in any superior Court." A form of conviction and dismissal is given. The person aggrieved may appeal to quarter sessions.^ The Lord Lieutenant may remit the penalty. ^"^ A report is to be made to the Com- missioners of the convictions at each petty sessions." In case illegal nets and engines are seized, the officer or person so seizing them may retain them in his custody till the sitting of petty sessions, when the Justices will order them to be forfeited, and if illegal in form, to be destroyed or sold.^^ ' 5 & 6 Vict. c. IOC, § 85. - Ibid. §86. » Ibiil. § 94. ♦ Ibid. §96. = 13 & 14 Vict. c. 88, § 47. « 5 & 6 Vict. c. 106, § 94. '' Ibid. § 9.5. 8 i^ij, g§ 93^ joO. » Ibid. §§99, 100, 101. '0 Ibid. §102. " Ibid. §107. i- Ibid. §103. 286 FISHERY LAWS OF IRELAND. Witnesses may be committed to tlie house of cor- rection who refuse, without cause, to give evidence.^ Informers and owners of fisheries are admissible as witnesses.^ 1 5 & 6 Vict. c. 106, § 105. ^ Ibid. § 104. APPENDIX. APPENDIX. 24 & 25 VICT. C. 109. An Act to amend the Laws relating to Fisheries of Sahnon in Enyland [fi^/t August, 1S61.] WHEREAS the sahiion fisheries of Emjland have of late years been greatly injured, and for the purpose of increasing the supi)ly of salmon it is expedient to amend the laws relating to fisheries of salmon in England: be it therefore enacted by the Queen's most Excellent Majesty, by and -with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Pkeliminary. 1. Short TiV/f.— This Act may be cited for all purjwses as the Salmon Fishery Act, L^(J1. 2. AjipUcaiion of Act. — This Act shall not extend to Scotland or Ireland, or to the river Tweed, as defined by the Tweed Fisheries Amendment Act, 1859. 3. Commencement of Act. — This Act shall not come into operation until the first day of October one thousand eight hundi'ed and sixty- one. 4. Definition of Terms.— In this Act, unless there is something in- consistent in the context, the words and expressions hereinafter mentioned shall have respectively the meanings hereby assigned to them ; that is to say, " Person " shall include any body of persons, corporate or unin corporate : U 290 ENGLISH SALMON FLSHEEIES ACT. " Salmon " shall include all migratory fish of the genus salmon •whether known by the names hereinafter mentioned, that is to say, salmon, cock or kipper, kelt, laurel, girling, grilse, botcher, blue cock, blue pole, fork tail, mort, peal, herring peal, may peal, pugg peal, harvest cock, sea trout, white trout, sewin, buntling, guiniad, tubs, yellow fin, sprod, herling, whiting, bull trout, whitling, scurf, burn tail, fiy samlet, smoult, smelt, skirling or scarling, parr, spawn, pink, last spring, hepper, last brood, gi-avelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other local name : " Young of salmon" shall include all young of the salmon species, whether known by the names of fry, samlet, smolt, smelt, skirling or skarling, paiT, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other name, local or other, wise : " Court " shall include two or more magistrates assembled in petty sessions : " Tidal waters " shall include the sea, and all rivers, creeks, streams, and other waters as far as the tide flows and reflows : " Inland waters " shall mean all waters that are not tidal waters ; " Dam " shall mean all wears and other fixed "obstructions used for the purpose of damming up water : " Fishing wear" shall mean a dam used for the exclusive purpose of catching or facilitating the catching of fish : " Fishing mill dam " shall mean a dam used or intended to be used l)artly for the purpose of catching or facilitating the catching of fish, and partly for the purpose of supplying water for milling and other purposes : " Fixed engine " sliall include stake-nets, bag-nets, putts, putchcrs, and all fixed implements or engines for catching or for facili- tating the catching of fish : " Home Office" shall mean one of Her Majesty's Principal Secre- taries of State. Law op FisniNO. Prohibition of certain Modes of destroying Fish. 5. Poisoning Hirers. — Every person who causes or knowingly permits to flow, or puts or knowingly permits to be put, into any waters con- taining salmon, or into any tributaries thereof, any liquid or solid 21 & 25 VICT. c. 109, §§5, G. 291 matter to such an extent as to cause the waters to poison or kill fish, shall incur the following penalties ; (that is to say), (1.) Upon the first conviction a penalty not exceeding five pounds : (2.) Upon the second conviction a penalty not exceeding ten pounds, and a further penalty not exceeding two pounds for every day diu-ing which such offence is continued : (3.) Upon the tliird or any subsequent conviction, a penalty not exceeding twenty ])ounds a day for every day during which such offence is continued, commencing from the date of the third conviction : hut no person shall be subject to the foregoing penalties for any act done in the exercise of any right to which he is by law entitled, if he jtrove to the satisfaction of the Court before whom he is tried that he has used the best practicable means, within a reasonable cost, to render harmless the liquid or solid matter so permitted to flow or to be put into waters ; but nothing herein contained shall prevent any person from acquiring a legal right in cases where he would have acquired it if this Act had not passed, or exempt any person from any punish- ment to which he would otherwise be subject, or legahze any act or default that would but for this Act be deemed to be a nuisance or otherwise be contrary to law. G. Cost of neutral ising the Poison. — Where any proceedings are insti- tuted by any complainant against any person for the recovery of any penalties alleged to have been incurred by him under the last preceding sectitm, if such person, hereinafter referred to as " the defendant," on appearing before the Justices constituting the Court by which he is to be tried in pursuance of this Act, alleges, by way of defence, that he has used the best practicable means, within a reasonable cost, to render such matter harmless, and proves to the satisfaction of the Court that in the event of the complaint being decided against him the expense of per- manently preventing the matter complained of would, exclusive of costs, exceed one hundred pounds, and gives security, to be approved by such Court, duly to prosecute his appeal and to abide the event thereof, all proceedings before the Justices shall be stayed, and it shall be lawful for such complainant to bring an action in one of Ilcr Majesty's superior courts of law at Westminster against the defendant ; and the plaintiff in such action shall deliver to the defendant an issue or issues whereby the question whether he has used the best practical de means, within a reasonable cost, to render such matter harmless may be tried ; and the form of such issue or issues, in case of dispute, or in the case of nonappearance of the defendant, shall be settled by the Court in which the action is brought, and such action shall be prosecuted and issue or u 2 292 ENGLISH SALMON FISHEEIES ACT. issues tried in the same manner and subject to the same incidents in and subject to which actions are prosecuted and issues tried in other cases within the jurisdiction of such Com-t, or as near thereto as cir- cumstances admit. 7. Jury to decide as to Remedy. — The verdict of the jury on such issue shall, unless the Coui-t before which the same is tried orders a new trial, be conclusive as to the questions involved in any subsequent proceedings that may be had for the recovery of any penalties in pursuance of the said section, and any costs that may have been incurred before the Justices by the parties to such action as is mentioned in this section shall be deemed to be costs incurred in such action, and be payable accordingly. 8. Fishing with Lights, Spears, d-c. — No person shall do the following things or any of them ; that is to say, (1.) Use any Ught for the pur^wse of catching salmon : (2.) Use any spear, gaff', strokehall, snatch, or other like instru- ment for catching salmon : (3.) Have in his possession a light or any of the foregoing instru- ments under such circumstances as to satisfy the Court before whom he is tried that he intended at the time to catch salmon by means thereof : And any person acting in contravention of this section shall incur a penalty not exceeding five pounds, and shall forfeit any instruments used by him or found in his possession in contravention of this section ; but this section shall not apply to any person using a gaff' as auxiliary to angling with a rod and line. 9. Using Roe as a Bait. — No person shall do the following tilings or any of them ; that is to say, (1.) Use any fish roe for the purpose of fishing : (2.) Buy, sell, or expose for sale, or have in his possession, any salmon roe : And any person acting in contravention of this section shall for each offence incur a penalty not exceeding two pounds, and shall forfeit all salmon roe found in his possession ; but this section shall not aj)ply to any person who uses or has in his possession salmon roe for artificial propagation or otlier scientific purj)0ses, or gives any reason satisfactory to the Court by whom he is tried for having the same in his pos- session. 10. Meshes of Nets. — No person shall take or attempt to take salmon with any net having a mesh of less dimensions than two inches in extension from knot to knot (the measurement to be made on each side of the square), or eight inches measured round eacli mesh when wet ; 24 & 25 VICT. c. 109, §§11, 12. 293 and any person acting in contravention of this section sliall fuifcit all nets anil tackle nsed by him in so doing, and shall for each offence incur a penalty not exceeding five pounds ; and the placing two or more nets behind or near to each other in such manner as to practically diminish the mesh of the nets used, or the covering the nets used with canvas, or the using any other artifice so as to evade the provisions of this section with ri's])ect to the mesh of nets, shall be deemed to he an act in con- travention of this section. 11. Fixed Etiffines.— 'No fixed engine of any descrii)tion shall be placed or used for catching salmon in any inland or tidal waters ; and any engine placed or used in contravention of this section may be taken possession of or destroyed ; and any engine so placed or used, and any salmon taken by such engine, shall be forfeited, and, in addition thereto, the owner of any engine placed or used in contravention of this section shall, for each day of so placing or using the same, incur a penalty not exceeding ten ])ounds ; and for the purposes of this section a net that is secured by anchors, or otherwise temporarily fixed to the soil, shall be deemed to be a fixed engine, but this section shall not affect any ancient right or mode of fishing as lawfully exercised at the time of the jtassing of this Act by any person by virtue of any gi-ant or charter or innncmorial usage ; provided always, that nothing in this section contained shall be deemed to apply to fishing wears or fishing mill dams. 12. Bams and Wears. — The following regulations sliall be observed with respect to dams : (1.) No dam except such fishing wears and fishing mill dams as are lawfully in use at the time of the passing of this Act, by viitue of a grant or charter or innncmorial usage, shall be used for the purpose of catcliing or facilitating the catchmg of salmon : 1. Any person Ciitching or attempting to catch salmon in contravention of this section shall incur a penalty not exceeding five pounds for each offence, and a further penalty not exceeding oi\e pound for each salmon which he catches : 2. All traps, nets, and contrivances used in or in con- nexion with the dam for the pm-pose of catching salmon shall be foifeited : 3. All salmon caught in contravention of the above pro- hibition shall be forfeited : And no fishing wear, although lawfully in use as aforesaid, shall be used for the purposes of catching salmon unless it have therein such fiee 294 ENGLISH SALMON FISHEEIES ACT. gap as is hereinafter mentioned ; and no fishing mill dam, although awfidly in use as aforesaid, shall be used for the purposes of catcliing salmon unless it have attached thereto a fish pass of such form and dimensions as shall be approved of by the Home Office, nor unless such fish pass has constantly rimnuig through it such a flow of water as will enable salmon to pass up and down such pass, but so nevertheless that such pass shall not be larger nor deeper than requisite for the above purposes : (2.) No person sliall catch or attempt to catch, except by rod and liue, any salmon in the head race or tail race of any mill, or within fifty yards below any dam, unless such mill or dam has attached thereto a fish pass of such form and dimensions as may be ajjproved by the Home Office, and such fish pass has constantly running through it such a flow of water as wUl enable salmon to pass up and down it ; and if any person acts in contravention of the foregoing provision, 1. He shall incur a penalty not exceeding two poiuids for each offence, and a further penalty not exceeding one pound for every salmon so caught : 2. He shall forfeit all salmon caught in contravention of this section, and all nets or other instruments used or placed for catching the same. 13. Gratings across Side Streams. — Where salmon, or the young of salmon are led aside out of a main stream by means of any artificial channel used for the purpose of supplying towns with water, or for supplying any navigalile canal, the company or persons having the control over such artificial channel shall, within six months after the commencement of this Act, put up and shall maintain, at their own costs and charges, a givating or gratings across such channel, for the purpose of jn-eventiug the descent of the salmon or the young of salmon, and such gi'ating or gratings shall be placed in such form and manner as may be approved by one of the inspectors in this Act mentioned ; and any company or persons failing to put a grating or gratings in cases where they are required to do so by this section shall incur a penalty not exceeding five pounds for every day after the expiration of such period of six months during which he fails to comi)ly with the j)rovisions of this section ; and any such company or person failing so to maintain the same shall incur a penalty not exceeding one jwund for every day during wliich such failure continues : provided always, that no such grating sliall be so placed as to interfere with the passage of boats on any navigable canal. 24 & 25 VICT. c. 109, §§ 14-, 15. 295 PllOniBITION OP TUE DESTRUCTION OF UNSEASONABLE Fisii. 14. Unclean Fish.— No person shall do any of the following things ; that is to say, (1.) Wilfully take any unclean or unseasonable salmon ; (2.) Buy, sell, or expose for sale, or have in his possession, any unclean or unseasonaljle salmon, or any part thereof: And any person acting in contravention of this section shall inciu: the fullowing i)enalties ; tliat is to say, (1.) He shall forfeit any fish taken, bought, sold, or exposed for sale, or in his possession ; (2.) He shall incur a penalty not exceeding five pounds in respect of each fish taken, sold, or exposed for sale, or in his pos- session : But this section shall not apply— (1.) To any person who takes such fish accidentally, and forth- with returns the same to the water with the least possible injmy : (2.) To any person who takes or is in possession of such fish for artificial propagation or other scientific purposes. 15. Young Salmon.— ^io person shall do the fullowmg things or any of them ; that is to say, (1.) Wilfully take or destroy the yoimg of salmon ; (2.) Buy, sell, or expose for sale, or have in his possession, the young of salmon ; (3.) Place any device for the purpose of obstructing the passage of the young of salmon ; (4.) Wilfully injure the young of salmon ; (5.) Wilfully disturb any spawiiing bed, or any bank or shallow on which the spawn of salmon may be : And any pei-suu acting in contravention of this section .shall incur the • following penalties ; that is to say, (1.) He shall forfeit all the young of salmon found in his pos- session ; (2.) lie shall forfeit all rods, lines, nets, devices, and instnuuents used in committing any of the above oftences ; (3.) He shall for each offence pay a i)cnalty nut exceeding five pounds ; But nothing herein contained shall apply to any person who may have obtained such young of siUnion for aitificid propagation or other scien- 296 EXGLISH SALMON FISHERIES ACT, tific purposes, and nothing herein contained shall prejudice the legal right of any owner to take materials from any stream. 16. Spaivning Salmon. — If any person wilfully disturbs or attempts to catch salmon when spawning, or when on or near their spawning beds, he shall for each offence incur a penalty not exceeding five pounds ; but this section shall not apply to any person who may catch or attempt to catch salmon for the purposes of artificial propagation or other scien- tific purposes. Restrictions as to Times op Fishing. 17. Close Time. — N"o person shall fish for, catch, or attempt to catch, or kill salmon between the days hereinafter mentioned (which interval is herein referred to as the close season) ; that is to say, between the first day of September and the first day of February following, both in- clusive, except only that it shall be lawful to fish with a rod and line between the first day of September and the first day of November fol- lowing, both inclusive ; and any person acting in contravention of this section shall forfeit any salmon caught by him, and shall in addition thereto incur a penalty not exceeding five pounds, and a further penalty not exceeding two pounds in respect of each salmon so caught. 18. Poivcr of Home Office to vary Close 5easo>i.— The Home Office may, upon the application of the Justices in quarter sessions assembled of any county abutting on water containing salmon, extend or vary the time during which it is prohibited to take salmon in such waters ; any such application shall be forwarded to the Home Office by the Chainnan of such Justices, but it shall not be entertained by the Home Office until due proof is given that notice of such application has been .served on the Clerk of the Peace of every county abutting on such river other than the county from the Justices of which the application pro- ceeds, and that a copy of such notice has been published in every county abutting on such river by advertisement once at least in each of four successive weeks in some local newspaper ; the extension of such time as aforesaid V)y the Home Office shall be made by order under the hand of one of Her Maje.sty's principal Secretaries of State, and a copy of the London Gazette containing such order shall be evidence of the same having been made. For the puqioses of this section any riding or other division of a county having a separate court of quarter sessions shall be deemed a separate county, and any penalties imposed by this Act for the purpose of prohibiting the killing of fish during the close time shall apply to 24 & 25 VICT. c. 109, §§ 19—21. 297 such extended close time ; and the Home Office may from time to time vary the close time so extended. 19. Sdltnrj Fish during Close Ttme.— iio person shall buy, sell, or expose for sale, or have in his possession for sale, any salmon between the third day of September and the second day of February following ; and any person acting in contravention of this Act shall forfeit any fish so bought, sold, or exposed for sale, or in his possession for sale, and shall incur a penalty not exceeding two pounds for each such fish ; but this section shall not apply to any person buying, selling, or exposing for sale, or having in his possession for sale, salmon cured, pickled, or dried, or any fresh salmon caught beyond tlie limits of this Act, never- theless the burden of proving any fresii salmon that is sold, or exposed, or in the possession of any person for sale between the said third day of September and the said second day of February to have been caught beyond the limits of this Act shall lie on the person selling or exposing the same for sale, or having the same in his possession for sale. 20. Removal of Fixed Engines during Close Time. — The proprietor or occupier of every fishery for salmon shall, within thirty-six hours after the commencement of the close season, cause to be removed and carried away from the waters within his fishery the inscales, hecks, tops, and rails of all cruivcs, boxes, or cribs, and all planks and temporary fix- tiu'cs used for taking or killing salmon, and all other obstructions to tiie free passage of fish in or through the cniives, cribs, and boxes within his fishery ; and if any pn^ju-ietor or occupier omits to remove and cany away in manner afore&\id any things hereby required to be removed and carried away he shall incur the following penalties ; (that is to say,) (1.) He shall forfeit all the engines or other things that are not removed and carried away in compliance with this section ; (2.) lie shall, for every day during which he suffers such things to remain unremovcd beyond the period prescribed by this Act pay a sum not exceeding ten pounds. 21. Weekly Close Time. — No person shall fish for, catch, or kill by any means other than a rod and line, any salmon between the hour of twelve of the clock at noon on Saturday and the hour of six of the clock on Monday morning ; and any person acting in contravention of this section shall forfeit all fish taken by him, and any net or movable instrument used by him in taking the same, and in addition tliereto shall incur a penalty not exceeding five pounds, and a further penalty not exceeding one pound in respect of each fish so taken between twelve of the clock at noon on Saturday and six of the clock on Monday morning ; but nothing in this section contained shall compel the owner 298 ENGLISH SALMON FISHEEIES ACT. of any putts or putchers to remove or di-aw up the same during such time as is mentioned in this section, or subject him to a penalty, so that he lets down a net in such manner or uses such other device as the Home Office approves for the purpose of preventing salmon passing into the putts or putchers diu'ing such time as aforesaid. 22. Cribs or Traps during WeeJcly Close Time. — The proprietor or occu- pier of every fishery shall, between twelve of the clock at noon on Saturday and six of the clock on the Monday morning following, maintain a clear opening, of not less than four feet in width from the bottom to the top, through all cribs, boxes, or cruives used for taking salmon within his fishery, so that a free space of that width is eft'ectually secured for the passage of fish up and down tlu'ough each box, crib, or ciiiive, whether \ised for the purpose of fishing or not ; and shall, for the purpose of maintaining such opening, remove the inscales and rails of all such boxes, cribs, or cruives ; and any person acting in contravention of this section shall incur the following penalties ; (L) He shall for each offence pay a sum not exceeding five pounds, and a further penalty not exceeding one pound for each fish so taken : (2.) He shall forfeit every fish caught in contravention of this section. Fish Passes. 23. A ttacMncj Fish Passes to existing Z>am,?.— Any proprietor of a fishery with the written consent of the Home Office may attach to every dam existing at the time of the passing of this Act a fish pass, of such form and dimensions as the Home Office may approve, so that no injury be done to the milling i)ower or to the supply of water to or of any navi- gable river, canal, or other inland navigation by such fish pass ; and any person obstructing any person legally authorized in erecting or doing any necessary act to erect or maintain such fish pass shall incur a penalty not exceeding ten pounds for each act of obstmction ; and any person injuring such fish pass shall pay the expense of repairing the in- jury, such expense to be recovered in a summaiy manner, and, in addi- tion thereto, if such injury is wilful, shall incur a penalty not exceeding five pounds ; and any person doing any act for the purpose of preventing salmon from passing through a fish pass, or taking any salmon in its passage through the same, shall incur a penalty not exceeding five poinids for a first offence, and not exceeding ten pounds for each subse- quent offence, and shall forfeit any salmon taken by him in contraven- tion of this section, and any instrument used by hiui in taking the 24 & 25 VICT. c. 109, §§ 24—26. 299 same : Provided that if any injury is done to any dam by reason of the affixing of a fisli pass in pursuance of this section, any person sustain- ing any loss tiiereby may recover compensation for such injury in a summary manner from the person or body of persons by whom such fish pass has been affixed. 24. Notice to attach Fish Pass.— The Home Office shall not give their consent to tlie attachment by a proprietor of a fish pass to any dam, in pursuance of the last preceding section, unless such proprietor proves, to the satisfaction of the Home Office, that lie has served notice on the owner of such dam of his intention to apply fur such consent, and at the same time has furnished him with plan and specification of the fish pass which he proposes to erect, a reasonable time Ijefore liis applica- tion ; and it shall be lawful for such owner to urge any objections he may tliink fit to the Home Office against their giving their consent, and the Home Office shall take any objections so made into considera- tion before they give their consent to the attachment of the fish pass. 25. Fish Passes to future Dams. — Every person who, after the passing of tliis Act, in waters where salmon are found, constmcts a new dam, or raises or alters, so as to create increased obstruction to fish, a dam already constructed, shall attach and maintain attached thereto in an efficient state a fish pass of such furm and dimensions as may be deter- mined by the Home Office, and if he do not, sucli person shall incur a penalty not exceeding five pomids ; and it shall be lawful for the Home Office to cause to be done any work by this section required to be done by such person, and to recover the expense of doing the same in a summary manner from the person in default ; but this section shall not authorize anything to be done which may injuriously affect any navigable river, canal, or inland navigation, nor shall anything in this or the last preceding section prevent any person from removing a fish pass for the purpose of repairing or altering a dam, so that within a reasonable time he restore such fish pass in as an efficient a state as it was before he removed the same. 26. Suj^pli/ of Water to Fish Posses.— Where a fish pass is attached to any dam in pursuance of this Act, the sluices, if any, fur diiiwing off the water which would otherwise flow over the dam shall be kept shut at all times when the water is not required for milling purposes in such manner as to cause such water to flow through the fish pass ; and any person making default in complying with the requisitions of this section shall incur a penalty not exceeding five shillings 2>ei- hour for every hour during wliich such default continues ; but this section shall not pre- clude any person from opening a sluice for tlie purpose of letting otf water in cases of flood, or for milling purposes, or when necessary for 300 ENGLISH SALMON FISHEEIES ACT. tlie purposes of navigation, or for cleaning or repairing any dam or mill or the appurtenances thereof. Restrictions as to Fishhirj Wears, 27. Free Gaps. — Where any fishing wear extends more than halfway across any stream at its lowest state of water, it shall have a free gap or opening in accordance with the regulations following, unless other- wise authorized by the Home Office, under the powers of the Act ; that is to say, (L) The free gap shall be situate in the deepest part of the stream between the points where it is intercepted by the wear : (2.) The sides of the gap shall be in a line with and parallel to the direction of the stream at the wear : (3.) The bottom of the gap shall be level with the natural bed of the stream above and below the gap : (4.) The width of the gap in its narrowest part shall be not less than one tenth part of the width of the stream : provided always, that such gap shall not be required to be wider than forty feet, and shall not in any case be narrower than three feet. 28. Free Gaps in Fishing Wears. — The following rules shall be ob- served for the purpose of enforcing efficient free gaps in fishing wears ; that is to say, (1.) Where a wear is without a legal free gap at the time of the connnencement of this Act the owner of sucli wear shall within twelve months after the commencement of this Act make such a gap, and if he does not he shall incur a penalty not exceeding five pounds for eveiy day after the expiration of such ])eriod of twelve months during which he does not make such free gap. (2. ) Where a free gap has been made in a wear, but the same is not maintained in accordance with this Act, the owner of such wear shall incur a penalty not exceeding one pound a day for each day he is in default : (3.) No alteration shall be made in the bed of any river in such manner as to reduce the flow of water through a free gap ; if it is, tlie person making the same shall incur a penalty not exceeding five pounds, and a further penalty of one pound a day until he restores the bed of the river to its original state : 24 & 25 YiCT. c. 100, §§29—31. 301 (4.) No person shall pLace any obstruction, use any contrivance, or do any Act wlierel)y fish may be scared, dctenx'd, or in any way prevented from freely entering and passing up and down a free gap at all jieriods of the year ; and any person placing any obstniction, using any contrivance, or doing any act in contravention of the regidation lastly hereinbefore contained shall incur a penalty not exceeding five pounds for the first offence, and not exceeding ten pounds for each subsequent offence ; but this last regulation shall not apply to a tem- porary bridge or board used for crossing the free gap, and taken away immediately when a person has crossed the same. 29. Boxes and Crihs in Fishing Wears and Fishing Mill-Dams. — The following Rules shall be observed in relation to tlie construction of boxes and cribs in fishing wears and fishing mill-dams ; that is to say, (1.) The upjier surflvce of the sill shall be level with the bed of the river : (2.) The bars or inscales of the heck or upstream side of the box or crib shall not be nearer each other than two inches, and shall be capable of being removed, and shall be placed perpendicularly : And the owner of any fishing wear, or fishing mill dam, that has attached tliereto any box or crili, in contravention of this Act, shall bring the same into conformity with this Act within six months after the commencement of this Act ; and he shall incur a penalty not exceeding 5/. for every day after the exi)iration of such period of six months, during which he fiiils to comply with the provisions of this section ; and any owner foiling so to maintain the same, shall incur a penalty not exceeding \l. for every day during which such foilure continues. 30. Spur Walls in Fishing Wears or Fishing Mill Dams.— There shall not be attached to any box or crib in any fishing wear or fishing mill dam, any si)ur or tail wall, leader, or outrigger, of a gi-eater length than twenty feet from the ujipcr or lower side of such box or crib ; and if any box or crib in any fishing wear or fishing mill dam has any walls, leaders, or outriggers, in contravention of this section, the owner of the wear or fishing mill dam shall incur a penalty not exceeding U. for every day during the continuance thereof. Central Authoritt. 31. Superintendence of Fisheries b;/ Home Office. — The general super- intendence of the salmon fisheries throughout England shall be vested 302 ENGLISH SALMON FISHERIES ACT. in the Home Office, and it sliall be lawful for the Home Office to appoint two inspectors of fisheries for three years, to assign to them their duties, and to pay to them such salaries as may from time to time be deter- mined by the Commissioners of Her Majesty's Treasury. The Home Office may from time to time remove the said inspectors, and appoint other persons in their stead. 32. Annual Reports of Fishery Inspectors. — The Home Office shall annually lay before Parliament reports from the inspectors, which reports shall contain as far as may be practicable a statistical account of the fisheries, with such other information as may be collected, and suggestions oflered for their regulation and improvement. 33. Conservators of Rivers. — It shall be lawful for the Justices of the Peace assembled at any general or quarter sessions of the peace from time to time to appoint conservators or overseers for the preservation of salmon, and enforcing for that purpose the provisions of this Act within the limits of the jurisdiction of such Justices. 34. Search Warrant to Enter Suspected Places. — It shall be lawful for any Justice of the Peace, upon an information on oath that there is proba1)le cause to suspect any breach of the provisions of this Act to have been committed on any premises, or any salmon illegally taken, or any illegal nets or other engines to be concealed on any premises, by warrant under his hand and seal, to authorize and empower any inspector, water bailiflf, conservator, constable, or police officer, to enter such premises for the purposes of detecting such offence, or such con- cealed fish, at such time or times, in the day or night, as in such warrant may be mentioned, and to seize all Ulegal engines, or any salmon illegally taken, that may be found on such premises ; provided that no such warrant shall continue in force for more than one week from the date thereof. Legal Proceedings. 35. Procedure and Recovery of Penalties. — All penalties imposed by this Act, and all costs or expenses by this Act directed to be recovered in a summary manner, may be recovered, within six months after the commission of the offence, before two Justices, in manner directed by an Act passed in the eleventh and twelfth years of the rcign of her present Majesty Queen Victoria, chapter forty- tlu-ee, intituled An Act to fax:ilitate the Performance of the Duties of the Justices of the Peace out of Sessions within England and Wales with respect to Summary Convictions and Orders, or of any Act amending the same ; and all 24 & 25 VICT. c. 109, §§ 3G— 39. 303 monies received in respect of penalties recovered under the Act shall ije paid as follows ; that is to say, Such portion not exceeding one lialf, as the Court may think fit, tu the person on whose complaint the penalty is recovered, and the remainder in manner directed by the said Act of eleventh and twelfth years of the reign of her present Majesty Victoria, chapter Ibrty-three ; and all forfeitures shall be dis- posed of as the Court may direct, and the proceeds, if any, shall be applied in manner in which the monies received in respect of penalties are hereby directed to be applied. 36. Offences on Rivers Dividing Counties. — Where any offence under this Act is committed in or upon any waters foiTuing the boundary between any two counties, districts of quarter sessions or petty sessions, such offence may be prosecuted before any Justice or Justices of the Peace in either of such counties or districts. 37. Offences on Sea- Coast. — Any offence committed imder this Act, on the sea-coast or at sea, beyond the ordinaiy jurisdiction of any Justice of the Peace, shall be deemed to have been committed within the body of any county abutting on such sea-coast, or adjoining such sea, and may be tried and punished accordingly. 38. Savinrj Clause for Dredging. — Nothing in this Act contained shall prejudice the legal right of any conservators, directors, commis- sioners, undertakers, persons, or body of persons, corporate or unmcor- porate, to dredge, scour, cleanse, or improve any navigable river, canal, or other inland navigation. Repeal of Acts. 39. Repeal of A cts. — From and after the commencement of this Act, there shall be hereby repealed the several Acts and parts of Acts set forth in the schedule hereto, to the extent to which such Acts or parts of Acts are therein expressed to be repeided : provided that such repeal shall not affect — 1. Any security duly given before this Act comes into operation. 2 Anything duly done before this Act comes hito operation. 3. Any lialiility accming before this Act comes into operation. 4. Any penalty, forfeiture, or other punishment incurred or to be incun-ed in respect of any offence committed before this Act comes into operation. 5. The institution of any legal proceeding or other remedy for ascertaining, enforcing, or recovering any such liability, peualtj", forfeiture, or punishment as aforesaid. 304 ENGLISH SALMON FISHEKIES ACT. SCHEDULE. REFERENCE TO ACT. TITLE OF ACT. EXTENT OF REPEAL. 13 Ed. I. Stat. 1, A penalty for taking of sahiion The whole Act. c. 47. at certain times of the year. 25 Ed. III. Stat. 4, " New weirs shall be pulled The whole Act. c. 4. down and not repaired." 45 Ed. III. c. 2. The penalty of him that setteth up or enhanceth wares. The whole Act. 13 Rich. II. Stat. 1, A confirmation of stat. 13. Ed. I. The whole Act. c. 19. stat. 1, c. 47. 17 Rich. II. c. 9. Justices of Peace shall be Con- servators of the statutes made touching salmon. The whole Act. 1 Hen. IV. c. 12. A confirmation of former statutes touching pulling down of wears. The whole Act. 4 Hen. IV. c. 11. Commissions shall be awarded to Justices, &c. to inquire of wears and kidels, &c. The whole Act. 2 Hen. VI. c. 15. No man shall fasten nets to any- thing over rivers. The whole Act. 12 Ed. IV. c. 7. An Act for the taking away wears and fishgarthes. The whole Act. 11 Hen. VII. c. 5. Every man may pull down the wears and engines in the Haven of Southampton, &c. The whole Act. 14 & 15 lien. VIII. A confirmation of the statute 1 1 The whole Act. c. 13. Hen. VII. c. 5, and the same made perpetual. 23 Hen. VIII. c. For pulling down piles and fish- The whole Act. 18. garths in the river Ouse and Ilunilier. 1 Eliz. c. 17. An Act for the preservation of In so far as it re- spawn and fry of fish. lates to salmon. 3 Car. I. c. 4. An Act for continuance and re- The first section peal of divers statutes. of the Act. 3 Jas. I. c. 12. An Act for the better preserva- tion of sea fish. The whole Act. 24 & 25 VICT. C. 109, SCHEDULE. 305 REFERENCE TO ACT. TITLE OF ACT. EXTENT OP REPEAL. 30 Car. II. c. 9. 4 Ann, c. 21. 9 Ann, c. 26. 1 Geo. I. stat. % c. 18. 23 Geo. II. c. 26. 33 Geo. II. c. 27. An Act for the lietter preserva- tion of fishing in tiie river of Severn. An Act for the increase and better preservation of sahnon and other fish in the rivers witliin the counties of South- ampton and "Wiltshire. An Act for the better preser- vation and improvement of fishery witliin the river of Thames, and for regulating and governing the Company of Fi.shermen of the river. xYn Act for the better preventing fresh fish taken by foreigners being imported into, this king- dom, and for the preservation of the fry of fish, and for the giving leave to import lobsters and turbets in foreign bottoms, and for the better preserva- tion of salmon within several rivers in that i)art of this kingdom called England. An Act to continue several laws, &c. and also to amend so much of an Act made in the first year of the reign of King George the First as relates to the lietter preservation of salmon in the river Ribble. An Act to repeal so much of an Act passed in the twenty- ninth year of his present I\Iajesty's reign concerning a free market for fish at West- minster as requires fishermen to enter their fishing vessels The wliole Act. The whole Act. The second section of the Act. Sect. 11 to 16, in- clusive. Sects. 7, 8, & 9. Sect. 13. 306 ENGLISH SALMON FISHERIES ACT. REFERENCE TO ACT. TITLE OF ACT. EXTENT OF REPEAL. 18 Geo. III. c. 33. 37 Geo. III. c. 95. oSGeo. III. 0.43. 6 Ci 7 Vict. c. 33. at the office of the Searcher of the Customs at Gravesend, and to regulate the sale of fish at the fii'st hand in the fish markets in London and Westminster, and to prevent salesmen of fish buying fish to sell again on their own account, and to allow biet and tui-bot, brill and pear, although under the respective dimen- sions mentioned in a former Act, to be imported and sold, and to punish any persons who shall take or sell any spawn, brood, or fry of fish, unsize- able fish, or fish out of season, or smelts under the size of five inches, and for other purposes. An Act for the better preserva- tion of fish, and regulating the fisheries in the rivers Severn and Vemiew. An Act to amend two Acts made in the fourth year of the reign of Queen Aruie and the first year of the reign of King George the First, for the preservation of salmon and other fish in the rivers within the counties of South- ampton and Wilts. An Act for preventing the de- struction of the breed of sal- mon and fish of salmon kind in the rivers of England. An Act to repeal so much of an Act of the first year of King George the First as hmits the In so far as it re- lates to salmon. In so far as it re- lates to salmon. The whole Act. The whole Act. 24 k, 25 VICT. c. 101), schedule. 307 KEPERENCE TO ACT. TITLE OF ACT. EXTENT OF REPEAL. time for taking and being re- strained from taking salmon in certain rivers, and to amend and extend the provisions of an Act of the fifty-eighth year of King George the Third to the rivers therein mentioned. 11 & 12 Vict. An Act to explain the Acts for The whole Act. c. 52. preventing the destruction of the breed of salmon and fish of the salmon kind. Private Acts RELATrNo to Salmon Fisheries. REFERENCE TO ACT. BIVEBS AFFECTED. EXTENT OF BEPEIAI^ 43 Geo. III. c 61. 44 Geo. III. c. 45. Teign, Dart, and Plym, Devon. Rivers flowing into the Solway Fu-th. 45 Geo. III. c. 33. 46 Geo. III. c. 19. 49 Geo. III. c. 2. 5 & 6 Vict. c. 63. 21&22 Vict. c. 141. Carmarthensliire rivers. Rivers runnuig into Jlilford harbour. Lord Lonsdale's fisheries in Derwent. Tyne. Tees. The whole Act. The whole Act, except in so far as it relates to Scotland, and to fish other than salmon in Eng- land. The wliole Act. In so far as it re- lates to salmon. The whole Act. The whole Act. So much of sects. 63 & 64 as re- lates to the making of bye- laws for the re- gulation of sal- mon fisheries. x2 308 ENGLISH SALMON FISHERIES ACT. SALMON EXPORTATION ACT, 26 VICT. C. 10. [20 Ajml, 1863.] WHEREAS the sale of salmon within the United Kingdom is pro- liibited at various times ; that is to say, if caught in England within the limits of the Salmon Fishery Act, 1861, 24 & 25 Vict. c. 109, is prohibited between the thii-d day of September and the second day of February ; if caught in any fishery district in Ireland is prohibited during such time as the capture of salmon is prohibited in that district ; if caught in Scotland within the limits of " The Salmon Fisheries (Scotland) Act, 1S62," 2.5 & 26 Vict. c. 97, is prohil)ited between the commencement of the latest and the termination of the earliest annual close time fixed for any district ; if caught in the river Tiveed, as defined by " The Tweed Fisheries Amendment Act, 18.59," 22 & 23 Vict. c. Ixx. is prohibited between the fourteenth day of September and the fifteenth day of February : And whereas the capture or possession of foul or unseasonable salmon within the limits of the United Kingdom is prohibited at all times : And whereas the provisions of the said acts are evaded by the exportation for sale in France and other foreign countries of salmon that cannot legally be sold within the limits of the United Kingdom : be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — 1. Short Title.— This Act may be cited for all purposes as "The Salmon Acts Amendment Act, 1863." 2. " Parts beyond Seas " defined. — No part of the United Kingdom, however situated with regard to any other part, shall be deemed for the purposes of this Act to be parts beyond seas. 3. Export of unclean or unseasonable Salmon, or Salmon caught at certain Times. — No imclean or unseasonable salmon, and no salmon caught during the time at which the sale of salmon is jjrohibited in the district where it is caugbt, shall be exported or entered for exportation from any part of the United Kingdom to parts beyond seas. All salmon exported or entered for exportation in contravention of this section shall be forfeited, and the person exporting or entering the same for exportation shall be subject to a penalty not exceeding five pounds in respect of each salmon so exported or entered for exportation. The burden of proving that any salmon entered for exportation from 26 VICT. c. 10. 309 any part of the United Kingdom to parts beyond seas between the tliird day of September and tlie second day of Fehruary following is not so entered in contravention of this Act shall lie on the person entering the same for exi)ortation. 4. Recover;/ of Penalties. — All i)enalties under this Act may be re- covered in England, except within the limits of the said Tweed Fisheries Act, as penalties under the Salmon Fishery Act, 18fjl ; in Ireland as penalties under the Act ])assed in the session of the fifth and sixth years of the reign of her ^iresent Majesty, chapter one hundred and six, intiuled An Act to rcr/ulate the Irish Fisheries; in Scotland, except within the limits of the said Tiveed Fisheries Act, as penalties under the Salmon Fisheries {Scotla7id) Act, 1862 ; and within the limits of the said Tweed Fisheries Act, in manner prescribed by " The Tweed Fisheries Act, 1857." 310 SCOTCH SALMON FISHERIES ACT. SCOTLA ND. ■ 25 & 26 VICT. C. 97. Aw Act to regulate and amend the Law respecting the Sahiion Fisheries of Scotland. [7th August, 1862.] WHEREAS it is expedient that the Acts relating to the salmon fisheries in Scoiland should be amended, and that further provision should be made for the regulation of fisheries, the removal of obstruc- tions, and the prevention of illegal fishing : be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Short Title.— This Act may be cited for all purposes as " The Salmon Fisheries {Scotland) Act, 1862." 2. Interpretation of Terms.— The following words and expressions in this Act shall have the meanings hereby assigned to them, unless such meanings be repugnant to or inconsistent with the context : " Commissioners " shall mean the commissioners appointed and acting under the authority of this Act for the time being : " Clerk " shall mean the clerk to Ijc appointed by any district board : " Sheriff" shall mean the Sheriff of the county in Scotland of Avhich he is Sheriff, and shall include sherifl:'s substitute : " Justice" or " Justices" shall mean any Justice or Justices of the Peace acting for the county, city, or burgh where the matter requiring the cognizance of such Justice or Justices shall arise : " Secretary of State " shall mean one of Her Majesty's Principal Secretaries of State : 25 & 26 VICT. c. 97, §§ 3—5. 311 " Proprietor " or " Proprietors " shall mean and incliulc any person, company, or corporation who is the proprietor of a salmon fishery, or wlio receives or is entitled to receive the rents of snch fishery on his or their own account, or as tmstee, guardian, or factor for any person, company, or corporation, and shall also include Her Majesty in right of her crown : " Bye-law " and " Bye-laws " shall include all rules, orders, and re.gulations made by the Commissioners under the authority of this Act : " Salmon " shall mean and include salmon, grilse, sea trout, bull trout, smolts, parr, and other migratory fish of the salmon kind : " Fisheries " and " Fishery " shall mean salmon fisheries and a salmon fishery in any river or estuary or in the sea : " River " shall include tributaries and any lake from or through which any river flows : " Valuation Roll " shall mean the valuation roll in force for the time for any county, and each of the royal bm-ghs therein, made up under the authority of -,the piiblic general Act Seven- teenth and Eighteenth Victoria, chapter ninety-one, or any other Act relating to the valuation of lands and heritages in Scotland which may be in force for the time. 3. Commencement of Act — The enactments and provisions of this Act with respect to the appointment, powers, and duties of the Com- missioners, and the election, powers, and duties of district boards, shall come into ojjeration and take efiect from and after the passing of this Act, and all the other enactments and provisions of this Act shall come into operation and take effect from and after the first day of Januat-y one thousand eiglit hundred and sixty-three. 4. Each River and Eduari/, and the Sea-coasts adjoining, to he a District. — Each river in Scotland flowing into the sea, and every tributary stream or lake flowing into or connected with such river, and the mouth or estuary of such river, and the sea-coasts adjoining thereto, divided into such porticms as may be fixed and defined by the Com- missioners under the authority of this Act, shall form a district for the purposes of this Act. 5. Commissioners to be appointed hj Secrctari/ of State. — It shall be lawful for the Secretary of State to appoint three Commissionei's for the puqioses of this Act, who shall be paid at such rate, not exceeding throe pounds per day each, as the Commissioner of the Treasury may du'ect, the whole amount to be received liy each Commissioner not 312 SCOTCH SALMON FISHERIES ACT. exceeding three hnmlred and fifty pounds per annum, over and above sucli travelling expenses as the Commissioners of the Treasury may sanction : provided that the duration of the office of such Commissioners shall in no case extend beyond three years. 6. Duties of Commissioners — The Commissioners shall have the powers and perform the duties hereinafter specified ; that is to say, (1.) To fix and define, for the purposes of this Act and the other Acts relating to salmon and salmon fisheries in Scotland, the natural limits which divide each river in Scotland (including the estuary thereof) from the sea, in so far as the same may not be already fixed by statute or by judicial decision : (2.) To fix, for the pui-poses of this Act, the limits of the Solway Firth, having regard to an Act passed in the forty-fourth year of the reign of His Blajesty King Georc/e the Third, chapter forty-five : (3.) To fix, for the purposes of this Act, the limits of every district, and the portions of the sea-coast adjoining to the mouth or estuary of any river to be included in such district : (4.) To fix, fur the purposes of this Act, a point on each river (including the estuary thereof) below which the proprietors of fisheries shall be lower proprietors, and above which the proprietors of fisheries shall be ui^per proprietors : (5.) To determine, subject to the provisions of this Act, at what dates the annual close time for every district shall commence and terminate, and at what periods subsequent to the commencement and prior to the termination of the annual close time it shall be lawful to fish for and take salmon with the rod and line : provided that tlie number of days during which such annual close time shall continue shall be the same as regards every district : (6.) To make general regulations with respect to the following matters ; viz. The due observance of the weekly close time : The construction and use of cruives : The construction and alteration of mill-dams, or lades, or water-Avheels, so as to afford a reasonable means for the passage of salmon : The meshes of nets (so that they shall not intercept sraolts or salmon fry) : Obstructions in rivers or estuaries to the passage of salmon : 25 & 2G VICT. c. 97, §§ 7—11. 