27. Other circumstances might also give rise to a free warren over another's land. Thus a person having free warren over certain lands may alien the lands, reserving the warren. But if he aliens the lands without the warren, and without reserving it to himself, it is determined and gone for the alienor has parted with his right to the land discharged of all things, so that he cannot have it; nor does the alienee take it, because it was not granted to him, but only the land. 28. A person may have a warren by prescription in a forest; but in that case there must be an allowance of it in eyre, that is, in the court of the forest; and then a grant is presumed. 29. Sir R. Harrison claimed a warren in Windsor Forest at the justice seat. But it not being allowed in eyre, he was fined ten shillings, and the warren was ordered to be destroyed. 30. Lord Coke says, a man may have a chace, as belonging to his manor, in his own woods, as well as a warren or park in his own grounds. For the chace, warren, or park, are collateral inheritances; and not issuing out of the soil, as common does. Therefore if a person has a chace in another's grounds, and purchases the ground, the chace remains. 31. It is laid down, in the case of the fishery of the river Bann, that every navigable river, as far as the sea flows and ebbs in it, is a royal river, and the fishery of it, a royal fishery, belonging to the King by his prerogative. This doctrine is however denied in subsequent cases, in which it is held that every subject may fish, with lawful nets, in a navigable river; that the King's grant cannot bar them of that right, because the exclusive right of the Crown only extends to royal fish; namely, whale and sturgeon : and that the same rule is applicable to arms of the sea. 155. 32. With respect to rivers that are not navigable, Davies R. the proprietors of the banks on each side have an interest in the fishery, of common right. So that every inland river that is not navigable, appertains to the owners of the soil. Where such rivers run between two manors, and are the meers and boundaries between them, one moiety of the river and fishery belongs to one lord, the other to the other. Tracts, 19. 33. It is said by Lord Hale, in his treatise De jure Hargrave's maris, that though prima facie an arm of the sea be in point of propriety the King's, and common for every subject to fish there; yet a subject may have by usage a several fishery there, exclusive of that liberty which otherwise of common right belongs to all the King's subjects; and this doctrine is confirmed by the following case. Murcott, 34. An action of trespass was brought by the plain- Carter v. tiff for entering his close, called the River Severn. 4 Burr. 2162. The defendant pleaded that it was a navigable river ; and also that it was an arm of the sea, wherein every subject had a right to fish. The plaintiff, without traversing these allegations, replied, that this was a part of the manor of Arlingham; that a Mrs. Yates was seised of that manor, and prescribed for a several fishery there. Issue being joined thereon, a verdict was found for the plaintiff. On a motion in arrest of judgement, on the ground that an exclusive right could not be maintained by a subject, to fish in a river that was an arm of the sea; the general right of fishing in a navigable river, or arm of the sea, being common to all. Lord Mansfield said, the rule of law was uniform. In rivers not navigable, the proprietors of the land had the right of fishery on their respective sides; and it generally extended ad filum medium aquæ. But in navigable rivers the proprietors of the land on each side had it not: the fishery was common; it was prima facie in the King, and was public. If any one claimed it exclusively, he must show a right. If he could show a right by prescription, he might then exercise an exclusive right; though the presumption was against him, unless he could prove such a prescriptive right. Here it was claimed and found. It was therefore consistent with all the cases that the plaintiff might have an exclusive privilege of fishing; though it were an arm of the sea. Such a right should not be presumed, but the contrary, prima facie; it was however capable of being proved, and must have been so in this case. The rule was discharged. 35. It appears highly probable that all the free fisheries are derived from royal grants, made at the time when the sole and exclusive right of fishing in arms of the sea and navigable rivers was supposed to be vested in the Crown. Therefore a free fishery or exclusive right of fishery, in an arm of the sea, or navigable river, is described by Sir W. Blackstone to 2 Comm. 39. be a royal franchise, which is now frequently vested in a private person, either by a grant from the Crown or by prescription. Idem. 36. This right, says the same author, was probably first claimed by the Crown upon the establishment of the Normans; and was deemed an usurpation by the people for by King John's magna charta, c. 47, it was declared, that where the banks of rivers had been first defended in his time, they should be laid open. And in the charter of 9 Hen. III. c. 16. it is promised, that no banks should be defended from thenceforth, but such as were in defence in the time of King Henry his grandfather, by the same places and the same bounds as they were wont to be in his time. Although it is said in the Mirror that this statute was then out of use, yet Sir W. Blackstone observes, that in consequence of it, a franchise of free fishery ought now to be at least as old as the reign of King Henry II. 37. Sir W. Blackstone also says, that a right of Id. 40. free fishery does not imply any property in the soil; in which respect it differs from a several fishery: and that, from its being an exclusive right, it follows, that the owner of a free fishery has a property in the fish before they are caught. n. 7. 38. Mr. Hargrave observes, that both parts of this 1 Inst. 122 a.. description of a free fishery seem disputable; and that though, for the sake of distinction, it might be 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 extended this kind of fishery to all streams, whether private or public; neither the Register nor other books professing any discrimination. That in one case the Smith v. Court held free fishery to import an exclusive right, Salk. 637. Kemp, equally with several piscary; chiefly relying on the writs in the Register, 95 b. But this was only the opinion of two Judges against one, who strenuously insisted that the word libera ex vi termini implied common. That many judgements and precedents were founded on Lord Coke's so construing it. That the dissenting Judge was not wholly unwarranted in Upton v. the latter part of his assertion, appears from two determinations a little before the case in question. To these might be added the three cases cited by Lord Coke, as of his own time; and there were Carth. 286. passages in other books which favoured the dis Peake v. Weld v. 7 East, 195. Ward v. A Manor, Diss. c. 3. § 32. tinction. 39. It is laid down by Lord Ellenborough, in a modern case, that the erection of weirs across rivers was reprobated in the earliest periods of our law. They were considered as public nuisances, were treated as such by magna charta and subsequent acts, which forbid the erection of new ones, and the enhancing, straitening, or enlarging of those which had aforetime existed. That the stells erected in the river Eden by Lord Lonsdale and the Corporation of Carlisle, whereby all the fish were stopped in their passage up the river, were pronounced to be illegal, and a public nuisance. The Court also held, that where a weir had formerly been made of brushwood, through which it was possible for the fish to escape into the upper part of the river, it could not be converted into a stone weir, whereby the possibility of escape was debarred; though, in flood times, the fish might still overleap it. And however 20 years acquiescence might bind the parties, whose private rights only were affected, yet the public had an interest in the suppression of public nuisances, though of longer standing. 40. It should, however, be observed, that the right of fishing in the sea, is a right common to all the King's subjects; therefore a prescription for such a right, as annexed to certain tenements, is bad. 41. The origin of manors has been already stated; and it has been shown that they are feudal seigniories, accompanied with royal franchises; their essence |