clvii 



in every river shall be held public property, in which no means of 

 catching' fish, save by rod and line, should be practised. It may be 

 urged that the first three points infringe on the rights of the people ; 

 but, on the other hand, such rights must militate against the welfare of 

 the majority, and not only prevent the proper increase of fish, but also 

 damage the rights of others living aloug the same stream, but higher 

 up, by preventing fish reaching them. £" But a fishery is, in its nature, 

 enjoyable wherever the fish have a free passage. The right of a ri- 

 parian owner may be injured by the acts of other riparian owners, both 

 above and below him, but more frequently by those beneath him, seeing- 

 that fish are in some way connected with, and come from the sea." In 

 India, the large rivers to which mahaseer resort during the dry season 

 would stand in the place of the sea in England, and their migrating 

 up those hill-streams to breed is necessary to their due propagation. 

 " If, therefore, one riparian owner fix a net or erect a weir which en- 

 tirely obstructs the fish, he necessarily deprives the upper riparian 

 owners from deriving from the water one of the uses to which they 

 are entitled. Though one riparian owner may by fishing- by net 

 or rod at all hours, and, by means of servants and assistants, almost 

 use up the fish as effectually as by keeping fixed nets, this kind 

 of user could not properly be a cause of action, just as one owner, 

 who has a large number of cattle, would not be liable to an action 

 at the suit of another who has no cattle, and so takes no use of 

 the water. But it is otherwise where a total obstruction occurs. Hence, 

 even independently of any statute, any fixed apparatus in a river or 

 stream, which prevents the fish going- up to the other riparian owners, 

 is a good cause of action at common law, as it deprives him of one of the 

 natural riparian rights." Paterson, Fishery Laws of the United Kingdom, 

 p. 43 ; also Lord Ellenborough gave the following judgment : — " Though 

 twenty years' acquiescence may bind parties whose private rights only 

 are affected, yet the public have an interest in the suppression of public 

 nuisances though of longer standing ;" and such he ruled weirs to be. 

 Likewise, although the public have indulged in license from time im- 

 memorial, it gives no right in fishing. " A license of fishing is distinct 

 from the right of fishery, and is at most only a justification for what 

 would otherwise be a trespass. A license is revocable at will, and in 

 order to be binding, even for an hour, must be granted by deed," Pater- 

 son 1. c. p. 57.] The right of erecting weirs was not, I believe, carried 

 on to the same extent in former days as now. They were not then so re- 

 gularly or so generally made, and were not of the same impassable na- 

 ture as those now erected. For I have seen some which none of the 

 fish inhabiting these rivers could possibly pass. Besides, where a mat- 

 ter becomes one of public importance, as the preservation of fish is, 

 surely the rights of private parties, especially when in the minority, 

 ought to give way. In the hills, too, a fishing right does not bring 

 in much pecuniary advantage, as fish are not sold to any great extent ; 

 and by somewhat curtailing it, the only hardship inflicted would be, 

 that the possessors would not be able to destroy fish to the extent they 

 now do, and yet would always be able to get sufficient for their wants, 

 while an equal supply would be available through the whole course of the 

 several rivers." Considers it would be very difficult to regulate the size 



