Fishing Rights

Nature of Fishery

Fisheries are profits of the soil over which water flows.  The title to the fishery derives from the right to the soil.  The fishery may be held separately, in which event it becomes a profit a prendre.

A public fishery is one that is vested in the public generally.  A private fishery is vested in a limited number of individuals or an individual.

A corporeal fishery is a several fishery together with the soil thereunder in tidal water.  In the case of non-tidal waters, it is a right of the soil of the water/river with a right of fishing over it.

A fishery may be owned by a person who does not own the adjoining land or subsoil. At common law, an incorporeal fishery is a right to fish or take fish or a specified type of fish in a defined stretch without interference with the subsoil of the river.

It cannot be exercised by putting in place fixed engines unless the grant specifically so allows it.  This would be incompatible with ownership of the subsoil of the fishery.  A temporary driving-in of stakes for holding a net may be compatible depending on the terms or assumed terms of the grant.

High Seas & Tidal Waters

The high seas beyond the territorial limits are open to the world under international law.  Special customs may apply in particular places.  See separately the sections on sea fisheries and the various international conventions that apply.

States, under their domestic law or under international convention, place restrictions on fishing rights in the interest of fisheries protection. At common law, the public has a right to fish in the tidal parts of rivers and estuaries and in the sea within the territorial limits of the State.  This does not apply where the State or some other person has a proprietary right which excludes the public right.

In tidal waters, in the absence of evidence otherwise, it may be determined by presumption.  It is presumed that the soil subject to the ordinary flow and reflow up to the line of the medium-high tide belongs to the State and that the right of fishery is common to all.  Proof of ownership of a several fishery raises a presumption against the State that the soil under the fishery belongs to the fishery. The presumptive positions may be rebutted.

In tidal waters, riparian ownership does not apply to the centre of the stream.  This is inconsistent with the presumption that the Crown never granted out of the foreshore when it granted riparian land.  The foreshore cannot be presumed to have been a parcel of adjoining land.

Where an artificial channel is opened or the sea breaks through the land of a private person and the tidal water flows, the public right of fishing does not follow.  The State does not own the subsoil, and the right of fishing accordingly belongs to the owner of the land. If the landowner intentionally diverts tidal water onto his own land, the public rights will follow the changed flow.

Exercise of the Right

Where the public right depends on the ownership of the soil by the State, the right extends to the high watermark of ordinary tide and as far up a tidal river as in the ordinary course it flows and recedes.  There must be some tidal influence. Saltiness is a factor, but it is not critical.

The public right of fishing must be exercised reasonably and subject to law.  The public may not use fixed engines, weirs or anything else that is incompatible with the ownership of the subsoil.  Subject to this, the public may adopt and use ordinary methods of fishing.  They may not claim exclusive rights to the use of any part of the foreshore.

In the absence of a customary right, right granted by statute or privately granted, the public has no right to fish on land above a high-water mark.  The public has no general right to use the foreshore, but they may cross the foreshore for access to and from the sea.

The public may not beach boats above the high-water mark.  They may not leave nets above that level.

Private Fisheries

The public does not have a right to fish in waters which are not tidal even where navigable.  The public may obtain a right to fish by consent or by estoppel.

The public cannot acquire a general right to fish in tidal waters by long use, which was once the subject of several fisheries or are in non-tidal waters.  The right is considered too vague and incapable of definition.  It may not be obtained by custom or Statute of Limitation.

Private or several fisheries within tidal waters must have been granted by the Crown prior to Magna Carta.  Since that time, they may only be created by legislation.  A grant of several fisheries presumptively carries the subsoil. Before Magna Carta, the Crown could exclude the public from any particular place by granting a several fishery.

The Crown also had the power to bar fishing in any area, whether fish, freshwater or seawater, until the King had taken his pleasure there.  The powers cease to vest in the Crown after Magna Carta and may only be exercised by Parliament/the Oireachtas/ the State in succession.

Because the fishery is a proprietary right, it cannot be abandoned but may be passed by deed.  The use by the public or other part of the public may be evidence against the alleged righty.

Variants

A private right of fishing either in tidal or non-tidal waters must be either a several fishery or a common fishery.  A several fishery is an exclusive right in a place with or without ownership of the subsoil.  The right is exclusive in the sense that no other person has an equivalent right.  It does not necessarily mean that a person may not have a more limited right such as in respect of a particular type of fish or right to a fish periodically depending on the circumstances.

A common fishery is the right to fish in another person’s waters in common with other persons.  It may be appurtenant to land or held in gross.  Where appurtenant to land it may be claimed under the Prescription Act.

Incorporeal fisheries may be appurtenant to land or held in gross.  Several fisheries may be held for a freehold or leasehold estate.  Several fisheries may be disposed of in the same manner as a property right by deed (only).

Lease & Licences

The fishery owner may lease it.  It may be leased with or without the soil as a corporeal or incorporeal right.  A lease of the riparian rights presumptively carries the right of fishing otherwise, the lease must reserve the fishery right.

A license to fish may be granted.  A licence to fish and take away fish caught should strictly speaking be granted by deed as this is a proprietary profit a prendre.  However, an informal agreement with consideration may be sufficient to found specific performance and be de facto enforced. A verbal licence may be revoked but its breach may be a breach of contract.

