Holford v Bailey, in Error
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Exchequer |
English Reports Citation: 116 E.R. 1325
IN THE EXCHEQUER CHAMBER.
S. C. 18 L. J. Q. B. 109; 13 Jur. 278. See Marshall v. Ulleswater Steam Navigation Company, 1863, 3 B. & S. 744, 749. Adopted, Attorney-General v. Emerson, [1891] A. C. 654. Applied, Hindson v. Asby, [1896] 2 Ch. 10; Fitzgerald v. Firbank, [1897] 2 Ch. 101. Referred to, Ecroyd v. Coulthard, [1897] 2 Ch. 565; [1898] 2 Ch. 358. Applied, Hanbury v. Jenkins, [1901] 2 Ch. 411.
in the exchequer chamber. (error from the queen's bench.) holford against bailey, in error. [18SO.J A declaration, reciting that defendant had beeu summoned to answer plaintiff in an action of trespass, charged that (a) The case in the Exchequer Chamber is reported by E. Hall, Esq. 1326 HOLFORD V. BAILEY 13Q. B.427. defendant, with force and arms, broke and entered a fishery, to wit the sole and exclusive fishery of plaintiff, in a certain part of a river then flowing and being over the soil of one F., and then fished for fish in the said fishery of plaintiff, and the fish of the said fishery of plaintiff', there found, and being in the said fishery, chased and disturbed : conclusion, contra pacem. Plaintiff having recovered ^o'n tfiis count, Held, by the Court of Exchequer Chamber, reversing the judgment of Q. B., (1) That the words "sole and exclusive fishery" were, at any rate after verdict, equivalent to "several" fishery. (2) That the statement that the soil was in F. did not vitiate the count or render it necessary for the plaintiff to deduce title from the owner of the fee. And, (3) (Agreeing with Q. B.) that trespass lay for the injury described. [S. C. 18 L. J. Q. B. 109; 13 Jur. 278. See Marshall v. Ulleswater Steam Navigation Company, 1863, 3 B. & S. 744, 749. Adopted, Attorney-General v. Emerson, [1891] A. C. 654. Applied, ffindson \. Asbij, [1896] 2 Ch. 10 ; Fitzgerald v. Firbank ,[1897] 2 Cb. 101. Referred to, Eeroyd v. Coulthard, [1897] 2 Ch. 565; [1898] 2 Ch. 358. Applied, Hanbury v. Jenkins, [1901] 2 Ch. 411.] The declaration stated that the defendant had been summoned to answer the plaintiff in an action of trespass; and it contained four counts. The first was for breaking and entering, with force and arms, &c., a several fishery of plaintiff in the river Usk, in Brecknockshire. The second count charged that the defendant, to wit on, &c., with force and arms, &c., broke and entered a certain other fishery, to wit the sole and exclusive fishery of the plaintiff, to wit in the said river Usk, in a certain other part of the said river, then flowing and being over the soil of one Philip Francis, and adjacent to, &o., situate in the said county, and then fished for fish in the last mentioned fishery of plaintiff, and the fish, to [427] wit five salmon, &e., of the last mentioned fishery of plaintiff, there found, and being of great value, to wit, &c., then being in the last mentioned fishery, then chased and disturbed. The declaration concluded : "and other wrongs," &e. "against the peace," &c. Ten pleas were pleaded, leading to issues of fact. The plaintiff had a verdict on the issues relating to the second count. On other 'ssues, disposing of the counts 1, 2 and 3, the verdict was for defendant. The Court of Queen's Bench arrested judgment on the second count (a)1. The plaintiff below brought error in the Exchequer Chamber. Joinder in error. The case was argued in last Michaelmas vacation (b). Willes, for the plaintiff in error (plaintiff below). Three questions arise: first, whether the words "sole and exclusive" are to be deemed, in this stage of the proceeding, sufficiently descriptive of a several fishery; secondly, whether trespass lies in respect of a several fishery; thirdly, whether, if it does not, this declaration may, after verdict, be taken to be a declaration in case. The Court below haa decided the second question in the affirmative, but the first and third questions in the negative, and therefore has arrested the judgment. The judgment must be reversed, if either the first or the third question ought to be decided in the affirmative, unless the Court below was wrong in deciding