Stanley Ronald Rawson, William Errol Granville Watmough Herbert Cobden Lambert (suing as Trustees of the Bradford Waltoniaks Ahgling Club) (Plaintiffs Appellants) Steven Peters (Defendant Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,Sir GORDON WILLMER |
| Judgment Date | 01 November 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1101-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 1972 |
[1972] EWCA Civ J1101-3
In The Supreme Court of Judicature
Court of Appeal
Appeal of plaintiff from judgment of His Honour Judge Ould at Otley County Court on 9th February, 1972.
Revised
The Master of the Rolls (Lord Denning)
Lord Justice Megaw and
Sir Gordon Willmer
Mr. ANDREW MORRITT (instructed by Messrs. Ward Bowie, agents for Messrs. A. V. Hammond & Co.) appeared on behalf of the Appellant Plaintiffs.
Mr. C. NORTON (instructed by Messrs. Lee & Priestley) appeared on behalf of the Respondent Defendant.
THE HASTES OF THE BOLLS: We are hero concerned with a stretch of the River Wharfs, just below Ilkely. It is in the tipper reaches where the river is not very wide and, of course, not tidal. It has fish in it. Along this particular stretch a company called A. Dawhirst & Sons Ltd. own the bank and half of the bed of the river up to he middle line. On 12th August, 1965, that company sold the fishing rights over their half to an angling club called the Bradford Waltonians Angling Club. The price was £1,000. The conveyance granted to the club "All those the sole, and exclusive fishing rights and the Fishery and fishing profits-a-prendre in so much of the moiety of the River Wharfe as flows through the property of the vendor. In addition, the owners granted to the members of the Club and their guests a right of way along the river bank, and a right to park 12 cars in a field next the river. The Company reserved to Itself the right to take stones, gravel and sand from the River Wharfe at all times.
Apart from the fishing, this stretch of the river is suitable for canoes. There is also a shingle bank forming an Island, where people like to picnic.
Mr. Peters lives a little further down the river at Burley in Wharfedale. On Sunday, 11th July, 1971, he and his family decided to have a picnic on the island. His son and a friend took two canoes up the river. The water bailiff saw them. He was the bailiff for the Angling Club. The two canoes were, he said, on the half of the river where the club had the fishing rights. He hailed them. He asked them if they had permission. They turned; round and went back. They same back later. The family were on the shingle bank. The bailiff showed Mr. Peters his warrant. Mr. Peters said he had a right to be on the river and would go on when he wanted. Afterwards they left.
This important fact emerges from the evidence; no one van fishing at the time. The bailiff said quite frankly that "no one was fishing on the river at this stage".
On 8th September 1971, the angling club brought an action in the County Court against Br. Peters. They sought an injunction and £50 damages. The Judge dismissed the claim. The angling club now appeal to this Court.
I must point out that this is not a contest between fishing rights and boating rights. It is simply a contest between the owner of the fishing rights and a stranger. The point of law is simply this;- Can the owners of fishing rights complain of interference with those rights - when no one is actually fishing in the water?
A right to fish is in law an incorporeal hereditament - a profit-a-prendre - well known to the law. If a stranger fishes for fish in those waters, the owner of the fishing rights can sue him In trespass. It is not necessary to prove that he caught any fish. That is shown by the case of Holford v. Bailey (1850) 13 Q. B. 426, when the defendant fished for salmon in the River Usk. He did not catch any of the salmon, but it was alleged that he "chased and disturbed them". This was held to constitute a good cause of action. Baron Parke said (at page 444)
"if taking the fish in a fishery be the subject of an action of trespass on the ground of property in the fish, the chasing and disturbing the fish must be so also."
Again, even though the defendant does not fish himself, but disturbs the owner of the fishing rights in the exercise of the enjoyment of the fishing, that is a wrong for which the owner can sue in trespass. That is shown by Fitzgerald v. Firbank( 1897) Ch. 96, where fishing rights in the River Coles were owned by an angling club sailed the True...
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