313 Provided that such regulations shall not interfere with any rights held at the time of the passing of this Act under royal grant or charter, or possessed for time im- memorial. 7. Annual and Weekly Close Time. — The annual close time for every district shall continue for one hundred and sixty-eight days ; and the weekly close time, except for rod and line, shall continue from the hour of six of the clock on Saturday niglit to the hour of six of the clock on Monday morning ; but the Commissioners shall have power, on the application of tlie District Board, or of any two projtrietors of fisheries in any district, to vary the period at which the weekly close time shall connnence in any district, or any part thereof, in so far as they may think reasonable or ex])edient : provided that such weekly closa time shall in no case be less than thirty-six hours. 8. Application of Annual Close Time. — The annual close time shall be applicable to every mode of fishing for or taking salmon in any river, lake, or estuaiy, or in the sea, except by means of the rod and line for the periods in each district to be fixed by the Connnissioners subsequent to the commencement and prior to the termination of the annual close time during which it shall be lawful to fish for and take salmon by means of the rod and line. 9. Present Annual Close Times to subsist until altered. — In regard to any river and estuary which are regulated by any local Act relating thereto the annual close time fixed by such Act, and in regard to all other rivers, estuaries, and sea-coasts in Scotland the annual close time fixed by the public general Act nintli George the Fourth, chapter thiity- nine, shall respectively be applicable until the annual close time with respect to any such river, estuary, or sea-coast shall be otherwise deter- mined by any bye-law made by the Commissioners under the authority of this Act. 10. Fishing illegal where prohibited by existing Acts. — It shall not be lawful to fish for or take salmon at any place or by any mode prohibited by any statute relating to salmon or salmon fislieries in Scotland subsisting and in force at the date of the passing of this Act ; and nothing contained in this Act or in any bye-law made by the Com- missioners shall render legal any mode of fishing which was or would have been illegal at the date of the passing of this Act. 11. Miscellaneous Offences. — Eveiy person w'ho commits any of the following offences shall for every such offence be liable to a penalty not exceeding five pounds, and to a further penalty not exceeding two pounds for every salmon taken or killed contrary to the provisions of this Act, or of any bye-law made by the Commissioners under the 314 SCOTCH SALMON FISHEEIES ACT. authority of this Act ; and shall, in addition to such penalties, at the discretion of the magistrate, forfeit every boat, net, rod, line, or other article which has been or may be used in fishing for or taking salmon, and which is found in the possession of such person at the time of the committing such offence ; that is to say, Every person who fishes for or takes salmon during the annual close time by any means other than the rod and line : Eveiy person who fishes for or takes salmon, except during Saturday or Monday, by rod and line, during the weekly close time, or acts in breach or contravention of any bye-law made by the Commissioners in regard thereto : Every person who fishes for or takes salmon during the annual close time by means of the rod and line at a period not sanc- tioned by the Commissioners : Every person who fishes for salmon with a net havi^ig a mesh con- traiy to any bye-law of the Commissioners : Every person who obstructs or impedes the passage of salmon con- trary to any bye-law of the Commissionei-s : Every person who sells or exposes for sale fresh salmon taken within the limits of this Act during the period l^etween the com- mencement of the latest and the termination of the earliest annual close time wliich may have been fixed for any district ; but the burden of proving that salmon so sold or exposed by any person for sale have been caught beyond the limits of this Act shall lie on the person selling or exposing the same for sale : Every person who takes or has in his possession any foul or unseasonable salmon : Every person who uses or has in his possession any light for the pui-jwse and with the intention of taking salmon : Every person who sets a net or any other engine for capture of salmon when the fish show themselves when leaping at or trying to ascend any fall or other impediment : Every person who wilfully takes or destroys or injures or obstructs the passage of the young of salmon, or disturbs any spawning bed, or any bank or shallow on which the spawn of salmon may be deposited ; but this provision shall not apply to acts done for the purjwse of the artificial propagation of salmon or for other scientific punioses, or in the course of the exercise of rights of property in the bed of any stream : provided also, that the district board may, with the consent of all the proprietors of salmon fisheries in any river or estuary, adopt such means as 25 & 2G VICT. c. 97, §§ 12—14. 315 they think fit fur preventing the ingress of sahiinn into narrow streams or tributaries in which they or the spawning beds are, from the nature of tlie channel, liable to be destroyed, but always so that no water rights used or enjoyed for the pui^ioses of manufactures or agricultural purposes or di-ainage shall be interfered with thereby. 12. Using Salmon Roe. — Every person who uses salmon roe for the purpose of fishing, or has in liis possession any salmon roe for sale or fur the purpose of fishing, shall for evciy such offence be liable to a l)enalty not exceeding two pounds, and shall forfeit any salmon roe found in his possession. 13. Poisoxinr/ Rircis — Every person who causes or knowingly permits to flow, or puts or knowingly permits to be put, into any river con- taining salmon, any licpiid or solid matter ])oisonous or deleterious to salmon, or who shall discharge into any river sawdust to an extent injurious to any salmon fisheiy, shall be liable to the following penalties : (that is to say,) For the first offence a penalty not exceeding five pounds : For the second offence a penalty not exceeding ten pounds, and a fiuther penalty not exceeding two pounds for eveiy day dm-ing which sucli offence is continued : For the third or any subsequent offence a penalty not exceeding twenty pounds, and a further penalty not exceeding five pomuls for every day during which such offence is continued : But no person shall be suljject to the foregoing penalties for any act done in the exercise of any right to which he is by law entitled, if he prove to the satisfaction of the Court before whom he is tried that he has used the best practicable means, within a reasonable cost, to dispose of or to render harmless the liquid or solid matter so per- mitted to flow or to be put into waters ; but nothing herem contained shall prevent any person from acquiring a legal right in cases where he would have acquired it if this Act had not passed, or exempt any person from any punishment to which he would otherwise be subject, or legalize any act or defiuiit that would but for this Act be contrary to law. 14. Commissioners to Visit and Report on Rivers and Estuaries. — The Commissioners shall visit and report on the several rivers and estuaries and salmon fisheries in Scotland, after notice duly given by special advertisement in some newspaper of general circulation in the district, not less than ten days before any such visitation, to the proprietoi-s of salmon fishings on each of such rivers or estuaries, of their intention so to visit and report. 316 SCOTCH SALMON FISHERIES ACT. 15. Commissioners to make Bye-laws on Matters specified. — The Com- missioners shall, on or before the first day of January one thousand eight hundred and sixty-three, fix and determine by bye-laws the matters specified in the third and fourth sub-divisions of the sixth section of this Act ; and a copy of such bye-laws applicable to each dis- trict shall be, prior to the said date, transmitted by post to the sheriflF clerk of each county, in so far as the same may relate to a district or part of a district situate therein ; and the sherifi" clerk shall, on receipt of such copy, give notice of such bye-laws by advertisement inserted once for each of two successive weeks in some newspaper published in such county, or, if no newspaper be pul)lished therein, in some news- paper published in a county adjoining thereto ; and every person whose interests may be aff"ected by any such bye-laws may state to the Secre- tary of State any objections to any such bye-law ; and the Secretary of State shall, after one month after the date of such bye-laws, approve or alter or disapprove of the same ; and every such bye-law, when approved of or altered by the Secretary of State, shall be pulilished in the Edinburgh Gazette, and in such further mode as the Secretary of State may direct, and on being so published shall be legal and binding on all concerned : provided that in the case of such districts in which by reason of their inconsiderable size it may seem to the Com- missioners unnecessary to determine such matters, they may defer doing so until required by more than six proprietors of fisheries within the same, after the limits of such district have been defined, as hereinafter provided, and shall proceed, in other respects, as above provided. 16. Bye-laws on other Matters. — The Commissioners shall, on or before the first day of January one thousand eight hundred and sixty-four, determine the other matters specified in the sixth section of this Act, by bye-laws under their hands, or the hands of any two of them, and shall report the same to the Secretary of State ; provided that pre- viously to making such bye-laws they shall communicate the same to the district board, and afford the hoard reasonal)le opportunity of making any representation to the Commissioners respecting the same ; and a copy of such bye-laws shall be transmitted to the sheriff' clerk of each comity, in so far as the sam.e may relate to any district situated therein ; and the sheriff" clerk shall, on the receipt of such copy, give notice of such bye-laws by advertisement inserted once for each of two successive weeks in some newspaper published in such county, or, if no newsjjaper be published therein, in some newspaper published in a county adjoining thereto ; and every person whose interests may be affected by any such bye-laws may state to the Secretary of State any ob- 25 & 26 VICT. c. 97, §§ 17, 18. 317 jections to any such bye-law ; and tlic Secretary of State shall, after two months and within four months after the date of such byelaws, approve or alter or disapprove of the same ; and every such bye-law, when approved of or altered by the Secretary of State, shall be published in the Edinhurrih Gazette, and in such further mode as the Secretary of State may direct, and on being so published shall be legal and binding on all concerned. 17. Evidence taken by Commissioners. — The Commissioners, in execu- tion of this Act, shall take such evidence as they may find to be neces- sary, and in the event of witnesses refusing to attend and give evidence, or to allow access to documents, they may apply to tlie sheriff of the county for a warrant to cite witnesses and havers, and the sheriif is hereby authorized to grant the same. 18. Election of District Boards. — Within three months after any bye- law constituting the district shall have been published the sheriff shall direct the sheriff clerk to make up a roll of the upper proprietors and also a roll of the lower proprietors in each district ; and the qualificar tion of an upper proprietor shall be the property of a fishery entered in the valuation roll as of the yearly rent or yearly value of 201. or up- wards, or, if such fishery be not valued on the valuation roll, of half a mile of frontage to the river, with a right of salmon fishing, and the qualification of a lower proprietor shall be the property of a fishery entered in the valuation roll as of the yearly rent or yearly value of twenty pounds or upwards ; and the sheriff shall have power to decide sunuuarily any question arising on any clami to such quaU- fication ; and tiic sheriff shall thereafter direct the sheriff clerk to call a meeting of the upper projirietors, and also a meeting of the lower proprietors, at such times and places as he shall direct ; and notice of such meeting shall lie given as hereinbefore provided with respect to the publication of bye laws made by the Commissioners ; and the u])per proprietors and the lower proprietors present at such separate meetings respectively shall elect not more than three of their number to be members of the district board, every proprietor of a fishery valued at more than five hundred pounds on the valuation roll having two votes at such election, aiul an additional vote for every five hundred pounds of rental, but not more tlian four votes in all ; and the members so elected with the proprietor having the largest anunuit entered in the valuation roll as the yearly rent or yearly value of fisheries in such dis- trict shall constitute the district board ; and the last-mentioned pro- prietor shall be the chairman of the board, and have a deliberative as well as a casting vote ; and the election of such board shall be notified by the chairman of such respective meetings to the sheriff' clerk within 318 SCOTCH SALMON FISHEEIES ACT. seven days from the date of the same, and the sheriff shall thereafter summon the fh-st meeting of such board for such day and such place as he may fix : ^ provided always, that if any river be situate in two or more comities, the notices above provided shall be given and such meetings shall be called in such manner as the sheriffs of such counties jointly shall direct. 19. Constitution of the Board luherc Proprietors are less than Three. — If in any district the ui^per proprietors or the lower proprietors shall be fewer in number than three, the board shall consist of an equal number, elected as aforesaid, along with the proprietor having the largest valua- tion, who shall also be chairman of the board, as above provided ; and if such last-mentioned proprietor be the sole upper or the sole lower proprietor, he shall have two votes on the board ; and if there shall be only one proprietor in any district such proprietor shall have and may exercise all the powers by this Act conferred on the district board. 20. Voting hy Lqmty. — It shall be lawful for the Commissioners of Her Majesty's Woods, Forests, and Land Revenues, or either of them, in cases where Her Majesty in right of her Crown is proprietor of any fishery, and for any corporation or company, being the proprietors of any fishery, or for any proprietor of a fishery, respectively, fi'om time to time to nominate and appoint, by any writing under his or their hand or seal, any person as the mandatory of such Commissioners, corporation, company, or proprietor to attend, act, and vote at any meeting of pro- prietors imder this Act ; and every such nomination and appointment shall subsist until recalled by the said Commissioners or either of them, or by the coi-poration or company or proprietor making the same. 21. Payment to Sherif Clerk in connexion with Elections. — All ex- ])enses incurred by the sheriff clerk in making up the roll of proprietors, and in calling and attending the meetings for the election of the dis- trict board, with such reasonable renmneration for his time and trouble as shall be fixed by the sheriff", shall be paid to tlie sheriff clerk by the district board out of the assessments to be levied under the authority of this Act. 22. Powers and Duties of District Boards— The district board may sue or be sued in the name of their clerk, and if there be more than six members three members shall form a quonmi, and if there be fewer than six members two shall form a quonim, and they shall keep regular books and accounts, and shall hold their first meeting within ten days after the first election under this Act at a time and place to be fixed at the meetings of proprietors at which such election took place, or in cases (1) See an amendment to this section, 26 & 27 Vict. c. 50, § 2, post. 25 & 26 VICT. c. 97, §§ 23, 24 310 where such election is not necessary tlie first meeting shall take place at a time to be fixed liy a majority of the ijroprietors, and notice of such meeting sliall lie given as herein) lefore provided with respect to the puhlication of hye-laws to be made l)y tiie Conuuissioners ; and the dis- trict board shall liave power, sul)ject to the provisions of this Act and the bye-laws made by the Commissioners, to make and alter from time to time regulations for tire preservation of the fisiieries in the district, and from time to time to appoint a clerk, and such number of constables, water bailiff's, watchers, and other officers as they think fit, to fix and prescribe the duties of all persons appointed by them, and to remove such i)ersons, and appoint other pereons in their stead : and they may combine with any other district board for the purpose of this Act, and to maintain a common stafi'of officers for the protection and ])reservation of the fisiieries of more tlian one district, and may agi-ee Avitli tlie police committee of any county for the purpose of paying additional constables fur the better protection of the fisheries in their district : provided that all such regidations shall, before taking effect, be reported to and approved by the Secretary of State, and shall not interfere with any vested right of property, and shall not authorize any encroachment or trespass on private property. 23. Assessments imposed by District Boards. — The district board shall have power to impose an assessment for the puii)oses of this Act, to be adled the Fisliery Assessment, on tlie several fisheries in each district, according to tiie yearly rent or yearly value of such fisheries as entered in the valuation roll ; and eveiy proprietor of a fisliery which is not valued on the valuation roll, and who shall claim right to vote in the election of members of the district board, shall be held to be a pro- prietor of a fisheiy of the value of twenty pounds, and shall be assessed accordingly ; and such fishery assessments may be imposed, collected, and recovered by the district board in the same manner as police assess- ments may be imposed, collected, and recovered liy tlie Commissioners of Sui)ply under the authority of the public general Act, twentieth and twenty-first Victoria, chapter seventy-two ; and for the purpose of im- posing, collecting, and recovering such fishery assessments the district boaii.ls shall ha\e and may exercise all the powers conferred by the said Act on Coinmissionei's of Supply fur imposing, collecting, and recovering the assessments leviable under the same. 24. Future Elections of District Boards. — Each district board shall contimie in office for tlu'ee years, and memliers thereof sliall be eligible for re-election, and vacancies occm-ring diu'ing such period shall be filled up by the boaid until the next meeting of proprietoi-s, who shall then fill up the same ; and meetings of the upper and lower proprietors 320 SCOTCH SALMON FISHEEIES ACT. respectively for the purpose of each triennial election of not more than three upper proprietors and three lower proprietors respectively shall be called by tlie clerk, who shall give notice of such meetings by ad- vertisement as hei'einbefore provided with respect to the publication of bye-laws made by the Commissioners ; and such meetings shall at the same time take such steps as they shall think proper for auditing and attesting the accounts of the district board for the preceding three years. 25. Breach of Bye-laws and Regulations. — It shall be lawful for the district board, by any bye-law or regulation to be made by them and approved of by the Secretary of State as hereinbefore provided, to enact that any person committing any breach or contravention of such bye-law or regulation shall be liable for every such offence to a penalty not exceeding two pounds ; and such penalty may be sued for and recovered in the same manner as penalties incurred and imposed under the provisions of this Act. 26. Forfeited Articles may he Seized. — Any net, rod, line, or other article directed to be forfeited under this Act may be seized by any constable, water bailiff, watcher, or other officer appointed by the dis- trict board, and the Sheriff or Justice may either order the same to be destroyed or to l^e sold, and the proceeds of such sale to be paid to the clerk on behalf of the district board. 27. Three or more Persons illegally Fishing at Night. — If three or more persons acting in concert, or benig together or in company, shall at any time between the ex])iration of the first hour after sunset on any day and the beginning of the last hour before sunrise on the following morning enter or be found upon any ground adjacent or near to any river or estuary or the sea, or in or upon any river or estuary or the sea, with intent illegally to take or kill salmon, or having in his or their posses- sion any net, rod, spear, light, or other instmment used for taking salmon with such intent as aforesaid, or shall illegally take or kill, or attempt to take or kill or aid or assist in killing or taking salmon, every such person shall be guilty in Scotland of a criminal offence, and in England within the limits of the " Tweed Fisheries Amendment Act " of a misdemeanor, and shall for every such offence be liable to a fine not exceeding five pounds, or to imprisonment for any period not ex- ceeding three months, as the Sheriff or Justices before whom such persons or any of them are tried and convicted may determine ; and if such fine be not paid immediately on conviction, the offender so failhig to ])ay shall be sentenced to imprisonment for such period, not exceeding three months, as the Sheriff or Justices may adjudge, unless such fine shall be sooner paid. 28. Procedure and Recovery of Penalties. — All offences under this 25 & 2G VICT. 0. 97, §§ 29—30. 321 Act may be prosecuted and all penalties incurred under this Act Jiiay be recovered before any SheritFor any two Justices acting together ana having jurisdiction in the place where the offence was committed, at the instance of the clerk of any district board or of any other person ; and it shall be lawful for the Sheriff or Justices to whom any petition or complaint is presented to proceed in a summary form, and to grant warrant for bringing the persons complained against before him or them, and on proof on oath by one or more crcdil)le witness or witnesses or confession of tiie person accused, or other legal evidence, forthwith to determine and give judgment in such complaint, without any written pleadings or record of evidence, other than a record of the charge and of the judgment pronounced thereon, and to gi-ant warrant for the re- covery of all penalties and expenses decerned, by poinding, and im- prisonment for any period not exceeding six months ; and any person who shall think himself aggrieved by any judgment of the Sheriff or Justices pronounced in any complaint or prosecution under this Act may appeal to the Coiut of Justiciary at their next circuit court, or where there is no circuit comt to the High Court of Justiciary at Edinburgh, in the manner and under the rules, limitations, conditions, and restrictions contained in the Act passed in the twentieth year of the reign of His Majesty King Gcorrje the Second, chapter forty-three, for taking away and abolishing heritable jurisdictions in Scotland, with this variation, that such person shall, in place of finding caution in the terms prescrilicd by the said Act, be bound to find caution to pay the penalty and expenses awarded against him by the judgment appealed from, in the event of such appeal being dismissed, together with any additional expenses that shall be awarded by the Circuit Court or Court of Justiciary on dismissing such appeal ; and it shall not be competent to appeal from or bring the judgments of any Sheriff or Justices acting under this Act under review by advocation or in any other way than as herein provided. 29. Enforcement of Regulations and Bye-lawst. — In the event of any person refusing or neglecting to obey any byc-Iaw made by tlie Com- missioners, or any regulation made by the district board, the clerk may apply to the Sherifl' by summary petition in ordinary form, praying to have such person ordained to obey the same, and the Sheriff shall take such proceedings and make such orders thereupon as he shaU think just. 30. Expenses of Proceedings.— In giving judgment on any applica- tion or complaint under this Act the Sheriff or Justices may find the person complained against liable in expenses, and may decern for pay- ment of the same. 322 SCOTCH SALMON FISHERIES ACT. 31. Recovery of Penalties and Expenses. — All penalties and expenses inciuTcd under this Act, or under any bye-law or regulation made under the authority thereof, may be recovered by ordinary action or in the Small Debt Court of the Sheriff. 32. Payment and Application of Penalties. — The penalties incurred under this Act shall in all prosecutions at the instance of the clerk of any district board be payable to and recoverable by such clerk, and shall in all other cases be paid and applied in such manner as the Sheriff or Justices may direct ; and all penalties and expenses received by the clerk, and the proceeds of the sale of any articles seized and directed to be sold as before provided, shall be applied by the district board towards defraying the expenses incurred by them in carrying into execution the provisions of this Act. 33. Certain Provisions of English Act, 24 y the authority of the same, as follows : 1. Extension of Time for makiny, <£;c. Bye-latcs. — The said Com- missioners shall determine the said matters specified in the said six- teenth section, by bye-laws under their hands, or the hands of any two of them, and shall report the same to the Secretary of State on or before the first day of January, one thousand eight hundi-cd and sixty-five. 2. Notice to be yiven for calling First Meeting of District Boards. — The provision in the eighteenth section of the recited Act, that " the sherift' shall thereafter summon the first meeting of such l)oard for such day and such place as he may fix " is hereby repealed; and on the time and place of the first meeting of the district board being fixed as provided by the twenty-second section of the recited Act, and inti- mated to the sheriff clerk, he shall give notice of such meeting as therein provided ; and such first meeting may be held at any time within twenty-one days after the first election of the district board under the recited Act, anything therein contained to the contrary notwithstanding. 3. As to reading of Sect. 33 of 25 tO 26 Vict. c. 97.— The thirty-third section of the recited Act shall be read and construed as if the words " public general Act, twenty-fourth and twenty-fiftli Victoria, chapter one iuindred and nine," had been inserted therein instead uf the words " said Act." Y 2 324? SCOTCH SALMON FISJIERIES ACT. 4. Power to Commissioners to extend the Mouth of the Tweed. — It shall be lawful for the said Commissioners, on or before the first day of January, one thousand eight hundred and sixty-four, by a bye-law under their hands, or the hands of any two of them, to be made, pub- lished, and approved in the manner provided in the fifteenth section of the recited Act, to extend the limits of the mouth or entrance of the river Tweed northwards fi-om the limits thereof as defined in " The Tweed Fislieries Amendment Act, 1859," along the sea coast and into the sea to such points and to such extent as they may fix ; and from and after the publication of such bye-law in the Edinhuryh Gazette, and in such further mode as the Secretary of State may direct, the enact- ments and provisions of " The Tweed Fisheries Act, 1857," (with the exception of the fifty-fifth and sixtieth sections), and of " The Tweed Fisheries Amendment Act, 1859," and the tenth, twelfth, and twenty- seventh sections of the recited Act shall be applicable to and may be enforced within such extended limits in the same manner and to the same effect as if such extended limits had been included in the mouth or entrance of the river Tweed as defined in " The Tweed Fisheries Amend- ment Act, 1859 : " provided, that the rates or assessments to be levied on and in respect of the Fisheries beyond the limits of the mouth of the river Tweed, as defined in " The Tweed Fisheries Amendment Act, 1859," and within the limits as extended under any such bye- law as aforesaid, shall not be applied in or towards the payment or discharge of any debts or obligations contracted by tiie Commissioners acting under " The Tweed Fisheries Act, 1857," previous to the passing of this Act. 26 & 27 VICT. c. 114, §§ 1—3. 325 IRELAND. 26 & 27 VICT. C. 114. An Act to amend the Laws relating to Fisheries in Ireland. [28th July, 1863.] WHEREAS it is expedient to make fiu-ther provisions for canying into effect the law relating to the salmon fisheries in Ireland .• Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, as follows : — Pbelimixary. 1. Short Title. — This Act may be cited for all puiposes as " The Salmon Fishery (Ireland) Act, 1S63." 2. Application of Act. — This Act shall not apply to England or Scotland. REaULATIONS AS TO FlXED EXGINES. 3. Prohibition of Bag-nets in certain Places. — After the passing of this Act no bag-net shall be placed or allowed to continue in any rivei or the estuaiy of any river, as such river or estuarj' has been defined by the Commissioners of Fisheries or shall be defined by the Commis- sioners under tliis Act, or within a distance of less than three statute miles from the mouth of any river as defined as aforesaid. Any bag-net placed or continued in ccmtravention of this section shall be deemed to be a common nuisance, and may betaken possession of or destroyed ; and any bi\g-net so placed or continued and any salmon 326 IKISH SALMON FISHEKIES ACT. taken by such bag-net, shall be forfeited, and, in addition thereto, the owner of a bag-net placed or continued in contravention of this section shall, for each day of so placing or allowing the same to be continued, inciu- a penalty of not less than five pounds and not exceeding twenty pounds. But no person shall incur any penalty under this section in respect of any bag-net if he removes the same within fourteen days after the passing of this Act : provided always, that no bag-net now legally existing shall be liable to be abated or removed, or be deemed illegal under this Act, by reason of its being within tlu-ee miles of the mouth of a river in the whole of which, including all triliutary rivers and lakes upon its course, the proprietor of such bag-net has the exclusive right of catching salmon. 4- Penalty on New Fixed Nets. — No fixed net that was not legally erected for catching salmon or trout during the open season of one thousand eight hundred and sixty-two shall be placed or used for catch- ing salmon or trout in any inland or tidal waters. Any net placed or used in contravention of tliis section shall be deemed to be a common nuisance, and may be taken possession of or destroyed ; and any net so placed or used, and any salmon taken by such net, shall be forfeited ; and in addition thereto, the owner of a net placed or used in contravention of this section shall, for each day of so placing or using the same, incur a penalty of not less than five pounds, and not exceeding twenty pounds. 5. Commissioners to Inquire as to Fixed Nets. — Subject to such appeal as is hereinafter mentioned, the Special Commissioners appointed under this Act, hereinafter referred to as the Commissioners, shall abate and remove all fixed nets erected or used for catching salmon or trout in Ireland that are in their judgment injurious to navigation, and shall inquire into the legality of, and if satisfied of their illegality remove, all such otlier fixed nets erected or used as aforesaid as are in contravention of any Act of Parliament or law in force in Ireland. 6. Certificate as to certain Fixed Nets. — Where any fixed net, other than a bag-net prohibited by this Act, is in use at the time of the passing of this Act, and any person claims to have erected the same in pursuance of the Act of the session of the fifth and sixth years of the reign of Her present Majesty, chapter one hundred and six, the Com- missioners may, on proof being given to their satisfaction that such fixed net has been erected in pursuance of the said provisions, certify to that effect, stating in the certificate the situation, size, and descrip- tion of the net, and the person who has the right to erect the same, in pursuance of such last-mentioned provisions. A certificate given in 2G & 27 VICT. c. 114, §§7—9. 327 pursuance of this notice shall be deemed to lie an order of the Commis- sioners, and to lie subject to appeal as such. If unaitpeaied from, or as confirmed or amended on appeal, such certificate shall he conclusive evidence that the person therein named is the person specified in the said Act as entitled to exercise the right therein given, but it shall not render any net legal that would be otherwise illegal by reason of its being injiu-ious to navigation, a common nuisance to the public right of fishing, or otherwise in violation of common law or any Act of Parliament. 7. Commissionei-s to inquire as to Fishing Wears. — Subject to such appeal as is hereinafter mentioned, the Commissioners shall inquire into the legality of all fishing wears throughout Ireland, and shall re- move such as are in contravention of any Act of Parliament or law in force in Ireland, with this qualification, that where a fisiiing wear is illegal only by reason of its not having a free gap, as required by law, this section shall not empower the Commissioners to remove such fish- ing wear, if an undertaking be entered into to the satisfaction of the Commissioners, by the owner or other person interested in such wear, to make a legal free gap therein within a time to be prescribed by the Commissioners, and a free gap is made accordingly. 8. Persons unlawfully keeping up a Fishing Wear. — If any person has unlawfully erected or kept up, or shall unlawfully erect or keep up, any fishing wear upon any river, and a notice shall be served in writing upon the proprietor or occupier of such wear, or his known agent, by the owner or occupier of any grounds on the banks of such river oij which siu'h wear has been or shall be erected, requiring him to pros- trate or open the same within the space of thirty days from the service of such notice, if such proprietor or occupier of such wear shall not within that time abate or prostrate the same, he shall forfeit a sum of fifty pounds, together with costs of suit, to be recovered by action of debt in any of Her Majesty's Courts of Record, one moiety thereof to be to the use of the person who shall sue for the same, and the other to the use of the conserA-ators of the district in which such wejir has been or shall be imlawfully erected or kept up ; and the said Court shall adjudge such wear to be abated at the expense of the defendant in such action : provided always, that nothing in tiiis section contained shall restrict the powers by this Act given to the Connnissioners. 9. Construction of Free Gaps. — In every fishing wear there shall be a free gap or opening in accordance with the regulations following, under the powers of this Act ; (that is to say,) (1.) The free gap shall be situate in the deepest part of the stream : 328 IRISH SALMON FISHERIES ACT. (2.) The sides of the gap shall be in a line with and parallel to the direction of the stream at the wear : (3.) The bottom of the gap shall be level with the natural bed of the stream above and below the gap : (4.) The width of the gap in its narrowest part shall be not less than one tenth part of the width of the stream : provided always that such gap shall not be required to be wider than fifty feet, and shall not in any case be narrower than three feet ; and provided also, that no existing gap in any wear shall be reduced in width, or a gap of less width substituted in lieu thereof, or any alteration made therein so as to re- duce the flow of water through such gap : Provided always that no person shall be entitled to any compensation by reason of the enforcing of any free gap in any wear, anything to the contrary in any Act notwithstanding. 10. Construction of Boxes and Cribs in Fishinrj Wears and Fishing Mill-dams. — The following i-ules shall be observed in relation to the constmction of boxes and cribs in fishing wears and fishing mill-dams ; (that is to say,) (1.) The upper surface of the sill shall be level with the bed of the river : (2.) The bai's or inscales of the heck or upstream side of the box or crib shall not be nearer eacli other than two inches, and shall be capable of being removed, and shall be placed per- pendicularly ; the boxes, cribs, or cruives shall not be built over, or in any other mamier hidden fi-om public inspec- tion. And the OAviier of any fishing wear or fishing mill-dam that has attached thereto any box or crib in contravention of this Act shall bring the same into conformity with this Act within six months after the commence- ment of this Act ; and he shall incur a penalty not less than five pounds and not exceeding twenty pounds for every day after the expiration of such period of six months during which he fails to comply with the l)rovisions of this section ; and any owner faihng so to maintain the same sliall incur a penalty not less than one pound and not exceeding five pounds for eveiy day during wliich such failure continues. 11. Weelchj Close Time in lieu of Free Gap. — In any case where the breadtli of tlie river where any chartered or patent fishing wear now exists shall not exceed forty feet, and it might be inexpedient to require a free gap to be made therein, the Conuuissioners may, if they think fit, instead thereof, direct by their order the extension of the weekly close time for a period of twenty-four hours. 26 & 27 VICT. c. 114, §§ 12, 13. 329 12. Enforchnj Free Gaps in FisJdng TTears.— The following rules shall be observed for the purpose of cufurcing efficient free gaps in fishing wears ; (that is to say,) (1.) Where a wear is without a legal free gap at the time of the connnencemeut of this Act, the owner of such wear shall within twelve months after the conuuencement of this Act make such a gap, and if he dcjes not he shall incur a penalty not less than five pounds and nut exceeding fifty pounds for every day after the expiration of such period of twelve months during which he does not make such gap : (2.) Where a free gap has been made in a wear, but the same is not maintained in accordance witli tliis Act, the owner of such wear- shall incur a i)enalty not exceeding five pounds a day for each day he is in default. (3,) No alteration shall be made in the bed of any river in such manner as to reduce the How of water through a free gap : if it is, the person making the same sliall incur a penalty not less than five pounds and not exceeding fifty pounds, and a fiui;her penalty of one pound a day until he restores the bed of the river to its original state. (4.) No person shall place any ol)struction, use any contrivance, or do any Act whereby fish may be scared, deterred, or in any way prevented from fieely entering and passing up and down a free gap at all periods of the year, or shall use any nets or other engines within fifty yards above or below any free gap ; and any person placing any oltstruc- tion, using any contrivance, net, or engine, or doing any act in contravention of the regulation lastly hereinbefore con- tained, shall incm- a penalty not less than five ])Ounds and not exceeiling twenty pounds for the fii-st offence, and not less than ten pomids and not exceeding fifty pounds for each subsequent offence. 13. Abatement of lUerjal Nets and Wears.— Before removing any illegal fixed net or illegal fishing wear, the Connuissionei-s shall take the same proceedings as to summoning the parties interested in such net or wear, and as to hearing such parties, and any evidence they may produce, as the Commissioners under tlic Salmon Fisheries Acts are thereby required to take where any jiartics complain of the erecting, maintahiing, or using any fixed engine ; and a sunnnons issued by the Commissionei-s shall, in respect of the proceedings to be taken by the Commissioners, be deemed to be equivalent to a complaint made under the said section. 330 lEISn SALMON FISHEEIES ACT. 14. Appeal from Decision of Special Commissioners. — If any person feels aggiieved with any decision of the Commissioners (and for the purposes of an appeal a dismissal of a complaint shall be deemed to be a decision), the person aggrieved may ajjpeal as follows, and not in manner provided by the Salmon Fisheries Acts ; (that is to say,) 1. The appeal shall be to the Court of Queen's Bench in Ireland. 2. The appeal shall be by special case stating the facts and the grounds for the decision. 3. The special case shall be settled by the Commissioners upon the application of the appellant to be made in writing within seven days after the dehvery of the decision, and not afterwards. 4. The application for a case shall not be entertained by the Com- missioners unless the appellant at the time of making the same enter into a recognizance before the said Commis- sioners or a Justice of the Peace, with or without sureties, and in such sura as the Commissioners or the Justice think fit, conditioned to prosecute without delay the appeal, and to submit to the judgment of the Court of Queen's Bench, and to pay such costs as may be awarded. 5. The special case shall be signed by the Commissioners, and shall be delivered to the appellant by the Commissioners on payment by him of such fees as are hereinafter mentioned. 6. On the receipt of the special case the appellant shall within three days serve a copy on the other party to the proceedings, and transmit by post or otherwise the original case to the proper officer of the Court of Queen's Bench in Ireland. 7. The fees to be charged in respect of the preparation of the special case shall be the same fees as are chargeable for the preparation of a special case by the Act passed in the session of the twentieth and twenty-first years of the reign of her present majesty, chapter forty-three, intituled An Act to improve the Administration of the Law, so far as respects Summary Proceedings before Justices of the Peace, and herein- after referred to as " The Summary Jurisdiction Act." 8. The Commissioners may refuse to state a case when they are of opinion that the application is frivolous, but if they so refuse they shall, on the request of the apjiellant, give him a certificate stating the ground of their refusal, y. When a party gives in good ftiith notice of an appeal under this section, but omits through mistake to do some act necessary 2G & 27 VICT. c. 114, §§ 15, IG. 331 to perfect the appeal, the Appellate Court may permit an amendment on sucli terms as it tliinks just. 10. After the decision of the Court of Queen's Bench has been given on a case stated as aforesaid, the Commissioners shall have the same powers to enforce that decision, when affirmed or amended, as they would have had to have enforced their original decision if it had not been appealed from. 11. Save as hereinbefore varied, the provisions of the Summary Jurisdiction Act as to the powers of the Superior Court, as to directing 'a special ca.se to be stated, as to the enforc- ing of recognizances, and as to all other matters, shall apjily to an a])peal under this section, in the same manner as if tiie words " Justice or Justices " in the .said Summary Jurisdiction Act included "the special Commissioners appointed under this Act." 12. Any Act required by this section to be done by the Commis- sioners may be done by two of them, of whom the banister hereinafter mentioned shall be one. 13. The decision of the Court of Queen's Bench, in respect of any case brought before them under this section shall, unless the Court otherwise directs, be final. 15. Transfer of Poivers to Netv Commissioners. — All powers, rights, privileges, and jurisdictions vested in or exercised by the Commissioner of Public Works, and the Inspecting Commissioners of Fisheries, or any of them, by any Act relating to salmon fisheries, with the excep- tion of the powers relating to oysters and white sea fish, shall be trans- ferred to and vest in the Commissioners appointed under this Act during their continuance in oflice, and may be exercised by them. Miscellaneous. 16. Fixhinrf with Nets near i/i7?-c/aw.— Notwithstanding anything contamed in the said Salmon Fisheries Acts, it shall not be lawful for any person or persons, although lawfully possessed of a several fishery for twenty years next liefore the passing of the Act of the session of the thirteenth and fourteentii years of the reign of Her present ^lajesty, chapter eigiity-eight, to use any box, crilib, cruivo, net, instmment, or device for taking fish (save and except rods and lines only), at or within fifty yards, either above or below a mill-dam, unless there is attached to such mill-dam a fish-pass of such form and dimensions as may bo approved of by the Commissioners, nor unless such fish-pass has con- 332 IRISH SALMON FISHERIES ACT. stantly running through it such a flow of water as will enable salmon to pass up and down it ; any person oflending against this clause shall for each offence incur a penalty of not less than five pounds, and not exceeding twenty pounds, recoverable by any one who wLU sue for the same. 17. Power to define Est wanes and Mouths of Rivers. — Notwith- standing anything contained in the Salmon Fisheries Acts, or any definition of the Commissioners actmg in pursuance of those Acts, the Commissioners mider this Act shall mark out, by reference to maps or otherwise, what are to be the boundaries of mouths of rivers and estuaries, and the boundaries between the tidal and freshwater por- tions of every river, for the purjjoses of this Act and the said Salmon Fisheries Acts, with power where several streams flow iuto a common mouth or estuary to declare that the outlets of such streams form separate mouths or estuaries. The Commissioners may also define the point or points of mouths of rivers or estuaries from which distances are to be measm-ed under this Act and the Salmon Fisheries Acts. 18. Forfeiture of Boat in Illegal Fishing. — If it be proved to the satisfaction of the Justices that any boat, cot, or curragh, found on or near waters frequented by salmon or trout, has been used for the cap- ture of salmon or trout during any part of the annual or weekly close time, the person or persons who shall be proved to have used such boat, cot, or curragh for the capture of salmon or trout during the annual or weekly close time, shall for the first offence be subject to a penalty not exceeding five pounds, and for the second or any subse- quent offence, in addition to the foregoing penalty, the boat, cot, or curragh so used may be seized and forfeited ; but this section, so far as relates to the forfeiture of the boat, cot, or cm'ragh, shall not come into operation where a boat is used by some person other than the owner thereof, and the owner proves to the satisfaction of the Justices that it was so used without his knowledge or consent. 19. Meaning of Terms. — It is hereby declared, that for the purposes of the said Salmon Fisheries Acts, and of this Act, "jenkin" and "gravelling" are deemed to be "salmon," and "spring tides" mean " ordinary spring tides." (See also sect. 44.) 20. Weeldji Close Season. — There sliall lie repealed so nnich of the said Salmon Fisheries Acts as provides that it shall not be lawful to take or kiU any salmon or trout between six of the clock on Saturday evening and six of the clock on Monday moniing, or between the low waters next in point of time to those periods respectively, and the said Acts shall be construed as if it had been enacted therein that no salmon 26 & 27 VICT. c. 114, §§ 21—23. 333 or trout shall be fished for or taken in any way, except by single rod and line, between six of the clociv on Saturday morning and six of the clock on tlie snceeeding il/o^fZa?/ morning ; and all penalties imposed by the said Salmon Fisheries Acts, and the provisions made for enforcing the proliibition contained in the said Acts and providing for the free pas- sage of salmon and trout during the times therein in that behalf mentioned, shall apply accordingly, with this addition, that any net or other instnmient, or the inscales or gates and rails of any crib, box, or cruive, used between the times aforesaid shall be forfeited, and also that when any salmon or trout is taken at any fishing wear during the weekly close season in contravention of this Act, and the said Salmon Fisheries Acts, or when any box, crib, or cruive is during the weekly close season left unopened or otherwise left not in conformity with the said Acts, the penalty in that behalf imposed by the said Acts shall lie payalde in respect of each box, crib, or cruive in the wear in which any fish is so illegally taken, or which is left as aforesaid unopened, or not in confomiity with the said Acts. 21. Alteration of Annual Close Time. — There shall be repealed so much of the thirty-third section of the Act of the session of the fifth and sixth years of the reign of Her present Majesty, chapter one hun- dred and six, as provides that the annual close season, or period during which it shall not be lawful to take salmon, shall not comprise fewer than one hundred and twenty-four days in each year ; and in lieu thereof be it enacted, that such annual close season or period during which it shall not be lawful to take salmon, shall not comprise fewer than one htuulred and sixty-eight days in each year ; and until an alteration is made by the Commissioners in pursuance of the powers given to them by the Salmon Fisheries Acts and this Act, there shall be added at the end of the close time now established for each fishery, such number of days, if any, as may be required to make the number of close days constituting the annual close time in that fishery amount to one hundred and sixty-eight days. 22. Salmon or Trout Caught for Certain Pu7-poses. — Nothing in this Act contained shall ajiply to any person who shall catch or attempt to catch, or shall have in his possession, any salmon or trout for the pur|ioses of artificial propagation or other scientific purjioses ; and nothing in this Act contained shall jirejudice the legal right of any owner to take materials fi-om any stream. 23. Season for Angling u-ilh Single Rod and Line. — Nothing in this Act shall be construed to aftect angling Avith single rod and hue, the close season for which shall be from the first day of November in each year to the first day of Fthritanj in the year following. 