The Duke of Somerset against Fogwell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1826 |
| Date | 01 January 1826 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 325
IN THE COURT OF KING'S BENCH.
S. C. 8 D. & R. 747; 5 L. J. K. B. O. S. 49. Explained, Attorney-General v. Emerson, [1891] A. C. 655. Applied, Hindson v. Ashby, [1896] 2 Ch. 11.
[875] the duke of somerset against fogwell. 1826. Where a subject is owner of a several fishery in a navigable river, where the tide flows and reflows, granted to him (as must be presumed) before Magna Charta, by the description of " separalem piscariam," that is an incorporeal and not a territorial hereditament, and a term for years in it cannot be created without deed. Semble, that the owner of a several fishery, in ordinary cases, and where the terms of the grant are unknown, may be presumed to be owner of the soil. [S. C. 8 D. & R. 747 ; 5 L. J. K. B. 0. S. 49. Explained, Attorney-General v. Emersm, [1891] A. C. 655. Applied, Hindson v. AsKby, [1896] 2 Ch. 11.] Trespass for breaking and entering the plaintiffs close called the river Dart, in the parish of Berry Pomeroy, in the county of Devon, between a certain place called Hem's Mouth and a certain place called Penny's Quay, and taking the plaintiffs fish therein. Second count for breaking and entering the several fishery of the plaintiff in the river Dart. Third count for breaking and entering plaintiff's free fishery. Fourth count de piscibus asportatis. Plea, general issue. At the trial before Burrough J. at the Spring Assizes for the county of Devon, 1826, the plaintiff gave in evidence letters patent of the 44 Eliz., by which she .granted to Edward Seymour, Esq., his heirs and assigns, " all those domain lands and manors of Berry Pomeroy and Bridgetown Pomeroy, and the castle of Berry Pomeroy, with all their rights, 326 the duke of somerset v. fogwele sb.& members, liberties, and appurtenances in the county of Devon, then lately parcels of the lands and possessions of Edward late Duke of Somerset, and once parcels of the lands, possessions, and hereditaments of T. Pomerby, Knight;" and, after making use of general words to pass the lands, &c. and tithes of Berry, Her Majesty granted " all waters, fisheries, &c. to the aforesaid manors, castle, and premises, and to each and every of them belonging or appendant, known, accepted, held, used, or reputed or deemed as part or parcel of the same premises." The letters patent then granted to the aforesaid E. Seymour, his heirs and assigns, the aforesaid manor, castle, messuages, lands, &c., and all [876] and singular the premises aforesaid, with their appurtenances, as fully, freely, and perfectly, and in as ample a manner and form as the same premises, or any part thereof, could or ought to have come to the hands of the then Queen, or to the hands of Henry VIII. and Edward VI., late Kings of England, or to the hands of either of them, or to the hands of Mary, late Queen of England." The plaintiff produced two chirographs of fines, the first levied in Michaelmas term, in the 2d of Edward 6, in which Edward Duke of Somerset was plaintiff, and Thomas Pomeroy, Knight, and Joannah his wife, were deforciants of the manors of Berry Pomeroy, Hurberton and Herberton, with the appurtenances, and of 200 messuages, &c. &c. Ac de separali piscaria in aqua de Dert. The other fine was levied in the 2d and 3d of Philip and Mary, in which Edward Duke of Somerset was plaintiff, and Thomas Pomeroy, Knight, and Joannah his wife were deforciants of the manor of Berry Pomeroy, Bridgetown Pomeroy, Hurberton and Herberton, with the appurtenances, and of 200 messuages, 40 cottages, 2000 acres of land, &c. &c., with the appurtenances, in Berry Pomeroy, Bridgetown Pomeroy. Ac de separali piscaria in aqua de Dert. It was also proved that the duke and his ancestors had, from the year 1765, regularly received an annual rent for the fishery from different tenants for fishing in the river Dart between Hemsworth and Penny's Quay, and that no other persons during that period had claimed a right to fish within those limits; and that the defendant, in September 1825, committed the trespass complained of, by taking fish within those limits. On the part of the defendant it was contended, that the duke had granted a lease of the fishery to one Mills, [877] and that Mills was in possession of the fishery under such lease at the time of the trespass complained of; and that the action, therefore, ought to...
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