Table of Contents
Fisheries Rights
Fisheries refers to the right to fish and can refer to a fishing area as well. There can be public fishing rights and private fishing rights. The presumptive position is that members of the public have a right to fish, only in tidal waters.
A fishery is a type of property right. It may be passed by deed. A lease may be granted. There are limits on th extent to which the right may be granted verbally under property law.
The fishery right is wholly different to a consensual permission or license to fish granted by the person entitled. The difference is the same as that between the land owner and the person who uses land by consent.
Private fisheries are property rights which are usually held by the landowner but can be owned separately. The right to fish can be acquired by very long use. Unlike easements it need not be associated with any particular adjoining land.
The common law position is of course subject to fisheries legislation, local regulations and bylaws which may apply in different fishery areas. As with other areas the property position is the starting point. A person may be entitled as a matter of property to fish but may of course be subject to fisheries legislation which prohibits him from so doing.
Types of Rights
A public fishery is vested in the public at large. A private fishery is vested in one or more individuals. A several fishery is owned by a single person or body. A common fishery is owned by several owners.
Confusingly a several fishery usually implies one owner. A private right of fishery may be enjoyed by one person or several persons in common as with other types of property; s commons of piscary
There may be a right to fish attaching to land in which case it is limited to the needs of the particular property and household concerned. This is similar to a turbary right and may arise for an adjoining owner. This is different to a several fishery.
The general principle is that fisheries are profits; a right to take something that is naturally on land or in water. Other profits will include turbary grazing rights and estovers trees. A corporeal fishery is worn that includes ownership of the soil of the river. The person may or may not own land adjacent to it.
An incorporeal fishery is a right to take fish or specified class of fish in a defined stretch of water without interference with or ownership of the soil. Therefore it cannot be exercised by the putting in place of apparatus or engines unless this right is granted or acquired by itself. Some rights may of necessity be included in a grant such as the rights to put in place stakes, depending on its nature.
There can be a corporeal fishery and incorporeal fishery in the same land in respect of different classes of fish e.g. shellfish and swimming fish.
In some cases, the fishery is a right simply to catch fish and take them away without ownership of the soil. Unlike easements this does not have to be for the benefit of a particular piece of adjoining land, but may often be so. This is a so-called right to fishery in gross. However generally several profits of fishery are associated with the land and do not exist in gross.
Ownership of Fishing Rights
The starting position is that ownership of a river and the body of the riverbed carries the right to capture and kill fish in it. The same principle applies to wild animals on land. This common law position is of course subject to significant amount of legislation on wildlife and fisheries which regulate and restrict this position.
The contrary can be shown by the terms of the grant or circumstances up to acquisition. The owner might show that the alleged fishery owner had a common of fishery and not an exclusive right to exclude the riparian owner.
It is presumed that all nontidal waters are subject to fishing rights. Many are owned by the land owners. Some fishing rights are held by Inland Fisheries Ireland. In some cases, there are rights of fishery in tidal waters established by legislation. The fisheries in the Foyle and Lough Foyle are vested in the Minister for the [Marine] and the Northern Ireland Ministry under the Foyle Fisheries Act 1952.
The presumption of ownership is that the bed of nontidal water belongs in equal shares to the owners of the adjoining lands. Where the land includes a body of water, it is presumed to be owned by the landowner. The presumption is that the adjoining owners owns to halfway across the body of water.
The entirety of the water may be owned by a third party where there exists a several fishery.
There may be a paper title by way of a deed granting ownership to the bed of the river. As with easements and other rights if a several fisheries right has been exercised for a very long time it is presumed to have a lawful origin.
Acts sufficient to establish ownership such as exercising the fishing rights, payment of rates for the fishery, making and ditch taking gravel stones and sand placing stakes in the river building peers et cetera in former times may tend to show ownership of the body of water/fishery.
Several Fishery
Fisheries are profits of the soil over which water flows. Title to the fishery derives from the right to the soil. A fishery may be owned by a person who does not own the adjoining land or subsoil. This is a so-called several fishery. The right is a property right . This right can be leased by the holder of the right.
The owner of a fishery right must exercise it in a manner that causes as little detriment to the riparian owners as is consistent with full beneficial use of the right of fishing.
A corporeal fishery is a several fishery together with the soil thereunder in tidal waters. In the case of non-tidal waters, it is a right to the soil of the water/river with a right of fishing over it.
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. 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.
Proving Private Several Fishery
There are very obscure fictional rules in relation to establishing fisheries. Before 1215 the Crown could grant fisheries exclusively to an individual or group. This was prohibited after Magna Carta. A several fishery may be established on the basis of the fiction that was granted before 1189.
The onus of proof for a private right in tidal waters is on the person who claims it. Long use leads to the presumption that the right existed before the time of legal memory (1189the date of death of Henry II). This can then be countered by proof that is not the case.
Despite this principle the Crown granted fishery monopolies during the Ulster plantation and later. However, these were found to be invalid in the 20th century and inconsistent with the Crown’s limited rights. In a case in 1949 Foyle and Bann Fisheries Limited v the Attorney General the plaintiff held leases from the Society of the Governors of the new plantation in Ireland within the realm of Ireland a corporation created in 1662 and its sought to exclude local fishermen from their claimed several fishery. They claimed a several fishery had existed in part of the waters of River Foyle in County Donegal. The company claimed that the several fishery had existed since time immemorial and relied on a Royal Charter of 1662.
The Attorney General/state pleaded the waters had always been tidal and public fishing right of fishing had existed there at all times. The exclusive possession of the fishery for hundreds of years must be of enormous weight and the court would not usually ascribe an illegal origin. However, the presumption can be offset by proof of later origin. As Ulster was not under the control of the Crown until the 16th century or 17th century, it could not have been granted by the Crown prior to 1189. The proof a possessory title could not displace the public right of fishing in tidal waters.