33rt IRISH SALMON FISHERIES ACT. 24. Use of Salmon Nets during certain Hours in Rivers. — From and after the passing of this Act, it shall not l)e lawful for any person to use any net, except a landing-net, for the capture of salmon or trout in the freshwater portion of any river, as defined by the Commissioners under this Act, between the hours of eight o'clock in the evening and six o'clock in the morning, except so far as the same may have here- tofore been used within the limits of a several fishery next above the tidal flow, and held under grant or charter, or by immemorial usage ; and every person offending against the provisions of this section shall be subject to a penalty not exceeding ten poimds, and to the forfeiture of all boats, nets, and gear used in such illegal fishing. 25. Obsfructivff Free Passage of Salmon or TroiU during Weekly Close Season.— 'No person shall in any manner whatever scare, impede, or obstmct the free passage of salmon or trout dming the weekly close season : and any person acting in contravention of this section, shall forfeit any fish taken by him, and any net or instrument used l»y him, and in addition thereto shall incur a penalty not less than two pounds, and not exceeding ten pounds ; but this section shall not apply to any person who takes fish legally by the single rod and line during the weekly close season. 26. Additio7ial Licence Duties on Fixed Engines. — The Salmon Fisheries Acts shall be construed as if in the schedule annexed to the Act of the eleventh and twelftli years of the reign of Her present Majesty, chapter ninety-two, so far as relates to fixed engines, there had been inserted instead of the duties therein mentioned the duties following ; (that is to say), Bag-nets £10 Stake-nets, fly-nets, or stake-wears (ScotcJi) . . 30 Head-wears 6 For every box, crib, cruive, or drum-net in any wear for taking salmon or trout 10 and the boards of conservators sliall not have authority to reduce or diminish the same, anything in the said Act or any other Act to the contrary notwithstanding. 27. Magistrates Paying Duty to he Ex officio Memhcrs of Board. — Magistrates paying licence duty, and being owners of land abutting on rivers or lakes in any district, may act and vote as ex officio members of any board of conservators elected for any such district. 28. New Elections of Conservators. — On the first Monday in the month of October in the year one thousand eight hundred and sixty- four all existing boards of conservators shall cease, and new boards shall be elected. 26 & 27 VICT. c. 114, §§29— Si. 385 29. Residence or Qualification of Conservators. — No person shall be eligible for the office of conservator in any electoral division in which he docs not reside or possess real iiropcrty. 30. Use of IlijdmuUc Machines.— Where a turl)ine or similar hy- draulic machine, which may be injurious to salmon or the young of salmon in their descent to the sea, is supjdied from a river frequented by salmon, the person owning or using sucii machine shall, during the time in wliich such descent to the sea takes place, provide grating or other efficient means to prevent such salmon or young of salmon from passing into such machine, and in case such means be not provided such person shall forfeit a sum not exceeding fifty pomids, and also a sum not exceeding five pounds for each day during which such jnjury to the fry continues. 31. Salmon-passes and Fish Ladders to he open to Inspection. — All salmon-passes and fish ladders shall Ije at all times open to the in- spection of the Commissioners and conservators of the district, and of any person duly autliorized by them or any of them. Appointment and Powers of Commissioners. 32. Appointment of Commissioners. — Her Majesty may by warrant under the royal sign manual appoint any number of persons not ex- ceeding tln-ee, of whom one shall be an officer in the naval service of Her Majesty, and another a barrister of not less than seven years standing at the bar, to be Commissioners under tliis Act during Her Majesty's j)leasure, and upon every vacancy in the office of any Com- missioner by deatli, resignation, or incapacity to act may appoint some other fit person to fill tlie vacancy : provided always, that in the case of a vaciincy iiy the death, resignation, or incapacity of any Commissioner being such officer or barrister, the person so to be appointed shall be of the same profession as the officer or barrister in whose place he shall be appointed. 33. Commissioners to have a Common Seal. — The Commissioners appointed under this Act shall be styled "The Special Commissioners for Irish Fisheries ; " they shall cause to be made for tlieir commission sucii seal or seals as they may re(iuire ; and any sunnnons, order, warrant, or other instrument, or copy thereof, purporting to be sealed with the seal of the Connuissioners, and to be signed as hereinafter mentioned, shall be received in evidence without any further proof. 34. Commissioners not to ait in Parliament. — No Commissioner shall during his continuance in office be capable of l>eing elected or of sitting as a member of the House of Commons. 336 IKISH SALMON FISHERIES ACT. 35. Acts of (he Commissioners. — All warrants for the removal of any illegal net or illegal wear shall be signed by two at least of the Com- missioners, and all cases relating to the removal of such nets or wears shall be heard by all the Commissioners, but the opinions of two of them shall, in case of difference, decide any question ; any other Acts authorized to be done by the Commissioners may be done by any one of them, and any summons under the seal of the Commissioners, and signed by any person delegated by them, shall be deemed to be sufficiently executed. 36. Salaries of Officers.— The Commissioners of Her Majesty's Treasury may from time to time fix such salaries as they may think fit for the Commissioners hereby appointed, and also appoint such additional officers, clerks, and servants, at such salaries as the said Commissioners of the Treasiuy may think proper and necessary, and from time to time dismiss such officers, clerks, and servants, and appoint others in their place. 37. Duration of Office of Commissioners.— The offices of the said Commissioners, and all powers, rights, and privileges pertaining thereto, shall continue in force for two years only, and from thenceforth until the end of the next session of Parliament. 38. Powers of Commissioners. — The Commissioners may examine any witnesses on oath ; and with respect to the following matters, that is to say, (I.) Enforcing the attendance of witnesses, and the production of deeds, books, papers, and documents ; (2.) The enforcing any order whatever made by them under any of the powers or authorities of this Act or the Salmon Fisheries Acts, shall in addition to any other powers conferred on them by this Act, have all such powers, riglits, and privileges as the Judges of Her Majesty's Court of Queen's Bench in Ireland have for such or the like puqioses. 39. Penalty for False Siuearinr/.— Every person who upon examination before the Commissioners, or any one of them, Avilfully gives false evidence, and every person who wilfully swears, affirms, or declares falsely in any affidavit relating to any matter within the cognizance of the Commissioners, shall be liable to the pains and penalties of perjiu-y. 40. Proceedings before Commissioners not to be Restrained by Jnjunc- tim, ing-nets used in the Wye, which were movable nets fixed across the whole river from bank to bank, for tliirty minutes, until another net was worked down towards tlie net that was fixed, were held by the commissioners to be fixed nets : Fcclesiastical Commissioners' Case, Hereford, 28tli Jime, 1870. And the same was held as to a still-net in the Esk : Case of Lord Leconjield, 23rd Sept. 1869. On the other hand, a net called a beating-net, used in the Wye, was held by the special commissioners not to be a fixed engine, though one end was fbced for a time to the bank, for the main o])eration was done by hand : Case of Baskervillc, 3rd Jan. 1871. Again, the commissioners held that a ha;if or halve-net used in the Solway and Ribble was not a fixed engine. This is a small net fixed to a frame which a man uses by wading and leaning on the ])oles till a fish strikes the net, when he heaves the net up autl takes out the fish: Linton's Case, 12th Dec. 1868. So it was hekl i)y the conunissioners that though a windlass was fixed on the river bank to help the fishermen in drawing in the net, this did not make it a fixed engine : Ciise of Duchess of Cleveland, 13th Dec. 1871. It has also been ii'eijuently found that a fixed engine is not a self-catching apparatus, and in many cases it is not so. If the main part of the operation is supplied by that which is 348 ENGLISH SALMON FISHERIES ACTS. fixed, this satisfies the definition... Thus a hod, which was a small square inclosure, covered on the top and open on one side, made with stakes and wattling, near the bank of a river, in deep water, and so contrived that fish are led by their instinct to enter the inclosure and rest there, while the fisherman, by inserting a leister through a small hole in the roof, could kill the fish and complete the capture, was held to be a fixed engine : Case of Lutwidge, 4th Jan. 1870. So raise-nets and V- weirs have seldom a self-catching apparatus. Nearly all the fixed engines for taking salmon known to exist in England and Wales have been abeady inquired into, and their legality or illegality has been determined by the special commissioners appointed under the Act 1865, § 46, so that there is now little difficulty in ascertaining ^vhich is legal and which is illegal. See notes to Act 1865, §§ 40 — 44. The ancient rights to use fixed engines wliich were excepted from tlie operation of this section, and which were fiu-ther defined by the Act 1865, § 39, have thus been inquired into and disposed of. The exception of ancient rights applied only to private rights of property as distinguished from mere popular usage of a particular net or contrivance, for however long the public may have used certain modes of fishing, these have been held not to come within the exception in the above section : Olcling v. JVild, 14 L. T. (n. s.) 402 ; 30 J. P. 295 ; Bevins v. Bird, 14 L. T. (n. s.) 306 ; 29 J. P. 500. Hence public modes of fishing with fixed engines were decided to be illegal, as, for example, the stake-nets in the Dee, the poke-nets and stream-nets in the Sol- way, the compass-nets or stop-nets in the Cleddy, though these modes had been used during all living memory. New modes, however, of using movable nets may be invented, and the question may still arise whether the engine is fixed or movable, and the justices of the peace will have to determine this. \\nien an ancient right is set up before justices, they are bound to hold their hands if jyrimd facie evidence of a right is shown : Eaby v. Sued, 29 J. P. 37. And the same rule applies where a prirrul facie right of several fishery is set up in tidal waters, as against the public : Booth v. Brough, 33 J. P. 694. And it is the same when the defendant sets up his right as one of the public : K v. Burrotv, 34 J. P. 53. 12. Penalty on using certain Dams for catcJdng Salmon. — The following regulations shall be observed with respect to dams : (1.) No dam except such fishing weirs and fishing mill dams as arc lawfully in use at the time of the pass- ing of this Act, by virtue of a grant or charter or immemorial usage, shall be used for the pui'pose of catching or facilitating the catching of salmon : 24 & 25 VICT. c. 109, § 12. 349 1. Any perf5on catching or attempting to catch salmon in contravention of this section shall incur a penalty not exceeding fivo pounds for each offence, and a further penalty not exceeding one pound for each salmon which he catches : 2. All traps, nets, and contrivances used in or in connexion with the dam for the purpose of catching salmon shall be forfeited : 3. All salmon caught in contravention of the above prohibition shall be forfeited : And no fishing wcu-, although lawfully in use as aforesaid, shall be used for the purposes of catching salmon unless it have therein such free gap as is hereinafter mentioned ; and no fishing mill dam, although lawfully in use as aforesaid, shall be used for the purposes of catching salmon unless it have attached thereto a fish pass of such form and dimen- sions as shall be approved of by the Home Office, nor unless such fish pass has constantly running thi-ough it such a flow of water as will enable salmon to pass up and down such pass, but so nevertheless that such pass shall not be larger nor deeper than requisite for the above purposes : (2.) No person shall catch or attempt to catch, except by rod and line, any salmon in the head race or tail race of any mill, or within fifty yards below any dam, unless such mill or dam has attached thereto a fish pass of such form and dimensions as may be approved by the Home Office, and such fish pass has constantly running through it such a flow of water as will enable salmon to pass up and down it ; and if any person acts in contravention of tho foregoing provision, 1. He shall inciu" a penalty not exceeding two pounds for each offence, and a further penalty not exceeding one pound for every salmon so caught : 2. He shall forfeit all salmon caught in contra- vention of this section, and all nets or other instruments used or placed for catching tho same. This Poction di^nde? dams into four kinds : — 1. The dams which are neither tishins weh's uor lisliiutf mill dams : 2. Uams 350 ENGLISH SALMON FISHERIES ACTS. wliicli are fishing weirs, but wliicli are not ancient or legal in all respects ; 3. Dains wliicli are fishing mill dams, but which are not ancient or legal in all respects ; 4. Dams which are either fishing weirs or fisliing miU dams, and which are ancient and legal. 1. As to dams which are ordinary mill or irrigation or navi- gation dams, this section imposes no duty on the owner or occupier, except that lie is not to use the dam for the purpose of catching or facilitating the catching of sahiion. This off'ence will be committed when the miller, by turning off the waters, dries the jiool below the dam suddenly, so as to catch more easily the fish that may be stopped by the dam. See Garnett V. Backhouse, L. R. 3 Q. B. 639 ; 37 L. J. Q. B. 1 ; 17 L. T. (n. s.) 170. But this section does not compel the millowner, even though his dam illegally obstructs the passage of fish, to make a fish pass, or even to allow third parties to make one at his expense. 2 and 3. As to dams which are either fishing weirs or fishing mill dams, but neither ancient nor legal, this section does not compel the o\Aaier to make a free gap in the one case, nor a fish pass in the other case. It merely subjects to penalties those wlio use these dams for catching or facilitating the catching of salmon. The power afterwards given to the commissioners . to deal with such dams is stated in notes to Act 1865, § 42. 4. As to dams which are either fishing weirs or fishing mill dams, and legal in all respects, this section does not compel the owner or occupier to make a free gap or a fish pass, but merely sul)jects him to a penalty if he uses the dam for catching or facilitating the catching of fish without a gap or pass being first made : Moulton v. Welby, 2 H. & C. 25 ; 32 L. J. Exch. 173 ; 8 L. T. (n. s.) 284 ; 27 J. P. 536. It thus leaves it entirely to the option of the owner to make a gap or pass, or not. He may prefer to suspend his use of the dam for fishing, in which case the worst that happens to him is that he cannot use the dam for fishing. With regard to fishing weirs, however, a sub- sequent section (27) comjiels the owner to make a free gaji, whetlier tlie fishing weir is legal or illegal, and whether used for fishing or not. But as to all the other three kinds of dams, the owner was under no obligation liy this section to make a fish pass at all unless he jdeased. And it is to be observed that all these dams usually alike obstruct the passage of fish, whether legal or illegal, and wliether the fishing box in a legal fishing mill dam is used or not is of small consequence compared with the impfjrtance of having a fish pass made over it. When once a projjer fish pass is made over a dam, even though it have a fish box or trap at work and connected with it, the fish would have a fair and e(pial chance of escape, and those that escaped into the higher ])aits of the river would compensate tenfold for all the loss of iish that could be taken in the fish box or trap. 24 & 25 VICT. 0. 109, § 13. 351 Fish j'cisaes in Legal Fisliing Mill TJaim. — If the owner of 11 legal tishing mill daiu wisli to continue the use of his fish box, then this section prescribes tlie conditions of tlie fisli pass wliicli he must iirst make. One is the approval of the Home Olhce ; the other is that water should constantly How tlirough the fish pass, so as to enable fish to pass up and down. The second condition is not only founded on an erroneous notion of what a fish pass is, but it is usually so destructive to the milling power that no prudent miller would make one witli such a condition attached. Hence this section has been a dead letter, so far as the voluntary making of fish passes in legal fishing mill dams is concerned. The legislature at the time of the ])assing of this Act was not in possession of any precise knowledge of the re([uirements of an etticient fish, pass, and by annexing tliis fatal and suicidal condition rendered this enactment practically worthless, so that fish are as much obstructed as ever by the existence of these legal fisliing mill dams. See further on this subject. Act 1805, § -12, and Act 1873, § 50. 13. Penalty on Conijyany or Person not crcctinc) Gratinrfs to prevent the Descent of Salmon into artijlcial Streams. — Where salmon or tho young of salmon are led aside out of a main stream by moans of any artificial channel used for the purpose of supplying towns with water, or for sup- plying any navigable canal, the company or persons having the control over such artificial channel shall, within six months after tho commencement of this Act, put up and shall maintain, at their own costs and charges, a grating or gratings across such channel, for the purpose of preventing the descent of the salmon or the young of salmon, and such grating or gi'atings shall be placed in such form and manner as may be approved by one of the inspectors in this Act men- tioned ; and any company or persons failing to put a grating or gratmgs in cases where they arc required to do so by this section shall incur a penalty not exceeding five pounds for every day after the expiration of such period of six months during which he fails to comply with the provisions of this section ; and any such company or person failing so to main- tain the same shall incur a penalty not exceeding one pound for every day during a\ liich such failiu'c continues : Pro- vided always, that no such gratmg shall be so placed as to interfere with the passage of boats on any navigable canal. This section made it compulsory only on the o^\^le^s of water- works or navigable canals to make a grating across an ;utilici;d 352 ENGLISH SALMON FISHERIES ACTS. channel. Tlie power has now been extended by the Act 1873 ' §§ 39, 58 — 60, as to the effect of which, see those sections. See also observations on this section, ante, p. 149. Prohibition of the Destruction of Unseasonable Fish. 14. Penalty on taking Unclean Fish. — No person shall do any of the following things ; that is to say, (1.) Wilfully take [kill, or injure or attempt to take] any unclean or unseasonable salmon [or trout or char] ; (2.) Buy, sell, or expose for sale, or have in his possession, any unclean or unseasonable salmon [or trout or char] , or any part thereof : And any person acting in contravention of this section shall incur the following penalties ; that is to say, (1.) He shall forfeit any fish taken, bought, sold, or ex- posed for sale, or in his possession ; (2.) He shall incur a penalty not exceeding five pounds [for each such offence, and a further penalty of one pound] in respect of each fish taken, sold, or ex- posed for sale, or in his possession : But this section shall not apply — (1.) To any person who takes such fish accidentally, and forthwith returns the same to the water with the least possible injury : (2.) To any person who takes or is in possession of such fish for artificial propagation or other scientific purposes. The words in brackets were introduced by the Act 1873, § 18, and tliey remedy an error pointed oi;t in the original section, ante, p. 149. Some of these offences only will be cumulative : thus it would be impossible to con-vdct of injuring and also of killing — of attempting to take, and of taking — but it may be other- wise as to the other offences. It is extremely difficult to convict of the offence of wilfully taking an unclean fish, as it is seldom possible to know whether it is clean or unclean before it is taken, and even then there are so many shades and degrees of uncleanness that justices often have a difficulty iii Ijeing satisfied that the act has been done with knowledge. See Hojiton v. TJdrlwall, 9 L. T. (n. s.) 327 ; 27 J. P. 743. As to the punishment of a third offence under this section, see Act 1865, § 56. See further offences as to trout and char a7ite, §§ 8, 9, in Act 1865, § 64 ; Act 1873, § 38. As regards scientific purposes, see Act 1865, § 60. It is to be 24 & 25 \qcT. c. 109, §§ 15, IG. 353 ohserved that it is only the owner or occupier of the fishery where tlie fish are cau^'ht, and the hoard of conservators (if any), acting jointly, that can give sutficient rrpound for this exenqition, and that their joint consent is always necessary when a third party takes unclean fish. There is no such exemp- tion as to fish that are " clean." 15. Penalty on taldnrj the Yoxing of Salmon. — No person shall do the following things or any of them ; that is to say, (1.) Wilfully take or destroy the young of salmon ; (2.) Buy, sell, or expose for sale, or have in his possession, the young of salmon ; (3.) Place any device for the purpose of obstructing the passage of the young of salmon ; (4.) Wilfully injure the young of salmon; (5.) Wilfully disturb any spawning bod, or any bank or shallow on which the spawn of salmon may be : And any person acting in contravention of this section shall incur the following penalties ; that is to say, (1.) He shall forfeit all the young of salmon found in his possession ; (2.) He shall forfeit all rods, lines, nets, devices, and instruments used in committing any of the above oflences ; (3.) He shall for each offence pay a penalty not exceeding five pounds ; But nothing herein contained shall apply to any person who may have obtained such young of salmon for artificial propa- gation or other scientific purposes, and nothing herein con- tained shall prejudice the legal right of any owner to take materials from any stream. In order to con\nct of possessing the young of salmon, it is necessary that the defendant shoiild know, or that it is n-ason- able to suppose he knew, the dilference lietween young salmon and other young fish somewhat resembling them, it being a question of fact fur tlie justices whether tlie ^naliis animus existed : Hoptony. Thirlwall, 27 J. P. 743 ; 9 L. T. (n. s.) 327. As to taking young salmon for scientific purposes, see note to last section, and Act 1865, § 60. 16. Penaltij on disiturhuui Fish ichen spauninr/. — If any person wilfully disturbs or attempts to catch salmon when spawning, or when on or near theii- spa^^^ling beds, he shall for each ofience incur a penalty not exceeding five pounds ; 354 ENGLISH SALMON FISHERIES ACTS. but this section shall not apply to any person who may catch or attempt to catch salmon for the purposes of artificial pro- pagation or other scientific purposes. Restrictions as to Times of FisJdng. 17. Close Time. — No person shall fish for, catch, or attempt to catch or kill salmon between the days hereinafter men- tioned (which interval is herein referred to as the close season) ; that is to say, between the first day of September and the first day of February following, both inclusive, ex- cept only that it shall be lawful to • fish with a rod and line between the first day of September and the first day of November following, both inclusive ; and any person acting in contravention of this section shall forfeit any salmon caught by him, and shall in addition thereto incur a penalty not ex- ceeding five pounds, and a further penalty not exceeding two pounds in respect of each salmon so caught. Tliis may be taken now to be the fixed statutory close season for all rivers and waters not included in some fishery district, and also in all fishery districts, until the close season shall be altered by bye-laws. Before the Act 1873, § 65, repealed the 18th section of the Act 1861, it was competent for the secretary of state to extend the close season ; and if this had been acted on as to places not now included in a fishery district, there is tliis singular result, that a difterent close season than the above will apply to such places, and now it cannot be altered. Pos- sibly, however, the close season may not have been altered, except as to jilaces in a fishery district ; and if so, the anomaly alluded to will have been avoided. The penalty here enacted extends to the close season, when varied. See Act 1873, § 4. The person convicted under this section forfeits the net or rod used in fishing. See Act 1865, § 58, 18. Poiver of Home Office to extend or vary Close Season. — Repealed by Act 1873, § 65. See Act 1873, § 39. 19. Penalty on selling Fish during Close Time. — Repealed by Act 1873, § G5. See Act 1873, § 19. 20. Removal of fixed Engines during Close Time. — The proprietor or occupier of every fishery for salmon shall, within thirty-six hours after the commencement of the close season, cause to be removed and carried away from the waters within his fishery the inscales, hecks, tops, and rails of all 24 & 25 VICT. c. 109, § 20. 355 cruives, boxes, or cribs, and all planks and temporary fixtures used for taking or killing salmon, and all other obstructions to the free passage of fish in or through the cruives, cribs, and boxes within his fishery ; and if any proprietor or occupier omits to remove and carry away in manner aforesaid any things hereby requu'ed to be removed and carried away, he shall incur the following penalties ; (that is to say), (1.) He shall forfeit all the engines or other things that are not removed and carried away in compliance with this section : (2.) He shall, for every day during which he suffers such things to remain unremoved beyond the period prescribed by this Act, pay a sum not exceeding ten pounds. Tliis section is very imperfectly drawn, and altogether omits to provide for the cases — and they are numerous — where fixed engines have neither a crib, box, or cruive. Many fixed engines, such as ebbing weirs and stake-nets, are so constructed that fish may be inclosed and killed by the water of each tide leaving them dry, and there is nothing to compel the owner to make an opening or to put his fixed engine out of getu", so that fish may escape these contingencies during close time. The special commissioners, in their certificates, took the precaution in most cases to describe such an opening or means of escape as part of the fixed engine certified by them as legal, but another enact- ment was required to enable the law to be enforced. This section being left in its defective state, and no other or better enactment being in the Act 1873, this remedy is not available against the owners of fixed engines, and the same remai'k applies to fixed engines in the weekly close seasoh. The section, however, meets the case of all fishing mill dams having boxes, cribs, or cruives, whether these are nseil during the fishing season or not, and whether or not the opening does injury to the mill, though the enactment does not apply to such fishing mill dams as have no boxes, cribs, or criuves — for example, tliose in Hampshu'e and Wiltshire. The word " fishery" includes the fishery which forms jmrt of a fislung mill dam ; so that the owner of a dam which was legally used for taking salmon, though the fisliery has been dis- continued, is liahle to remove all olistrnctions during tlie annual close season, and also, by the 22nd section, in each weekly close season to make and keep a clear opening four feet in mdth through each crib, hox, or cruive : Hodgson v. Little, 14 C. B. (N. S.) ill ; 32 L. J. C. P. 251 ; 8 L. T. (n. s.) 358. And it is no 2 B 366 ENGLISH SALMON FISHEEIES ACTS. answer that tliis injures the milling power : Hodgson v. Little, 16 C. B. (N. s.) 198 ; 33 L. J. C. B. 288 ; 11 L. T. (n. s.) 136. The words " box, crib, or crnive " (as already stated) render the section inapplicable to nearly all fixed engines, and to fishing mill dams which have no box, crib, or cruive. This section causes much more expense and loss to owners of mill dams than an enactment compelling such owners to make fish passes at their own expense would do ; and there can be no comparison between the relative benefit to the fisheries of the two enactments, 21. Weekly Close Time. — No person shall fish for, catch, or kill by any means other than a rod and line, any salmon be- tween the hour of twelve of the clock at noon on Saturday and the hour of six of the clock on Monday morning ; and any person acting in contravention of this section shall forfeit all fish taken by him, and any net or movable instrument used by him in taking the same, and in addition thereto shall incur a penalty not exceeding five pounds, and a further penalty not exceeding one pound in respect of each fish so taken between twelve of the clock at noon on Saturday and six of the clock on Monday morning ; but nothing in this section contained shall compel the owner of any putts or putchers to remove or draw up the same during such time as is men- tioned in this section, or subject him to a penalty, so that he lets down a net in such manner or uses such other device as the Home Ofiice approves for the purpose of preventing salmon passing into the putts or putchers during such time as c.fore::'ud. This enactment and the 22nd section do for the weekly close season what the 17th and 20th section>s do for the annual close season. The weekly close season may l)e varied by bye-law in a fishery district, but the time here specified must remain the fixed law in all jjlaces not within a fishery district, for there is no power now to alter the time in such places. The 21st and 22nd sections have the same defect as the 20th section as regards fixed engines, and also fishing mill dams which have no boxes, cribs, or cruives. See notes to § 20. 22. A free Passage to be left throufjli Cribs or Ti'aps during Weekly Close Time. — The proprietor or occupier of every fishery shall, between twelve of the clock at noon on Satur- day and six of the clock on the Monday morning following, maintain a clear opening, of not less than four feet in width from the bottom to the top, tlii'ough all cribs, boxes, or 24 & 35 VICT. c. 109, §§ 22, 23. 357 cruivos used for taking salmon within his fishery, so that a free space of that width is eftectually secured for the passage of fish up and down through each box, crib, or cruive, whether used for the purpose of fishing or not ; and shall for the purpose of maintaining such opening, remove the inscales and rails of all such boxes, cribs, or cruives ; and any person acting in contravention of this section shall incur the following penalties : (1.) He shall for each offence pay a sum not exceeding five pounds, and a further penalty not exceeding one pound for each fish so taken : (2.) He shall forfeit every fish caught in contravention of this section. See notes to § 21. Fish Passes. 23. Propnetor tvith Consent of Home Office may attach Fish Passes to existbuj Dams. — Any proprietor of a fishery [or a board of conservators] with the written consent of the Home Otfice may attach to every dam existing at the time of the passing of this Act a fish pass, of such form and dimensions as the Home Olfice may approve, so that no injury be done to the milling power or to the supply of water to or of any navigable river, canal, or other inland navi- gation by such fish pass ; and any person obstructing any person legally authorized in erecting or doing any necessary act to erect or maintain such fish pass shall incur a penalty not exceeding ten pounds for each act of obstruction ; and any person injuring such fish pass shall pay the expense of repairing the injury, such expense to be recovered in a summary manner, and in addition thereto, if such injury is wilful, shall incm* a penalty not exceeding five pounds ; and any person doing any act for the purpose of pi-eventing salmon from passing through a fish pass, or taking any salmon in its passage through the same, shall incur a penalty not exceeding five pounds for a first oScnce, and not exceeding ten pounds for each subsequent ofl'ence, and shall forfeit any salmon taken by him in contravention of this section, and any instrument used by him in taking the same : provided that if any injury is done to any dam by reason of the affixing of a fish pass in pursuance of this section, any person sustaining any loss thereby may recover compensation for 2b2 358 ENGLISH SALMON FISHEl^IES ACTS. Biich injury in a summary manner from the person or body of persons by whom such fish pass has been affixed. The words m brackets were introduced by the Act 1873, § 53. The limitatiou of liiue for recovering compensation is stated by the Act 1865, § 59. This section, like tlie part of the 12th section relating to fish passes, is so imperfectly drawn, and founded on such a miscon- ception of the nature and effect of a proper fish pass, that it has been all but a dead letter. Though it has the ajjpearance of enabling thuxl parties to make a fish pass on a weir against the owTier's consent, yet it lias jiroved inadequate, because the power to compel the owner to submit to a flsli pass being made on his property is coupled with the fatal condition, " so that no injury be done to the milling power," and it is impossible to make an efficient fish pass over most of the mill weirs in salmon rivers without injuring the milling power, unless the miller is ade- quately protected by suitable enactments. An efficient fish pass may be made over any dam wtliout injury to the milling power, provided there are such appropriate powers and machinery, as well as protection jirovicled to the millowner. No such ma- chinery being by this or the later Acts provided, the practical result is that no adequate fish pass can be made against the consent of the owner of the mill weir. The kind of fish pass which was contemplated under this section, and which at the date of the Act may have been siq^posed to be adequate, was merely " to attach or affix " a j^ass to the dam ; that is to say, to build some structure or annex some fixture outside of and external to some part of the dam, but without interfering with the structure of the dam ; and above all, without having an inlet formed below the crest of the dam. Several of such passes or ladders were, soon after the passing of the Act, " attached or affixed " to dams, but they are mostly useless, and have failed to afford any passage to fish. The provisions of the Act 1873, instead of repealing this and the 24th section, and substituting enactments containing ade- quate powers and machiuery for enabling efficient fish passes to be made, do not substantially alter the enactment in this section, or enalde any third parties to comjjel the o■v^^ler of a weir to submit to the essential inteiference with his property required for an efficient pass, and at the same time to secure him against any injury. See notes to Act 1873, § 50, et seq. Another defect in this enactment is, that it draws no distinc- tion between dams which legally and those which illegally obstruct the passage of salmon, but indiscrijuinately throws the expense of makuig a fish pass in all cases on third parties. Thus, though the owner of a mill dam may be liable to an action for oVjstructing the passage of fish, and a remedy, though 24 & 25 VICT. c. 109, §§ 24, 25. 359 expensive and circuitous, may be now open both at law and equity against him, as well as the remedy by abatement, still he is not liy this or any enactment subjected to the expense of putting,' tlie only proper termination to the cause of complaint by makinjf a pass at bis own expense. This is contrary to the rule of justice, that he who for his own benefit does something wliich injures another, and who could be made, by a circuitous and ex])ensive process, to cease doing such injury, should by a sunnuary process be ordered to remove the cause of injury at his own expense. 24. Notice required before Home Offi<:e gives Consent. — The Home Office shall not give their consent to the attachment by a proprietor [or board of conservators] of a fish pass to any dam, in pursuance of the last preceding section, unless such proprietor proves, to the satisfaction of the Homo Office, that he has served notice on the owner of such dam of his intention to apply for such consent, and at the same time has furnished him with plan and specification of the fish pass which he proposes to erect, a reasonable time before his application ; and it shall be lawful for such owner to urge any objections he may think tit to the Home Office against their giving their consent, and the Homo Office shall take any objections so made into consideration before they give their consent to the attachment of the fish pass. The words in brackets were introduced by the Act 1873, § 53. See notes to preceding section. 25. Fish Passes to he attached to future Dams. — Every person who, after the passing of this Act, in waters where salmon are found, constructs a new dam, or raises or alters, so as to create increased obstruction to fish, a dam already constructed, shall attach and maintain attached thereto in an efficient state a fish pass of such form and dimensions as may be determined by the Home Ofiico, and if he do not, such person shall incm- a penalty not exceeding five pounds ; and it shall be lawful for the Home Office to cause to be done any work by this section required to be done by such person, and to recover the expense of doing the same in a summary manner from the person in default ; but this section shall not authorize anything to bo done which may injuriously aftect any navigable river, canal, or inland navigation, nor shall anything in this or the last preceding section prevent 360 ENGLISH SALMON FISHERIES ACTS. any person from removing a fish pass for the purpose of re- pairmg or altering a dam, so that within a reasonable time he restore such fish pass in as an efiicient a state as it was before he removed the same. Tliis section has been impliedly repealed by the Act 1873, § 46. See notes to that section. 26. Supply of Water to Fish Passes.— The sluices, if any, for drawing off the water which would otherwise flow over [any] dam shall be kept shut [on Sundays and] at all times when the water is not required for milling purposes in such manner as to cause such water to flow through the fish pass [if any, or over the dam] ; and any person making default in complying with the requisitions of this section shall incur a penalty not exceeding five shillings per hour for every hour during which such default continues ; but this section shall not preclude any person from opening a sluice for the pur- pose of letting off water in cases of flood, or for milling purposes, or when necessary for the purposes of navigation, or for cleaning or repairing any dam or mill or the appur- tenances thereof. The alterations within brackets were introduced by the Act 1873, $! 53. The words " through the fish pass" must mean the fish pass referred to in the 23rd section, and the general heading to that section, as well as to the three following sections, also confine those words. Hence, if a volunteer has made, or shall here- after make, a fish pass without any assistance from the Home Office, this enactment will often be still inapplicable. (See also Act 1873, § 52, and note.) The enactment is also of less value, because the fish pass made under the 23rd section is necessarily of such a kind as A\ill not be materially benefited by causing the water, especially in dry weather, to flow over the dam or through the pass. The enactment was originally and is still intended to prevent millers drawing water down their mill races and wasting it through the bye- wash, thereby abstracting it from wliere it would be useful for the passage of fish at the dam, if there is an efficient fish i)ass there: But as a great number of dams have no sluices at the top of the head race, this enactment will be of no use at all, because the shutting of the sluices wiH not cause water to flow over the dam or through the fish pass. It is unfortunate that the legislature should not have taken care that an efficient pass should be made in all dams as the only sound basis for such an enactment, which in its present shape will often cause injury to millers without anybenetit to the fish. 24 & 25 VICT. c. 109, § 27. 361 Restrictions as to Fishbuj Weirs. 27. Construction of Free Gaps. — Where any fishing weir extends more than halfway across any stream at its lowest state of water, it shall have a free gap or opening in accord- ance with the regulations following, unless otherwise autho- rized by the Home Office, under the powers of this Act ; that is to say, (1.) The free gap shall be situate in the deepest part of the stream between the points where it is intercepted by the weir : (2.) The sides of the gap shall be in a line with and parallel to the direction of the stream at the weir : (3.) The bottom of the gap shall be level with the natui-al bed of the stream above and below the gap : (4.) The width of the gap in its narrowest part shall be not less than one tenth part of the width of the stream ; provided always, that such gap shall not be required to be wider than forty feet, and shall not in any case be narrower than three feet. Tliis enactment only refpiires a free gap if the weir extends more than haltVay across the whole river ; and if the weir is confined to a branch of the river which adjoins the main river and wliich does not extend halfway across tlie aggregate width, this enactment is not applicable : Rolle v. Whyte, 813. iS. 116; L. R. 3 Q. B. 286 ; 37 L. J. Q. B. 105. The special commissioners have decided all the questions which retpiired to be settled as to the size and position of these free gaps, but future changes in the channel of the river may yet give rise to questions of difficulty under this section. The alteration of a free gap is also provided for in Act 18G5, § 32, where the weir is in a fishery district. It appears from the words " unless otherwise authorized by the Home Office under the powers of this Act," that it must have been intended to confer a power on the Home Office to vary these regulatious in special cases ; but bv some mistake the Act omitted to confer any such powers. Hence those words have no operation, and are practically struck out of the enact- ment, so that in all cases of weirs extending more than half- way across a river, the obligation to make a free gap became absolute and peremptory, and cannot be modified. See also Act 1865, § 42, and notes. 362 ENGLISH SALMON FISHERIES ACTS. 28. Enforcing Free Gaps in Fishing Weirs. — The following rules shall be observed for the purpose of enforcing efficient free gaps in fishing weirs ; that is to say, (1.) Where a weir is without a legal free gap at the time of the commencement of this Act the owner of such weir shall within twelve months after the commencement of this Act make such a gap, and if he does not he shall incur a penalty not exceed- ing five pounds for every day after the expiration of such period of twelve months during which he does not make such gap : (2.) Where a free gap has been made in a weir, but the same is not maintained in accordance with this Act, the owner of such weir shall incur a penalty not exceeding one pound a day for each day he is in default : (3.) No alteration shall be made in the bed of any river in such manner as to reduce the flow of water through a free gap ; if it is, the person making the same shall incur a penalty not exceeding five pounds, and a further penalty of one pound a day until he restores the bed of the river to its original state : (4.) No person shall place any obstruction, use any con- trivance, or do any act whereby fish may be scared, deterred, or in any way prevented from freely entering and passing up and down a free gap at all periods of the year ; and any person placing any obstruction, using any contrivance, or doing any act in contravention of the regulation lastly herein- before contained shall incur a penalty not exceeding five pounds for the first offence, and not exceeding ten pounds for each subsequent offence ; but this last regulation shall not apply to a temporary bridge or board used for crossing the free gap, and taken away immediately when a person has crossed the same. 29. Construction of Boxes and Cribs in FisJiinr/ Weirs and Fishing Mill Dams. — The following rules shall be observed in relation to the construction of boxes and cribs in fishing weirs and fishing mill dams ; that is to say, (1.) The upper surface of the sill shall be level with the bed of the river : 24 & 25 VICT. c. 109, §§ 29, 30. 363 (2.) The bars or inscales of the heck or upstream side of the box or crib shall not be nearer each other than two inches, and shall be capable of being removed and shall be placed perpendicularly : And the owner of any fishing weir or fishing mill dam that has attached thereto any box or crib in contravention of this Act shall bring the same into conformity with this Act within bIx months after the commencement of this Act ; and ho shall incur a penalty not exceeding five pounds for every day after the expiration of such period of six months dmiug which he fails to comply with the provisions of this section ; and any owner failing so to maintain the same shall incur a penalty not exceeding one pound for every day during which Buch failure continues. Questions of difficulty as to construction of these cribs or boxes necessarily arise out of the vagueness of the language here used. The words "the upper surface of the sill shall be level with the bed of the river," may mean either " the bed of the river above the sill," or " both above and below the sill." As, however, it is often impossible, owing to the rocky bottom or other"\vise, to make a sill level with both, or to determine what was or is the bed of the river below the sill, the former is the more natural meaning. The notion on which such an enactment was no doubt founded was that fish would be able to get through the box or crib during the annual and weekly close season. But this was a misconcep- tion, and indeed in few cases fish are able to pass through so narrow an opening in high dams as these boxes aft'ord. It was of infinitely greater importance to compel a proper and permanent fish pass to be made, in which case the fish would have been inde- pendent of the occasional and often elusory advantage of trying to get through the open fish box during close time. 80. Construction of Spur Walls iu Fishing Weirs or Fishinj Mill Dams. — There shall not be attached to any box or crib in any fishing weir or fishing mill dam any spur or tail wall, leader, or outrigger of a greater length than twenty feet from the upper or lower side of such box or crib ; and if any box or crib in any fishing weir or fishing mill dam has any walls, leaders, or outriggers in contravention of this section, the owner of the weir or fishing mill dam shall incm* a penalty not exceeding one pound for every day during the continuance thereof. This enactment is confined to the case of artificial spurs or leaders. But it is of little conserpicnce, as there are only two or 364 ENGLISH SALMON FISHERIES ACTS. three instances of spur walls or leaders attached to fishing weirs or fishins mill dams in England and Wales. Centkal Authoeity. 31. General Superintendence of Fisheries hy Home Office. — The general superintendence of the salmon fisheries through- out England shall be vested in the Home Ofiice, and it shall be lawful for the Home Oifice to appoint two inspectors of fisheries for three years, to assign to them their duties, and to pay to them such salaries as may from time to time be determined by the commissioners of Her Majesty's treasury. The Home Office may from time to time remove the said inspectors, and appomt other persons in their stead. 32. Annual Reports of Inspectors to he laid before Parlia- ment. — The Home Office shall annually lay before parliament reports from the inspectors, which reports shall contain as far as may be practicable a statistical account of the fisheries, with such other information as may be collected, and suggestions offered for their regulation and improvement. 33. Justices at Sessions to appoint Conservators of Rivers. — It shall be lawful for the justices of the peace assembled at any general or quarter sessions of the peace from time to time to appoint conservators or overseers for the preservation of salmon, and enforcing for that purpose the provisions of this Act within the limits of the jurisdiction of such justices. 34. Justice may grant a Warrant to enter suspected, Places. — • It shall be lawful for any justice of the peace, upon an infor- mation on oath that there is probable cause to suspect any breach of the provisions of this Act to have been committed on any premises, or any salmon illegally taken or any illegal nets or other engines to be concealed on any premises, by warrant under his hand and seal, to authorize and empower any inspector, water bailiff, conservator, constable, or police officer to enter such premises for the purposes of detecting such offence, or such concealed fish, at such time or times, in the day or night, as in such warrant may be mentioned, and to seize all illegal engines, or any salmon illegally taken, that may be found on such premises ; provided that no such warrant shall continue in force for more than one week from the date thereof. 24 & 25 VICT. c. 109, §§ 35—39. 3G5 All that is material to be observed on this section is stated ante^ p. 160. Legal Proceedings. 35. Recovery of Penalties. — Kepealed by Act 1873, § 65. See Act 1873, § 62. 36. Offences on Rivers may he tried in County on either Siile, — Where any offence under this Act is committed in or upon any waters forming the boundary between any two counties, districts of quarter sessions or petty sessions, such offence may be prosecuted before any justice or justices of the peace in either of such counties or districts. 37. Offences committed on Sea Coast, ivhere to be tried. — Any offence committed under this Act, on the sea coast or at sea, beyond the ordinary jurisdiction of any justice of the peace, shall be deemed to have been committed within the body of any county abutting on such sea coast or adjoining such sea, and may be tried and punished accordingly. 