The grant of a right of fishing is a right to fish and carry away fish caught.  This is a proprietary right which may be asserted against others who wrongfully interfere with it, even in the absence of special damages.

Rights of Adjoining Owner

The owner of land abutting a non-tidal river is presumed entitled to the soil to the centre. The right attaches to leases of the adjoining land in the absence of a reservation or implicit limitation to the contrary.

The owner of the soil of the river is presumed to be the owner of the fishery over it.  The owner of a fishery is presumed to be the owner of the soil.  This presumption takes precedence over the presumption that the riparian owner is the owner of the mid-river in the event of a conflict.

The presumption in favour of the adjoining owner may be rebutted if it is shown that the circumstances at the time of the grant were such that there was no intention to transfer the fishery to the mid-river.  That riparian owner must be able to show that the right has been exercised exclusive of the owner of the fishery.

Proof of regular fishing by the alleged fishery owner would rebut the presumption.  The riparian owner may have a common fishery or be a tenant in common of the fishery or may have no rights at all.

In non-tidal, non-flowing water such as canals or a reservoir, the right of the fishery is presumptively that of the owner of the soil.  He may deal with it as he sees fit.  In the case of canals constructed under legislative authority, there may be provision in relation to the fisheries. Some rivers may be canalised with the rights of fishery remaining in the original owners.  Canalised non-tidal rivers have no public right of fishery.

The ownership of land incorporates ownership of a pond on it, and all that is in it.  The ownership of the soil of large inland lakes and rights of fishing are generally the same as the case of inland non-tidal waters.

Extent of Fishery Rights

Presumptively, the right of fishing belongs to the adjoining owners.  The public may acquire a right by custom, use or prescription.  The Crown has no right to the soil or fisheries.   Exclusive rights of fisheries may exist in large lakes for historical reasons.

Generally, the fishery in a non-tidal river extends to the mid-point.  In some cases, it may extend the whole width of the river.  The mid-point is determined by a hypothetical line down the middle of the riverbed.

The bed is the part that is always under water and the part that is either covered in water or left bare as the water supply increases and diminishes and which is sufficient to contain the water at its mean stage during the entire year.  Where the river changes its course or width, the boundary will follow the alterations.

The owner of a fishery does not necessarily have a right to land,  fish along the banks or use the bank for the purpose of fishing.  It may be possible to exercise the right by boats without interfering with the adjoining bank. The right to use a fishing path or bank may be obtained by prescription.  It may be obtained relative to a corporeal or incorporeal fishery.

The fact that a highway adjoins a fishery does not give any person exercising the highway the right to fish.  This is not included in the presumptive dedication of the highway.

There is no right for the public to fish from a canal towing path.  Depending on the interpretation of the Act of Parliament, the owners of the fishery or others may have the right to fish from the towing path.

Fisheries as Property

Fisheries are proprietary rights.  They may be conveyed by deed,  acquired and proved by long possession,  the fiction of a lost grant, prescription or Statute of Limitations title.

The original grant is an ancient deed or a presumed ancient deed.  The extent of the rights in question may be explained by recent use where the deed is not available or is notional. In the case of grants in respect of non-tidal waters, it is not necessary to trace the title to an ancient grant.  However, in tidal waters, it must be referable to an ancient grant prior to the Magna Carta, which restricted the Crown’s right to grant fisheries.

Evidence may be given that raises a presumption that it was in existence prior to that date (1215).  This will depend on the circumstances.  The fishery must be dealt with as of right and as separate property.  If there is anything which shows that its origin is modern, the presumption may be rebutted.  Evidence of possession in living memory may be sufficient to found a title on an ancient document.

A profit a prendre suffices to take a right of action against someone interfering with it.  Where a title is disputed, it is necessary to give evidence of possession under a title.  What constitutes sufficient possession depends on the circumstances.

Acts of ownership must be shown over the whole of the fishery, which is a singular entity.  It may be enough to show control over certain parts in accordance with a claim to the whole, provided there is sufficient commonality between the parts, which raises a presumption that the whole belongs to the claimant.

Ownership may be proved by documents, court actions, actions against trespassers, convictions, etc.  Property tax assessments may be evidence, including poor law rates.

Adjoining/ Nearby Owners

The owner of a fishery has the right to free passage of fish to his fishery and the right to catch fish in it by ordinary industry.  He must not obstruct the passage of fish up or down the river in a manner that is not necessary to the exercise of the right to catch fish.

He must not do anything which floods a neighbouring fishery. The owner of a fishery may, by injunction, take steps to restrain disturbance of the fishery.

The owner of adjoining land, who is not the owner of the fishery, must not do anything on the bed of the river which would damage the fishery.  Where the fishery and soil are owned by different persons, each must act reasonably, having regard to the other’s interest.  They will be liable for damage caused by extraordinary, non-natural or unreasonable action.

Ownership of Fish

Living fish are not owned.  Oysters, mussels and cockles from certain lands may be owned.  Living fish are wild animals and are not goods and chattels.  There may be qualified property in them in the same manner as wild animals.

They could not be stolen at common law unless they were restrained or claimed in possession in a tank or net. Dead fish once found and killed, are in the ownership of the property holder of the fishery or the person in whose possession they are lawfully at that time.

There is a range of legislation which makes it an offence to unlawfully take or destroy fish. The scope of theft is extended by modern statutes.  Fish may be the subject of the statutory definition of theft. Therefore, the above common law position may be displaced.