in a river; which is so constantly passing from the soil of one to another, that no man can, in strictness, be said to go twice to the same river; and yet, by a grant of any quantity of land covered with water, which is the only legal designation of a river, not only a certain tract of the river, but the fish contained in it, shall pass. See Coke on Littleton, 4. a. In the Register, a very ancient law book, we find two writs relating to fish the one, for the unlawful taking of fish in a several fishery, and the other, in a free fishery. And of these in their order. A several fishery is that which a man is entitled to in respect of his being the owner of the soil, and is what no one can have in the land of another, unless by special grant or prescription: and whoever shall fish in such a several fishery, without a licence, is liable to an action of trespass, in which the plaintiff may well demand "wherefore, in the plaintiff's several fishery, the defendant was fishing, and his fishes took," &c. for though the fish be feræ naturâ, yet being taken in the water of the owner of the river, they are said to be his fish, without saying in his soil, or water, 3d Coke's Reports, 553. Child and Greenhill's case: but he must set forth the nature and number of the fish taken, 5 Coke's Reports, 35. Playter's case, and 3d Coke, 18. A free fishery is a right to take fish in the water and soil of another, and is derived out of a several fishery. If one seized of a river, grants, without including the soil, a several fishery, or, which amounts to no more than that, his water, a right of fishing passes, and nothing else. Plowden's Commentary, 154, b. Coke on Littleton, 4. b. And the word several, in such case, is synonymous with sole, and that in so strict a sense, that by such a grant not only strangers, but even the owner of the soil is excluded from fishing there. Co. Lit. 122, a. And farther, where one prescribes to have a several fishery in a water, which prescription always supposes a grant precedent, the owner of the soil, as much as a stranger, is liable to an action if he fishes there: 2 Roll. 258, the case of Foriston and Catchrode in the Common Pleas. Mich. 29 and 30 Eliz. But here the writ shall vary from that in the case of a several fishery, and demand "wherefore the defendant, in the free fishery of the plaintiff, at N., without the licence and consent of the plaintiff, was fishing," &c. expressing the nature and number of the fish taken but because the soil does not pass by such a grant, and the fish are feræ naturâ, he shall not call them his fish, as in the former instance. See the case of Child and Greenhill, above cited. The doctrine deducible from these principles is, that that which, united with the soil, would be a several fishery, when severed by grant, though the grant be of a several, or sole, and not of a free fishery, in terminis, becomes a free fishery. There is yet another case that I shall mention, which will give the intelligent reader a clear notion of this matter. A man grants to one, or more, a liberty of fishing:* here nothing but a naked right to * I find in Dudg. Warw. 1142, in margine, an account of the following grant, which for its singularity deserves notice. 31 Hen. 111. "Thomas de Clinton, of Aminton, levied a fine to Phil. Marmion, that he and his heirs, his wife, and their heirs, might, when they came to Tamworth, or to their castle at Middleton, fish with a boat any where in his water of Aminton, with one net, called a fleu-net, and a tramil and sayna; for which liberty he gave him six marks of silver." fish passes, and the remedy against a trespasser is not severed from the soil; the owner whereof, and not the grantee, may maintain an action, and may also fish himself. Co. Lit. 122 a. As common of fishing may be appendant to land, so also there may be a joint tenancy, or a tenancy in common of a fishery. 1 Inst. 186 b. Having thus shewn in what cases the angler, in the pursuit of his recreation, may become a trespasser, let us next consider how far he is, by taking fish, in danger of committing larceny; for that the taking fish out of a pond, without the consent of the owner, falls within my Lord Coke's definition of that crime, no one can doubt that reads it. His words are, "Larceny is, the felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another; neither from the person, nor by night in the house of the owner." 3d. Inst. 107. And a little after, 109, he expressly says, Larceny may be committed of fishes in a pond.' Now, though to make the taking any personal thing felonious, reason and the law require that the party should do it animo furandi, (see Bracton, lib. 3. fol. 150. Fleta lib. 1. cap. 36, which we will suppose no angler to be possessed with,) yet, whether by the word pond, we are to understand ponds at large, is perhaps of some consequence for him to know. It is a rule in law, that personal goods, and things severed from the freehold, shall go to the executors, and not to the heir.-Wentworth's Office of an Executor, chap. 5. And so shall fish in a tank, or the like. Ibid. But Lord Coke, in his Commentary on Littleton, fol. 8, tells us, that fish in a pond shall go with the inheritance, "Because," says he, "they were at their liberty, and could not be gotten without industry, as by nets or engines." From hence we may conclude, that fish in ponds cannot be said to be mere personal goods; and then it follows as a consequence, that of such fish larceny cannot be committed: and we may farther conclude, that the word ponds, in the above passage, must mean only stewponds, cisterns, or other such small receptacles of fish. Many wholesome laws have from time to time been enacted, to prevent the destruction of fish; but they are so numerous, that I must refer the reader to the Statutes at large, or to the Abridgment published by a late worthy and learned friend of mine, John Cay, Esq. deceased. He may also see, a Discourse on the Laws concerning Angling, and for Preservation of Fish, at the end of the Angler's Sure Guide, written, as it seems, by the author of that book, with the learning and accuracy of an able lawyer. U |