38. Sni-iny Clause for drcdying. — Nothing in this Act con- tained shall prejudice the legal right of any conservators, directors, commissioners, undertakers, persons, or body of persons corporate or unincorporate to dredge, scour, cleanse, or improve any navigable river, canal, or other inland navigation. Repeal of Acts. 39. Repeal of Acts. — From and after the commencement of this Act there shall be hereby repealed the several Acts and parts of Acts set forth in the Schedule hereto, to the extent to which such Acts or parts of Acts are therein expressed to be repealed : Provided that such repeal shall not affect — 1. Any security duly given before this Act comes into operation : 2. Anything duly done before this Act comes into operation : 3. Any liability accruing before this Act comes into operation : 4. Any penalty, forfeiture, or other punishment incurred or to be incurred in respect of any offence com- mitted before this Act comes into operation : 366 ENGLISH SALMON FISHEEIES ACTS. 5. The institution of any legal proceeding or any other remedy for ascertaining, enforcing, or recovering any such liability, penalty, forfeiture, or punish- ment as aforesaid. The repeal of many of the ancient Acts relating to salmon fisheries was an impro^ddent stejj of the legislature, and has given rise to much evil. Under most of these old statutes many beneficial things might have been enforced against the owners of weirs which, owing to their indiscriminate repeal, now can- not be enforced. See per Lush, J., in Garnett v. Backhouse, L. R. 3 Q. B. 639 ; 37 L. R. Q. B. 1 ; 17 L. T. (n. s.) 170. The statutes relating to many important rivers protected the owners of fisheries against encroachments by millowners ; and this statute, instead of wholly repealing these, should have extracted the valuable parts of the old Acts, and re-enacted them. By that course the owners of weirs could not have complained, be- cause it would have put them in no worse position than they were before. But the statutes having been wholly repealed, the effect was to release the millowners from numerous obligations which could at any time prior have been enforced against them, and having now for eleven years enjoyed the benefit of this ample release, it is found impracticable to reimpose on them the con- ditions and burdens under which the old statutes kept them. It is always easier to continiie and modify a burden than to take it off and then put it on again. The repeal of the Acts has also trebled the expenses that will fall on boards of conser- vators, for under the old Acts there could have been little diffi- culty in compelling owners of weirs to remedy a great number of prejudicial acts and practices at their own expense, instead of shifting this burden to the innocent parties, namely, the riparian owners and public fishermen. This vast increase of expense to boards of conservators must long retard the accoru- plishment of refonns, without wliich any material progress is scarcely possible. 24 & 25 VICT. c. 109, schedule. 367 SCHEDULE. REFERENCE TO ACT. TITLE OF ACT. EXTENT OF BEPBAU 13 Ed. I. Stat. 1, c. 47. 25 Ed. III. Stat. 4 c. 4. 45 Ed.' lil. c. 2. 13 Rich. II. Stat. 1, c. 19. 17 Rich. II. c. 9. 1 Hen. IV. c. 12. 4 Hen. IV. c. 11, 2 Hen. VI. c. 15. 12 Ed. IV. c. 7. 11 Hen. VII. c. 5 14 & 15 Hen. VIII. c. 13. 23 Hen. VIII. c. 18. 1 Eliz. c. 17. 3 Car. I. c. 4. 3 Jas. I. c. 12. 30 Car. II. c. 9. 4 Ann. c. 21. A penalty for taking of salmon at certain times of the year. " New weirs shall he pulled down and not repaired." The penalty of him that set- teth up or euhanceth wares. A contirmation of stat. 13 Ed. I. Stat. 1, c. 47. Justices of peace shall he con- servators of salmon. A confirmation of former statutes touching wears. Commissions to justices to iu(pure of wears and kidels. No man shall fasten nets to anything over rivers. An Act for the taking away wears and tishgarthes. Every man may pull do^\^l the wears and engines in the Haven of Southamp- ton, &c. A confirmation of the statute 11 Hen. VII. c. 5, and the same made perpetual. Fur pulling down piles and fishgarths in the rivers Ouse and HumLer. An Act for the preservation of spa-wn and fry of fish. An Act for continuance and repeal of divers statutes. An Act for the Letter pre- servation of sea fish. An Act for the better pre- servation of fishing in the river of Severn. An Act for the preservation of salmon in the counties of Southampton and Wilt- shire. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The wdiole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. In so far as it relates to sal- mon. The first section of the Act. The whole Act. The whole Act. The whole Act. 368 ENGLISH SALMON FISHERIES ACTS. BBFERENCE TO ACT. TITLE OP ACT. EXTENT OP KEPEAL. 9 Ann. c. 26. 1 Geo. I. Stat. 2, c. 18. 23 Geo. II. c. 26. 33 Geo. II. c. 27. 18 Geo. III. c. 33. 37 Geo. III. c. 95 58 Geo. III. c. 43 6 & 7 Vict. c. 33. 11 & 12 Vict. C.52. An Act for the improvement of fishery within the river of Thames. An Act for the better pre- servation of salmon within several rivers. An Act as to the better pre- servation of salmon in the river Ribble. An Act to punish persons who take or sell unsize- able fish. An Act for regulating the fisheries in the rivers Se- vern and Verniew. An Act for the preservation of salmon in the counties of Southampton and Wilts. An Act for preventing the destruction of the breed of salmon in the rivers of England. An Act to limit the time for taking salmon in certain rivers. An Act for preventing the destruction of the breed of salmon. The second sec- tion of the Act. Sects. 11 to 16 inclusive. Sects. 7, 8, & 9. Sect. 13. In so far as it relates to sal- mon. In so far as it relates to sal- mon. The whole Act. The whole Act. The whole Act. 24 & 25 VICT. c. 109, schedule. 3G9 Private Acts relating to Salmon Fisheries. RSFBRBNCBTO ACT. RITBB9 AFFBOTED. EXTBHT OF BEPEAL. 43 Geo. III. c. 61 Teign, Dart, and Plyia, De- von. The whole Act. 44 Geo. III. c. 45 Rivers floviug into the Sol- The whole Act, way Firth. except in so far as it relates to Scotland, and to fish other than sal- mon in Eug- lantl. 45 Geo. III. c. 33 Carmarthenshire rivers. The whole Act. 46 Geo. III. c. 19 Rivers running into Milford In so far as it Harbour. relates to sal- mon. 49 Geo. III. c. 2. Lord Lonsdale's fisheries in Derwent. The whole Act. 5 & 6 Vict. c. 63. Tvue. The whole Act. 21 & 22 Vict. Tees. So much of sects. c. 141. 63 & 64 as re- lates to the making of bye- laws for the regulation of salmon fishe- ries. 370 ENGLISH SALMON FISHEEIES ACTS. SALMON EXPORTATION ACT, 26 VICT. c. 10. An Act for prohibiting the Exportation of Salmon at certain Times. [20th April, 1863.] Whereas the sale of salmon within the United Kingdom is prohibited at various times ; that is to say, if caught in England within the limits of the Salmon Fishery Act, 1861, 24 & 25 Vict. c. 109, is prohibited between the thu-d day of September and the second day of February ; if caught in any fishery district in Ireland is prohibited during such time as the capture of salmon is prohibited in that district ; if caught in Scotland within the limits of " The Salmon Fisheries (Scotland) Act, 1862," 25 & 26 Vict. c. 97, is prohibited between the commencement of the latest and the termination of the earUest annual close time fixed for any district; if caught in the river Tweed, as defined by " The Tweed Fisheries Amendment Act, 1859," 22 & 23 Vict. c. 70, is prohibited between the fourteenth day of September and the fifteenth day of February : And whereas the capture or possession of foul or unseasonable salmon within the hmits of the United Kingdom is prohibited at all times : And whereas the provisions of the said Acts are evaded by the exportation for sale in France and other foreign countries of salmon that cannot legally be sold within the limits of the United Kingdom : Be it enacted by the Queen's most excel- lent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : — 1. Short Title.— This Act may be cited for all purposes as " The Salmon Acts Amendment Act, 1863." 2. " Parts beyond Seas " defined. — No part of the United Kingdom, however situated with regard to any other part, shall be deemed for the purposes of this Act to be parts beyond seas. 8. Em-port of Unclean or Unseasonable Salmon, or Salmon cavfjht at certain Times. — No unclean or unseasonable salmon, and no salmon caught during the time at which the sale of salmon is prohibited in the district where it is caught, shall 26 VICT. c. 10, §§ :3, 4. 871 be exported or entered for exportation from any part of the United Kingdom to parts beyond seas. All salmon exported or entered for exportation in contra- vention of this section shall be forfeited, and the person exporting or entering the same for exportation shall be sub- ject to a penalty not exceeding five pounds in respect of each salmon so exported or entered for exportation. The burden of proving that any salmon entered for expor- tation from any part of the United Kingdom to parts beyond Beas between the third day of September and the thirtieth day of April following is not so entered in contravention of this Act shall lie on the jiei'son entering the same for exportation. The words in brackets were introduced by the Salmon Acts Amendment Act, 1870, 33 & 34 Vict. c. 33, § 3. Further changes were made by the Act 1865, § 65, but only as regards England and Wales ; while this Act, so far as not changed, extends to Ireland tind Scotland also, suljject to any changes in their local Acts. See Scotch Act, 31 & 32 Vict. c. 123, §^22. The result of these changes is that whoever now exports or enters for exportation either unseasonable salmon or sabnon that were caught in England, Scotland, or Ireland at a time when it was illegal to catch salmon at the place where they were caught, incurs a penalty of 51. for each tish, besides for- feiture of the lisli. If the tish shall be shipped or brought to any port in England or Wales for exportation between 3rd September and 3()tli April, ^Hthout being entered for ex^Jor- tation before shipment, the person shipping or ex2)orting either seascniable or unseasonable fisli shall Ll' liable to a penalty of 21. per tish, licsides forfeiture ; and an ofticer of customs may, in England or Wales, open any parcel which he suspects contains fish. The two offences are distinct. The biu-den of proof is throii\Ti on the exporter. The informer, whether an otHcer of the board of conservators or not, will be entitled by § 4 to half of the ])enalties and proceeds of the forfeitures for exporting, &c., unseasonable salmon, but not of the penalties for exporting with- out first entering. See as to these last, Act 1873, § 62. And there is no appeal to quarter sessions against any conviction under this statute, though there is an appeal against a con- viction in England and Wales for exporting ^\■ithout first en- tering for exportation. 4. Recoveri/ of Penaltit'n. — All penalties under this Act may be recovered in England, except within the limits of the said Tweed Fisheries Act, as penalties under the Salmon Fisher}' 372 ENGLISH SALMON FISHEEIES ACTS. Act, 1861 ; in Ireland as penalties under the Act passed in the session of the fifth and sixth years of the reign of Her present Majesty, chapter one hundred and six, intituled " An Act to regulate the Irish Fisheries ; " in Scotland, except within the limits of the said Tweed Fisheries Act, as penalties under the Salmon Fisheries (Scotland) Act, 1862 ; and within the limits of the said Tweed Fisheries Act, in manner pre- scrihed by " The Tweed Fisheries Act, 1857." See Act 1861, § 35, ante, p. 302. 28 & 29 VICT. c. 121. An Act to amend " The Salmon Fishery Act, 1861." [5th July, 1865.] Whereas by the thirty-third section of the " Salmon Fishery Act, 1861" (24 & 25 Vict. c. 109), it is provided that it shall be lawful for the justices of the peace assembled at any general or quarter sessions of the peace from time to time to appoint conservators or overseers for the preservation of salmon, and enforcing for that purpose the provisions of the said Act within the limits of the jurisdiction of such justices : And whereas no funds are provided by the said Act for carrying into effect the purposes thereof, and no provisions are made for securing the co-operation of the conservators of diticrent counties where a river frequented by salmon borders on or passes through several counties : And whereas it is expedient to amend the said Act in respect of the fore- going particulars, and it is also expedient to make further provisions for the removal of illegal fixed engines, and other- wise to amend the said Act : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : Preliminary. 1. Short Title. — This Act may be cited for all purposes as " The Salmon Fishery Act, 1865," and this Act and the Salmon Fishery Act, 1861, may be cited together as the " Salmon Fishery Acts, 1861 and 1865." 28 & 29 VICT. c. 121, §§ 2—4. 373 2. Construction of Act. — This Act, so fur as is consistent with the tenor thereof, shall bo read as one with the Salmon Fishery Act, 18G1. 3. Dejhiition of Terms. — In this Act and the Salmon Fishery Act, 18G1, the following words shall have the meanings hereinafter assigned to them, unless there be some- thing in the subject or the context repugnant to such con- struction ; that is to say, "River" shall include such portion of any stream or lake, with its tributaries, and such portion of any estuary, sea, or sea coast, as may from time to time be declared, in manner hereinafter provided, to belong to such river : "Salmon river" shall mean any river as above defined frequented by salmon or young of salmon : " Quarter sessions" shall include " general sessions :" Any riding, division, or liberty of a county having a separate court of quarter sessions shall, for the purposes of this Act, be deemed to be a county. Appointment of Conservators. 4. Power of Justices of County to apply for Formation of Fishery Districts. — The justices of a county at any court of quarter sessions held after the passing of this Act (due notice having been previously given according to the practice of the said sessions) may, by writing under the hand of their chairman, apply to one of Her Majesty's principal secretaries of state to form into a fishery district or districts all or any of the salmon rivers lying wholly or partly within their county, and the said secretary of state may form such district or districts accordingly, and may include in any district so formed any river or rivers, or parts thereof, although not situated in the county on behalf of which the application is made. Under this and the sections following, fishery districts have been formed in England and Wales, but several sahnon rivers have not yet been included in any districts. The places which are not included in fishery districts are and will be under great disadvantages compared with the fishery districts, for many of the powers of ett'ecting improvements mider the Acts 1865 and 2 c 2 374 ENGLISH SALMON FISHERIES ACTS. 1873 are expressly confiued to places which are within fishery- districts. This and the sections follo^dng, as to the formation of fishery districts, must be read as modified by the Act 1873, § 5, et seq. It was held iinder this section that the secretary of state was not bound to follow the suggestions of quarter sessions, but had abnost absolute discretion as to extending the Limits of a fishery district : B. v. Grey, 7 B. & S. 434 ; L. R. 1 Q. B. 469 ; 35 L J. Q. B. 171 ; 14 L. T. (n. s.) 477. 5. Limits of Paver and of Fishery District, hoiv settled. — The limits of a river shall be defined for the purposes of this Act, and a fishery district shall be formed, by a certificate under the hand of one of Her Majesty's principal secretaries of state, describing the limits of the river or district by a reference to a map or otherwise, as to the said secretary may appear expedient, but no such certificate shall be granted unless one month's previous notice of the intention of the said secretary to grant the same, and of the intended limits of the river or district, has been given by advertisement in such newspaper or newspapers published or circulating within the intended limits, and in such daily morning newspaper or newspapers published in London, as may be directed by the said secretary of state, and when a certificate has been granted a copy shall be advertised in such newspaper or newspapers. 6. Appointment of Conservators to District ivithin Limits of One County. — Where any fishery district lies wholly within any one county, the justices of that county in quarter sessions assembled shall appoint a board of conservators for that district, and shall name the time and place at which the first meeting of any board so appointed is to be held. 7. Committee for Fishery District in dijferent Counties. — Where a fishery district does not lie wholly within the limits of one county, the justices of any county within which any part of such district lies, assembled at any court of quarter sessions, may apply to the justices of every other county in that district to appoint at their next court of quarter sessions a fishery committee of three of their number, to form, with the fisliery committee of the like num- ber to be appointed at that sessions by the county making the appUcation, a joint fishery committee for the district. 8. Application for Ajijiointment of Joint Committee. — An application under this Act by the justices of one county to 28 & 29 VICT. 0. 121, §§ 8— 11. 375 the justices of another, in respect of the appointment of a joint fislicry committee, shall be made by the clerk of the peace of the one county sending, within fourteen days after the holding of the sessions at which the appHcation is resolved on, to the clerk of the peace of the other county, by post, a letter requiring the justices of the other county to appoint a fishery committee at their then next ensuing quarter sessions, and it shall be the duty of the clerk of the peace making the application, and of the clerk of the peace of every county to whom such application is sent, to add to the notice requu-cd by law to be given of the holding of such last men- tioned sessions a notice of the appointment proposed to be made of a fishery committee. 9. Appointment of Fishenj Committee. — At the quarter sessions mentioned in the application the justices of each county shall appoint a fishery committee of three of their members ; and any county neglecting to make such appoint- ment shall be deemed to have concm-red in any decision that may be arrived at by the fishery committees of the other counties, or of such of them as may appoint a fishery committee. 10. Notice of Appointment of Fishery Committee. — The clerk of the peace of every county shall, as soon as possible after the appointment of a fishery committee by his county, give notice by post to the clerk of the peace of every other county in the district, stating in such notice the names and addresses of the members composing the fishery committee of his county, and the clerk of the peace of the county that made the application for such appointment shall, in the notice sent by him, name a time and place at which the joint fishery committee for such district is to meet. 11. Proceed inf/s of Joint Fisher)/ Committee. — The said joint fishery committee, on meeting at the time and place aforesaid, shall elect a chairman, and the chairman elected at the first meeting shall, if he is present at the time appointed for holding any other meeting, be chairman of that meeting ; if he is not so present the members present may choose any one of their number present to be chairman of such last-mentioned meeting. A joint fishery committee may adjourn from time to time and from place to place, and one-third of the whole number of members appointed shall be a quorum. Every question shall be decided by a majority of votes of 376 ENGLISH SALMON FISHERIES ACTS. the members voting on that question, and in the event of an equality of votes at any meeting the chairman shall have a second or casting vote. The proceedings of a joint committee shall not be in- validated by reason of there being any vacancy or vacancies in their body. 12. Meeting of Joint Fishery Committee. — The said joint fishery committee shall proceed to appoint a board of con- servators for such district, and shall determine the foUovsring matters : (1.) The number of conservators to be appointed as a board. (2.) The number of members of the board to be ap- pointed by each county in the district : (3.) The names of the first members of the board, dis- tinguishing those who are to be considered as ap- pointed by each county : (4.) The time and place at which the first meeting of the said board is to be held ; (5.) The county by the quarter sessions of which the accounts of the board are to be audited, hereinafter referred to as the audit county. Any member of a joint committee may be appointed member of the board. A board of conservators now consists of three classes : — 1. The persons appointed by the joint fishery committee, or by the court of quarter sessions ; 2. The ex officio members de- scribed by the Act 1873, § 26 ; 3. The representative members elected under the Act 1873, § 29. As to altering the numbers of members, see Act 1873, § 9. 13. Dissolution of a Joint Fishery Committee. — When a joint committee have completed their dispositions for the formation of a board of conservators for a district, they shall give notice by post of such dispositions to the clerks of the peace of all the counties in such district, and when 8uch notice has been given the joint committee shall be dissolved. 14. Ex officio Members of Board. — Kepealed by Act 1873, § 65. See Act 1873, §§ 26-28. 15. Tenure of Office by Conservators. — The members of a board of conservators shall hold office for one year, and be 28 & 29 VICT. r. 121, §§ 15—18. 377 appointed annually at quarter sessions, and in the case of a board formed by a joint committee in the proportions fixed by that committee. Retu'ing members shall be eligible for re-appointment ; and if at the time when any annual appoint- ment ought to take place no such appointment is made the existing conservators shall remain in ollice until their suc- cessors are appointed. Any casual vacancy occurring by death, resignation, or otherwise in the office of conservator may be filled up by the board, and the member chosen to fill such vacancy shall hold his office for such time only as the member vacating would have held the same if no vacancy had occurred. 16. Notice of Appointment of Conservators. — Notice of the first and of every subsequent appointmemt of a board of con- servators, specifying the names and addresses of the persons appointed shall, in the case of a board appointed by the justices of a single county, be advertised by the clerk of the peace of that county in some newspaper published or circu- lated in such county, and in the case of a board appointed by a joint committee be advertised by the clerk of the peace of every county in the district in some newspaper published or circulated in that county. The notice here referred to applies onlj^ to the names and addresses of the persons ap})ointed conservators by the joint fishery committee or the court uf quarter i>essions. There is no enact- ment requiring the names of ex officio members to be published, and the ntuues of the representative members are to be published by the returning officer. Act 1873, § 30. 17. Cesser of Powers of existing Conservators. — After the appointment of a board of conservators in pursuance of this Act in any district the powers of all conservators or overseers for the preservation of salmon, appointed in pursuance of any other Act of parliament, of charter or custom, and all powers of appointing the same, shall absolutely determine within the limits of the said district. 18. Rides as to Olijections and Eiiifence. — No objection shall be made at any trial or in any legal proceeding to the validity of any orders or proceedings relating to the appoint- ment of a board of conservators in any district after the expu-ation of three calendar months from the date of the advertisement of such appointment in the newspaper, and a copy of the newspaper containing the advertisement of the 378 ENGLISH SALMON FISHEEIES ACTS. appointment of a board of conservators shall be receivable in all courts of justice and in all legal proceedings as evidence of such appointment having been made. 19. Provision as to common 'Estuary. — Where more than one salmon river not included in the same fishery district flows into a common estuary the said secretary of state may define the limits of such estuary, including therein any portion of the adjoining sea or sea coast, and form it into a separate distiict, and place the whole of such district, either temporarily or permanently, within the jurisdiction of any one or more of the boards having jurisdiction over the salmon rivers flowing into the estuary, or place such district under the jurisdiction of a board composed of representatives from the other boards, and may require such board or boards to pay a certain proportion of the licence duties received by them to any other board or boards. 20. Alterations of Fishery District. — Repealed by Act 1873, §65. See Act 1873, §§ 5, 6. Board of Conservators, and their Officers. 21. Constitution of Board of Conservators. — A board of conservators shall be a body corporate, having perpetual succession and a common seal, with power to make contracts, and to sue and be sued in a common name. 22. Proceedinys of Board. — A board of conservators shall meet for the despatch of business, and shall from time to time make such regulations with respect to the election of a chairman of their meetings, the summoning, notice, place, management, and adjournment of their meetings, and generally with respect to the transaction and management of business, including the quorum at meetings, as they think fit, subject to the following conditions: [a.) The first meeting after the formation of the district shall be held at the time and place fixed in manner provided by this Act : (/>.) An exh'aordinary meeting maybe summoned at any time, on the requisition of three members of the board : (c.) The quorum to be fixed by the board shall consist of not less than three members : 28 & 29 VICT. c. 121, §§ 22—27. 379 ((/.) Every question shall be decided by a majority of votes of the members voting on that question ; and in the event of an equality of votes the chairman for the time being shall have a second or casting vote. 23. Appvintinent of Connnittcvs. — A board of conservators may appoint committees of their members, may fix a quorum for each committee, and may lay down rules for its guidance. Every question before a committee shall be decided by a majority of votes of the members voting on that question, and in the event of an equality of votes the chairman for the time being shall have a second or casting vote. 24. Amendrncnt of Section 18 of Sidmon Fishery Act, 1861.— Repealed by' Act 1873, § 65. See Act 1873, § 39. 25. Vacancies in Board and Defect in Qualification of Members. — No act or proceeding of a board of conservators shall be questioned on account of any vacancy or vacancies in their body ; and no defect in the qualification or appoint- ment of any person or persons acting as member or members of such board shall be deemed to vitiate any proceedings of such board in which he or they have taken part. 26. Evidence of Proceedings at Meeting. — Repealed by Act 1873, § 65. See Act 1873, § 35. 27. Knumeration of Powers of Board of Conservators. — A board of conservators shall have power within their dis- trict to do the following things, or such of them as they may in their discretion think expedient ; that is to say, (1.) From time to time, by writing under the hand of the acting chairman for the time being of the board to appoint a sufficient number of water bailitis and other olticers, to assign to them their salaries and duties, and to remove any water bailitf or officer so appointed : Provided always, that nothing herein contained shall prevent the said board of conserva- tors from obtaining the services of additional con- stables under the Act thh'd and fourth Victoria, chap- ter eighty-eight, section nineteen, for the purpose of carrying out the provisions of this Act ; such con- stables, when appointed, to have all the powers and privileges of water bailili's, and to be paid for their services by the said board : (2.) To issue such Hcences for fishing as arc provided by this Act : 380 ENGLISH SALMON FISHERIES ACTS. (3.) To purchase by agreement, for the purpose only of removal, dams, .fishing weirs, fishing mill dams, or fixed engines they may deem it expedient to remove for the benefit of the fisheries in their disti'ict : (4.) To take legal proceedings against persons violating the provisions of the Salmon Fishery Acts, 1861, 1865, or either of them, or for removing such weirs or other fixed engines as they may bs advised are illegal : (5.) Generally to execute such works, do such acts, and incur such expenses as they may deem expedient to be executed, done, or incurred for the protection and improvement of the salmon fisheries within their district, the increase of salmon, and the stock- ing of the waters in their district therewith, but so that it shall not be lawful for a board of conserva- tors to pay to any member of the board any salary, fees, or other remuneration for his acting in any way as a member of or under the board : Provided that this section shall not authorize anything to be done which may injuriously affect any navigable river, canal, or inland navigation. At the time this statute passed a very imperfect notion pre- vailed as to the duties of boards of conservators, as the most important of all is not expressly mentioned, namely, the duty of providing, or causing to be provided, fish passes over the weirs that obstruct the passage of salmon, and which mode of administering their funds lies at the foundation of all improve- ment. Thus conservators were not expressly empowered to make fish passes at the expense of the funds, and neither they nor their bailiffs or contractors are even now authorized to enter upon lands and repair such fish passes as the board may have made, or as others may have provided. As to alterinff a fish pass, see § 32, pout. An attempt has been made, by amending the Act 1861, I 23, and by certain sections in the Act 1873, to enlarge these powers, but to a very inadequate extent. See Act 1873, §§ 23, 46, et seq. A board has also certain additional powers conferred with regard to the making of bye-laws. See Act 1873, § 39. A single conservator has no powers to do anything except to inspect a dam or mill race, and for this he must have the written authority of the board (see Act 1873, § 56) ; or if he wishes to enter on lands to detect offences, he must obtain (after application on oath) a justice's warrant under this Act, § 31, or a search warrant under Act 1861, § 34. 28 & 29 VICT. c. 121, §§ 28—31. 381 28. Mort'idfie of Licence Dutie.i. — A board of conservators may, for the purpose of defraying any costs, charges, and expenses incurred or to be incurred by them under the Salmon Fishery Acts, 1801, 18G5, with the consent of one of Her Majesty's principal secretaries of state, borrow and take up, at interest on the credit of the licensed duties authorized to be imposed by them, or of any other property belonging to them, any sums of money necessary for defraying such costs, charges, and expenses ; and for the purpose of securing the repayment of any sums of money so borrowed, together with such iutei'est as aforesaid, the board of conservators may mortgage and assign over to the persons by or on behalf of whom such sums are advanced the said duties and property, or any part thereof; and the clauses of the Commissioners Clauses Act, 1847, with respect to mort- gages to be created by the commissioners, shall form part of and be incorporated with this Act, and any mortgagee or assignee may enforce payment of his principal and interest by appointment of a receiver. The Avord.s " license duty " include the additional duty that may be uiiposod for improvements. See Act 1873, § 57. 29. Audit of Accounts of Board. — An account of the receipts and disbursements of every board of conservators, in such form and with such particulars as may be required by the com't of quarter sessions that appoints the board, or in the case of a joint board by the court of quarter sessions of the audit county, shall be laid annually before such courts of quai-ter sessions as aforesaid, and the justices assembled at such courts may disallow any item that they consider to be illegal. 80. Power of Water Bailiff for Protection of Fisheries. — Repealed by Act 1873, § G5. *See Act 1873, § 36. 31. Order for Entry of Water Bailiff on Land. — Where it appears to any justice of the peace, on the application of any conservator or water bailitf made on oath, that such conservator or bailiff has good reason to suspect that Acts in contravention of the Salmon Fishery Acts, 1801 and 1805, arc being or are likely to be done on any land situate on or near to a salmon river, the justice may, by order under his hand, authorize such conservator or baihli", during a limited 382 ENGLISH SALMON FISHERIES ACTS. period, to be specified in such order, not exceeding twenty- four hours, to enter upon and remain on such land during any hours of the day or night for the purpose of detecting the persons guilty of the aforesaid acts ; and no conservator or water bailiff entering or remaining on any land in pur- suance of such order shall he deemed to be a trespasser ; but this section shall not affect any other powers of search conferred by the Salmon Fishery Acts, 1861 and 1865. The power here vested in a justice can only be exercised on information given on oath as to the specitic grounds of sus- picioii, and the order Avill cease to protect the conservator or bailiff after twenty-four hours from the date of its being granted by the justice. The power of search given by the Act 1861, § 34, does not authorize the constable or bailiff to remain on pre- mises after the search is made, and is applicable to illegal acts that have been already done, but the present power contem- plates illegal acts that are in progress or are likely to be done on land. The places that may be entered under this order must be " land on or near to a salmon river," and premises are not included. " Land on a river," though an inartificial expres- sion, can only be interpreted to mean the bed of a river, and " lands near " mean the banks of a river, or within a few yards from the river ; but the distance from the river will depend considerably on the peculiar circumstances of each case. There is no power to arrest any person committing illegal acts except those mentioned in the Act 1873, § 38, and during the night. The ordinary powers given to a water bailiff" are stated in the Act 1873, § 36. As to mere poachers, see ante, pp. 73, 79, 122. 82. Alteration of Fish Pass or Free Gap. — On application to the secretary of state by any board of conservators, setting forth that any fish pass or free gap within their district, under the provisions of the Salmon Fishery Act, 1861, is in their opinion capable of improvement, the said secretary of state may direct any alteration in the said fish pass or free gap, or may direct a new fish pass or free gap to be made in another site, and the board of conservators shall defray all costs, charges, and expenses attending the alteration or erection of any such fish pass or free gap, and for the purposes of this section, where a river is divided into separate branches, each branch shall be considered as a separate river : Provided that no injury shall be done under the exorcise of the powers given by this section to the supply 28 & 29 VICT. c. 121, §§ 32—34. 383 of water to or of any navigable river, canal, or other inland navigation. This section applies only to fish passes or free gaps already made in a fishery district under the provisions of the Act 1861. As to free gaps, see Act 1861, § 27. The only provisions of that Act on the subject of fish passes are §§12 and 23. This section does not therefore apjdy to any fish pass which has been made by a volunteer, or by the owner of a weir on his own property, without the assistance of the secretary of state, nor to any fish pass made not in a fishery district. As regards the nature of the alteration, as no larger power is expressly given to the secretary of state than he has under tlie Act 1861, § 23, the alteration can only be such as will not injure the milling power. Though the proviso omits to specify injury to mills, this is nevertheless implied from the language used in both Acts. See also Act 1873, § 52, as to further provisions on this subject. Licences. 33. Issue of Licences. — In any fishery district subject to the control of a board of conservators licences shall be granted at fixed prices to all persons using any rod and line for fishing for salmon, and in respect of all fishing weirs, fish- ing mill dams, putts, putchers, nets, or other instruments or devices, except rods and lines, whereby salmon are caught ; and the produce of such licences shall be applied in defraying the expenses of carrying into efl'ect in such district the Salmon Fishery Acts, 1801 and 1865. The board cannot refuse to grant a license to any one who tenders the ])rice or license e made in all fishing weus, however ancient and legal these Dii;^ht have previously been without a gap, tliis enactment efiec- tually took the sting ou^t of these structmes. The free gap in fact has so destroyed the catching jjower of these weirs, and at the same tune has so ett'ectually provided a constant means of passa^'e for all fisli, that the weirs have been rendered all but worthless, and the expense of kee])iiig them up, considering the small returns now receivable, will probably ultimately lead to their entire discontinuance. The fishing weirs were thus prac- tically confiscated without any compensation to the o\\Tiers. But as to fishing mill dams the law was altogether different. These dams ha^'e a tlueefold object ; first, to supply the mill ; seconelly, to stop all the fish ; thirdly, to drive the fisli or part of them into the fish trap or box, which is part of the structure. The Act of 1861 did not conqiel a fish jtass to be made in a fishing mill d;mi, because that was probably thought at that time certain to greatly impair and for some months destroy the mill- 392 ENGLISH SALMON FISHERIES ACTS. ing power. All that was required by that Act was that before the fish box or trap which usually constituted part of the struc- ture should be used again for fishing, a tish pass must first be made as described in Act 1861, § 12. The pass was to have always water running tlirough it, so as to let fish pass — a con- dition which necessarily impairs the milling power in nearly every case. The consequence of the legislature imposing this injurious condition has been that the millowners have done nothing at all in the way of making a fish pass, being content to forego the use of their fish box rather than injure their mill. But very little reflection will show that by tliis course no good whatever was done to the fisheries, for so long as a fish pass was not provided, the dam was as hurtful as ever, and the mere non-user of the fish box was practically of no consequence as compared with the want of a fish pass. The only case in which the Act 1861 absolutely compelled the owner to make a fish pass under a penalty was under § 25, where the fishing mill dam had been built since 1861, or raised in height so as to prevent greater obstacles to the passage of fish. By some strange oversight the Act 1865, § 42, only gave power to the commis- sioners to enforce a fish pass in the latter case ; but as no such cases existed, and all the fishing mill dams were found to be more ancient than 1861, and generally in a legal state, it followed that the commissioners could not enforce a fish pass in any case, nor could any other authority do so. Hence fishing mill dams remain just as they were before the Act 1861, there being no power to compel a fish pass ; and it will be seen that the Act 1873 does not advance the matter, and that these dams must continue to obstruct tlie passing of fish as much as ever. The legality of a fishing mill dam depends in great measure on the application of the Prescription Act, where no local sta- tute had applied to the river where such dam was built. But many such local statutes applied to the main rivers. As the commissioners could not in general, under the defective powers of the Act 1865, do anything but declare that the fishing box was legal, these dams must remam, as before, the great stum- bling-block in the way of opening up the breeding-grovmds of each river. If appropriate powers had been given to the com- missioners, not only the legality of the fishing box, but all other questions arising out of the height and form and modern altera- tions of each weir, and of the necessary fish pass to allow fish to pass without any injury to the mill, might have been settled in a short and inexpensive way, whereas there is at present a want of any appropriate machinery to dispose of the continuing injury which is done to the fisheries by these obstructive dams, and until this injury ceases there cannot be much progress made in increasing the stock of fish. The law bearing on the mutual rights and liabilities of mill- 28 & 29 VICT. c. 121, § 42. 393 owners and fishery owners embraces a wide field of learning, and some recent cases may be noticed. What is an enjoyment as of right depends on the circum- stances of each case, but while there is unity of possession, then there can be no such enjojinent : Wilson v. Stanley, 12 Ir. C. L. 345 ; Ladyman v. Grave, 25 L. T. (N. s.) 52. A right of fishery in another man's waters cannot be sus- tained if it is a claim in gross, and not annexed to lands : IShuttlcworth V. Le Flemincj, 19 C. B. 687 ; 34 L. J. Ch. 309. Abandonment of an easement in reference to water may be presumed after non-user for twenty years : Crossley v. Light- owler, 3 L. R. Eq. 279 ; 2 L. R. Ch. Ap. 478 ; 36 L. J. Ch. 584 ; 16 L. T. (n. s.) 438. Whether a riparian's right to water ia capable of being severed from the land has been questioned. See Stockport Waterworks Company v. Potter, 3 H. & C. 300 ; Nuttall V. Bracewell, L. R. 2 Exch. 1 ; 36 L. J. Exch. 1 ; 15 L. T. (n. s.) 313. The enjoyment under the Prescription Act must have been as of right in contradistinction to a license : Mills V. Maym- of Colchester, L. R. 2 C. P. 476 ; 36 L. J. C. P. 21U ; 16 L. T. (n.s.) 626 ; L. R. 3 C. P. 575. And it must be continuous : Walls v. Kelson, 24 L. T. (n. s.) 209. An inhabi- tant accustomed to be supplied with water from a stream has a right of action against an ujjper riparian owner who diverts the How of water, tliough no actual damage has accrued : Harrop v. Hirst, L. R. 4 Exch.'43 ; 37 L. J. Excli. 207 ; 19 L. T. (n. s.) 426. As to a river boundary line between counties changing its coiuse, see Ford v. Lacey, 7 H. & N. 151 ; 7 Jur. (n. s.) 685, Exch. A riparian owner cannot do anything in the bed of a river wliich tends to alter the volume of water, so as to drive it towards his neighbour's lands opposite to him : Bickett v. Morris, L. R. 1 Sco. Ap. 47 ; 14 L. T. (n. s.) 835 ; EdUston v. Crossley, 18 L. T. (n. s.) 15. A several fishery in a tidal river wliich has forsaken its chan- nel cannot be followed into the new channel, and so be con- tinued entire : Mayor of Carlisle v. Graham, L. R. 4 Exch. 361 ; 21 L. T. (N. 8.) 333. Where phdntitts had a several fishery in a tidal river, and the defendant inclosed the bed of the river so as to injiu-e the fishery, the coiu't granted an injunction without deciding who was the owner of the soil : Bridges v. Might on, 11 L. T. (n. s.) 652. And in a tidal river one rip;u-ian owner may obtain an injunction against another for erecting a jetty which would have the efi'ect of throwing the current to the plaintitt's side of the river : Attorney General v. Earl of Lonsdale, L. R. 7 Eq. 377 ; 38 L. J. Ch. 377 ; 20 L. T. (n. 8.) 64 ; Mar- qttis of Exeter v. Earl of Devon, L. R. 10 E([. 232 ; 23 L. T. (N. s.) 382. Disputes as between riparian owners, and between them and 394 ENGLISH SALMON PISHEEIES ACTS. statutory commissioners abstracting water, depend on too many special circumstances to he stated shortly. See Walter \. Mayor of Manchester, 6 H. & N. 665 ; 30 L. J. Exch. 293 ; Nuttall V. Bracewell, 4 H. & C. 714. A company entitled hy statute as riparian owners may abstract water from a navigable river for domestic use, but not for other purposes, such as watering engines : Attorney General v. Great Eastern Raihvay Company, L.^K. 6 Ch. Ap. 572 ; 23 L. T. (n. s.) 344. Wliere canal com- panies acquire power to divert water from A.'s land, and then cease to cUvert it, A. cannot bring any action for consequential damages, as his claim was not one of right : Mason v. Shrews- bury Raihoay Company, L. R. 6 Q. B. 578 ; 40 L. J. _Q. B. 293 ; 25 L. T. (n. s.) 239. The rights of statutory commissioners over the water of a navigable river are often greater than those of a riparian owner : Medway Navigation v. E. Romney, 9 C. B. (n. s.) 575 ; 30 L. J. C. P. 236 ; 4 L. T. (n. s.) 87 ; Cracknall v. Marjor of Thetford, L. R. 4 C. P. 629 ; 30 L. J. C. P. 353. Questions of excessive abstraction of water from a river depend on the peculiar circumstances of each case : Miner v. Gilmour, 12 Moore P. C. 156 ; Lord Norbury v. Kitchin, 7 L. T. (n. s.) 685 ; 15 L. T. (n. s.) 501 ; Staffordshire Canal Company v. Birmingham Canal Company, L. R. 1 H. L. 254 ; 35 L. J. Ch. 254 ; 11 L. T. (n. s.) 364, 647 ; Crrand Junction Canal Com- pany V. Shugar, L. R. 6 Ch. Ap. 483 ; 24 L. T. (n. s.) 402. Where an obstruction to the flow of water to a mill is caused, the matter may sometimes be remedied brevi manu, that is, by forcible removal or abatement, or doing something equivalent, so as to obviate the injury : Roberts v. Rose, 33 L. J. Exch. 241 ; 10 L. T. (n. s.) 624 ; Saxhy v. Manchester Railway Company, 19 L. T. C. P. 640. Where a person enlarges liis right to take water from a river, he does not forfeit that which he had legally acquired by doing some wrongful act : Hill v. Code, 26 L. T. C. P. 185. It was held that the commissioners had no jurisdiction to deal with a dam which had no special box or adaptation of its structure for catching salmon, for such was not a fishing mill dam within the meaning of the Act 1861 : Garnett v. Back- house, L. R. 3 Q. B. 639 ; 37 L. J. Q. B. 1 ; 17 L. T. (n. s.) 170. It was also held that the old statutes, including 12 Ed. 4, c. 7, did not prohibit fixed weirs for catching salmon being erected in non-navigable rivers ; IFliyte v. Rolle, 8 B. & S. 116 ; L. R. 3 Q. B. 286; 37 L. J. Q. E. 105 ; 17 L. T. (n. s.) 560 ; Lord Leconfield v. Lord Lonsdale, L. R. 5 C. P. 657 ; 39 L. J. C. P. 305; 23 L. T. (n. S.) 155. But whether a claim to such a weir would be within the Prescription Act is left undecided : Ibid. 28 & 29 VICT. c. 121, § 43. 395 ■ 43. Nnticefi of Courts of Commissioners. — The commissioners shall advertise in some daily morning London newspaper, and in some newspaper circulating in the district in which any salmon river or part of a river is situate, notice of the place where and time when they will he prepared to hold a court for determining the legality of all fishing weirs, fishing mill dams, and fixed engines on that river or part of a river. The advertisement in the said newspapers shall be inserted at least twenty-eight days before the time at which any court mentioned therein is appointed to be held. The commis- sioners may alter any place or time mentioned in such advertisements, on giving notice of such alteration in such manner as the commissioners may think best calculated to insure to the parties interested knowledge of such alteration. The above-mentioned advertisement shall be in the Form marked A. in the second Schedule hereto, or as near thereto as circumstances admit. In addition to the foregoing adver- tisements, the commissioners, at least fourteen clear days before entering upon an inquuy as to the legality of any fishing weir, fishing mill dam, or fixed engine, shall serve a notice on the owner or one of the owners of such fishing weir, fishing mill dam, or fixed engine to appear before them at a place and time mentioned in such notice. Service of a notice under this section may be made either by delivering the notice personally to such owner, or leaving it at or sending it by post in a registered letter to his last known place of abode, or, if the owner cannot be ascer- tained after due inquiry, by posting a copy of the notice on the fishmg weir, fishing mill dam, or fixed engine that forms the subject of the inquiry. The notice shall be in the form marked B. in the second schedule hereto, or as near thereto as cii'cumstances admit, and may be addressed as appears in the said schedule, and need not contain the name of any person. For the purposes of this section any person for the time being receiving the profits or a share of the profits of the salmon caught by such fishing weir, fishing mill dam, or fixed engine shall be deemed to be the owner, but in addition to any owner the commissioners shall hear any person appeai'ing before them, whether legally interested or not in a fishing weir, fishing mill dam, or fixed engine. 396 ENGLISH SALMON FISHEEIES ACTS. Any person obstructing or refusing access to any officer of the commissioners who may be desirous of posting any notice in pursuance of this section on a fishing weir, fishing mill dam, or fixed engine shall be liable to a penalty not exceeding five pounds for each offence, and any person defacing, de- stroying or removing any such notice shall be liable to a penalty not exceeding forty shillings ; and a notice shall be deemed to have been duly posted where the non-posting thereof has been occasioned by some person obstructing or refusing access to the officer about to post the same. The production of a copy of a newspaper containing any advertisement required by this Act shall, for the purposes of this Act, be evidence of such advertisement having been given at the time at which the newspaper bears date. 44. Hearing as to Legaliti/ of fixed Engines. — On the appearance of the owner or other persons for or against any fishing weir, fishing mill dam, or fixed engine, and after hearing what, if anything, is alleged by him or them, or on his or their behalf, or in the absence of any such per- sons, if they or any of them do not appear, and the commis- sioners are satisfied by evidence on oath that the notices required by the Act have been given, the commissioners shall decide as to the legality or illegality of the fishing weir, fishing mill dam, or fixed engine, and in the event of their decision being in favour of its illegality they may, by war- rant under their hands, order the owner to remove a fishing weir, or render incapable of catching fish a fishing mill dam, where the law requires such fishing weir or fixed engine to be removed, or such fishing mill dam to be rendered incapable of catching fish, to the satisfaction of the commis- sioners, within a reasonable time to be prescribed in the order, not being less than three months ; and in case the owner fails to comply with the directions of the order, then the commissioners may, by warrant under their hands authorize any constable or other person, at the expense of the owner, to carry their order into effect. The commissioners may sell any fixed engine, or any materials belonging to any fishing weir or fishing mill dam, that are removed in pursuance of this Act, and apply the proceeds of the sale in defraying any costs, charges, and expenses incident to carrying their order into effect in reference to such fishing weir, fishing 28 & 29 VICT. c. 121, §§ 44, 45. 