the second question in the affirmative. [428] First: the words "sole arid exclusive" are, at any rate after verdict, sufficiently descriptive of a several fishery. Sole right of fishing, to the exclusion of the owner of the soil, is a correct definition of such a right. Before Magna Charta (a)2 the right to fish was, in the case of tide rivers, in the Crown ; in other cases, it was in the owner of the soil: but the Crown or the land owner could grant the exclusive right to an individual: and so it is still, except that all public rivers may now be fished in by the subjects of the realm, unless there was an exclusive user in the reign of Henry II. In no other way can an exclusive right of fishing, in one not the owner of the soil, originate: and such an origin clearly would create a several fishery. (a)' Holford v. Bailey, 8 Q. B. 1000. (b) November 28th, 1848; before Wilde C.J., Coltman, Maule, and Cresswell Js., and Parke, Rolfe, and Platt Bs.; and 29th, before Coltman, Maule, and Cresswell Js., and Parke, Alderson, Rolfe, and Platt Bs. Maule J. and Alderson B. left the Court during the reply, to attend chambers. (a)5 1 Stat. 9 H. 3. See c. 16, and 2 List. 30. 13Q.B.4J9. HOLFORD V. BAILEY 1327 Therefore a fishery in one not the owner of the soil, which ia exclusive, is several. The ancient cases are collected in Chitty on the Game Laws, p. 288. In Co. Lit. 4 b. it is said : "If a man be seised of a river, and by deed do grant separalem piscariam in the same, and maketh livery of seisin tecundum formam chartto, the soil doth 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; for there passed to the grantee but a particular right, and the livery being made secundum formam chartaa, cannot enlarge the grant. For the same reason, if a man grant aquatn suam, the soil shall not pass, but the piscary within the water passeth therewith." Thisconveyanceof the privilege without the soiLis put by Coke as analogous to the conveyance of vestura terra or herbagium terrse. Again, in Co. Lit. 122 a. it is said that " a man may prescribe to have separalem piscariam [429] in such a water, and the owner of the soil shall riot fish there; but if be claim to have eommuniam piscarifts, or liberam piscariam, the owner of the soil shall fish there." In 2 Blackst. Com. 39, 40, there seems to be a confusion bltween a several fishery and a freo fishery: but, as the passage stands in the later editions (a), it is there correctly laid down that " he that has a several fishery must also be (or at least derive his right from) the owner of the soil." In Hargrave's note (7) to Co. Lit. 122 a. Blackstone's description of a several and a free fishery is commented upon; and the writer appears to come to tbo conclusion that the utmost that can be said is that a several fishery may perhaps be presumed to comprehend the soil, though it may be shewn that they are separate; and that a free fishery is not exclusive. In 3 Kent's Comra. 410, 411, the same subject is discussed; and there it is suggested that a free fishery, as well as a several fishery, is exclusive; but that the former word applies to public navigable rivers, and the privilege is unaccompanied by property in the soil, whereas the latter is also applicable to a public navigable river, but is accompanied by ownership in the soil. The author suggests, further, that "the more easy and intelligible arrangement of the subject would seem to be, to divide the right of fishing into a right common to all, and a right exclusively in one or a few individuals." In truth, the word "free" is ambiguous, sometimes expressing the franchise of exclusion, as in the case of a free warren, and sometimes the franchise of admission as in the case of a free port. It has been used in both senses with respect to fisheries; and this is the origin of [4301 the confusion in the books. But, whatever doubt there may be as to the word " free, it is clear that, unless where it means "exclusive," it is not synonymous with " several " : where it does so mean, it expresses the only quality of a several fishery which, as to the present question, is important. In The Duke of Somerset v...
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