397 mill dam, or fixed engine, and shall render the surplus, if any, to the persons they may deem entitled thereto. Provided that if it is proved to the satisfaction of tho commissioners that any posts or other materials belonging to an illegal fishing weir or fixed engine ordered to be removed may be capable of being used by any person as evidence of title to any foreshore or other land, the commis- sioners shall, instead of ordering the entire removal of such posts or materials, require the fishing weir or fixed engine to be destroyed so far only as they may in their discretion think necessary in order to prevent its being used for fishing purposes. 45. Appeal from Decision of Special Commissioners. — K any person feels aggrieved with any decision of the commis- sioners the person aggrieved may appeal as follows ; that is to say, 1. The appeal shall be to one of Her Majesty's superior courts of law at Westminster. 2. The appeal shall be by special case stating the facts and the grounds for the decision. 3. The special case shall be settled by the commissioners upon the application of the appellant to be made in writing within fom-teen days after the dehvery of the decision, and not afterwards ; and if the appel- lant be dissatisfied with the special case as settled by the commissioners, he may have the same settled by a judge of one of the said superior courts, on summons, at chambers. 4. Before the dehvery of the case to the appellant he shall enter into a recognizance before the said commis- sioners or a justice of the peace, with or without sureties, and in such sum as the commissioners or the justice think fit, conditioned to prosecute •without delay the appeal, and to submit to the judgment of the appellate court, and to pay such costs as may be awarded. 5. The special case shall be signed by the commissioners, and shall be delivered to the appellant by the commissioners. 6. On the receipt of the special case the appellant shall within fourteen days transmit by post or otherwise 398 ENGLISH SALMON FISHERIES ACTS. the original case to the proper officer of the appel- late court. 7. When a party gives in good faith notice of an appeal under this section, but omits through mistake to do some act necessary to perfect the appeal, the appel- late court may permit an amendment on such terms as it thinks just. 8. After the decision of the appellate court has been given on a case stated as aforesaid, the commis- sioners shall have the same powers to enforce that decision, when affirmed or amended, as they would have had to have enforced their original decision if it had not been appealed from. 9. Save as hereinbefore varied, the provisions of the Sum- mary Jurisdiction Act of the twentieth and twenty- first years of Her Majesty's reign, chapter forty- three, as to the powers of the superior com-t, as to directing a special case to be stated, as to the enforcing of recognizances, and as to all other matters, shall apply to an appeal under this sec- tion in the same manner as if the words " jus- tice or justices" in the said Summary Jurisdiction Act included the special commissioners appointed under this Act. 10. Any act required by this section to be done by the commissioners may be done by two of them, of whom the barrister hereinafter mentioned shall be one. 46. Apijointment of Commissioners under Sign Manual. — Her Majesty may, by warrant under the royal sign manual, appoint any number of persons not exceeding three, of whom one shall be a barrister of not less than seven years stand- ing at the bar, to be commissioners under this Act during Her Majesty's pleasure, and upon every vacancy in the office of any commissioner by death, resignation, or incapacity to act may appoint some other fit person to fill the vacancy : Provided always, that in the case of a vacancy by the death, resignation, or incapacity of the commissioner required by this Act to be a barrister, another barrister quaUfied as aforesaid be appointed in his place. Three commissioners were appointed by the royal sign manual in February, 1866, under this section, namely, Frederick 28 & 29 VICT. c. 121, §§ 47—51. 399 Eden, Esq., Admiral Houstonn, and James Paterson, Esq., bar- ristcr-at-law. The two tirst-nained <,a'iitU-iiu-n resi<,nied in Au^nist, 18G(), and their successors were Admiral Hpratt, C.B., and Major Henry Scott. The commissioners' duties were completed and the office determined by the Act 36 Vict. c. 13, 47. Commissioners to have a Common Seal. — The commis- sioners appointed under this Act shall be styled " the Special Commissioners for English Fisheries ;" they shall cause to be made for their commission such seal or seals as they may require ; and any summons, order, warrant, or other instru- ment or copy thereof, purporting to be sealed with the seal of the commissioners, and to be signed as hereinafter men- tioned, shall be received in evidence without any further proof. 48. Commissioners not to sit in Parliament. — No commis- sioner shall during his continuance in office be capable of being elected or of sitting as a member of the House of Commons. 49. Acts of the Commissioners. — All warrants for the re- moval of any fishing weir or fixed engine, or for the altera- tion of any fishing mill dam, shall be signed by two at least of the commissioners, and all cases relating to the removal of such fishing weir or fixed engine, or alteration of any fish- ing mill dam, shall be heard by all the commissioners, but the opinions of two of them, of whom the said barrister shall be one, shall, in case of difference, decide any question ; any other acts, except as aforesaid, authorized to be done by the commissioners may be done by any one of them, and any notice or other instrument under the seal of the com- missioners, and signed by any person delegated by them, shall be deemed to be sufficiently executed. 50. The Treasury to fix Salaries, dr., and appoint addi- tiunal Ojficers. — The commissioners of Her Majesty's trea- sury may from time to time fix such salaries as they may think fit for the commissioners hereby appointed, and also appoint such additional officers, clerks, and servants at such salaries as the said commissioners of the treasmy may think proper and necessary, and from time to time dismiss such officers, clerks, and servants, and appoint others in their place. 51. Duration of Ojfice of Cominissioners. — The offices of the said commissioners, and all powers, rights, and pri- vileges pertaining thereto, shall continue in force for two 400 ENGLISH SALMON FISHERIES ACTS. years, and from thenceforth until the end of the next session of parHament. 52. Powers of Commissioners. — The commissioners may examine any witnesses on oath, and with respect to en- forcing the attendance of witnesses, and the production of deeds, books, papers, and documents shall have the same powers as the judges of one of Her Majesty's superior courts of Westminster have for such or the like purposes ; more- over it shall be lawful for the commissioners to order any person to be removed from their court who may interrupt the business of the court, or refuse to obey their lawful orders in respect of the same ; and it shall be the duty of the chief constable, commissioner, or chief officer of police of the county, city, borough, or place in which the court is held to take care that an officer of police do attend that court during its sitting for the purpose of keeping order therein, and to carry into effect any such order of the com- missioners as aforesaid. 53. Copies of Orders of Commissioners. — Copies of orders of the commissioners made in pursuance of this Act, with the accompanying plans and maps, if any, shall be deposited with the clerk of the peace of the county where any engine or any subject-matter to which such order relates is situate; and any copy of such order, plan, or map purporting to be stamped with the seal of the commissioners shall be admis- sible in evidence, and any copy of any certificate or order of the said secretary of state in pursuance of the Salmon Fisheries Acts, 1861-G5, or either of them, purporting to be stamped with the official stamp of the office of the said secretary, and to be signed by any person by order of the said secretary of state, shall also be admissible in evidence. The orders of the commissioners include descriptions of the fiites and general mode of working of the legal fixed engines or fi.sliing weirs, or fisliing mill dams throughout England and Wales. As the statutes liave not declared that all such things shall be illegal, unless such as have been f'oimd legal and certified by the commissioners, there may he a few not adjudicated upon by the commissioners, as to which tlie old law will remain, and if their legality be disputed it must he by the circuitous and expensive machinery which the common law supplies. Besides the copy of each legal engine or weir deposited with the clerk of the peace, each owner, and also the board of conservators, is 28 & 29 VICT. c. 121, §§ 54—56. 401 in possession of a duplicate copj' stamped with the seal of the commissioners, and the legality in each instance can thus he easily ascertained by any ])erson interested. A return of the various engines and weirs inquired into and adjudicated upon by the connnissioners up to March, 1872, was printed l)y order oi' the House of Commons, 5th August, 1872 (No. 369), and includes the result of the great majority of the decisions. The legal tixed engines in England and Wales are not very serious evils, and there are no bag-nets or fly-nets, and only three stake-nets having a pocket. 64. Penalty for false Swearing. — Every person who upon examination before the commissioners, or any one of them, wilfully gives false e\'idencG, and every person who wilfully swears, affirms, or declares falsely in any affidavit relating to any matter within the cognizance of the commissioners, shall be liable to the pains and penalties of perjury. 55. Proceedinys not to abate by Death, dc. — Proceedings before the commissioners shall not abate or be suspended by any death or transmission or change of interest ; but in any such case of death or transmission or change of interest it shall be lawful for the commissioners, when they see fit, to require notices to be given to persons becoming interested, or to make any orders for continuing, suspending, or carrying on the proceedings, or otherwise in relation thereto, which to the commissioners appears just. Miscellaneous. 56. Power in certain Cases to award Imprisonment mth Hard Labour instead of Penalty. — Where any person has been convicted twice of an otience under any of the following sections of the Salmon Fishery Act, 18(51, that is to say, sections eight, nine, fourteen, seventeen, and nineteen, he may, on being convicted a third time of an offence against any of the said sections, instead of being lined in a pecuniary penalty, be sentenced to imprisoimient with or without hard labour for any period not exceeding six months [or less than one month] , and, if a licensee, he shall on being convicted a second time of an otience against the Salmon Fishery Acts, 1861, 1865, forfeit his licence. Tlie wimls in brackets were introduced by the Act 1873, § 18, but oAving to the word "or" being used instead of "nor" 402 ENGLISH SALMON FISHEEIES ACTS. (wliicli probably was the intention), the new words leave the section exactly as it was before. The alteration is thus abortive for want of the appropriate language. The offences here alluded to are fisliing with lights, spears, otters, snatches, also using or possessing fish roe, taking unsea- sonable fish, and catching fish in the annual close time. Sect. 19 of theAct 1861 being repealed, imprisonment is not now a punish- ment for the oftence of selling fish, &c., during the annual close season. In computing a third offence it is not necessary that the pre- vious oftences be of the same kuid, provided these were under any of the above four sections of the Act 1861, one of the five being repealed. Thus, if a person has been convicted once of using lights, also once of taking unseasonable fish, and then next of catching fish in the annual close time, this last will be a third oftence within the meaning of this section, and may be pmiished by imprisonment. 57. Mhiimum Penalties. — The penalty in respect of any offence under the Salmon Fishery Acts [1861 to 1873 and under any bye-law made under the authority of this Act] , shall on a conviction for a second offence be not less than one half the greatest penalty capable of being imposed in respect of such offence ; and on a conviction for a third or any subsequent offence the greatest amount of penalty men- tioned in the said Acts shall be imposed ; but nothing herein contained shall affect the provisions of the Salmon Fishery Act, 1865, in respect of the discretion of imposing the punish- ment of hard labour as therein mentioned. The words in brackets were introduced by the Act 1873, § 18, but owing to the words " imder the authority of this Act " being used instead of what was probably intended, namely, " under the authority of the said Acts," the result will be that the greater part of the amendment will be abortive, for as no bye- laws can be made under theAct 1865, the words as to bye-laws will be insensible. The offences mentioned in this section are not restricted in the same way as those in the 56th section preceding, but include all offences under tlie Acts 1861 to 1873, except those under the bye-laws made under the Act 1873, which, by the blunder above pointed out, have been unfortunately omitted. The justices, by Act 1873, § 18, sub-section 5, have a further discretion allowed them as to the minimum penalty for a second and third offence. 28 & 29 VICT. c. 121, §§ 58— GO. 403 58. Forfeiture of Nets, dr. — Where any person has been convicted of an offence under section seventeen of the Salmon Fishery Act, 18G1, he shall, in addition to the penalties thereby incurred, forfeit any net or mo*^able instrument used in com- mitting such offence, and the convicting justices shall direct the same to be sold or destroyed, and the proceeds of such sale shall be paid to the conservators of the district. The forfeiture here mentioned follows only on the offence of fishing in the annual close season, but not on the offence of fishing during the weekly close season. 59. Lvnit of Time for Compensation for Fish Pass. — Whereas by the twenty-third section of the Salmon Fishery Act, 18G1, any person sustaining loss by reason of a person or body of persons affixing a fish pass to a dam, in pursuance of that section, may recover compensation for such injury in a summary manner from the person or body of persons by "whom such fish pass has been affixed: Be it enacted, that no such compensation shall be recovered unless proceedings for the recovery of the same are instituted within two years after the time at which the fish pass was fii'st affixed to the dam. 60. Consent of Conservators necessary for artificial Propa- gation of Salmon. — Where any person, under the Salmon Fishery Act, 1861, is exempted from a penalty in respect of using or having in his possession salmon roe on the ground that he uses or has it in his possession for artificial propaga- tion or other scientific purposes, or is upon the same ground exempt from a penalty in respect of taking or having in his possession unclean or unseasonable salmon [or young of salmon] , or catching or attempting to catch salmon when spawning or near their spawning beds, he shall not, if within a district where a board of conservators is established, be exempt in any of the above cases from such penalty unless the consent of the board has been given in writing to such use or possession of salmon roe, or to such taking possession of unclean or unseasonable salmon [or young of salmon] . The words in brackets were introduced by the Act 1873, 5 18. The Act 1861, §§ 9, 14, 15, relates to the above exemptions from penalty. See notes to these sections. The effect of this and the other sections is that the board of conser\-ators cannot 2e 404 ENGLISH SALMON FISHEEIES ACTS. take fish, whether clean or unclean, from a private fishery without the consent of the occupier of such fishery ; at the same time the occupier cannot take unclean fish out of Ms own fishery, unless mth the consent of the board of conservators, if there is one. And for the same reason no third party can take such fish without the joint consents of the occvipier and the board of conservators. No exemption is allowed in favour of any person if the fish are clean. As to trout or char, see §64. 61. As to Disqualification of Justices.— 'No justice of the peace shall be disqualified from hearing any case arising under the Salmon Fishery Acts, 1861, 1865, or either of them, by reason of his being a conservator or a member of a board of conservators, or a subscriber to any society for the protection of salmon or trout ; provided that no justice shall be entitled to hear any case in respect of an offence com- mitted on his ow^n land. 62. Payment of Penalties to Conservators in certain Cases. — Where any penalty is recovered on the complaint of a board of conservators or of any officer of or person authorized by a board of conservators, the com-t shall, unless for special reason they think it inexpedient so to do, direct the whole of the penalty and the proceeds of any forfeiture to be paid to the said board, to be applied by them for the purposes of the Salmon Fishery Acts, 1861, 1865. As to the application of penalties for offences under the Salmon Fishery Acts, see Act 1873, § 62. This section is sub- stantially included and re-enacted in the 62nd section of the Act 1873. 63. Biver Esk witJiin Limits of Act. — The river Esk, together with its banks and tributary streams up to their source, shall be deemed to be within the limits of the Sal- mon Fishery Acts, 1861 and 1865 : Provided that all offences against the said Acts committed within Scotch juris- diction shall be prosecuted and punished in manner directed by the " Salmon Fisheries (Scotland) Act, 1862." 64. Partial Application of Sahnon Acts to Trout in Salmon Bivers. — The sections of the Salmon Fishery Act, 1861_, that apply to fishing with lights, spears, and other prohibited instruments, and to using roe as a bait, and which are num- bered respectively eight and nine, as amended by this Act, shUa apply to trout [or char] in a salmon river situate in a 28 & 29 VICT. c. 121, §§ 64, 65. 405 fishery district which is subject to a board of conservators appointed under this Act ; and in any such river no person shall fish for, catch or attempt to catch, or kill any trout [or char] between the second day of [October] and the first day of February following, both mclusive ; and any person wil- fully killing any trout [or char] in any such river as afore- said dui-ing such interval as aforesaid shall forfeit any trout [or char] caught by him, and shall, in addition thereto, be liable to a penalty not exceeding two pounds for each ofience : Provided always, that nothing herein contained shall apply to any person having in his possession trout [or char] or trout roe [or char roe] for the purpose of artificial propa- gation or other purpose, if such person has the permission in writing of the board of the district in which the river runs from whence such trout [or char] or trout roe [or char roe] has been taken to catch such trout [or char] , and to have in his possession such trout [or char] or trout roe [or char roe] for the pm-poses aforesaid. The words within brackets were introduced by the Act 1873, §18. This section in effect extends to trout and char in fishery districts a close season, and also the jiroliibition against catcliing trout or char with lights, speai's, otters, and as to using trout roe or char roe. But where a river is not a salmon river in a fishery district, trout and char are not affected by these changes, and may be cauglit all the year round, and with any instruments, as before this enactment. It will be observed also that in fishery districts it is not an ofience to fish for, but only to -wil- fully kill trout or char between 2nd October and 1st February, botli inclusive, the penalty bemg put only on the actual and wilful killing of these fish. As tn taking trout or char for scientific purjwses, see note to § 60 of this Act. See other off"ences as to trout and char in Act 1861, §§ 8, 9, 14 ; Act 1873, §§ 20, 38. 65. Provisions as to Exportation of Salmon. — All salmon intended for exportation shall be entered for that purpose with the proper officer of customs at the port or place of intended exportation, before shipment thereof; and any salmon shipped or exported or brought to any wharf, quay, or other place for exportation, between tlie third day of September and the [thirtieth] day of [April] following, con- trary to this section, shall bo forfeited, and the person ship- 2 E 2 406 ENGLISH SALMON FISHEEIES ACTS. ping or exporting, or bringing the same for exportation, shall be liable to a penalty not exceeding two pounds for every salmon so shipped or exported, or brought for exportation ; and any officer of the customs may, between the third day of Septernber and the [thirtieth] day of [April] , open any parcel entered or intended for exportation, or brought to any quay, wharf, or other place for that purpose, and suspected by him to contain salmon, and may detain any salmon found in such parcel until proof is given, in manner provided by law, of the salmon being such as may be legally exported ; and if the salmon, before such proof is given, become unfit for human food, the officer of customs may destroy the same. The words within brackets were introduced by the Salmon Acts Amendment Act, 1870, 33 & 34 Vict. c. 33, § 3. See also the Salmon Acts Amendment Act, 26 Vict. c. 10, §§ 3, 4, and notes. The time between 3rd September and 30th April is reckoned exclusively of those days, so that the act becomes first illegal on 4th September, and remains illegal no longer than the 29th April. This section applies to the exportation of all salmon, whether clean or unclean, without first entering them for ex- portation, and the penalty is cimiulative to that imposed by the Act 26 Vict. c. 10. The penalties under this section are recovered under Act 1873, § 62, but those under 26 Vict. _c. 10, are recovered and applied under the Act 1861, § 35, which is still unrepealed as regards the Act of 26 Vict. c. 10. 66. Ajipeal to Quarter Sessions in Case of summary Con- viction. — If any person feels aggrieved by any determination or adjudication of the justices with respect to any penalty or forfeiture under the Salmon Fishery Acts, 1861, 1865, or either of the said Acts, the person so aggrieved may appeal to the court of general or quarter sessions for the county or place in which the cause of appeal has arisen, holden not less than fifteen days and not more than four months after the decision of the justices from which the appeal is made ; provided that the appellant shall, within three days after the cause of appeal has arisen, give notice in writing to the other party to the proceedings of his intention to appeal, and of the grounds thereof ; and also provided that the appellant shall, within three days after the cause of appeal has arisen, enter into a recognizance before a justice of the peace, with two sufficient sureties, conditioned personally to try such appeal 28 & 29 VICT. C. 121, SCHEDULES. 407 and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court : The court may adjourn the appeal, and upon the hearhig thereof may con- firm, reverse, or modify the decision of the justices, with or without costs, to be paid by either party. FIRST SCHEDULE.— (Repealed by Act 1865, § 65.) SECOND SCHEDULE. Form A. Advertisement. — Salmon Fishery Acts, 1861, 1865. Notice is hereby given, that the special commissioners for English fisheries will hold a court , and at such court will proceed to inquire into the legality of all fishing weirs, fishing mill dams, and fixed engines situate on the , and all persons interested in such engines are required to attend at such court from day to day until discharged, in order that a decision may be made by the said commissioners "with respect to the removal of such fishing weirs or fixed engines, or the alteration of such fishing mill dams, or that such other order may be made by them in the premises as the facts of each case appear to warrant. Form B. Notice. To the owner of the , and all other persons interested therein. Take notice, you are required to appear before us, the special commissioners for English fisheries, and thence- forward from day to day until discharged, in order that there may be then and there an inquiry by us touching the legality of and that a decision may be made by us with respect to their removal, or that such other order may be made by us in the premises as the facts of the case may appear to us to warrant. Given under our hands and under the common seal of the said commissioners this day of 186 . 408 ENGLISH SALMON FISHEEIES ACTS. 33 & 34 VICT. c. 33. An Act to amend the Acts relating to the Export of Unsea- sonable Salmon. [1st August, 1870.] Whekeas by the third section of " The Salmon Acts Amend- ment Act, 1863," it is amongst other things provided that " the burden of proving that any salmon entered for expor- tation from any part of the United Kingdom to parts beyond the seas between the third day of September and the second day of February following is not so entered in contravention of the said Act shall lie on the person entering the same for exportation: " And whereas it is expedient to make further provision for preventing the exportation of salmon that cannot legally be sold within the limits of the United Kingdom: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parhament assembled, and by the authority of the same, as follows : 1. Short Title. — This Act may be cited for all purposes as " The Salmon Acts Amendment Act, 1870." 2. Commencement of Act. — This Act shall not come into operation before the third day of September one thousand eight hundred and seventy, which day is hereinafter referred to as " the commencement of this Act." 8. Amendment of Sect. 3 of 26 Vict. c. 10. — From and after the commencement of this Act the said third section of " The Salmon Acts Amendment Act, 1863," shall be read and construed as if the words "second day of February" were omitted therefrom and the words " thii-tieth day of April " were inserted instead of the said omitted words. See the Act 26 Vict. c. 10, § 3, where the effect of this and the next section is stated. 4. Amendm,ent of Sect. 65 of 28 d 29 Vict. c. 121.— The sixty-fiith section of " The Salmon Fishery Act, 1865," shall be read and construed as if the words " second day of 36 VICT. c. 13, § 1. 409 February" were omitted therefrom and the words "thirtieth day of April " were inserted instead of the said omitted words. See the Act 1865, § 65, as to the effect of this amendment. 36 VICT. c. 13. An Act to discontinue the Office of Special Commissioners of Salmon Fisheries in England. [24th April, 1873.] Whereas under the Salmon Fishery Act, 1865 (28 & 29 Vict. c. 121), certain special commissioners were appointed, whose offices were to continue in force for two years, and from thenceforth until the end of the next session of parlia- ment, and by various Acts, and lastly by the Expiring Laws Continuance Act, 1872 (35 & 36 Vict. c. 88), the offices of the said commissioners were continued until the first day of October one thousand eight hundred and seventy-three, and the end of the then next session of parliament : And whereas it is expedient to discontinue the said com- missioners as hereinafter mentioned : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present par- liament assembled, and by the authority of the same, as follows : 1. Discontinuance of Special Fishcrij Conmissioncrs. — After the passuig of this Act, the offices of the special com- missioners appomted under the Salmon Fishery Act, 1865 (28 & 20 Vict. c. 121), and all powers, rights, and privileges pertaming thereto, shall determine, without prejudice never- theless to anything done by the said commissioners before the said day, and no further appointment of such commis- sioners shall be made under the said Act. See Act 1865, § 46. 410 ENGLISH SALMON FISHERIES ACTS. 36 & 37 VICT. c. 71. All Act to amend the Law relating to Salmon Fisheries in England and Wales. [5th August, 1873.] Whekeas it is expedient to amend the laws relating to salmon fisheries in England and "Wales : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present par- liament assembled, and by the authority of the same, as follows : Part I. — Preliminaey. Definitions. 1. Short Title of Act. — This Act may be cited for all pur- poses as " The Salmon Fishery Act, 1873," and this Act and " The Salmon Fishery Acts, 1861 and 1865," may be cited together as " The Salmon Fishery Acts, 1861 to 1873." 2. Construction of Act. — This Act, so far as is consistent with the tenor thereof, shall be read as one with " The Salmon Fishery Acts, 1861 and 1865." 3. Commencement of Act. — This Act shall not come into operation until the fii'st day of September one thousand eight hundred and seventy-three, which date is hereinafter referred to as the commencement of this Act. 4. Definition of Terms. — In the construction of this Act and of " The Salmon Fishery Acts, 1861 and 1865," unless there is something in the subject or context repugnant to such construction, the words and expressions hereinafter mentioned shall have respectively the meanings hereinafter assigned to them ; (that is to say,) " Annual close season " and " weekly close season " shall mean the annual close season and the weekly close season for all kinds of salmon fishing except by rod and line respectively applicable to and in force in the fishery district or place in which any offence charged shall be committed, and all penalties, for- 36 & 37 VICT. c. 71, § 4. 411 feitures, proceedings, powers, and things described in the seventeenth, twentieth, twenty-first, and twenty-second sections of the Salmon Fishery Act, 1861, as appHcable to the periods therein specified, or intended to be specified, as the annual and weekly close seasons, shall be deemed to apply to the annual or weekly close seasons, as these may have been or shall be lawfully varied from time to time in each fishery district respectively : *' Close season for rods " shall mean and include the annual season during which at any particular place it is or shall be unlawful at that place under the provisions of " The Salmon Fishery Acts, 18G1 to 1873," to fish for, kill, take, or destroy, or attempt to kill, take, or destroy, any salmon with a single rod and line : The definition of the words "fishing weir," in the fourth section of the Salmon Fishery Act, 1861, is hereby repealed, and the words fishing weir shall mean any erection, structure, or obstruction fixed to the soil either temporarily or permanently across, or partly across, a river or branch of a river, and which is used for the exclusive purpose of catching or facilitating the catching of fish : " Fixed engine " shall include, in addition to the nets, fixed implements, engines, and devices respectively mentioned in " The Salmon Fishery Acts, 1861 and 1865," any net placed or suspended in any inland or tidal waters unattended by the owner or any person duly authorized by the owner to use the same for catching salmon, and all engines, devices, machines, or contrivances, whether floating or other- wise, for placing or suspending such nets or main- taining them in working order or making them stationary : " Grating " shall mean and include any device approved by the secretary of state for preventing the passage of fish through any channel : " Inspectors " shall mean the inspectors of salmon fisheries appointed under the provisions of the thirty-first section of " The Salmon Fishery Act, 1861 :" "Occupier" shall include any person for the time being 412 ENGLISH SALMON FISHEEIES ACTS. in actual possession of the fisheries and premises in respect of which that word is used, whether such person is owner or not : " Otter lath or jack " shall mean and include any small boat or vessel, board, or stick, used for the purpose of running out baits, artificial or otherwise, across any portion of any lake or river, and whether used with a hand-line or as auxiliary to a rod and line, or in any other way : " Owner " shall mean and include any person receiving the rents of the property in respect of which that word is used from the occupier, or who would receive the same if such property were let to a tenant : " Returning officer " shall mean the chairman of any board of conservators, or any person appointed by writing under his hand to conduct the elections of boards of conservators in the manner hereinafter prescribed : " Rod and line " shall mean single rod and line : " Secretary of state " shall mean one of Her Majesty's principal secretaries of state : " Strokehall or snatch " shall mean and include any instrument or device, whether used with a rod and line or otherwise, for the purpose of foul- hooking any fish. Tills definition of close season (taken from Dodds' Bill) will eniiLle llie penalties to follow all the A^ariations in the annual and weekly close seasons which will arise under the l)3^e-laws. Tliose places which are not Avitliin any fishery district must remain as before, subject to the close seasons fixed by the Act 1861, §§ 17, 21, which cannot now be changed as to such places by any existing antliority. Tlie annual and weeldy close seasons for cross-line fishing are the same as for nets. The weekly close season does not apply to fishing with suigle rod and line. This definition of fishing weir (taken from Dodds' Bill) amends the dclmition given in the Act 1861, § 4, and wliich confined the tenn merely to dams, whereas many fishing weirs did not in fact or in intention dam up the water at all. Owing to the defect of the former definition, the special commissioners had great dilliculty in exercising their jurisdiction over several iishuig weirs, and thougli now tliat their jurisdiction has been 36 & 37 VICT. c. 71, § 5. 413 exercised the remedy has come late, it supplies a proved defect ill tlu; lonuer Act. This is a fourth addition to the definitions of a fixed engine, and all the definitions must he taken togetlier. See Act 1861, §^ 4, 11 ; Act 1865, § 39. The ohject of the present addition to those definitions seems to have been to render hang-nets used on the northern sea coast illegal. But if this -was the object, the language used is unfortunate, for the words " unattended by any person" impliedly render legal sucli nets if oidy some person authorized by the owner " attends" them. To " attend" a net is a vague expression, and will be satisfied by a person sitting in a boat and looking at the net, or at several nets, without doing anything to them. If, therefore, a hang-net, before this Act, was legal when set without a man attending it, it will be legal now if some person sit ;md attend it. Tliis section, therefore, at most only compels an adtHtional man to sit idly looking on while the net is at work, and in that view the beneiit gained is not obvious. As to fishing with the otter lath and jack, and with the strokchall and snatch, see Act 1861, § 8, and notes. Part II. — Fishery Districts. 5. Vowcr of Secretary of State to alter Districts. — A board of conservators of any fishery district may, after giving three calendar months notice in writing to any other board or boards of conservators affected by such alteration, or, in case there is no board, to the justices of the peace of any county in quarter sessions assembled, the whole or any part of which shall be aflected by such alteration, apply to the secretary of state to enlarge, reduce, or alter the limits of such district, or to combine two or more districts or parts of districts ; and, after such notice has been previously advertised for two successive weeks in one or more local newspapers published or circulated within the district or dis- tricts affected by such alteration, the secretary of state may thereupon by his certificate enlarge, reduce, or alter such dis- trict, either by uniting it with any other district or districts, or combining it with any other part or parts of a district or districts, or by severing any part from such district and forming it into a separate district, or uniting it with any other district, or by adding to such district any place not yet included in any district ; and the certificate oi the secretary of state embodying all such alterations shall be granted in 414 ENGLISH SALMON FISHEEIES ACTS. accordance with the provisions of " The Salmon Fishery Act, I860," and shall transfer and apportion any existing con- tracts, debts, mortgages, liabilities, and assets among such altered boards. Bat no alteration of any district shall affect the power of any existing board or boards until the new dis- tricts are fully constituted. 6. Combined Districts. — When the Qflfect of any such altera- tion is to include in a district either an additional portion of any county previously included or a portion of a county not previously included, the justices of such county in quarter sessions assembled shall add such number of members to the existing board of the district as the secretary of state shall appoint ; and where the effect of such alteration is to exclude altogether from the district any county, the whole of the members of the board appointed by such county shall cease to hold then- offices at such board. When the effect of such alteration is to partially exclude from the district any county, the number of members representing that county shall be reduced to such number as the secretary of state shall appoint, and in case the effect of such alteration is to create the part severed from any district into a new district, or to unite the parts severed from different districts into a new district, then and in either of such cases the provisions of " The Salmon Fishery Act, 1865," shall apply as if a new district had been created under the provisions of the fifth section of that Act. 7. Notices to be jmblished. — A notice of any alteration made in any district or in the constitution of any board of conservators in pursuance of the provisions hereinbefore contained shall be advertised once in some daily morning London newspaper and at least once a week for four con- secutive weeks in some newspaper or newspapers pubHshed or circulated within the district or districts affected by such alteration. The production of a copy of a newspaper con- taining any such advertisement shall be evidence of such advertisement having been given at the time such newspaper bears date. 8. Copy of Certificate of Formation of Districts to be Evi- dence. — A copy of the certificate or certificates of the secre- tary of state deposited with the clerk of the peace of any county in relation to the formation, enlargement, combination, reduction, or alteration of a fishery district granted in pursuance 3G & 37 VICT. r. 71, §§ 8— ]0. 415 of the fifth section of " The Salmon Fishery Act, 18G5," or of this Act, certified or purporting to be certified as a true copy by the clerk of the peace of such county, shall be evidence that all the requisitions contained in " The Salmon Fishery Act, 1805," or in this Act, relating to the formation, enlarge- ment, combination, reduction, or alteration of any fishery district have been complied with, and that such district has been duly formed, enlarged, combined, reduced, or altered with the limits and in the manner specified in such certificate or certificates. 9. Poicer to Secretanj of State to alter the Number of Con- servators apiiointcd hij Quarter Sessions, — It shall be lawful for the secretary of state, on the application of the justices for any county comprised, or partly comprised, in any fishery district, in quarter sessions assembled, one month's previous notice of such application having been given to the board of conservators aft'ected by such alteration, to alter the number of conservators to be appointed at quarter sessions by the justices for all or any counties or county comprised, or partly comprised, in such district: Provided always, that no such alteration shall be made, unless one month's previous notice has been given of the intention of the secretary of state to make such alteration, in some newspaper or newspapers circulating within the district ; and previous to the expiration of such notice it shall be lawful for any person to represent to the secretary of state any objection which he may have to such alteration, and the secretary of state shall, after making such inquiry into such objection as he may think fit, eitlaer make such alteration, or not, as he may see fit, and shall cause his final determination to be published in the same newspaper or newspapers in which his intention to make such alteration was originally published. This section is not likely to be acted iipon, for there can be no particular oliject or intorest served by the quarter sessions asking i'lir an alturation ul" the number of conservators, which will probably only tend to decrease their own influence. 10. Clerk of the Peace to send Xotiee of Appdintment. — In any fishery district, where any members of a board of con- servators are appointed by the justices in quarter sessions of 416 ENGLISH SALMON FISHERIES ACTS. a single county, or of one or more counties, a notice of the appointment of the members of such board appointed by such county, or by each of such counties, with the name and address of each member, shall be sent to the clerk or other officer of the board of conservators by the clerk of the peace of such county, or of each of such counties, within fourteen days from the date of such appointment ; and any clerk of the peace refusing or neglecting to send such notice shall for every such refusal or neglect be liable to a penalty of not exceeding two pounds. 11. Minute of Conviction to he sent to Board of Conserva- tors. — Where any person is convicted of an offence under the Salmon Fishery Acts, 1861 to 1873, or under any bye- law made in pursuance of this Act, the clerk of the justices before whom such person is convicted shall forward a certifi- cate of such conviction to the clerk of the board of conser- vators for the fishery district within which such conviction took place within one calendar month from the date of such conviction, and such certificate shall be receivable in evidence in all legal proceedings, and any clerk to any justices neglect- ing or refusing to forward such certificate to the clerk of the board of conservators, shall for every such refusal or neglect be liable to a penalty of not exceeding two pounds. 12. Appointment of Conservators for the Eirer Esk. — For the purposes of the Salmon Fishery Acts, 1861 to 1873, the commissioners of supply in Scotland shall have all the privileges and duties of the justices in quarter sessions in England for the election of boards of conservators for the river Esk. See Act 1865, § G3. Paet in. — Restrictions as to certain Modes and Times OF TAKING AND SELLING FiSH. 13. Extension of the '^ Malicious Injuries Act.'' — The pro- visions of the thirty-second section of the " Malicious Injuries to Property Act," so far as they relate to poisoning any water with intent to kill or destroy fish, shall be extended and apply to salmon rivers, as if the words "or in any salmon river" were inserted in the said section in lieu of the words "private 36 & 37 VICT. 0. 71, §§ 13—15. 417 rights of fishery " after the words "noxious material in any such pond or water." This is an obscure enactment, and gives a wrong recital of the section in question, making it difficult to know what words are to be inserted, and at what part of the section. The Act 24 & 25 Vict. c. 97, § 32, is ([uoted ante, ]i. 87. This section is ob- viously founded on a misunderstanding of the 32nd section of tlie Malicious Injuries Act, which already extended, not only to any salmon river, but to any several fishery for salmon in tidal waters. This section does not profess to do more than was already done ; the onlyditference it makes is that putting lime in the sea or in tidal rivers where there is no several fishery, is now ])unishable, but this is too remote and purposeless an injury to be likely to be committed. 14. No Draft-net to he shot ivithin 100 Yards of another until the Latter is landed. — Any person who shall shoot or work any seine or draft-net for salmon in a river across the whole width or more than throe-fourths of the width thereof, within one hundred yards from the nearest point in the line of shot of any other seine or draft-net worked in like manner and already shot or being worked in such river, before such last-mentioned net is fully drawn in and landed, shall for every such offence be liable to a penalty not exceeding five pounds. This section (taken from Dodds' Bill) meets a difficulty Avlrich was complained of, namely, the practice of fishermen working net after net so close to each other, lioth in place and time, as to block up the ])assage of fish. The section applies not only to public fishermen, but to the fishermen either in private waters or in sevtX'al fisheries in tidal waters. 15. No Eel Baskets, c(r., to he fixed hetween 1st January and 24//j. dai/ of June. — No person, between the fu-st day of January and the twenty-fourth day of June inclusive, shall hang, fix, or use in any salmon river any baskets, nets, traps, or devices for catching eels or the fry of eels, or place in any inland water any device whatsoever to catch or obsti-uct any fish descending the stream ; or shall at any time place upon the apron of any weii" any basket, trap, or device for taking fish, except wheels or leaps for taking lampcms between the fii'st day of August and the first day of March ; and any person acting in contravention of this section shall incur a 418 ENGLISH SALMON FISHERIES ACTS. penalty not exceeding two pounds for every day during which he suft'ers such engines to be fixed or used as aforesaid. But nothing herein contained shall extend to prohibit the use of eel baskets not exceeding in any part ten inches in diameter constructed so as to be fished with bait, and not used at any dam or weir. Tliis section (taken from Dodds' Bill, but varied) prevents eel fisheries from being used so as to interfere with salmon fisheries. The owners are not, however, proliibited from hanging eel baskets (not being on the apron of a weir) day and night, between 24th Jmie and 1st January. 16. Interference icith Salmon in Close Seasons. — No person shall, during the annual or weekly close season, in any year, place any obstruction, use any contrivance, or do any act, for the purpose of deterring salmon from passing up a river ; and any person acting in contravention of this section shall be liable to a penalty of not exceeding five pounds : Provided always, that nothing in this section shall apply to any kind of fishing for fish other than salmon legally practised in any This section was scarcely necessary, and is not quite consistent with § 46. The gist of the offence is deterring fish. Accord- ing to this enactment the fish, but for the obstruction, must be physically able to pass, but if something is done which operates to deter or frighten them from doing so, it is punish- able. It is difficult to see why such an offence should be con- fined to the aimual or weekly close time, since the same mischief would be equally great in the open season. Besides, it is much more important to remove the physical obstacles to the fish passing by making fish passes than the secondary kind of obstruction here dealt with. If, for example, a person were to stretch a net across a river, he coiild not be punished under this section, for the net would physically obstruct the fish, but not deter them. The placing of a net would, however, now be also pimished by the 46th section, which see. 17. Ko fishing within 50 Yards above or 100 Yards heloiv a Weir or Mill Races except with Bod and Line. — No person shall catch or kill, or attempt to catch or kill, except with rod and line, or scare or disturb, or attempt to scare or disturb, any salmon within fifty yards above or one hundred yards below any weir, dam, or artificial obstruction which hinders or retards . 3G&37 VICT. c. 71, § 17. 419 the passage of salmon, or in any waters under or appurte- nant to any mill, or in tlio head race or tail race of any mill, or in any waste race or pool communicating with such mill race, or in any artificial channel connected with such weir or obstruction ; and no person shall fish with rod and line in such a manner, or such a place, near such weir or obstruc- tion, as to wilfully scare or hinder salmon from passing through any fish pass, or over any part of such weir or ob- struction usually available to salmon for the purposes of a passage. Any person acting in contravention of this section shall incur a penalty not exceeding five pounds for each offence, and a further penalty not exceeding one pound for every salmon so caught, and shall forfeit all boxes, baskets, . nets, rods, implements, or devices used or placed for catch- ing the same ; provided that nothing in this section shall be deemed to apply to any legal fishing mill dam not having a crib, box, or cruive, or to any fishing box, coop, apparatus, net, or mode of fishing in connexion with and forming part of such weir or obstruction for purposes of fishing : Provided, that where a fish pass approved by the Home Office, in pur- suance of the twelfth section of the Salmon Fishery Act, 1861, has been or shall be attached to such weir, dam, or artificial obstruction, this section shall not be enforced in respect of such weir or artificial obstruction until compensa- tion has been made by the conservators of the district to the persons entitled to fish in such watei's for such right of fishery, such compensation to be settled in case of dispute in manner in which disputed compensation as to lands is directed to be settled mider the Lands Clauses Consolidation Acts. This section (taken from Dodds' Bill, but varied) is one of the most useful and etlective in the jneseut statute. The mode of measuring the 50 or 100 yards sliould have been defined so as to remove all dispute, but in the absence of such definition the proper terminus d quo for measuring the lOOyaixls seems to be the foot of the apron of the weir or dam, if any ; while the tcnninua a quo for measuruig the fifty yards will be the crest of the dam ; and in both cases the mejisure- ment will be along each bank of the river. Hence, if the dam or weir is built diagon;Uly, or in a slanting form across the bed of the river, as is not unusual, the prohibitory line of limita- tion at the extreme end will be nearly parallel with the weir or dam. 2 F 420 ENGLISH SALMON FISHERIES ACTS. The prohibition against fishing does not affect fishing mill dams which have a fishing box, or those which have no fishing box, but which catch fish with the aid of a net used in connec- tion witli and as part of the legal fishing mill dam. Several of the latter kind of fishing Tnill dams are found in Hampshire and Devonshire. The prohibition against fishing with nets in waste races or pools communicating with mill races is absolute, and does not depend on the distance from the dam. In some cases there are pools between the dam and the foot of the tail race fed by waste sluices, and where salmon rest, and before this enactment the whole fish of a river might have been swept out hi the nets, and were usually so caught ; but this section will now generally prevent such practices. The words " appurtenant to" and " com- municating with" denote contiguity of situation to the mill or mill race, but have no relation to the distance from the weir. There are two provisoes to this section. The first proviso existed in the clause in Dodds' Bill, and the second proviso was added afterwards. The fu-st pro\'iso has the effect of exempting the fisliing carried on in legal fishing mill dams. The second proviso applies to such weirs, whether fisliing mill dams or not, as have or will in future have a fish pass according to Act 1861, § 12. When such pass is made, the section is not to apply to these till the board of conservators has paid the o%vner of the fishery here prohibited, namely, the owner of the fishery above and below the weir, for the value of his fishery. As pre- viously stated, few fish passes have been made, or are ever likely to be made, under the 12th section of the Act 1861, because the second condition, without adequate protection to the millowner, is incompatil)le with the efficient use of mill weii-s for milling. See Act 1861, § 12, and Act 1865, § 42. This is so far fortu- nate, otherwise the benefit of this section Would have been considerably marred by coupling it with a burdensome expense thrown on the board of conservators. The compensation will also be difficult of settlement, when claimed. The second pro- viso does not apply to weirs not in a fishery district. 18. Amendments of " Salmon Fishery Acts, 18G1 rt^jf/lBGS." — The following sections of" The Salmon Fishery Act, 1861," and " The Salmon Fishery Act, 1865," shall be respectively amended in the following manner ; (that is to say,) (1.) The eighth section of " The Salmon Fishery Act, 1861," shall be construed as if the words "otter lath or jack, wire, or snare" were inserted after the word " any," and as if the words " or killing" were inserted after the word " catching" in the second sub-section, and as if the words " or kill" 36 & 37 VICT. c. 71, § 18. 421 were insortod after the words "to catch" m the third sub- section : (2.) The eleventh section of " The Salmon Fishery Act, 1861," shall be construed as if the words " or for the purpose of facilitating the catching of salmon, or detaining or obstructing the free passage of," were inserted after the words " used for catching." (3.) The fourteenth section of " The Salmon Fishery Act, 1861," shall be construed as if the words " kill or injure or attempt to take" were inserted after the words " wilfully take," in the first sub-section of the first part thereof, and the words " in respect of each fish taken, sold, or exposed for sale, or in his pos- session" in the second sub-section of the second part thereof were omitted, and the words " for each such ofience, and a fui'ther penalty of one pound in re- spect of each fish taken, sold, or exposed for sale, or in his possession" were inserted in lieu thereof: (4.) The fifty-sixth section of the Salmon Fishery Act, 1865, shall be construed as if the words " or less than one month" were inserted after the words " six months." (5.) The fifty-seventh section of the Salmon Fishery Act, 1865, shall be read as if the words " 1861 and 1865" were omitted, and the words "1861 to 1873, and under any bye-law made under the authority of this Act" were inserted in lieu thereof; but it shall not be imperative on any justices under the provisions of such section to inflict a gi'eater penalty than fifty shillings for a second offence, or than five pounds for a third ofience under the Salmon Fishery Acts, 1861 to 1873 : (6.) The sixtieth section of " The Salmon Fishery Act, 1865," shall be construed as if the words " or young of salmon" were inserted throughout after the words " unclean or unseasonable salmon :" (7.) The sixty-fourth section of the Salmon Fishery Act, 1865, shall be read as if the word " October" were substituted for the word " November," and as if the word trout included the word char : (8.) The provisions of the fourteenth section of the Salmon Fishery Act, 1861, and the thirty-eighth 2 F 2 422 ENGLISH SALMON FISHERIES ACTS. section of this Act, shall be read as if the word salmon included the words trout and char. This section will cause much trouble to courts and judges and justices, by inserting new words in existing enactments, instead of repealing those enactments and re-enacting them with the new matter inserted at the proper place. The effect of these various new interpolations will be found noticed in the notes upon the respective enactments of the previous Acts here referred to. 19. Penalties 07i selling Fish during Close Time. — No person shall buy, sell, or expose for sale, or have in his possession for sale, any salmon or part of any salmon between the third day of September and the first day of February following, both inclusive. And any person acting in contravention of this section shall forfeit any salmon or part of any salmon so bought, sold, or exposed for sale, or in his possession for sale, and shall incur a penalty not exceeding two pounds for every such salmon or part of any salmon. But nothing herein contained shall apply to any person buying, selling, or exposing for sale, or having in his possession for sale, any salmon which has been cured, salted, pickled, or dried beyond the limits of the United Kingdom, or if within the limits of the United Kingdom between the first day of February and the third day of November in any year, or any clean fresh salmon caught within the limits of this Act, provided its capture by any net, instrument, or device other than a rod and line, was lawful at the time and in the place where it was caught, or to any clean fresh sal- mon caught at any time beyond the limits of this Act, pro- vided its capture by any net, instrument, or device other than a rod and line, if within the United Kingdom, was law- ful at the time and in the place where it was caught ; but the burden of proving that any clean fresh salmon so bought, sold, exposed for sale, or in the possession of any person for sale was captured abroad or lawfully captiired within the United Kingdom, shall lie on the person selling or exposing for sale, or having in his possession for sale any such sal- mon ; and the burden of proving that any cured, salted, pickled, or dried salmon was cured, salted, pickled or dried elsewhere than in the United Kingdom, or if within the United Kingdom, then between the first day of February and the third day of November in any year, shall lie upon the person in whose possession for sale such salmon is found. 36 & 37 VICT. c. 71, §§ 20,21. 423 This section is substituted for the 19th section of the Act 1861, now repeah^d, ami is much more C()m])licated. The bur- den of proof thrown on tlie persons selling salmon lietween 3rd September and 1st February is now not merely that the fish was caught out of England and Wales, but, if caught within the United Kingdom, that it was h'gally caught. The only mode of jiroving Scotch and Irish law is by calling as a witness some solicitor or Ijarrister who has practised such law, or an official there, and hence this will be an expensive and difiicult defence. Though a person will primd facie, incur a jienalty for selling pickled salmon after 3rd September, yet if he can prove that the fish had been i)ickled in England or Wales between 1st February and 3rd November he will be exempt from any penalty. 20. Penalty on scUhnj Trout or Char durimj Close Time. — No person shall buy, sell, or expose for sale, or have in his possession for sale, any trout or char between the second day of October and the first day of February following, both inclusive ; and any person acting in contravention of this section shall forfeit any trout or char so bought, sold, or ex- posed for sale, or in his possession for sale, and shall incur a penalty not exceeding one pound for every such trout or char. This enactment applies to places not within a fishery district, as well as salmon rivers M'ithin a fishery district, while some other enactments as to trout and char apply only to salmon rivers within fishery districts. See § 38 ; also Act 18G1, §§ 8, 9, 14 ; also Act 1865, § 64. As the catching of trout and char is prohibited by Act 1865, § 64, in salmon rivers within a fishery district between 2nd October and 1st February, the pre- sent section may be a proper corollary to that enactment. But in rivers and streams not within a fishery district, or if within a fishery district in rivers which are not salmon rivers, there is no close season for trout or char, and persons may catch them at all times by net or rod, or even with lights and spears ; and the present section leaves the law in this state, that no ])erson shall during four months sell or expose for sale trout or char, though they were lawfully caught, as they may be, out of a fishery district. Part IV. — Licenses. 21. Proriaious as to Licences. — The following rules shall apply to the issuing of licenses : (1.) Licenses for fishing weirs, fishing mill dams, putts, putchers, fixed nets, and other fixed instruments 424 ENGLISH SALMON FISHEEIES ACTS. or devices, and for movable nets and other mov- able instruments or devices, and also for rods and lines for catching salmon within a fishery district, shall be granted on payment of such sums not ex- ceeding the sums mentioned in the third schedule hereto as the board of conservators of the district, with the sanction of the secretary of state, may from time to time determine : (2.) Licenses shall only be available within the fishery district for which they are granted. Licenses granted for public or common fisheries shall be available only for such fisheries. Licenses granted for private fisheries shall not be available in public or common fisheries, except licenses for the use of a rod and line : (3.) Licenses for fishing weirs, fishing mill dams, putts, putchers, fixed nets, and other fixed instruments or devices for catching salmon, shall be available only for the use of the persons to whom they are granted, and for the employment of such instru- ments and devices as are named and described therein : (4.) Licenses for movable nets or other movable instru- ments or devices for catching salmon shall be used only by the person to whom they are granted, or his agents or servants, and in respect of the instru- ment for which they are granted, and no person shall be deemed to be an agent or servant of a licensee for the purposes of this section unless his name is endorsed on the license, either by the licensee or his authorized agent, or by the clerk or other persons authorized by the conservators, and the conservators shall make arrangements for faci- litating the endorsement of the names of agents or servants of licensees by their clerk or other persons authorized as aforesaid. A fee of sixpence shall be payable to such clerk or other person autho- rized as aforesaid in respect of the endorsement of the name of any agent or servant on a license, in pursuance of this section, by any person requu-ing the same, if made by the clerk or other person authorized by the conservators, or by the licensee 36 & 37 VICT. c. 71, § 21. 425 in case of the endorsement being made by him or his authorized agent. A licensee shall not bo entitled to have endorsed on his license the names of agents or servants exceeding twice the number of persons required to work at one time the net, instrument, or device in respect of which the license is granted. Any licensee may from time to time remove or cause to bo removed the name of any agent or servant from his license, and, if he so desire, may substitute or cause to be substituted the name of another agent or servant, on payment of a like fee for the name of each person so sub- stituted ; but no endorsement made by the licensee or his authorized agent shall be valid unless a copy thereof shall, within twenty-four hours from the date thereof, which date shall be inserted on the license at the time of making such endorsement as aforesaid, be sent by post to such clerk or other person authorized as aforesaid, accompanied with such fee or fees as are payable under this section in respect of such endorsement, and no person shall be deemed to be an authorized agent of the licensee for the purposes of this sub-section unless his name and address and notice of his appointment as an authorized agent shall have been sent by post to the clerk or other person authorized by the conservators previously to any indorsement being made by such authorized agent : Provided always, that if a licensee at any time during a fishing season, either works or assists in working a mov- able net or other movable instrument or de\-ice himself, the number of names which he shall be entitled to have endorsed on the license for such movable net or other movable instrument or de- vice shall be one less than twice the number of persons required at one time to work such movable net, instrument, or device. Any hccnsee or autho- rized agent of a Hcensee who fraudulently endorses on the license more names than he is entitled to have endorsed thereon, or who endorses thereon any date other than the actual date of the making of such endorsement, shall be liable on conviction thereof to a penalty not exceeding twenty pounds. 426 ENGLISH SALMON FISHERIES ACTS. (5.) A license for the use of a rod and line shall be used only by the person to whom it is granted, and shall in no case be transferable. (2.) This enactment professes to prohibit a fisherman who has paid license duty, and who intends to fish in jjublic waters, from fishing in private waters, and vice versa. But unfortu- nately the Act omits to impose any penalty for either party doing the acts prohibited, and therefore the object of this sub- section is not attained. By the Act 1865, § 34, sub-sect. 5, all persons demanding licenses are entitled to receive the same without any question or objection, and if it had been intended to restrict licenses to fish in one part of a district only, an eifective enactment should have been introduced to enforce it. (3.) The words "fixed engines" are omitted here, though the words " fixed mstruments" may be deemed equivalent. (4.) The object of this sub-section may have been to pro- hibit licensed persons employing relays of fishermen, so as to take more value out of one licensed net than a fisherman Avorking such net l^y his own labour, with or without assistance, could obtain. Unfortunately this sub-section will prove abor- tive, because no penalty is put on persons acting in the way prohibited. All this long descriptive sub-section is thus thrown away fox want of appropriate penalties being added. 22. Penalty on taking Salmon ivithout a License. — In all fishery districts in which licenses are payable under the provisions of " The Salmon Fishery Act, 1865," or this Act, any person fishing for, taking, killing, or attempting to take or kill, salmon by any means whatsoever other than a properly licensed fishing weir, fishing mill dam, fixed engine, instru- ment, net, or device for catching or facilitating the catching of salmon, or assisting any such person in so doing, shall be liable to a penalty not exceeding five pounds, and a further penalty of not exceeding one pound in respect of each salmon so caught : Provided that this section shall not jjrevent the use of a gafl' or landing-net as auxiliary to any holder of a rod license angling with a rod and line, and that nothing herein contained shall afiect the provisions of the thirty-fifth and thirty-sixth sections of " The Salmon Fishery Act, 1865." The object of this section is to prevent persons catching salmon except by some taxable apparatus or implement. If a person caught or attempted to catch salmon with his hand. 36 & 37 VICT. 0. 71, §§ 23—25. 427 ■ or Mrith a clothes-basket (as has been done) during the fishing season, he would now be liable to this penalty. If, how- ever, there is nothin'^ illegal in the instrument used (though not included in the scale of licenses), the defendant in any pro- ceeding can scarcely be subject to the penalty if he show that he asked and re([uired the l)oard of conservators to include such instrmnent in their scale of licenses, and that he was ready to pay a reasonable license duty for the same. This section does not say that the board can prohibit any usual instruments of catching fish in their district which are not illegaL 23. Application of Funds in the Hands of the Conservators. — The conservators of a district may expend any moneys in their hands in any manner, not being illegal, they may think most conducive to the improvement of the salmon fisheries within their district. 24. Sc((le of Licenses. — In every fishery district the maximum duty payable in respect of any license for the use of any rod and line, fishing weir, fishing mill dam, putt, putcher, net, and other instrument or device for taking salmon shall not exceed the sums mentioned in the third schedule hereto, 25. Board may vary License Duties uith the Approval of the Secretary of State. — The board of conservators may, with the consent and approval of the secretary of state, from time to time vary the license duties leviable within their district, and vary the license duties leviable on similar uistruments in difi'erent parts of the district, specifying in the licenses the portions of the rivers in which the said licensed instruments may be used, so, however, that the license duties so varied shall not exceed the sum mentioned in the third schedule hereto : Provided, that in the event of any vai-iation in the said scale of license duties being agreed upon, the board shall cause notice thereof to be given by advertisement in one or more local newspapers not less than once in each week for fom* consecutive weeks before the commencement of the next fishing season ; and if from any mistake or error or .any other cause such variation shall not have been duly made and published, the scale of licenses in force during the preceduig year shall be deemed to be in force for all purposes whatsoever, and shall so continue until it shall be duly altered or varied under the provisions of this Act. 428 ENGLISH SALMON FISHERIES ACTS. The most important part of this enactment as to specifying in the licenses the part of a district in wliich a licensed instru- ment is to be used is rendered abortive by the omission of an appropriate penalty for using a licensed instrument in a part of a district in which it is not licensed to be used. A similar mistake occurred in § 21 of this Act. Paet V. — Constitution of Boaeds of Conservators. (i.) Ex-officio Members. 26. Ex-officio Members of Board of Conservators. — In addition to the elected members of any board of conservators for any fishery district, every person shall be an ex-officio member of such board who possesses either of the qualifica- tions hereinafter mentioned ; (that is to say,) (1.) Is the owner or occupier of a fishery or fisheries in such fishery district, which is or are assessed to the rate for the relief of the poor on a gross esti- mated rental of thirty pounds a year ; provided that in no case shall both the owner and occupier be entitled to act at the same time as ex-officio members in respect of the same fishery or fisheries ; and if there be more than one such owner or occu- pier of the same fishery or fisheries, then any one of such owners or occupiers : (2.) Is the owner of lands in such fishery district of an annual value of not less than one hundred pounds, having a frontage of not less than one mile to any salmon river (in ascertaining such distance the frontage on both sides of the river to be counted), having the right to fish in the part of the river adjoining such frontage, and having paid license duty for fishing for salmon within such district during the last preceding fishing season. A difficulty will arise in acting on sub-section (1), owing to the fishery not being separately rated from the lands. A fishery separated from the use of the lauds is not rateable under the present law, and there is no power or duty on the overseers to rate it separately ; nor does sub-section (2) state who is to value the lands. If each of two or more joint occupiers or 36 & 37 VICT. c. 71, §§ 27—29. 429 tenant.s in conunon claims to be a member, there is no mode jjiovided uf settling which is to be preferred. 27. Provision Jor Persons under Disability. — In all cases where the owner of any lisheries or lands possessing either of the aforesaid qualifications for ex-officio members of the said board of conservators shall be a minor, idiot, lunatic, feme covert, or under any legal disability, or shall be a corporation, company, or fishery association, one of tho guardians or trustees of such minor, the committee of the estate of such idiot or lunatic, the husband of such femo covert, one of the members of such corporation, company, or fishery association, or the attorney or agent of such guardian, trustee, committee, husband, corporation, company, or fishery association (respectively) shall bo entitled to act as an ex-officio member of the board of conservators of tho district within which such fisheries or lands are situate. 28. Ex-officio Members to sign a Declaration. — Any person clniming to be entitled to act as an ex-officio meml)er of any board of conservators for any fishery district shall, pre- viously to taking his seat at any such board, or taking any part in the proceedings thereof, or acting in any way as a member of such board, sign a declaration in such form as tho board shall prescribe, setting forth the nature of the qualification in respect of which he claims to be entitled to act ; and any person Avilfully making any false declaration or acting before having made such declaration, having been required to do so, shall bo liable to a penalty of not exceed- ing five pounds ; and every ex-officio member having signed such declaration as aforesaid shall be entitled to act as a member of the board so long only as ho continues to hold such qualification, and in case of any alteration being made in any fishery district, in pui'suanco of tho provisions con- tained in Part 11. of this Act, he shall be entitled to act only in that district where his qualification exists. (ii.) Representative Members. 29. Additional Members of Boards of Consen-ators. — In addition to the members of any board of conservators appointed under the provisions of " The Salmon Fishery 430 ENGLISH SALMON FISHERIES ACTS. Act, 1865," in all fishery districts in any part of which there are any public or common rights of fishing, and where such rights are exercised by fishermen duly licensed to fish for salmon (otherwise than with rod and line), all persons who have taken out licenses to fish in such public or common watei's or both (other than licenses for the use of a rod and line), during the last preceding fishing season, shall be entitled to elect such number of additional members to represent them at the board of conservators for such district as are hereinafter mentioned ; (that is to say,) If the aggregate amount of license duty paid for fishing in public or common waters or both (other than licenses for the use of a rod and line) does not exceed the sum of fifty pounds, one member : And if the aggregate amount of license duty exceed that sum, one additional member for every additional fifty pounds or part of fifty pounds. This and the subsequent sections will cause much trouble and expense to boards of conservators, and the result will be only to add one or two representatives of the public fishermen to boards which will probably consist of about a hundred members other-wise qualified. 30. Rules as to Election of Members. — The election of such additional members shall be held in accordance with the following provisions ; (that is to say,) (1.) The board of conservators shall hold a meeting after the commencement of the annual close season in each year ; at such meeting the clerk of the board shall produce a statement of the license duty paid in the district during that year, and the board shall thereupon ascertain and declare the amount of license duty paid in respect of licenses for fishing otherwise than with rod and line in public or common waters or both, and the number of representative members for the ensuing year : (2.) The first meeting of the new board of conservators shall be held annually upon such day after the day fixed for the election of such additional members in each year as the chairman of the board for the preceding year shall appoint : 36 & 37 VICT. c. 71, § 30. 431 (3.) Within a reasonable time before the first meeting of any board of conservators in every year, the returning officer shall sign and publish a notice specifying the number of members to be elected and shall send a copy of such notice by post, with a nomination paper, in the form contained in the first schedule hereto, to each person qualified to vote under the last preceding section, and who shall be cither resident within, or the owner of land within, or within ten mUes of the boundary of the fishery district in respect of which such license was issued : (4,) The notice shall specify the last day on which the nomination papers are to be sent to the returning officer : (5.) Any person entitled to vote may fill up such nomina- tion paper with his own name, or with the name or names of any other person or persons (not exceeding the number of persons to be elected), and send such nomination paper by post to the returning officer on or before such specified day. If the number of persons nominated shall be the same or less than the number of persons to be elected, such persons shall be deemed to be duly elected for one year, or until the next annual election, and shall be certified as elected by the returning officer under his hand. (6.) If the number nominated exceed the number to bo elected, the returning officer shall send by post a voting paper in the form contained in the second schedule hereto, containing in alphabetical order the names of all persons nominated, to each person entitled to vote, and shall specify a day, not less than five days or more than ten days from the date of sending such voting paper, upon which such voting paper is to be returned to him : (7.) Every voter shall, in the presence of a witness, write his initials or make his mark against the name or names of the person or persons (not exceeding the number to be elected) for whom he intends to vote, and shall insert the number of votes he intends to give to each person, and shall strike out the name or names of every other person or persona and 432 ENGLISH SALMON FISHERIES ACTS. sign the voting paper with his name and address. In case the voter cannot vprite, such witness shall attest and write his own initials against the name of every candidate for whom the voter intends to vote, and against the mark of such voter, and shall fill up the number of votes given to each candi- date. In every case such witness shall subscribe his own name and address to such voting paper : (8.) Each voter shall be entitled to vote according to the following scale ; (that is to say,) If the license duty paid by him shall exceed one pound and not exceed two pounds, one vote for each member to be elected : If the license duty shall exceed two pounds but not exceed five pounds, two votes for every such member : If the license duty shall exceed five pounds and not exceed ten poimds, three votes for every such member: If the license duty shall exceed ten pounds and not exceed twenty pounds, four votes for every such member : If the license duty shall exceed twenty pounds, five votes for every such member : (9.) A voter may give all such votes to any one of the persons nominated, or may distribute them amongst such of the persons nominated, not exceeding the number to be elected, as he shall think fit : (10.) The voter shall send the voting paper by post to the returning ofiicer, duly filled up and attested as aforesaid, on or before the day mentioned therein : (11.) In case any person entitled to vote shall not have received a voting paper, he shall be entitled, on his personal application to the returning ofiicer, before the day fixed for the return of the voting papers, to receive and fill in a voting paper in manner aforesaid : (12.) The returning ofl&cer, within four days after the day fixed for the return to him of the voting papers, shall inquire into the validity of the votes given, and cast up and ascertain the number of valid 3G & 37 VICT. c. 71, §§ 30, 31. 433 votes given to each person nominated, and tlie persons in accordance with the number to be elected who shall have obtained the greatest number of valid votes shall be deemed to be elected, and the returning officer shall certify them to be so under his hand : (13.) The returning officer shall make out a hst contain- ing the names of all persons nominated, together with the number of valid votes (in case of a con- test) given to each person nominated, and shall sign and certify the same, and shall deliver such list, together with the nomination and voting papers, to the board of conservators at their next meet- ing ; and such list shall be open to the inspection of all license payers without fee or reward : (14.) The returning officer shall, immediately after ascer- taining the persons elected, send by post to each person so elected a notice of his election, and shall publish the names of the persons so elected in such newspaper or newspapers cii'culating within the district as the board shall direct : (15.) If upon casting up the votes the returning officer shall find that an equal number of votes has been given for two or more persons, one or more of whom only is or are entitled to be elected, he shall, in the presence of two or more Avitnesses, determine by lot which of such persons is or are elected, and the person or persons so determined shall be deemed to be for all intents and purposes duly elected member or members of the board as if he or they had obtained a majority of the votes at such election : (16.) Any casual vacancy occurring by death, resignation, or otherwise, among such additional members of the board of conservators, may bo filled up by the board ; but the member chosen to fill such vacancy shall hold his office for such time only as the member vacating would have held the same if no vacancy had occurred. 31. Ectiinibu) Ojfici'r to recover Expenses. — The returning officer shall, at the first meeting of the board of conservators after any such election as aforesaid, lay before the board an 434 ENGLISH SALMON FISHERIES ACTS. account of the expenses incurred by him in conducting such election. And the board of conservators shall thereupon cause the same to be audited, and may disallow any item they consider to be excessive or illegal ; and shall forthwith pay the amount found due to the returning officer, and in default of payment the returning officer shall be entitled to recover from the board of conservators in a summary manner whatever shall be found due to him after such accounts have been audited. 32. Penalty on Returning Officer for wilful Neglect of Pro- visions as to Elections. — At any such election, if the return- ing officer wilfully neglects or refuses to comply with any of the provisions of this Act, he shall be liable for every such offence to a penalty not exceeding five pounds. 33. Penalty for j^ersonating Voters, dc. — At any such election, if any person or persons wilfully fabricate in whole or in part, or alter, deface, destroy, abstract, or purloin any voting paper, or personate any person entitled to vote, or falsely assume to act in the name or on behalf of any person 80 entitled to vote or attest the execution of any voting paper, such person or persons shall be liable on conviction thereof to a penalty not exceeding twenty pounds, or to be im- prisoned for any time not exceeding three months, with or without hard labour. 34. Continuance of old Boards, Ratification of their Pro- ceedings. — Nothing in this Act contained shall be held to invalidate anything done or suffered to be done before the passing thereof, by any board of conservators formed under the powers and authority of " The Salmon Fishery Act, 1865," and all the proceedings and acts of such boards shall be as valid and effectual as if this Act had not been passed. And the proceedings of all boards of conservators after the passing of this Act shall accordingly be subject and without prejudice to everything so done or suffered to be done, and to all rights, habiUties, claims, and demands, both present and future, which would if this Act had not been passed be incident to and consequent on any or every thing so done or suffered to be done, and the proceedings, and all proceedings of boards of conservators under this Act, shall be deemed a continua- tion of and form a part of the proceedings of boards of con- servators constituted under " The Salmon Fishery Act, 1865." And the boards of conservators appointed under 3G & 37 VICT. c. 71, §§ 3 1— 3G. 435 this Act shall to all intents and purposes represent and be deemed a continuation of the boards of conservators ap- pointed under the provisions of " The Salmon Fishery Act, 1865." And no act or proceeding of any board of conser- vators appointed under the provisions of " The Salmon Fishery Act, 18G5," or of this Act, shall be questioned on account of any vacancy or vacancies in their body, and no defect in the qualification or appointment of any person or persons acting as member or members of any board of con- servators shall be deemed to vitiate or affect any proceedings of such board in which he or they may have taken part. 35. J'hidenee of Proceed iiK/s at Meetiiif/s. — Any minute made of proceedings at a meeting of a board of conservators, signed by the chairman of such meeting, or by the chairman of the next meeting of the board, shall be receivable in evi- dence in all legal proceedings without further proof; and until the contrary is proved every meeting of the board in respect of the proceedings of which minutes have been so made, shall be deemed to have been duly convened and held, and all the members thereof to have been duly qualified. Part VI. — Powers of Water Bailiffs. 36. rollers of Water BaiUjf. — Any water bailiff appointed under " The Salmon Fishery Acts, 1861 to 1873," acting within the limits of his district, may do all or any of the fol- lowing things ; (that is to say,) (1.) Examine any weir, dam, fishing weir, fishing mill dam, fixed engine, or obstruction, or any artificial watercom'se connected with any salmon river ; and any person refusing to any water bailiff access to any such weir, dam, fishing weir, fishing mill dam, fixed engine, obstruction, or watercourse, shall be liable for every such offence to a penalty not exceeding five pounds : (2.) Stop and search on any salmon river any boat, barge, coi'acle, or other vessel used in fishing, or which there is reasonable cause to suspect contains any salmon, and seize any fish, instrument of fishing, or other articles foi-feited in pursuance of " The Salmon Fishery Acts, 18G1 to 1873 ;" and any 2 G 436 ENGLISH SALMON FISHERIES ACTS. person refusing to allow any such boat, barge, coracle, or other vessel to be stopped and searched, or resisting or obstructing any water bailiff in any such search, shall for every such offence be liable to a penalty not exceeding five pounds : (3.) Search and examine all nets, baskets, bags, or other instruments used in fishing or in carrying fish by persons whom there is reasonable cause to suspect of having possession of fish iUegally caught ; seize all fish and other articles forfeited in pursuance of " The Salmon Fishery Acts, 1861 to 1873 ;" and any person refusing to allow any nets, baskets, bags, or other instruments used in fishing or in carrying fish to be searched or examined, or resist- ing or obstructing any water bailiff' in any such search or examination, shall for every such offence be liable to a penalty not exceeding five pounds ; (4.) For the enforcement of the provisions of " The Salmon Fishery Acts, 1861 to 1873," every water bailifi" shall be deemed to be a constable, and to have all the same powers and privileges, and be subject to the same liabilities as a constable duly appointed now has or is subject to in his constable- wick, by virtue of the common law of the realm or of any statute ; (5.) The production by a water bailiff of the instrument of his appointment, executed in the manner pre- scribed in " The Salmon Fishery Act, 1865," shall be a sufficient warrant for any water bailiff exercising the authorities given to him under " The Salmon Fishery Acts, 1861 to 1873." A water baili ff under sub-section (1) may examine any dam, &c., in a salmon river in his district, but no power is given to him either by this or the 37th section to enter any mill premises, though he may obtain such power in some cases under Act 1861, § 34. See also Act 1865, § 31. Under sub-section (2) the bailiff must stop the boat upon a salmon river, and such river generally includes the tidal waters within his district. The bailiff cannot follow the boat or its contents after they have left tlie water. As to the articles and fish wliich he may seize, he must refer to the various sections of the Acts 1861, 1865, and this Act, in order to see whether the particular section declares the forfeiture. 36 & 37 v[CT. c. 71, §§ 37, 38. 437 The builiir umler sub-section (3) is not entitled as a matter uf coiU'se to sfarcli the nets, baslcL^ts, or bags used in fishing or carrying fish, but merely where he luis reasonable cause to sus- pect the i)erson of illegally catching tish. The power must be exercised while the person is in course of fishing or of carrying the fish iluring such fishing, but does not extend to persons carrying tish in a highway or elsewhere after the fishing is over. The bailifi' cannot follow the person after the fishing is over, and then search his nets or bags ; nor can the bailiff search the pockets of the person fishing, though containing fish. If, however, a bailiff has (though illegally) searched the pockets of a fisherman and found the young of salmon therein, the latter may be con%'icted, and he may have his remedy against the bailiff in another form : Jones v. Owens, 34 J. P. 759. An assault on or resistance of a constable is punished under 24 & 2.") Vict. c. 100, § 38, and 34 & 35 Vict. c. 112, § 12. The water 1)ailiff should, under sub-section (5), produce his appointment before acting. 37. Water Bdilijf may enter on Land. — Any water bailiff may under a special order in A\Titing from the board of con- servators, signed by the chairman for the time being of such boai'd, for this purpose at all reasonable times enter, remain upon, and traverse any lands, not being a dwelling-house or the curtilage thereof, adjoining or near to any salmon river within the fishery district of such board, for the purpose of preventing any breach of the provisions of " The Salmon Fishery Acts, 18G1 to 1873;" and no water bailiff entering, remaining upon, or traversing any land in pursuance of such order shall be deemed a trespasser. Provided always, that this section shall not apply to decoys or lands used exclu- sively for the preservation of wild fowl, and that no such order shall remain in force for more than two months from the date thereof. But nothing herein contained shall affect any other powers of search conferred by " The Salmon Fishery Acts, 1801 to 1873." This section omits the word "lakes," and therefore the luilitr will not ])e entitled to traverse the banks of lakes, though the words " salmon river " may include estuaries. As to a justice's authoritv to enter premises and land, see Act 1861, § 34, and Act 18G5, § 31. 38. Persons fishing iUegalbj at Nif/ht inai/ be apprehended. — If any person, between the expiration of the fir-st hour 2 a 2 438 ENGLISH SALMON FISHERIES ACTS. after sunset on any day and the beginning of the last hour before sunrise of the following morning, illegally takes or kills salmon [or trout or char] , or is found on or near any salmon river with intent illegally to take or kill salmon [or trout or char] , or having in his possession for the capture of salmon [or trout or char] any instrument prohibited by the Salmon Fishery Acts, 1861 to 1873, it shall be lawful for any water bailiff, together with any assistants, to seize and apprehend any such offender without warrant, and to deliver him, as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace for the purpose of being convicted in the penalty assigned for his offence. The words in brackets are introduced by the 18th section of this Act. The section applies to close and fishing season. The power of arrest given to a water bailiff is confined to the night-time, that is to say, between sunset and sunrise, as defined, and he cannot arrest persons during the day-time. The oftences for which he may an-est are — (1.) Where the person has illegally taken or killed salmon or trout or char. It may be doubted whether the arrest must be made only when the person has been caught in the act, so to speak, and on the spot. The context will probably lead the courts to this construction, whether it was intended or not. The illegal taking or killing of salmon does not mean poaching, but merely fishing during close or weekly season, and with illegal or prohibited instruments or means, for the Larceny Act deals with mere poaching more effectually. Where the person has merely an intention to catch salmon or trout or char illegally, then he cannot be apprehended except he is found on or near a salmon river with such intent, or unless he is found on or near such river having prohibited instruments in his possession, such as sjjears, snatches, and small meshed nets. If the person has a net during close time, it may be doubted whether this is a " prohibited instrument " within the meaning of this section, seeing that a proper meshed net is only pvdliibited at certain times of the year, but if the net is of illegal mesh then it is clearly a prohibited instrument. More- over, if the person has taken or killed, or had the intent to take or kill fish with the net, whether legal or illegal in mesh, he will come within the two first clauses of this section. In all the circumstances of this section it is thus essential that the person be found on the spot and in the act ; and if he has left the salmon river and is on a highway, the bailiff cannot ajtprehend the person. See the observations as to apprehending poachers under the Larceny Act, ante, p. 77, all of which obser- vations efpially apply to the present enactment. The Larceny 36 & 37 VICT. c. 71, § 39. 439 Act in effect gives power to arrest poadiers both by niglit and Uay, and tliis enactment merely extends tlie same provisions as the Larceny Act contains to the case of tisliin^^ at prohil)ited times and with ])roliibited instrnments,and by pruhibited means, whicli were not within tlie provisions of the Larceny Act. Paet VII, — Bye-laws. 39. Boards witij )iuike Ih/c-lairs for certain Purposes. — Subject to the provisions hereinafter contained for the confir- mation and publication of bye-laws, a board of conservators may make bye-huvs for the better execution of " The Salmon Fishery Acts, 18G1 to 1873," and for the better protection, preservation, and improvement of the salmon fisheries within their district, and alter the same from time to time for all or any of the following purposes ; (that is to say,) (1.) To alter the commencement and termination of tho annual close season as to the whole or part of the district, so that such close season, when so altered, shall not be less than one hundred and fifty-four days, for all modes of salmon fishing, except with rod and hue, and shall not commence later than the first of November in each year, and as regards fishing with rod and line, so that such close season shall not be less than ninety-two days, and shall not commence latpr than the first of December in each year : (2.) To alter tho commencement and termination of the weekly close season as to the whole or part of a district, so that such season shall not commence before six o'clock on Friday afternoon, and not terminate earlier than midnight on the Sunday following, nor continue later than twelve o'clock on tho following Monday at noon, such weekly close time in no case to exceed forty-eight hours : (3.) To determine the length, size, and description of nets, and the manner of using the same (not being fixed engines) for taking salmon : Provided that no bye- law made under the authority of this section shall limit the length of a hang-net, or limit the length of a draft-net so as to be less than two hundred yards : 440 ENGLISH SALMON FISHERIES ACTS. (4.) To determine the minimum size of the mesh of nets for catching salmon that shall be lawfully used within the district, so that such mesh shall not be less than one and a half inch from knot to knot, and so that no person shall be compelled to use a mesh larger than two and a half inches, measured when wet : (5.) To determine the form of license and the manner in which licenses shall be issued, provided that dif- ferent forms be used for licenses for fishing in public or common and in private fisheries : (6.) To vary the rate of license duty in different parts of the district, in respect of the length or size of the net used, so that such duty shall not exceed the sum mentioned in the third schedule hereto : (7.) To determine what marks, labels, or numbers shall be attached to licensed nets, or painted upon or affixed to boats, coracles, or other vessels used in fishing : (8.) To prohibit the use of nets within a certain distance of the mouth of any river, and of the point of con- fluence of rivers in any part of the district (not being a several fishery), and to erect and fix posts, buoys, and landmarks to indicate such distances respectively : (9.) To determine the tiijae during which it shall be lawful to use a gafi" in connexion with a rod and line : (10.) To determine when gratings shall be placed during certain times of the year across the head and tail race of mills and across any artificial channel, so, however, as not to diminish the supply of water to any mill, nor to interfere with the passage of vessels or otherwise injure any inland navigation or lock, but so that the provisions of the thirteenth section of the Salmon Fishery Act, 1861, shall not be aftected : (11.) To regulate during the annual and weekly close seasons the use within any river of nets for fish other than salmon, when such use at such times is prejudicial to the salmon fisheries : Provided that nothing in this sub-section contained shall authorize anything to be done which shall allect any part of 30 & 37 VICT. c. 71, § 30. 441 any river in which part there is a several right of fishery, or any river or part of any river where the breadth at low water is greater than six miles : (12.) To prohibit the use in any inland water of any net, except a landing-net or a net for taking eels, between the expiration of the first hour after sunset and the last hour before sunrise : And the said board may, by any such bye-law, impose a penalty not exceeding the sum of five pounds for each offence against such bye-law ; such penalties shall be recovered and applied in manner hereinafter provided : Provided always, that such bye-law, having been reduced to writing and sealed with the common seal of the board, shall be confirmed and published in manner hereinafter provided, and shall be so framed as to allow the justices before whom any penalty imposed thereby shall be sought to be recovered to order the whole or part only of such penalty to be paid : Provided also, that no bye-law shall be made unless notice of an intention to propose the same shall have been given in the notice convening the meeting of the conservators at which it is intended to propose such bye-law, which notice shall be issued one fortnight at least before the date of such meeting. This and the follo\ving sections (taken mainly from Dodds' Bill) confer new powers on boards of conservators, and if worked out legally will remedy many of the mischiefs arising out (jf the application of one luiiform law to rivers and districts without regard to their varying conditions, as has been liitlierto the case. Bye-laws are void if repugnant to the law of the land, though they may enable detailed ilirei'tions to have the ell'ect of law if they are in strict conformity with tlie power given by tlie Act. Thus they may enable a smaller meshed net to be used and a different close time to be observed, &c., if the riglit mode of procedure be followed out. Each of the su1)-sections contains the general power under which the particular bye-law on that sul)ject must be framed. Thougli tlie bye-laws reipiire contirmation by the secretary of state before they come into operation, such con- firmation has not the efi'ect of conclusively establishing the validity of the bye-law. A convenient mode of disputing the validity of a bye-law is by taking the ol)jection of its invalidity before justices in case of any penalty bemg enforced under it, and then to obtain a case for the opinion of a su})erior court. Before a bye-law is ])ropnsed, the board is to give a fortnight's notice of the same, and tiiough the statute does not require it, such notice slu)uld contain a cojjv of the pro]iosed bye-law. 442 ENGLISH SALMON FISHERIES ACTS. 40. Bye-lmcs may opj^ly to all or Part only of a District, and to Whole or Parts of a Year. — A board of conservators may make any bye-law to apply to the whole or- to any part or parts of their district, and to the whole or any part or parts of the year, and may from time to time by any new bye-law revoke, vary, or alter, either in whole or in part, or as to its application to the whole or to any part or parts of the district, any bye-law pre- viously made, and may from time to time vary any bye- law made in respect of the whole or any part or parts of the district, and may from time to time except or exclude from the operation of all or any of the bj'e-laws any part or parts of the district, or extend the operation of any bye-law made for any part or parts of the district to the whole or other parts of the district. The power to revoke and vary bye-laws seems to be subject to the same foitnight's notice as in case of making a new bye-law. 41. Bye-laws not to come into Operation until confirmed by the Secretary of State. — No bye-law made by such board of conservators shall come into operation until the same be confirmed by one of Her Majesty's secretaries of state, who may direct an inquiry into the same at such time and place, and before such persons, and after giving such notices as he shall think fit ; and with or without such inquiry he may allow or disallow the said bye-laws as he shall think fit : Provided that if at any time before the confirmation of any bye-law for any purpose mentioned in sub-sections one, two, three, four, or eight of section thirty-nine, any owner or occupier of any fishery or any licensee who would be afi'ected by any such bye-law shall, by notice in writing to the secre- tary of state, object thereto, and shall give such security for the payment of any costs attending the inquiry and the notice hereinafter mentioned as the secretary of state may require, the secretary of state shall either disallow such bye-law or cause a public inquiry to be held in some con- venient place by such person or persons as he may appoint, when all persons interested may have the opportunity of being heard ; and after such inquiry the secretary of state shall either disallow such bye-law or give one month's notice of his intention to allow the same by advertisement in some 36 & 37 VICT. (1. 71, §§ 41—44. 443 newspaper or newspapers circulating in the district affected thereby. The secretary of state may in all cases direct an inquiry into the eflc'ct of any proposed Lye-law. In reference to sub-sections 1, 2, 3, 4, or 8 of § 39, a rij,dit of objection is given to an owner or occupier or licensee, but unless he is prepared to pay the costs of an inquiry into the suliject, the secretary of state may disregard his objection. Though the result may be to confirm the bye-law, it is singular that this right of objection is not given as to the most important of all the l)ye-laws, and that which may practically confiscate many fisheries, namely, sub-section No. 12. 42. Bi/e-loivs to be open to Inspection before AiipUcation to confirm them. — For one month at least before any appli- cation for confirmation of any bye-laws, notice of the inten- tion of the said board to apply for such confirmation shall be given once in each week by advertisement in one or more newspapers circulating in the district, and a copy of the proposed bye-laws shall be kept at the office of the board, or some place to be appointed by the chairman for that pur- pose, and all persons may at all reasonable times inspect such copy without fee or reward, and the said board shall furnish every person who shall apply for the same with a copy thereof, or of any part thereof, on payment of one penny. 43. Bijc-hnis when confirmed to he jyrinted and pnhlishsd. — The said bye-laws Avhen confirmed shall be printed, and the secretary or clerk to the said board shall deliver a printed copy thereof to every person who shall pay license duty without charge, and a copy thereof shall be placed and renewed from time to time, on boards, or put up in some conspicuous place or places within the district, and shall be open to inspection without fee or reward ; and in case the said secretary or clerk shall wilfully refuse to deliver or to allow the same to be inspected as aforesaid, he shall for every such ofience be liable to a penalty not exceeding five pounds. 44. Bye-laws when confirmed and published to be bindin;/ on. all Persons. — Any bye-law made, contu-med, and published according to the provisions of this Act, shall be binding and be observed by all parties, and shall be sufficient to justify all persons acting under the same. 444 ENGLISH SALMON FISHERIES ACTS. 45. Bye-laws proved by Copy having Seal of Boai-d and Pub- lication in Newspapers. — The production of a written or printed copy of any bye-law purporting to have been con- firmed, authenticated by the common seal of the board, shall be conclusive evidence of the existence and due making of such bye-law in all legal proceedings, and the production of a copy of any newspaper or newspapers containing the notice of the making of any such bye-law shall be taken and received in all legal proceedings as evidence that all things required by this Act for the making and publication of the bye-law therein advertised have been duly done, performed, and published. Part VIII. — Weies and Fish Passes. 46. Penalty on all Persons rebuilding Weirs and making new Weirs without Fish Passes, and raising or altering Weirs so as to increase Obstruction to Passage of Salmon. — Every per- son who in any salmon river, since the sixth day of August one thousand eight hundred and sixty- one, has created, caused, or increased, or who hereafter shall create, cause, or increase any obstruction to the passage of salmon, or who rebuilds or reinstates a weir or dam which from any cause shall have been destroyed or taken down to the extent of one half of the length of such weir, dam, or obstruction, shall make a fish pass for salmon of such form and dimensions as the secretary of state shall approve, as part of the structure thereof, if none already exists, and every person who omits or fails to make such fish pass in such weir, or who newly builds a weir without providing such fish pass, or who raises or alters any existing weir in whole or part, so as to cause increased obstruction to the passage of salmon, or who makes or continues any obstruction whatsoever to the passage of salmon without lawful authority, shall incur a penalty of not exceeding twenty pounds for every such offence, and a further penalty of not exceeding two pounds for every day dui-ing which such offence is continued, commencing from the date of the first conviction ; and it shall be lawful for the secretary of state to cause to be done any work by this section required to be done by such person, and to recover the expenses of doing the same in a summary manner from such person, or 36 & 37 VICT. 0. 71, §§ 40, 47. 445 from the owner or occupier of such obstruction who shall neglect to do the same. But this section shall not autliorizo anything to be done that may injuriously atlect any navigable river, canal, or inland navigation, public waterworks, dock or docks, the supply of water to which is obtained from any navigable river, canal, or inland navigation, under the pro- visions of any Act of parliament, nor shall anything in this section or in the twenty-fifth section of " The Salmon Fishery Act, 18G1," prevent any person from removing a fish pass for the purpose of repaiiing or altering such obstruction, so that within a reasonable time he restore such fish pass in as effectual a state as it was before he removed the same ; and for the purpose of this section the owner or occupier of any such obstruction for the time being shall be deemed to be the person who created or caused or increased such obstruction in manner aforesaid. This section (taken from Dodds' Bill, vdth variations) im- pliedly repeals the 25th section of the Act 1861. It is unft)r- tuuate that the obligation of the person who rebuilds or newly builds a weir is restricted to making a tish pass which the secretary of state shall approve, for in the event of the pass, after approval, being inetiicient, all the expenses of further alteration will fall on the board of conservators, or whoever is dissatisfied with it. If the obligation had been to make a sufficient fish pass it would have been different, and the obligation might have been easily and inexpensively enforced by justices. An important enactment in this section is the imposing a penalty on any person who makes or continues an obstruction to the i)assage of sahnon without lawful authority, which if properly ap])lied will reach a number of cases liitherto without a remedy. The encroachments so fre(|uently made by mill- owners in repairing and altering their dams, if carefidly watched, may by this enactment be prevented. 47. Member of Bonnl may recover Compensidion. — In case any member of the board of conservators of the district is the owner of any weir, dam, fishing mill dam, or obstruc- tion, nothing in " The Salmon Fishery Acts, 1861 to 1873," shall prevent the board paying to such member any com- pensation in respect of the same, provided that such member does not vote in respect of the payment of any such compen- sation to himself. 446 ENGLISH SALMON FISHEEIES ACTS. 48. Penalty on injnrhuj and rcnderinrj Fish Pass ineffi- cient. — Any person wilfully altering or injuring any fish pass, or doing any act whereby fish are obstructed or liable to be obstructed in using such fish pass, or whereby such fish pass is rendered less efficient, or altering the bed or banks of the river so as to render any fish pass less efficient, or using any contrivance or doing any act whereby fish are in anywise liable to be scared, hindered, or prevented from passing through such fish pass, shall for every such ofience incur a penalty of not exceeding five pounds, and a further penalty of not exceeding one pound for every day during which any such alteration, obstruction, or contrivance is continued from the date of a second conviction for such offence, in addition to any expense which may be incurred in restoring such fish pass to its former state of efficiency. This section (taken from Dodds' Bill, but altered) will enable persons to be jmnished in a summary manner for injuring any fish pass which has been made in a weir under the Act 1861, § 23. The section does not aj^ply to those owners who in exercise of their rightsof property have voluntarily made or allowed others to make a fish pass, which, as they were under no obligation to make it, they can also unmake or remove at their discretion. Where, however, a thiixl party tampers with such pass, the owner has this convenient remedy, if he chooses to enforce it, or if other remedies are less efficient. The section might have been rendered much more effective and comprehensive if there had been appropriate enactments enabling adequate fish passes to be made in all weii's, and defining the position of all parties in reference thereto when made. With its present context the section is merely an expansion of part of Act 1861, §23. 49. Board, if desirous of acquiring compulsorily a Weir or Obstruction for the Purposes of Removal, may petition Secretary of State. — Where any board of conservators shall be of opinion, having regard to the prejudicial effect upon the sal- mon fisheries of their district, caused by any weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial ob- struction which hinders the passage of fish, that it would be beneficial to such fisheries if such weir, dam, fishing weir, fish- ing mill dam, fixed engine, or artificial obstruction should be removed, in whole or in part, but the owner thereof shall be unwilling or unable to treat, or they cannot agree to the 3G&37 VICT. c. 71,§ 49. 447 terms of purchase thereof, and such board sliall be desirous of obtainiii}4 autliority to acquire compulsorily the property of such ■\veir, dam, fi.shii)g weir, fishing mill dam, fixed engine, or artificial obstruction, and premises, for the pur- poses of such removal, such board may, after giving one mouth's notice of their intention to the owner thereof, pre- sent a petition to the secretary of state praying that such board niay, with reference to such weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial obstruction, and the premises used in connexion therewith, be allowed to put in force the powers of the Lands Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, and such prayer shall be supported by such evidence as the secretary of state may require. Upon the receipt of such petition, and upon due proof of notice being given to the owner and occujiier of such weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial obstruction, the secretary of state, after satisfying himself that the board are provided with funds for the purchase of such weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial obstruction, and the premises connected there- with, shall take such petition into consideration, and may either dismiss the same or direct an inquiry in the district in which such weir, dam, fishing weir, fishing mill dam, or artificial obstruction is situated, or otherwise inquire into the propriety of assenting to the prayer of such petition. After the completion of such inquiry, the secretar}- of state may, by provisional order, empower the said board to put in force with reference to the said weir, dam, fishing wcii", fishing mill dam, fixed engine, or artificial obstruction, and premises referred to in such order, the powers of the Lands Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, with such con- ditions and modifications as he may think fit, and the board shall serve a copy of any order so made upon the owner and occupier of the said weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial obstruction and premises. No provisional order so made shall be of any validity until the same has been confirmed by Act of parliament, and the Act confirming such order shall be deemed to be a public general Act of parliament, and the said board shall be thereupon deemed and taken to be the promoters of an undertaking to 448 ENGLISH SALMON FISHERIES ACTS. remove the said weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial obstruction, in whole or part, so as to enable salmon to pass more freely, and the residue of the premises so pm-chased, when separated from such weir, dam, fishing weir, fishing mill dam, fixed engine, or artificial obstruction, shall be deemed to be superfluous lands within the meaning of the said Acts, and may be dealt with accord- ingly : Provided that this section shall not extend to any weir constructed under any Act of parliament for the pur- pose of improving the navigation of any river, or of supply- ing any town with water. For the purposes of this section the word owner shall mean any person or corporation who under the provisions of this clause and the Lands Clauses Consolidation Acts would be enabled to sell and convey any such weir, dam, fishing mill dam, fixed engine, or arti- ficial obstruction. This section (taken from Dodds' Bill) will be useful in cases where the owner of an obstructive weir is entitled to maintain it as it is, and is disinclined to sell it, and yet the interesis of the fisheries cannot properly be maintained without removing the obstruction. The remedy will, however, be tedious and expensive. The remedy is contined to cases where the weir exists in a fishery district, and where the board of conservators have funds enough to purchase not only the weir but the pre- mises connected therewith. When, these are purchased and the weir or part of it removed, the board may sell the premises de- tached from the weir or from that part of it which has been removed, and if the matter is judiciously managed they could in most cases be al)le to re-sell these premises with the water rights all but uninjured, and after getting all they want accom- plished. 50. Provision as to Fish Passes. — When any proprietor of a fishery or board of conservators is or are, from tlie cir- cumstances of the case, unable to attach a fish pass to any weir, dam, fishing mill dam, or obstruction under the provi- sions of the twenty-third section of the Salmon Fishery Act, 18G1, such proprietor or board of conservators may, after giving such notice as is prescribed in the last preceding sec- tion, present a petition to the secretary of state praying to be allowed to purchase so much of the bank adjoining the same as may be necessary for such fish pass, and the pro- 36 & 37 VICT. c. 71, §§ 50, 51. 449 visions contained in the last preceding section with reference to the proceedings upon a petition for the purchase of any weir or ohstruction for the purpose of removal shall apply to a petition presented under the provisions of this section. This section seems designed to enahle the secretary of state to do in tlie river hank adjoining a weir what he could for- merly do only in the hed of the river, namely, authorize a fish pass to lie attached to the dam, "so that no injury he done to the milling ])()wer." This section is founded on a misconcep- tion, for it was no more necessary for the party or the Ijoard of conservators to purchase a few yards of the soil in the one case than in the other case. Yet this section conteni] dates that the hoard of conservators or a i)roprietor of a ti>liery shall go through the form of a compulsory jiurchase of a few yards of soil which shall take ahout two or three years to accomplish. Yet when the piece of soil is purchased there is no direction or provision as to what is to he done with or constructed upon it. The result is, that all that can he done is to make the same kind of lish pass as that descril)ed in the Act 1861, § 23, which has liitlierto heen found incapahle of yielding any efiective service. AVhether a pass of the kind descrilied is made in the bed of the river attached to the dam or on the hank of the river can make no diU'urence whatever as regards ethciency, seeing that each ])ass must he such " that no injury is done to the milling power ;" and as already observed in the notes to § 23 of the Act 1861, such a pass is of little value. In order to make an ethcient fish pass in all weirs, approjiriate niacliinery must be devised by the legislature for the jirojier carrying out of the jiass and imitecting the jiarties interested, and this is still Avantiu},' in this or the jirevious statutes. It is thus not likely that this section will be acted on any more than the 23rd section of the Act 1861, yet that section was (unlike the present section) unaccompanied by the e.vpensive formality of tii-st pur- chasing a few yai-ds of soil. 51. Provision as to Lcfjal Weirs not noic provided icith Fi.sh Passes. — In any case where the S})ecial commissioners for English fisheries have decided that any iishhig mill dam, box, crib, or cruive is illegal only by reason of its not having a fish pass attached thereto as required by law, if the owner thereof enters into an undertaking to erect and maintain at his own expense a fish pass in accordance with the provi- sions of the twelfth section of " The Salmon Fishery Act, 1801," before the first day of January one thousand eight hundred and seventy-five, it shall be lawful for such person 450 ENGLISH SALMON FISHERIES ACTS. to use, from and after the erection of such fish pass, the said fishing mill dam, box, crib, or cruive for taking salmon, any provision in " The Salmon Fishery Act, 1865," to the con- trary, notwithstanding : Provided nevertheless, that in the event of the owner of such fishing mill dam, box, crib, or cruive not making such fish pass within the time above mentioned, his right of fishing or using such fishing mill dam, box, crib, or cruive for the pui-pose of taking fish shall henceforth cease, and be for ever forfeited and lost, and the board of conservators for the district in which such fishing mill dam, box, crib, or cruive is situated shall thereupon give notice to such owner to remove all or any cages, cribs, traps, boxes, cruives, or other contrivances for catching sal- mon within six calendar months after the service of such notice ; and in the event of his non-compliance with such notice, the board aforesaid shall have power to remove the same and all other obstructions to the free passage of the fish. This section is founded on a misconception, as there were no fishing mill dams found by the special comniissioners to be illegal only by reason of not having a fish pass. All those that were found legal were legal in all respects, though they had not a fish pass, for there was no obligation imposed on the owners of fishing mill dams to make a fish pass, except in the case where the fishing mill dam had been made since 1861, and no such fishing mill dam was claimed before the commissioners or found legal l)y them. The owners of fishing mill dams found legal by the commissionei's were not required by any statute or by any common law to make a fish jiass, and therefore were not subject to any proceeding either by action or indictment or any summary process for not making a fish jiass. The only provi- sion on the sulyect in the Acts was that of the Act 1861, § 12, which stated that owners could not use their fishing box in a fisliing mill dam, tliough such fishing mill dam was legal, until they had made a fish pass, thereby suspending the right of fish- ing, but in no sense was their dam illegal for the want of a fish pass. This section will therefore prove abortive, though it would have been a just and fair thing if the legislature had positively declared that such owners should at their own expense make a fish pass within a certain time, or otherwise that one should be made at their expense. Instead of such an enactment, which would have been judicious and eff'ective, the utmost that the present enactment would have done, even if it had Vjeen ajii)Ucable, would have been to confiscate the fishing 36 k 37 VICT. ('. 71, § 52. 401 box, but nevertheless not to make any tisli pass, whereas tlie making' <>f tlie hsh ]>ass is the only tiling' wanted in such cjuseH to an)i'nass at his own expense, or ever allow- ing third parties to do so at their expense, if any punishment is likely to follow for doing so. "Whi-n the section is examined, however, it Avill be seen that the owner of a dam who has volunt-iirily made a fish pass is not subjected by this section, or V>y anything that can be done under this section, to any penaltii-s mentioned in Act 1861, §§ 23, 26, or § 48 of this Act, as new ' 2 H 452 ENGLISH SALMON FISIIErJES ACTS. penalties cannot Ly vague and indii-ect language be imposed on any person ex j^ost facto. If the legislature had intended to impose penalties by this section, it would have expressly said so. There can thus be no harm in the secretary of state appro- ving anything that an owner has voluntarily done, even though such approval is not asked ; but at the same time it is not easy to discover what advantage is to accrue from such approval. 53. Amendment of Sections 23, 24, and 26 of " The Salmon Fishery Act, 1861." — The following sections of " The Salmon Fishery Act, 1861," shall be respectively amended in the following manner ; (that is to say,) The twenty-third and twenty-fourth sections thereof shall be read as if the words "or a board of conserva- tors " were inserted after the words " proprietor of a fishery" or "proprietor" throughout such sections respectively : The twenty-sixth section thereof shall be construed as if the words "where a fish pass is attached to any- darn in pursuance of this Act " were omitted, and the words " any dam " were substituted for the words " the dam," and the words " on Sundays and" were inserted after the words "kept shut," and the words " if any or over the dam" were inserted after the words " fish pass." The words here directed to be interpolated in the sections of the Act 1861 will be found in such sections, the notes to which may be referred to. 54. Compensation to be paid on erectinr/ Fish Passes or Gratings. — In all cases in which it is alleged that a board of conservators, in executing the powers and authorities of the Salmon Fishery Acts, 1861 to 1873, have caused any damage to or injuriously affected any land or other hereditaments by reason of the making or maintaining of any fish pass, grating, or other work, if the compensation claimed in respect of such alleged damage shall not exceed the sum of fifty pounds, the same shall be settled by two justices of the peace, but if the compensation shall exceed the sum of fifty pounds the same shall be settled by arbitration in accordance with the pro- visions of the Common Law Procedure Act, 1854 : Provided always, that no compensation shall be recovered under this 3G & 37 vioT. c. 71, §§ 54—56. 453 section unless proceedings for the recovery of the same are instituted within two years from the date of the erection of such fish pass, grating, or other work. This section does not extend the powers contained in the other sections of the Acts, but merely professes to direct how the compensation arising out of the lawful exercise of the ])owers granted by other sections is to be ascertained. The reference to the provisions of the Common Law Procedure Act, 1854, is obviously founded on a misapprehension, as that statute does not contain any provisions as to settling (juestions of com- pensation. That statute only directs that in (piestions of mere accoimt a judge may, atrainst the wish of the ])arties, direct an arI)itrator to ascertain the amount due. But questions of com- ])ensation are not ([uestions oi mere account, and it may well be douljted wlu'ther this reference to the Common Law Proce- dui-e Act, 1854, is not too vague to be capable of being acted upon. 55. Provision as to Severn Xavi(iation Weirs, — Whereas it is expedient that the dams or weirs which have been con- structed by the Severn commissioners under the provisions of " The Severn Navigation Acts, 1842 and 1853," should be placed under the same general law as is applicable to dams or weii's under " The Salmon Fishery Acts, 1801 to 1873:" Be it therefore enacted, that sections one hundred and fifty-eight, one hundred and fifty-nine, and one hundred and sixty of " The Severn Navigation Act, 1842," and so much of section three of " The Severn Navigation Act, 1858," as extends their operation to the Tewkesbury Weir therein mentioned, be hereby repealed, and that each of the dams or weirs constructed by the Severn commissioners under the provisions of " The Severn Navigation Acts, 1842 and 1853," respectively, or either of them, shall be deemed .a dam or tveir within the meaning of " The Salmon Fishery Acts, 1861 to 1873," and the provisions of the said Acts shall apply thereto, and that every fish pass now existing in the said dams or weirs or either of them, or which may be con- structed therein under the provisions of this Act, shall be deemed a fish pass within the meaning of " The Salmon Fishery Acts, 1801 to 1873," and shall be maintained in an efiicient state by the said Severn commissioners. 56. Poin'r to enter and insjieci Weirs, Dams, iCr. — Any inspector, or any person or persons duly appointed in writing 2 H 2 45-i ENGLISH SALMON nSIIERIES ACTS. by a board of conservators, may at all times enter upon any lands to inspect any weir, dam, fishing weir, fishing mill dam, fixed engine, obstruction, mill race, or watercourse, and any person either refusing to admit or obstructing them or any of them in entering any such place or places shall for every such offence be liable to a penalty of not exceeding five pounds. This section is confined to the places mentioned, and does not apply to the hanks of rivers, or hikes or estuaries, or to mill pren'iises. The purpose is confined to inspection only. 57. Board may Icrij additional Duty for permanent Im- provewcnts. — In addition to the license duties authorized to be levied in a fishery district, the board of conservators may from time to time, with the sanction of the secretary of state, for the purpose of defraying the charges of any improve- ments made or about to be made for the purpose of faciH- tating the passage of salmon, levy additional license duties throughout the district, not exceeding in any one year twenty- five per cent, of the sum paid by each person respectively, and the said additional duty shall be payable at the same time as and in addition to the ordinary license duty, and shall for all the purposes of the Salmon Fishery Acts be deemed part of the ordinary license duty, and no hcense granted after the passing of this Act without payment of such additional duty, if any, as well as the license duty applicalde thereto, shall be valid : Provided, that notice shall be given by the board, by advertisement in one or more local newspapers, one calendar month before the commence- ment of each fishing season, of the amount of such additional duty to be paid in addition to the ordinary license duties in force in each district. And the estimate on which such addi- tional duty is founded shall be kept by the clerk or other ofiicer of the board, and be open to the inspection of all previous license payers, riparian owners, and persons entitled to vote within the "district, at reasonable times and places to be ajjpointed by the board before the commencement of each fishing season. This section (taken from Dodds' Bill) will enable hoards of (■oiis('rvat(n's to add to the ordinary license duties a percentage to lufcl any exccjitionul cliai<^i's "^('or improvements over and 36 & 37 VICT. c. 71, §§ 58, 59. 455 above the current ordinary exi)en(liture. The object of iillowinj^ inspection of the estimate on wliicli sucli iniproveiueut duty is fouiidi'd is to enal»le members and license payers to challenge the propriety of the extraordinary expenditure. Part IX. — Gratings to prevent Fish entering ^\^\TKK- COUUSES. 58. Cfratiiti/s in Widercourscs. — Any board of conservators after due notice to the owner or occupier of any mill or other premises, at the expense of such board during such period as may be prescribed in each year, may order to be placed in any watercoui-se, mill race, cut, leat, or other channel for conveying vi^atcr for any purpose from any river frequented by salmon at or near the point of divergence from and return to such river, or either of them, or in any other suitable place, a grating of such form and dimensions as they shall determine : Provided always, that nothing herein contained shall ati'ect the liability of any person to place and maintain a grating or gratings across any artificial channel under the provisions of the thirteenth section of the Salmon Fishery Act, IHOl, nor shall authorize any grating to be placed so as to obstruct any channel used for navigation or in any way to interfere with the eti'ective working of any mill. This section confines the benefit of gi-atings to fisliery dis- tricts, and nothing can be done until the board shall have first made a bye-law under § 39, sub-sect. 10, determining at what times of the year gratings shall be placed. The board is in all cases to be at the expense of the grating. 59. Poucr to ui'den Chinneh. — In all cases of construction of gratings under the powers of this Act, the secretary of state may, in such cases as he shall deem expedient, cause any watercourse, mill race, cut, leat, or other channel to be widened at the expense of such board, so far as necessary to compensate for the diminution of any flow of water caused by the erection of any grating, or shall take some other means to prevent the flow of water being prejudicially diminished or otherwise injured. This section (taken from Dodds' Bill) will, if properly carried out, ctfectually prevent fish entering mill races, &c.,\vithout 456 ENGLISH SALMON FISHEEIES ACTS. prejudicing the milL In all cases it will be necessary, for the jirotection of the niillowner, to widen the mill races, unless the fall of water is such that the race may be deepened to a corre- sponding extent, or unless an additional race is made. Express power ought to have been taken to make an additional race, which will often be as effective a remedy as widening the race, and sometimes the only remedy. 60. Board may jdace Gratings at Mouths of Streams. — A board of conservators, with the consent of the secretary of Btate, may adopt such means as he shall approve for pre- venting the ingress of salmon into streams in which they or their spawning beds are, from the nature of the channel, liable to be destroyed, but so that no water rights used or enjoyed for the purposes of manufacture, or agricultural purposes, or drainage or navigation, shall be prejudicially interfered with thereby. As this section will enable the board of conservators and secretary of state to confiscate rights of fishery in rivers, it is singular that no provision should have been made for givu)g any notice to the owner of the hshery affected. But it is not likely that the secretary of state will approve any proposition of this kind without seeing that the interest of third parties is duly considered. The words " from the nature of the channel liable to be destroyed" are vague, and will cause much dithculty, and as there is no mode of determining conclusively what streams fulhl this description, a door is left open for contention and litigation. 61. Oivner to preserve Gratings. — The owner or occupier of the lands adjoining any grating erected under the authority of this Act, and the owner or occupier of the lands to which such watercourse, mill race, cut, leat, or other channel leads, shall take all reasonable means to preserve the said gratings from injury, and to prevent the same from being removed, and in case any owner, occupier, or other person shall injure such gratings, or remove any part of them, during the period prescribed for any such grating to be kept up by any bye- law made under the authority of this Act, or open them improperly, or knowingly permit them to be injured or re- moved or improperly opened, he shall for every such injury, 36 & 37 vioT. c. 71, §§ 61, 62. 457 removal, or improper opening, forfeit and pay any sum not exceeding five pounds. Tliis section does not throw the expense of maintaining the gratings on the owner of the land or niillowner, hut na-rely imposes a penalty on them if they wilfully injure or remove them. Part X. — Legal Procedure. 62. Recover]) of Penalties. — All penalties imposed by " The Salmon Fishery Acts, 1861 to 1873," or by any bye-law made in pursuance of this Act, and all sums of money, costs, and expenses by the said Acts or either of them directed to be recovered in a summary manner, may be recovered within six months after the commission of the offence before two justices, in manner directed by an Act passed in the eleventh and twelfth years of the reign of Her present Majesty Queen Victoria, chapter forty-three, intituled "An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales, with respect to Summary Conviction and Orders," or of any Act amending the same. And all moneys received and penalties recovered midcr the said Acts or any of them on the complaint of a board of conservators, or of any officer of or a person authorized by a board of conservators, shall be paid to the board of con- servators for the district, to be applied by them for the purposes of "The Salmon Fishery Acts, 1861 to 1873" (unless the court for some special reason otherwise order). This section is very defective. It does not pro-vide for all the cases of summary procedure authorized under the Acts. The limitation of time is also defective, inasnnich as it is defined only to run from the " commission of the oftence." There is no appeal given to quarter sessions by this or the Act 1865, § 66, except as regards the decision of justices Avith respect to any penalty or forfeiture. There is also no provision in this or the other Acts as to what is to be done with forfeitures, nor is there any provision as to the api)lication of penalties, except where the board of conservators or some officer of the board lias laid the complaint, in which case the wliole penalty is to be paid to the board, unless the justices otherwise order for special 458 ENGLISH SAUION FISHERIES ACTS. rea'^on. Auy reason, it seems, ■would be a special reason. Where, therefore, some person other than the board makes the comjjlaint, the penalty goes to the treasurer of the county or borough. 63. lleti(}-ns. — The clerk, secretary, or other officer where there is no clerk, of every board of conservators shall prepare and forward to the Home Office, before such date as the secretary of state shall from time to time appoint, an annual return in such form and made up to such date as the secre- tary of state shall from time to time appoint. Such return shall contain such information as the said secretary of state shall from time to time require ; and any such person refusing or neglecting to make such return shall be liable to a penalty of not exceeding one pound for every such refusal or neglect. 04. Proof of Lef/dliti/ of Scale of Licevxes. — The provisions of the "Documentary Evidence Act, 1868," shall apply to a scale of licenses approved by the secretary of state, in pur- suance of the said " Salmon Fishery Act, 1865," or this Act, in the same manner as if such scale so approved as aforesaid were an order or regulation issued by such secretary of state, and the production of a copy of such scale of licenses, pur- porting to be certified to be a correct copy of such scale, by any person empowered to certify the same in pursuance of the "Documentary Evidence Act," shall be evidence that such scale has been approved of, and that all the steps required by " The Salmon Fishery Act, 1865," or this Act, relating to the formation and approval of such scale have been taken. 65. llepeal of Acts. — The eighteenth, nineteenth, and thirty-fifth sections of the Salmon Fishery Act, 1861, and the fourteenth, twentieth, twenty-fourth, twenty-sixth, and thirtieth sections, the first and second sub-sections of the thirty-fourth section, and the first schedule of the Salmon Fishery Act, 1865, are hereby repealed, except so far as relates to anything done or in the course of being completed under the same respectively. The sections referred to are noticed in their proper places as repealed. 36 & ;37 VICT. c. 71, st'iii;uui-i;s. 459 SCHEDULES. FIRST SCHEDULE. Form of Xonnnation Paper. Fishery District. / I the undersigned of do hereby nominate {A.B. of in the county of Esquire, CD. of in the county of fisherman] for election as additional members of the board of conservators of the fishery district under the provisions of " The Salmon Fishery Act, 1873." (Signed) To Returning ofiicer for such election. Dated this day of 187 . SECOND SCHEDULE. Form of Voting Paper. Fishery District. Number of Voting Paper. Number of Votes. PircctiouK to tJw Voter. The voter must write his initials against the name of every person for whom he votes, and insert the number of votes; 460 ENGLISH SALMON FISHEEIES ACTS. he intends to give to each candidate voted for, and must sign this paper in the presence of, and it must be attested by, a witness. If the voter cannot write he must affix his mark, but such mai-k must be attested by a witness, and such witness must write the initials of the voter against the name of every person for whom the voter intends to vote, and the number of votes given to each such person. i to Landowners, <(c. — Where any portion of the sea shore comprised in an order of the board of trade under this part of this Act does not belong to Her Majesty, Her heirs or successors, in right of the Crown, or form part of the possessions of the Duchy of Lancaster or of the Duchy of Cornwall, the board of trade shall incorporate in the order 480 SEA FISHERIES ACT, 1868. " The Lands Clauses Consolidation Act, 1845," or " The Lands Clauses Consolidation (Scotland) Act, 1845," as the case requu'es, and shall apply the provisions thereof respec- tively to the purchase or taking of such portion of the sea shore. As the board of trade have power to include within the limits of a new oyster and mussel fishery grant part of the shore which may belong to an individual under an ancient grant of the Crown, it was necessary to provide compensation to the o-ttTier for taking away siich portion of iiis property. 48. Order of Board of Trade not to abridge Rii/ht of Several Fishery, dr.— No order made by the board of trade under this part of this Act shall take away or abridge any right of several fishery, or any right on, to, or over any portion of the sea shore, which right is enjoyed by any person under any local or special Act of parliament, or any royal charter, letters patent, prescription, or immemorial usage, without the consent of such person. The grant of an oj^ster and mussel fishery is not to interfere with any several fishery which a private owner may have, and often in point of fact has, in part of the sea or a tidal river, for all kinds of floating fish, such as salmon, miUlet, flounders, whiting, &c. The owners of the floating fish are, by § 53, how- ever, to use their nets so as not to disturb or injure the oysters or mussels. Such several fishery for floating fish is not to be abridged or taken away unless with the owners' consent, but in many cases the best situations for oysters are not of much value for floating fish. 49. Copies of Orders and Acts j)t'inted by Queen's Printer to be kept for Sale. — The persons obtaining an order under this part of this Act shall at all times keep at some convenient place, in the neighbourhood of the portion of the sea shore to which the order relates, copies of the order with the Act confirming it, and of this part of this Act, printed respectively by some of Her Majesty's printers, and shall sell such copies to all persons desiring to buy them at a price not exceeding sixpence for one copy of this part of this Act and of the order and of the Act confirming it together. If any such persons fail to comply with this provision, they shall for every such ofi'ence be liable to a penalty not 31 & 32 VICT. c. 45, §§ 49—51. 481 exceeding five pounds, and to a further penalty not exceeding one pound for every day during wliicli such fuihire continue^} after the day on which the first penalty is incurred. 50. Ainti«d liCport of Jioard of Trade. — There shall he annually laid hefore both houses of parliament a report of the board of trade respecting the apphcations to and pro- ceedings of the board of trade under this part of this Act during each year. Since the practice coninienced in 1866 of the board of trade granting oyster and mussel fisheries to individuals and com- panies, grants have been made, up to 1872, as follows : — (1) To the Fish and Oyster Breeding Company (Limited), in river Blackwater, Essex ; (2), to Messrs. Warner and Scovell, in river Hamblo, Southampton ; (3), to Mr. James Hunter, in Holy Loch, Frith of Clyde ; (4), to Earl of Moray, in Donibristle, Frith of Forth ; (5), to the Oyster Merchants Company (Limited), at Emsworth ; (G), to the South of England Oyster Company, at Langston ; (7), to the Corporation of Edinburgh, in Frith of Fortli ; (8), to Mr. John Anderson, in Frith of Forth ; (9), to Mr. John Anderson, also in Frith of Forth ; (10), to Earl of Morton, a mussel fishery in Frith of Forth ; (11), to Earl of Morton, an oyster and mussel fishery m Frith of Forth ; (12), to the Corporation of Boston, in Boston Dee]is ; (13), to the Ems- worth Dredgermen's Co-ojierative Society (Limited), in Emsworth Chamiel ; (14), to the Corporation of King's Lynn, at King's LvTiu ; (15), to Mr. John Robertson, at Gresheruish, Isle of Skye ; (16), to Mr. Jonathan Russell, at Salcombe. Protection of Oyster Beds. 51. Property in Oysters, cCc, iiithin Several Fishery. — All oysters and mussels being in or on an oyster or mussel bed ■within the limits of a several oyster and mussel fishery granted by an order under this part of this Act, and all oysters being in or on any private oyster bed which is OAvned by any person independently of this Act, and is suificiently marked out or sufiiciently known as such, shall be the abso- lute property of the grantees or of such owner, as the case may be, and in all courts of law and equity and elsewhere, and for all purposes, civil, criminal, or other, shall be deemed to be in the actual possession of the grantees and such owner respectively. 482 SEA FISHERIES ACT, 1868. 52. Properti) in Oysters, dr., removed from Several Fishery. — All oysters and mussels removed by any person from an oyster or mussel bed within the limits of any such several fishery, and all oysters removed by any person from any such private oyster bed, and not either sold in market overt or disposed of by or under the authority of the grantees or owner (as the case may be), shall be the absolute property of the grantees and owner respectively, and in all courts of law and equity and elsewhere, and for all purposes, civil, criminal, or other, the absolute right to the possession thereof shall be deemed to be in the grantees and owner respectively. By this and the previous section, the oysters and mussels while on the Ijeds being the absolute j^roperty of the grantees or o^vner, and continuing such until sold in market overt, the taker will be treated as giiilty of larceny, and to this extent the remedy is more general than that in the Larceny Act, 24 & 25 Vict. c. 96, § 26, ante, p. 90, which merely treats the stealing as punishable " as in case of larceny." But the punishment may be under either statute. See § 65. If the offence is dredging in order to take the oysters, though none be taken, the punishment will be as for an attempt to steal, or under 24 & 25 Vict. c. 96, § 26. 53. Protection of Several Fishery. — It shall not be lawful for any person other than the grantees, their agents, servants, and workmen, within the limits of any such several fishery, or in any part of the space within the same described in this behalf in the order, or other than the owner of any such private oyster bed, his agents, servants, and workmen, within the limits of such bed, knowingly to do any of the following things : To use any implement of fishing, except a line and hook or a net adapted solely for catching floating fish, and so used as not to disturb or injiire in any manner any oyster or mussel bed, or oysters or mussels, or the oyster or mussel fishery : To dredge for any ballast or other substance except under a lawful authority for improving the navigation : To deposit any ballast, rubbish, or other substance : To place any implement, apparatus, or thing prejudicial or likely to be prejudicial to any oyster or mussel 31 & 32 VICT. c. 45, §§ 53—55. 483 bed, or oysters or mussels, or to the oyster or mussel fishery, except for a hiwful purpose of navi<^atiou or anchorage : To disturb or injure in any manner, except as last afore- said, any oyster or mussel bed, or oysters or mus- sels, or the oyster or mussel fishery : And if any person does any act in contravention of this section he shall be liable to the following penalty, namely, to a penalty not exceeding two pounds for the first offence, and not exceeding five pounds for the second offence, and not exceeding ten pounds for the third and every subsequent offence ; and every such person shall also be liable to make full compensation to the grantees and owner respectively for all damage sustained by them or him by reason of his un- lawful act, and in default of payment the same may be recovered from him by the grantees and owner respectively by proceedings in any court of competent jurisdiction (but not in a summary manner), whether he has been prosecuted for or convicted of an offence against this section or not. These oflFences are new, and may be punished in a summary way by justices of the peace, and the grantees or owner may in addition sue in a county court or superior court for the amount of damage sustained. But it is a condition of the remedy that the limits of the fisheiy should be sulKcii'ntly marked out. 54. Limits of Fishery to he Irpt marked out. — Provided always, that nothing in the last foregoing section shall make it unlawful for any person to do any of the things therein mentioned, — (ii.) In the case of a fishery granted by an order under this part of this Act, if at the time of his doing the same the limits of the several fishery or of the space within the same described in that behalf in the order are not sufficiently marked out in manner prescribed by or under the order, or if notice of those limits has not been given to him in manner so prescribed : (/'.) In the case of a private oyster bed owned by any person independently of tiiis Act, if it is not suffi- ciently marked out and known as such. 55. Co)iti;iuoi(s Fisheries. — When two or more oyster or mussel beds or fisheries belonging to different proprietors 2 K 484 SEA FISHERIES ACT, 1868. are contiguous to each other, and any proceeding by indict- ment or otherwise is taken against any person for stealing oysters or mussels from any bed formed under an order made in pursuance of this part of this Act, or for stealing oysters from any bed formed independently of this Act, it shall be sufficient, in alleging and proving the property and lawful possession of the oysters or mussels stolen, and the place from which they were stolen, to allege and prove that they were the property of and in the lawful possession of one or other of such proprietors, and were stolen from one or other of such contiguous beds or fisheries. 56. Application of Act to Orders, Sc, under 29 d- 80 Vict. c. 85. — This part of this Act shall, as to all orders made under the Oyster and Mussel Fisheries Act, 1866, which have been or may be confirmed in this session of parliament, apply in the same manner as if they had been made and confirmed in pursuance of this part of this Act. All orders made under the Oyster and Mussel Fisheries Act, 1866, before the commencement of this Act, and not so con- firmed, and all proceedings taken before the commencement of this Act with a view to obtain any such orders, shall have effect and be proceeded with as if they had been respectively made and taken under this part of this Act. Pakt IV. — Legal Proceedings. 57. Mode of recoverinr/ Penalties. — All penalties, offences, and proceedings under this Act, or under any order in coun- cil made thereunder (except any felony, and except as other- wise provided), may be recovered, prosecuted, and taken in a summary manner, and — In England, before any justice, and In Scotland, before any court or judge acting under the Summary Procedure Act, 1864, and any Act amend- ing the same, in the manner dii'ected by those Acts, and In the Isle of Man, and the islands of Guernsey, Jersey, Aldemey, and Sark respectively, before any court, governor, deputy governor, deemster, jurat, or other magistrate, in the manner in which the like penalties, offences, and proceedings are by law 31 & 32 VICT. 0. 45, §§ 57—59. 485 recovered, prosecuted, and taken, or as near thereto as cu'cumstanccs admit. 68. Appeal. — If any person feels aggrieved by any con- viction under this Act, or by any determination or adjudica- tion of the court with respect to any compensation under this Act, where the sum adjudged to be paid exceeds five pounds, or the period of imprisonment adjudged exceeds one month, he may appeal therefrom in manner following ; (that is to say,) In England, in manner directed by law, subject, in the city of London and the metropolitan police district, to the enactments in that behalf made, and subject elsewhere to the conditions and regulations following : 1. The appeal shall be made to some court of general or quarter sessions for the county or place in which the court whose decision is complained of has jurisdiction, holden not less than fifteen days and not more than four months after the decision of the court from which the appeal is made : 2. The appellant shall within three days after the said decision give notice in writing to the other party of his intention to appeal, and the ground of such appeal. 3. Immediately after such notice the appellant shall before a justice of the peace enter into recognizances with two sufficient sureties conditioned personally to try such appeal, and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court : 4. The court may adjourn the appeal, and upon the hearing thereof they may reverse, confitm, or modify the decision of the justice or justices, with or without costs to be paid by either party : In Ireland, in manner directed by the petty sessions, Ireland, Act, 1851, and any Act amending the same: In Scotland, the Isle of Man, and the islands of Guernsey, Jersey, Aldcrney, and Sark, in manner in which appeals from the like convictions and determinations and adjudica- tions are made. 59. PvocrcdinrfRwhcrr Offender hrJonfii<-to a French Boat. — Where a person belonging to a French sea-fishing boat is charged with having committed outside of the exclusive 2k 2 486 SEA nSHEEIES ACT, 1868. fishery limits of the British islands an offence against the fishery regulations of this Act, the court shall have jurisdiction to hear and shall hear the case in the same manner as if such person were liable to a penalty under this Act, subject to the following provisions : (1.) The statement on oath of each witness shall be put into writing, and such writing, in this Act referred to as the deposition, shall (in the presence of the accused, unless he has left the port,) be read over to and signed by the witness and by the person or one of the persons who constitute the court : (2.) After the examination of all the witnesses has been completed the court shall inquire whether the accused has any answer to make to the accusation, and shall warn him that what he says may be given in evidence against him : (3.) Any statement made by the accused shall be put into writing, and signed by the person or persons con- stituting the court, and added to the depositions : (4,) If the court is of opinion that the evidence is not sufficient to put the accused upon his trial, or to raise a strong or probable presumption of his guilt, the court shall order him to be discharged. If the court is of the contrary opinion, the court shall make an order directing him to be sent back to France for trial, and directing the depositions to be sent to the collector of customs of the port for transmission to the British consular officer of the port to which the accused belongs : (5.) All proceedings under this section shall, if possible, be completed before the expiration of three clear days after the arrival of the oflender at the port in the British islands. GO. Jurisdiction uf Courts. — For the purpose of giving jurisdiction to courts under this Act the following provisions shall have effect : (1.) A sea-fishing boat shall be deemed to be a ship within the meaning of any Act relating to offences com- mitted on board a ship : (2.) The same court shall have power to exercise the juris- diction conferred by this Act with respect to an oflence committed by a foreign subject as would 31 & 32 VTCT. c. 45, §§ 60—63. 487 have jurisdiction to try such ofi'ence if it had been committed by a British subject. 61. Endcnre tahrn in Fnince. — If any otiender belong- ing to a British sea-fishing boat is taken into a French port in pursuance of the convention, the depositions, minutes, and other documents, authenticated in manner provided by article twenty^eight of the convention, shall be receivable in evidence without further proof of their authenticity, and a certificate under the seal of a French consular officer in the British islands that such documents have been so authenti- cated shall be conclusive evidence of the fact. If the depositions were taken in the presence of and so as to be understood by the accused, or if the accused had an opportunity of cross-examining the deponents, or if the minutes are minutes of a judicial proceeding at which the British consular officer of the port was present, and in which the matter in dispute was fairly investigated, and the accused had an opportunity of making his defence, the British con- sular officer shall certify such fact or facts under his hand and seal, and until the contrary is proved such certiticate shall be sufficient evidence of the matters tlierein stated, and such seal, signature, and certiticate shall be deemed to be a seal, signature, and document within the meaning of sections three and five of the Act of the session of the eighteenth and nineteenth years of the reign of Her present Majesty, chapter forty-two, intituled " An Act to enable Diplomatic and Consular Agents abroad to administer Oaths and do Notarial Acts." 62. Srrrict' to he fjood if made personalhj or on hoard .SVi//). — Service of any summons or other matter in any legal pro- ceeding under this Act shall be good service if made per- sonally on the person to be served, or at his last place of abode, or if made by leaving such summons for him on board any sea-fishing boat to which he may belong, with the person being or appearing to be in command or chai-ge of such boat. 63. Maaters of Boats liahle to Penalties imposed. — Where any offence against the fishery regulations of the Act has been committed by some person belonging to any sea-fishing boat, the master or person for the time being in charge of such boat shall in every case be hable to pay any penalty imposed or compensation awarded in respect of such offence, 488 SEA FISHERIES ACT, 1868. uuless the person who actually committed such offence is proved guilty to the satisfaction of the court. Any penalty under this Act, except a penalty for the non- payment of which detention in a port is specially provided as the remedy, may be recovered in the ordinary way, or, if the court think fit so to order, by distress or poinding and sale of the sea-fishing boat to which the oft'ender belongs, and her tackle, apparel, and furniture, and any property on board thereof or belonging thereto, or any part thereof, C4. A])plication of Penalties. — The court imposing any penalty or enforcing any forfeiture under this Act may, if it think fit, direct the whole or any part thereof to be applied in or towards payment of the expenses of the proceedings ; and, subject to such direction, and to any direction given under any express pro\'ision in this Act, all penalties and forfeitures recovered under this Act shall be paid into the receipt of Her Majesty's exchequer in such manner as the commissioners of the treasury may direct, and shall be carried to the consolidated fund. 65. S((rin(/ of Uights as herein stated. — Nothing in this Act shall prevent any person being liable under any other Act or otherwise to any indictment, proceeding, punishment, or penalty, other than is provided for any offence by this Act, so that no person be punished twice for the same offence. • Nothing in this Act, or in any order in council made thereunder, nor any proceedings under such Act or order with respect to any matter, shall alter the liability of any person in any action or suit with reference to the same matter, so that no person shall be required to pay compen- sation twice in respect of the same injury. Paet V. — Miscellaneous. 66. Confirmation of Treaties for exempting from Dues Foreign Sea-fishing Boats entering British Ports from Stress of Weather. — Whereas by a convention concluded between the United Kingdom and France on the twenty- sixth day of January one thousand eight hundred and twenty-six it was, amongst other matters, agreed that sea-fishing boats of either country, when forced by stress of weather to seek 31 & 32 VICT. c. 45, §§ GG, G7. 489 shelter iu the ports or on the coasts of the other country, should on certain conditions be exempted from all dues to "which they would otherwise be liable, and doubts have arisen whether that part of the said convention has ever been confirmed by the authority of parliiimcnt, and it is expedient to remove such doubts, and to enable Her Majesty to provide for the due execution of the said convention and of any other like convention or treaty which may be made by Her Majesty : Be it enacted, that where any such con- vention or treaty as mentioned in this section has been or may hereafter be concluded with any foreign country, Her Majesty may by order in council direct that every sea- fishing boat belonging to such foreign country, when forced by stress of weather to seek shelter in any port or place in the British islands, shall, if it does not discharge or receive on board any cargo, and complies with the other conditions, if any, specified in such order, be exempt from all dues, tolls, rates, taxes, duties, imposts, and other charges to which it would otherwise be liable in such port or place, and every such boat shall be exempt accordingly. 67. Heriuldtions for Oyster FiaJuries ojf' the Irish Const. — The Irish fishery commissioners may from time to time lay before Her Majesty in council bye-laws for the purpose of restricting or regulating the dredging for oysters on any oyster beds or banks situate within the distance of twenty miles measured from a straight line drawn from the eastern point of Lambay Island, to Carnsore Point on the coast of Ireland, outside of the exclusive fishery limits of the British islands, and all such bye-laws shall apply equally to all boats and persons on whom they may be binding. It shall be lawful for Her Majesty, by order in council to do all or any of the following things ; namely, (rt.) To direct that such bye-laws shall be observed : (i.) To impose penalties not exceeding twenty pounds for the breach of such bye-laws : (e.) To apply to the breach of such bye-laws such (if any) of the enactments in force respecting the breach of the regulations respecting Irish oyster fisheries within the exclusive limits of the British islands, and with such modifications and alterations as may be found desirable : [(1.) To revoke or alter any order so made. 490 SEA FISHERIES ACT, 1868. Provided that the length of close time prescribed by any Kuch order shall not be shorter than that prescribed for the time being by the Irish- fishery commissioners in respect of beds or banks within the exclusive fishery limits of the British islands. Every such order shall be binding on all British sea- fishing boats, and on any other sea-fishing boats in that behalf specified in the order, and on the crews of such boats. 68. Befiulation as to Seine-fisliiny in Cornwall. — On the coast of Cornwall, except so much of the north coast as lies to the east of Trevose Head, no person between the twenty- fifth of July and twenty-fifth of November in any year — {a.) shall, from sunrise to sunset, within the distance of two miles from the coast, measured from low- water mark (whether in bays or not), use a di'ift-net or trawl-net, or {h.) shall, within half a mile of any sea-fishing boat sta- tioned for seine-fishing, anchor any sea-fishing or other boat (not being a boat engaged in seine - fishing), or lay, set, or use any net, boulter, or implement of sea-fishing) except for the purpose of seine-fishing) : Any person who acts in contravention of this section shall be liable on summary conviction to a penalty not exceeding twenty pounds, which may be recovered in the same manner as a penalty for an offence against the fishery regulations of this Act. 69. As to Pnhlication and Evidence of Orders in Council. — With respect to any orders in council made in pursuance of this Act, the following provisions shall have effect : (1.) They shall be published in the London Gazette, or otherwise published in such manner as the board of trade may direct for such sufficient time before they come into force as to prevent inconvenience : (2.) They may be proved in any legal proceeding by the production of a copy of the gazette containing the said advertisement, or of a copy of the orders or regulations purporting to be printed by the printer to Her Majesty. 70. Applirntiov of Art. — The enactments in this Act which arc restricted in terms to the seas outside the cxclu- 31 & 32 VICT. c. 45, §§ 70, 71. 491 sivo fishery limitB of the British islands or to any particular part of the British islands and the seas adjoining the same shall apply only to those seas and such part, but, save as aforesaid, this Act shall apply to the seas adjoining the coasts of France specified in article three of the first schedule to this Act outside of the exclusive fishery limits of France, and to the whole of the British islands as defined by this Act, and to the seas surrounding the same, whether within or without the exclusive fishery limits of the British islands, and the royal courts of Guernsey and Jersey shall register this Act in their respective courts. Provided that nothing in this Act relating to oyster or mussel fisheries, or to oysters or mussels, shall in any way whatever alter, interfere Avith, or atlect the jurisdiction which the Irish fishery commissioners would have power to exercise over the seas surrounding Ireland and over the oyster fisheries and oyster beds in those seas if this Act had not passed. 71. llcpeal of Acts as in Second Schedule. — The enactments described in the second schedule to this Act are hereby repealed : Provided that — 1st. This repeal shall not affect the validity or invalidity of anything already done or sufi'ered, or any right or title conferred by or in pursuance of any enact- ment hereby repealed, or already acquired or ac- crued, or any remedy or proceeding in respect thereof, or any proof of any past act or thing, or any offence committed before the commencement of this Act, or any penalty or proceeding in respect thereof : 2nd. This repeal shall not revive or restore any jurisdiction, toll, imposition, office, duty, bounty, franchise, liberty, custom, privilege, restiiction, exemption, usage, or practice not now existing or in force. 492 SEA FISHERIES ACT, 18G8. SCHEDULES referred to in tlie foregoing Acts. FIRST SCHEDULE. Convention between Her Majesty and the Emperor of the French, relative to Fisheries in the Seas between Great Britain and France. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the Emperor of the French, having charged a mixed commission with preparing a revision of the convention of the 2nd of August 1839, and of the regulation of June 23, 1843, relative to the fisheries in the seas situated between Great Britain and France ; and the members of that commission having agreed upon certain arrangements which experience has shown to be useful, and which appear to them such as will advantageously modify and complete the former arrangements in the common inte- rest of the fisheries of the two countries ; their said Majes- ties have judged it expedient that the arrangements proposed by the said commission should be sanctioned by a new con- vention, and have for that purpose named as their plenipo- tentiaries, that is to say, Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, the Right Honourable Richard Bickerton Pemell, Lord Lyons, a peer of the United Kingdom, a mem- ber of Her Britannic Majesty's most Honourable Privy Council, Knight Grand Cross of the most Honourable Order of the Bath, Her Britannic Majesty's Ambassador Extra- ordinary and Plenipotentiary to His Majesty the Emperor of the French ; And His Majesty the Emperor of the French, Leonel, Marquis de Moustier, Grand Cross of the Imperial Order of the Legion of Honour, &c. &c. &c.. His Minister and Secre- tary of State for Foreign Affairs ; Who, after having communicated to each other thcii" full 31 & 32 VICT. c. 45, SCHEDULES. 493 powers, found in good and due form, have agreed upon and concluded the following articles : — Art. 1. British fishermen shall enjoy the exclusive right of fishery within the distance of three miles from low- water mark, along the whole extent of the coasts of the British islands ; and French fishermen shall enjoy the exclusive right of fishery within the distance of three miles from low- water mark along the whole extent of the coast of France ; the only exception to this rule being that part of the coast of France which lies between Cape Carteret and Point Memga. The distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of Avhich do not exceed ten miles in width, be measured from a straight line drawn from headland to headland. The miles mentioned in the present convention are geo- graphical miles, whereof sixty make a degree of latitude. Art. 2. It is agreed that the lines drawn between the points designated by the letters A, B, C, D, E, F, G, H, I, K, on the chart annexed to the present convention, and signed by the respective plenipoter.tiaries, shall be acknow- ledged by the high contracting parties, as defining from Point Meinga to Cape Carteret, the limits between which and the French shore the right of fisherj- shall be reserved exclusively to French fishermen, and these lines are as fol- lows ; that is to say, The first line runs from the point A, three miles from low- water mark (Point Meinga bearing south) to the point B, of which the landmarks are Agon Tower on with the clump of ti-ees upon Mount Huchon, and the summit of Gros Mont in a line with the semaphore on Grand Isle. The second line runs from the said point B towards Agon Tower and the clump of trees upon Mount Huchon, in the direction north sixty-four degrees east, until, at the point C, it brings the windmill of Lingreville to bear due east. The third line runs from point C due east towards Lingre- ville windmill, until the Grand Huguenant is brought to bear on the Etat Rock at point D. The fourth line runs from point D northward (keeping the Grand Huguenant in one with the Etat Bock) until it inter- sects at E a line whose landmarks are Agon Tower on with Coutances Cathedral. 494 SEA FISHERIES ACT, 1868. The fifth line runs eastward from point E to point F, where the steeple of Pirou is brought to bear in a line with the Sennequet lighthouse. The sixth line runs from point F due north to point G, where the steeple of Blainville is brought in a line with the Sennequet lighthouse. The seventh line runs from point G in the direction of Pirou steeple to point H, where the lighthouse on Cape Car- teret bears north twenty- four degrees west. The eighth line runs from point H to point I nearly abreast of Port Bail ; point I having for landmarks the fort of Port Bail in a luie with the steeple of Port Bail. And finally, the ninth line runs from point I to the Three Grunes at point K, where Cape Carteret bears east ten degrees north, in a line with Barneville steeple. It is further agreed that all the bearings specified in the present article are to be taken according to the true meridian, and not according to the magnetic meridian. Ajrt. 3. The arrangements of the present convention shall apply beyond the fishery limits of both countries, as defined by the preceding articles, to the seas surrounding and adjoining Great Britain and Ireland, and adjoining the coasts of France between the frontiers of Belgium and Spain. The rules respecting oyster fishery shall, however, be ob- served only in the seas comprised within the limits herein- after described. Art. 4. All British and French fishing boats shall be lettered and numbered. In the United Kingdom there shall be a series of numbers for the fishing boats belonging to each collectorship of cus- toms, and in France a series of numbers for the fishing boats belonging to each district of maritime registry ; and to these numbers shall be prefixed a letter (or letters) to be designated by the board of customs in the United Engdom, and by the ministry of marine in France. Art. 5. The letter (or letters) and number shall be placed on each bow of the boat, 3 or 4 inches (8 or 10 centimetres French) below the gunwale, and they shall be painted in white oil colour on a black ground. For boats of 15 tons burthen and upwards the dimensions of the letters and numbers shall be 18 inches (45 centi- metres French) in height, and 2| inches (0 ccntimctros French) in breadth. 31 & 32 VICT. c. 45, SCHEDULES. 495 For boats of less than 15 tons burthen, the dimensions shall be 10 inches (25 centimetres French) in height, and 1| inches (4 centimetres French) in breadUi. The same letter (or letters) and number shall also be painted on each side of the mainsail of the boat, in black oil colour on white sails, and in white oil colour on tanned or black sails. Such letter (or letters) and number on the sails shall be one-third larger in every way than those placed in the bows of the boat. The name of each fishing boat, and that of the port to which she belongs, shall be painted in white oil colour on a black ground on the stern of the boat, in letters which shall be at least 3 inches (8 centimetres French) in height and I inch (12 miUimetres French) in breadth. The letters, numbers, and names placed on the boats and on their sails shall not be cfiaced, covered, or concealed in any manner whatsoever. Art. 6, All the buoys, barrels, and principal floats of each net, and all other implements of fishery, shall be marked with the same letter (or letters) and number as those of the boats to which they belong. These letters and numbers shall be large enough to be easily distinguished. The owners of the nets or other fish- ing implements may further distinguish them by any private marks they judge proper. Art. 7. The letters and numbers of British fishing boats shall, after having been entered in the registry book kept at the collectorship of customs, be inserted on the licences or other official papers of those boats. The letters and numbers of French fishing boats shall, after having been entered in the registry book kept at the Maritime Registry OlUce, be inserted on the muster rolls of those boats. Art. 8. The licences or other official papers of British fish- ing boats, and the muster rolls of French fishing boats, shall contain the description and tonnage of each boat, as well as the names of its owner and of its master. Art. 9. The fishermen of both countries shall, whenever required, exhibit their licences or other official papers, or their muster rolls, to the commanders of the fishery cruisers, and to all other persons of either country ap[)ointc'd to superintend the fisheries. Ai-t. 10. Fishing of all kinds, by whatever means and at 496 SEA FISHERIES ACT, 1868. all seasons, may be caiTied on in the seas lying beyond the fishery limits which have been fixed for the two countries, with the exception of that for oysters, as hereinafter expressed. This article states that there are no restrictions whatever on sea fishing, except for a few weeks as to oyster-dredging already noticed, and some regulations as between drift-nets and seine- nets and trawlers. There is no restriction in English waters as to the mesh of nets used in sea fishing, or as to close season, except on a part of the coast of Cornwall, mentioned in § 68, the old statutes being repealed. See schedule. Art. 11. From the 16th of June to the 31st of August inclusive, fishing for oysters is prohibited outside the fishery limits which have been fixed for the two countries, between a line drawn from the North Foreland Light to Dunkirk, and a line drawn from the Land's End to Ushant. During the same period and in the same part of the Channel, no boat shall have on board any oyster dredge, unless the- same be tied up and sealed by the customs autho- rities of one of the two countries in such a manner as to prevent its being made use of. Art. 12. No boat shall anchor between sunset and sunrise on grounds where drift-net fishing is actually going on. This prohibition shall not apply to anchorings which may take place in consequence of accidents, or any other com- pulsory circumstances ; but in such case the master of the boat thus obliged to anchor shall hoist, so that they shall be seen from a distance, two lights placed horizontally about 3 feet (1 metre French) apart, and shall keep those lights up all the time the boat shall remain at anchor. Art. 13. Boats fishing with drift-nets shall carry on one of their masts two lights, one over the other 3 feet (1 metre French) apart. These lights shall be kept up during all the time their nets shall be in the sea between sunset and sunrise. Art. 14. Subject to the exceptions or additions mentioned in the two preceding articles, the fishing boats of the two countries shall conform to the general rules respecting lights which have been adopted by the two countries'. Art. 15. Trawl boats shall not commence fishing at a less distance than three miles from any boat fishing with drift-nets. 31 & 32 VICT. c. 45, SCHEDULES. 497 If trawl boats have already shot their nets, they must not come nearer to boats fishing with drift-nets than the distance above mentioned. Ai-t. IG. No boat fishing with drift-nets shall shoot its nets so near to any other boat which has already shot its nets on the fishing ground as to interfere with its operations. Art. 17. No decked boat fishing with drift-nets shall shoot its nets at a less distance than a quarter of a milo from any undecked boat which is already engaged in fishing. Art. 18. If the spot where fishing is going on should be so near to the fishery limits of one of the two countries that the boats of the other country would, by observing the regulations prescribed by Articles 15, 16, and 17 preceding, be prevented from taking part in the fishery, such boats shall be at liberty to shoot their nets at a less distance than that so prescribed ; but in such case the fishermen shall bo responsible for any damage or losses which may bo caused by the drifting of their boats. Ai-t. 19. Nets shall not be set or anchored in any place where drift-net fishing is actually going on. Art. 20. No one shall make fast or hold on his boat to the nets, buoys, floats, or any part of the fishing tackle belonging to another boat. No person shall hook or lift up the nets, lines, or other fishing implements belonging to another person. Art. 21. When nets of different boats get foul of each other, the master of one boat shall not cut the nets of another boat except by mutual consent, and unless it be found impossible to clear them by other means. Art. 22. All fishing boats, all rigging gear or other appur- tenances of fishing boats, all nets, buoys, floats, or other fishing implements whatsoever, found or picked up at sea, shall, as soon as possible, be delivered to the receiver of wi'eck if the article saved be taken into the United Kingdom, and to the commissary of marine if the article saved be taken into France. The receiver of wreck or the commissary of marine, as the case may be, shall restore the articles saved to the owners thereof, or to their representatives. These functionaries shall fix the amount which the owners shall pay to the salvors. 498 SEA FISHEEIES ACT, 1868. Art. 23. The execution of the regulations concerning lights and signals, licences, muster rolls, and official papers, the lettering and numbering of boats and implements of fishing, is placed, with respect to the fishermen of each of the two nations, under the exclusive superintendence of the cruisers and agents of their own nation. Nevertheless, the commanders of the cruisers of one of the two nations shall acquaint the commanders of the cruisers of the other nation with any infractions of the above-mentioned regulations committed by the fishermen of such other nation which may come to their knowledge. Art. 24. All infractions of the regulations concerning the placing of boats on the fishing ground, the distances to be observed between them, the prohibition of oyster fishing during a portion of the year, and concerning every other operation connected with the act of fishing, and more par- ticularly concerning circumstances likely to cause damage, shall be taken cognizance of by the cruisers of either nation, whichever may be the nation to which the fishermen guilty of such infractions may belong. Ai't. 25. The commanders of cruisers of either country shall exercise their judgment as to the causes of any infractions brought to their knowledge, or as to damage arising from any cause whatever committed by British or French fishing boats in the seas beyond the fishery limits which have been fixed for the two countries ; they may detain the oftending boats and take them into the port nearest the scene of the occurrence, in order that the infraction or damage may bo there duly established, as well by comparing the declarations and counter-declarations of the parties interested as by the testimony of those who were present. Art. 2G. When the oflenee shall not be such as to require exemplary punishment, but shall nevertheless have caused damage to any fisherman, the commanders of the cruisers shall be at liberty, should the circumstances admit of it, to arbitrate at sea between the parties concerned. On refusal of the offenders to defer to their arbitration the said com- manders shall take both them and their boats into the nearest port, to be dealt with as stated in the preceding article. Art. 27. Every fishing boat which shall have been taken into a foreign port in conformity with the two preceding 31 & 32 VICT. c. 45, SCHEDULES. 499 articles shall be sent back to her own country for trial as soon as the infraction for which .she may have been detained shall have been duly established. Neither the boat nor her crew shall, however, be detained in the foreign port more than three clear days. Art. 28. The depositions, minutes of proceedings, and all other documents concerning the infraction, after having been authenticated by the collector of customs in the United King- dom, or by the commissary of marine in France, shall be transmitted by that functionary to the consular agent of his nation residing in the port where the trial is to take place. Such consular agent shall communicate those documents to the collector of customs, or to the commissary of marine, as the case may be ; and if, after having conferred with that functiouaiy, it shall be necessary for the intei'est of his countrymen, he shall proceed with the afi'au- before the com- petent tribunal or magistrates of the country. Art. 29. In both countries the competent court or magis- trate shall be empowered to condemn to a fine of at least eight shillings (ten francs), or to imprisonment for at least two days, persons who may infringe the regulations of the convention concerning — 1. The close season for oysters, and illegal possession of dredges on board during that season ; 2. The letters, numbers, and names to be placed on the boats, sails, nets, and buoys ; 3. The licences or muster rolls ; 4. The ilags and lights to be carried by the boats ; 5. The distances to be observed by the boats between each other ; 6. The placing and anchoring of vessels and boats ; 7. The placing and shooting of nets and the taking them up; 8. The clearing of nets ; 9. The placing of buoys upon nets. In case of repetition of the otfence, the amount of fine or period of imprisonment may be doubled. Art. 30. In all cases of assault committed or of damage or toss inflicted at sea by fishermen of either country upon fishermen of the other countiy, the courts of the country to which the otlenders belong shall condemn the latter to a fine of at least eight shillings (10. francs), or to imprisonment 2 L 500 SEA FISHERIES ACT, 1868. for at least two days. They may, moreover, condemn the offenders to pay adequate compensation for the injury. Aa"t. 31. Fishing boats of either of the two countries shall be admitted to sell their fish in such ports of the other country as may be designated for that purpose, on condition that they conform to the regulations mutually agreed upon. Those regulations, together with a list of the ports, are .annexed to the present convention ; but without prejudice to the opening by either country of any additional ports. Art. 32. The fishing boats of the one country shall not enter within the fishery limits fixed for the other country, except under the following circumstances : — 1. "When driven by stress of weather or by evident damage. 2. "When carried in by contrary winds, by strong tides, or by any other cause beyond the control of the master and crew. 8. When obliged by contrary winds or tide to beat up in order to reach their fishing ground ; and when from the same cause of contrary Avind or tide they could not, if they remained outside, be able to hold on their course to their fishing ground. 4. When, diiring the herring fishing season, the herring boats of the one country shall find it necessary to anchor under shelter of the coasts of the other country, in order to await the opportunity for proceeding to theii" fishing ground. 6. When proceeding to any of the ports of the other country open to them for the sale of fish in accordance with the preceding article ; but in such case they shall never have oyster dredges on board. Art. 83. WTien fishing boats, availing themselves of the privilege specified in Ai-t. 31, shall have oysters on board, they shall not carry any di'edges or other implement for taking oysters. Art. 34. The commanders of cruisers may authoi'ize boats belonging to their own country to cross the exclusive fishery limits of the other country, whenever the weather is so threatening as to compel them to seek shelter. Art. 35. Whenever, owing to any of the exceptional cir- cumstances specified in the three preceding articles, the fishing boats of either country shall be in the ports or within the fishery limits fixed for the other country, the masters of such boats shall immediately hoist a blue flag two feet 31 & 32 VICT. C. 45, SCHEDULES. 501 (GO centimetres French) higli, and three feet (one metro French) long, and shall keep tliat flag flying at the masthead so long as they remain in such ports or within such limits. The flag shall he hauled down as soon as the boat is outside the said limits. . Such boats must return outside the said limits as soon as the exceptional circumstances which obliged them to enter shall have ceased. Ai-t. 3G. The commanders of the cruisers of each of the two countries, and all oflicers or other agents appointed to superintend fisheries, shall exercise their judgment as to infractions of the regulations with regard to the fishery limits, and when they shall be satisfied of the fact of the infraction they may detain the boats of the oflenders, or cause them to be detained, and may take them, or cause them to be taken, into port, where, upon clear proof of the ofl'ence, such boats may be condemned by the competent court or magistrate to a fine not exceeding ten pounds (250 francs). In default of payment such boats may be detained for a period not exceeding three months. In case of repetition of the offence the fine may be doubled. Art. 37. The proceedings and trial in cases of infraction of the provisions of the present convention shall tak6 place as speedily and as summarily as the laws in force will permit. Art. 88. The terms " British islands" and "United Iving- dom," employed in this convention, shall include the islands of Jersey, Guernsey, Alderncy, Sark, and Man, with their dependencies. Art. 89. Her Britannic Majesty engages to recommend to parliament to pass an Act to enable Her to cany into execu- tion such of the arrangements contained in the present con- vention as requu-e legislative sanction. When such an Act shall have been passed, the convention shall come into opera- tion from and after a day to bo then fixed upon by the two high contracting parties. Due notice shall be given in each country by the government of that country of the day which may be so fixed upon. Ai't. 40. The convention shall continue in force for 10 years from the day on which it may come into operation, and if neither party shall, 12 months before the expu-ation of the said period of 10 years, give notice of its intention to ter- 2 L 2 502 SEA FISUEEIES ACT, 1868. minate its operation, the convention shall continue in force one year longer, and so on from year to year, until the expiration of one year's notice from either party for its termination. The high contracting parties, however, reserve to them- selves the power to make, by mutual consent, any modifica- tion in the convention which experience shall have shown to be desirable, provided it is not inconsistent with the prin- ciples on which it is based. Ai-t. 41. The convention concluded between the high con- tracting parties on the 2nd of August 1839, and the regula- tions of the 23rd of June 1843, shall continue in force until the day when, as provided in Art. 39, the present convention shall come into operation, and shall then altogether cease and determine. Art. 42. The present convention shall be ratified, and the ratifications shall be exchanged as soon as possible. In witness whereof the respective plenipotentiaries have signed the same, and have afiixed thereto the seals of their arms. Done at Paris, the 11th of November in the year of our Lord 1867. (l.s.) Lyons, (l.s.) Moustier. Additional article. It is agreed that Art. 31 of the conven- tion signed this day shall not come into operation until the two contracting parties shall have come to a further under- standing on the subject. Due notice shall be given of the day that may be fixed upon for its coming into operation. The present additional article shall have the same force and validity as if it were inserted, word for word, in the convention signed this day. It shall be ratified, and the ratifications shall be exchanged at the same time as those of convention. In witness whereof the respective plenipotentiaries have signed the same, and have affixed thereto the seals of their arms. Done at Paris, the 11th of November in the year of our Lord 1867. (l.s.) Lyons, (l.s.) Moustier. 31 & 32 VICT. c. 45, scirEDULEs. 503 Declaration annexed to the Convention of November 11, 18G7. The fishermen of each country shall not he allowed to land or discharge their fish in the other country except at places where there is a custom-house, and during office hours. Immediately upon their arrival, and in all cases hefore they commence the discharge of their cargo, they shall present their muster roll, or licence, or official paper, to the proper officer of customs, and shall pass an entry at the custom-house stating as nearly as possihle the quantity of fish which they have on hoard. If the master of a fishing hoat cannot write, the officer of customs shall till up for him the form required, and the master shall affix his mark thereto. The custom-house officers shall have power to board and search the fishing boats of the other country in the manner directed by the customs laws. During their stay in the ports of the other country, the fishermen of either country shall, if required to do so by the customs authorities, deposit in a warehouse or in the custom- house, until their departure, all stores subject to duty, which shall not be necessary for their daily consumption. No charge shall be made for such warehousing. The ports enumerated in the subjoined list, where there is a custom-house establishment, are those that shall be open in each country to the fishermen of the other country. In case the customs establishment at any of those ports should be abolished, notice thereof shall bo given to the government of the other countiy. 504 SEA FISHERIES ACT, 1868. List of the Ports in the United Kingdom open for the Importation of Fish by French Fishing Boats. In England. Bristol. Livei-pool. Ramsgate. CarrUif. London. Shields. Dover, C. Lowestoft. Shoreham, C. Folkestone, C. Middlesborougli. Southampton, C. Falmouth, C. Newcastle. Sunderland. Grimsby. Newhaven, C. Swansea. Hartlepool. Newport. Weymouth, C. Hur^^dch. Portsmouth, C. Whitby. Hull. Plymouth, C. In Scotland. Yarmouth. Aberdeen. Greenock. Wick. Glasgow. Leith. In Ireland. Belfast. Dublin. Waterford. Cork. Galway. In the Channel IsUmds. Jersey, C. Guernsey, C. The ports in the Channel are marked with a C. List of the Ports of the French Empire open for the LviPORTATION of FiSH BY BRITISH FiSHING BOATS. {Here foil oivs a List of Ports in France.) In witness whereof the respective plenipotentiaries have signed these annexes to the convention concluded this day, and have affixed thereto the seals of their arms. At Paris, the 11th November, 1867. (L.S.) (L.S.) Lyons, moustier. iM & 32 VICT. c. 45, SCHEDULES. 505 SECOND SCHEDULE, A description of a portion of an Act is inclusive of the section first or last mentioned, as forming the beginning or as forming the end of the portion comprised in the descrip- tion. DATE OF ACT. TITLE OF ACT. 4 Hen. 7, c. 21. 7 Hen. 7, c. 9. [In statutes of the realm only.] 5 Eliz. c. 5. 13 & 14 Car. 2,0. 28. lO&ll Will. 3,0.24 [10 Will. 3, c. 13, in statutes of the realm.] 9 Anne, o. 26. [c. 28, in statutes of the realm. 1 Geo. 1, s. 2, c. 18. 2 Geo. 2, 0. 19. 29 Geo. 2, o. 23. In part. 33 Geo. 2, 0. 27. 2 Geo. 3, c. 15. In part. An Act for the preservation of the frye of fyshe. Orford. An Act touching the Navye. An Act for pilchard fishing in Devon and Cornwall. An Act for making Billingsgate a free market. An Act for the fishery -within the river of Thames. An Act for preventing fresh fish taken by foreigners being imported. An Act for the oyster fishery in the river Med way. An Act for the fisheries in Scot- ) In part ; land. \ namely, Except sects. 1 and 17, so far as they re- late to Scotland. An Act to repeal so much of an Act, 29 Geo. 2, concerning a free market for fish at West- minster. An Act for the bettor supplving ) -,■ the cities of London and West- } ^" I'*^"^ ' minster with fish. - - ) "'""^'O'j E.\cept 5I':X. o2;J fish, 85, 130; angkr, 122; by llijrllt, 43S. Poaching {Scot.) salmon, 205 ; by niplit, 201'; apprehondini;, 207; seizing nets, 203 ; of trout, 213, 217, appreluMuling, 21'J, 221. Poinling of trout in Scot. 212. Poisoning tisheries, 87, 88, 311, 342. Pokf-ncts in Solway, 3 18. Pollution ; see Poisoning. Pond, tisli in, who entitled to, 2 ; larceny of fish in, 71, 73; mali- cious injuries to, 87, 88. Possession, of salmon for sale in annual close season, 422 ; of fish roe, 341, 405; of unclean sahnon, or trout or char, 352, 405 ; of young of salmon, 353 ; of trout or char, 423 ; of illegal instru- ments for fishing, 343, 438. Prescription Act as to dams, 392. Pririlegi'd fixed engines, 389 ; see Fi.red engines. Procedure, under Salmon Fisheries Acts, 457 ; against poachers, 77 ; {Scot.) 208; (Irel.) 280. Production, of fishing license, 386. Profit a prendre, fishery a, 57. Property in fish at connnon law, 70 ; in poached fish, 85 ; in fish angled, 130. Proprietors divided into ujiper and lower in Scot. 194, 311—317. Prosecutor of poachers, 77 ; under Salmon rishcrics Acts, not entitled to whole penalty, 45fi. Public, right of, to fish in sea and tidal rivers, 14, 101, 475, 49G; setting up, as defence, 347, 3 18 ; losing right of fishery, 19, 100; dedication of fishery to, 110, 129; no right of angling. 119, 121 ; fishermen may elect representative members of board, 429; license to fish, 424. Putchers, for salmon are fixed engines, 3 11 ; removal during close time, 355; to be covci'ed during weekly close time, 356. Putts ; see Putcher. Quarter sessions, 373 ; appeal to, 4(16; aiJpointing conservators, 373, 374. Quo warranto docs not Vw. to try right of fishery, 96. Pace ; see Mill race, Paise-nets, 318. Rateahility of fishery, 88, 428; {Irel.) 250, 265 ; {Scot.) 319. Pemedies ; sec Action, Penalty. Pebuilding dams without fish pass, 445. Bepair of fish pass, 360, 4 15. Repeal of old Acts, niiscliicf of, 306; by Act 1873,458; by Sea Fisheries Act, 505. Representative members of fishery hoard, 429. Return, annual, by secretary of board to home secretary, 456. Returning officer, in election of con- servatoi's, definition of, 412 ; duties of, 433 ; expenses of, 433 ; penalty on, for neglect, 434. Riparian owners, in private rivers, 2, 108 ; in navigable rivers, 16 ; right to make weirs, 31 ; opposite owners, 108 ; right to angle, 120 ; as to trout, 211, 213 ; as to angling, 223 ; rights as to ob- struction of water, 393 ; ex officio conservators, 428. River, right of fishery in, 1, 3, 109; public navigable, 3, 32 ; riparian owners, 3 ; clearing bed of, 95 ; angling in, 119 ; poisoning, 136 ; definition of, 373 ; salmon river, what, 373 ; altering bed of, at free gaps, 362. Rod and line, definition of, 411, 412 ; using as snatch, 3 H. Rod; see Angling; close season for, 354, 439 ; 'definition of, 11 1, 412 ; of poacher, when scizable, 79, 435 ; of angler, 125 ; forfeiture of, 353, 354, 4-03, 419; of angler {Scot.) 227. Roe; see Fish roe. Royal fish, iu sea. 25; {Scot.) 165. 524 INDEX. Sale of fish in open mavkot, 26, 44; under sea fishery eoiiveution, 503; of sahuon, trout, and char roe, 314; of salmon in close time, 422 ; of trout and char in close time, 423 ; of unseasonable salmon, 352; of young salmon, 353. Salmon, definition, 340 ; poaching of, 73 — 87 ; angling, 132 ; Acts relating to, 339 ; poisoning salmon river, 341 ; fixed engines for, 345, 387 ; illegal instruments for, 343 ; roe of, 344 ; catching at dams, 343 ; gratings for, 351 ; unseasonable, 352 ; young of, 353 ; close time for, 354 ; weekly close time, 356 ; fish passes for, 349, 357 ; gratings for, 351 ; free gaps for, 361 ; fish boxes, construction of, 363 ; exportation of, 370, 405 ; fishery districts for, 373 ; special commissioners for, 388 ; imprison- ment for oflTences as to, 401 ; arti- ficial propagation, 344, 352, 353, 403, 405 ; minimum penalties for, 402; illegal fishing by night, 437 ; water bailitis, powers as to fishermen, 435 ; bye-laws to regu- late, 439. Scale of licenses ; see lAcenses. Scieniijic inirposes ; see Artificial •propagation. Scotland, open sea fisheries, 165 ; territorial seas and navigal)le rivers, 165 ; common law as to other fish than salmon, 165, 510 ; fishery defined, 172 ; right to salmon at common law, 172, 510; must be derived from Crown, 174 ; mode of fishing, 176 ; old statutes as to sahnon, 177; net and coMe fishing, 183; right of fisher to use banks and shore, 187 ; boun- daries of fisheries, 188 ; remedies, 189; fishery in lake, 191. Salmon Act of 1862, 193, 509 ; fishery districts, 194 ; com- missioners, 194, 311, 315 ; annual close time, 195; weekly close time, 195, 312 ; ofl'ences as to salmon, 196, 313; salmon roe. 198, 315 ; disti-ict boards, 200, 317; powers of, 201, 318; assess- ments by, 202 ; seizure of forfeited articles, 203, 320 ; poaching by night, 204, 320 ; poachers of sal- mon, 205 ; apprehending poachers, 207 ; procedure, 208. Scotland, trout and fresh-water fishing, 211 ; common law as to trout, 211 ; fishing trout with nets, 212 ; right of fishing, 213 ; legal modes of fishing trout, 214; right of tenants to fish, 215 ; no close time as to trout, 217 ; tres- passers who poach, 217 ; nets of trout poachers, 219; apprehend- ing trout poachers, 219 ; pro- cedure, 221. angling, generally, 223 ; for salmon, 223 ; close time for, 224 ; using salmon roe, 225 ; sell- ing salmon angled, 225 ; title to trout fishery, 225; angling for trout, 226 ; angling from high- way, 227 ; trout angling as re- gards sahnon, 228 ; angling as between opposite owners, 229; Tweed, 231 ; Solway, 243. Sea Fisheries Act extends to, 491. Sea, fishery in, 1, 5 ; how regulated, 6, 14 ; whale fishing, 6 ; no re- strictions as to sea fish, 10 ; con- vention with France as to, 442 ; herring and mackerel boats used in, 406; definition of sea fish, 463. Search, of bags and baskets of fisher- men, 436 ; of boats and nets, 435 ; of sea fishery boats, 365. Search warrant to enter suspected premises, 364. Secretary of state, definition of, 412; appointment of inspectors, 364; approving fish pass in dams, 349, 357, 451 ; no power as to free gaps, 361 ; approving scale of licenses, 383; altering fishpry districts, 413 ; combining districts, 414 ; approving variation of scale of licenses, 427 ; confirmation of bye-laws, 442 ; approving fish INDEX. 525 pass in new weirs, 419 ; autbo- rizing ('(Hiipulsory purcliasc of weirs, -l l-f! ; utilhorizing jmrfliase of bank of river, 44cS ; aiiiiroviii;; existing tisli pass, 451 ; annual return sent to, 458. Seine-net, iisbing for sahnon witliin lltO yards of anotber, 417 ; in sea fisliing, 4'JO; in coast of Corn- wall, I'JO. Seiziny illegal engines in suspected places, 3U4 ; at night, 438. Servants of licensee of nets assist- ing, 426. Set-lines for trout in Scot. 212. Several lisbery, wbat, 4, 46 ; defini- tion, 49 ; in sea and public rivers, 17, 389 ; if can be re-granted by Crown, 18, 389 ; soil of, 49, fil ; if can be followed into new chan- nel, 393 ; burden of proving, 103 ; ancient user, 103, 389 ; remedies for obstructing, 110; right of owner to general license, 385. Severn, weirs in, 453. Shell-fish, right to take, 91 ; (Scot.) 167. Shore, right of fishermen to use, 29 ; (Scot.) 187; (Irel.) 253. Sin of fish boxes, 363. Sluices of mill dams, shutting, 360; fi.>ibing near, 420. Snare for catching salmon, trout, or char, 31^. Snatch in sahnon fishing, what, 343 ; definition of, 412. Soil, in several fishery, 49, 60; in free fishery, 53. Solwai/ fisheries, 243, 512. Sjiau'u of salmon, 344, 354 ; {Scot.) 196; {Irel.) -in. Sj}aivntii(/ fish, disturbance of, 353 ; catching for artificial propaga- tion, 352, 353, 403. Spears illegal for killing salmo!i, trout, or char, 3-43 ; Tweed, 239 ; {Irel.) 270. Special commissioners ; see Com- ?nlssioners. Spur walls to fishing weirs, 363. Sleali)ig iish, 70; see Foachiny. Stop-nets in Wye, &c., legality, 317; stoi)ping-nets, 347. Stokehall, in salmon fishing, pro- hibited, 3 1'3 ; definition of, 412. Stream-nets in Solway, 348. Sunday, angling salmon on, 133 ; mill sluices to be shut on, 360 ; to be part of weekly close time, 439; angling on {Scot.) 197; Tweed, 235 ; {Irel.) 279. Tackle; see Sod and line. Tall race of mill, fishing in, 31-9 ; gratings may be made in, 44^, 454; {Irel.) 270, 272. Tenant of lands entitled to fishery, 67 ; {Scot.) 215, 511. Territorial seas, what, 5 ; as to sea fishing in {Scot.) 165; {Irel.) 2^7. Thames, acts as to, 509. Tidal waters, de&imd, 340; fishing- in, 14, 101. TlfJie of fish, rateable, 69. Trammel-net used, 345. Traivl-Jishlvg allowed in sea, 490 ; not to approach seine-nets, 496. Traversing lands by bailifis, 436. Trespassers, fishing, sec Poachers ; distraining nets of, 98 ; angling, 120, 125 ; see Angling. Trout or char, fishing for, with lights, spears, &c., 34-3, 404 ; using roe as bait, 344, 404 ; taking un- seasonable, 352 ; catching in close time, 405 ; sale of, in close time, 423; apprehension of night fishers, 437 ; no restriction as to catching in rivers not in fishery district, 405, 423 ; for scientific purposes, 343, 353, 4fl5. Tweerf fisheries generally, 231, 512 ; commissioners and ofiicers, 232 ; water bailiffs, 233 ; annual close time, 234; weekly close time, 235 ; selling fish in close time, 235 ; re- moval of bo.its and nets in close time, 236; fixid nets and dams, 237 ; beating the wati'r, 238 ; stake and b.ig-nets, 238 ; size of mesh of nets, 23S; pout-nets. 526 IXDEX. or rake-hooks, 239; wear shot- nets, 23t) ; leisters and spears, 239 ; poisonhig river, 239 ; poachers, 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 ; procedure, 242 ; Tweed not included in English Salmon Acts, 339. Unclean salmon, 352; trout or char, 352 ; taking for artificial propaga- tion, 352; (ScoL) 196; Tweed, 240; (Irel.) 274. Unseasonable ; see Unclean. Unsizable ; see Young. Use and occupation of fishery, aetion for, 67. User, ancient, how proved, 102, 389 ; grant presumed from, 389 ; non-user, efi"ect of, 109, 393. Villagers, claim of, to fish, 115, 117; to dry nets, 29 ; to angle, 128 ; {Scot.) 187, 227. Voters for representative members in fishery boards, 429 ; personat- ing, 434. Voting papers, 431, 432; form of, 459. weirs and obstructions, 435 ; searching boats used in fishing, 435; searching nets and baskets, 436; is a constable for purpose of Acts, 436 ; evidence of appoint- ment, 436 ; special authority fi'ora board to enter on lands, 437 ; tra- versing banks of river, 437 ; has powers of constable, 436 ; not to enter decoys, 437 ; may arrest il- legal fishers by night, 437 ; punish- ment for obstructing, 435, 437. Water, poisoning, 87, 88, 341, 342; {Scot.) 198 ; {Irel.) 274. Waterworks, gratings at channels, 351. Weirs ; see also Dam ; right to make, 33 ; statutes as to, 36 ; if ancient, are legal, 37 ; proof of ancient origin, 37; converting brushwood into stone weir, 39 ; action by upper proprietor against lower for, 40; illegal at common law if stop fish, 41, 43 ; eel baskets at, 417 ; fishing within 100 yards of, 419; rebuilding, 445; com- pulsory purchase of, 446. fishing ; see Fishing weir. Weekly close time ; see Close time. Whale fishing in sea, 6 — 8, 11 ; caught in sea, belong to Crown, 25 ; {Scot) 165. Wire; see Snare. Waste races of mills, fishing in, 419. Water bailiff, how appointed, 379 ; search warrant to enter suspected places, 364; order of justices to enter on lands, 381 ; may examine Young fish in sea, statutes as to, repealed, 508 ; of salmon defined, 340; penalty for taking, 353; exemption for artificial propaga- tion, 353, 403. I.Diirlon : Printed by tiliiiw & Suns, Fetter Lane. .;! !iJ (iji- ■■'.■ j \ 1