civil 



in every river shall l)0 held i)ul)lic ])roj)crt3', in which no means of 

 calchinaf (ish, save l)y rod and line, should ho practised. It may he 

 urged that the lirsfc three points iniVin<fu on the rif^hts of the ]ieople ; 

 hut, on iho other hand, sucli rights must militate against the welfare of 

 the mnjdvily, and not only prevent the proper increase of fish, hut also 

 damage the rights of others living along the same stream, hut higher 

 up, hy ))reventing (ish reaching them. P" But a fishery is, in its nature, 

 enjoyahle wherever the (ish have a free passage. The right of a ri- 

 ]>arian owner may he injured hy the acts of other riparian owners, hoth 

 ahove and helow him, hut more frcfpicntly hy those henealh 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 hreed is necessary to their due pro])agation. 

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

 tirely ohstruets the fish, he necessarily deprives the upper riparian 

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

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

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

 use up the fish as efl^eetually as by keeping fixed nets, this kind 

 of user could not propeilj' be a cause of action, just as one ownei-, 

 who has a large number of cattle, would not l)e lialile to an action 

 at the suit of another wdio 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, Fis/ieri/ Lawi^ of the United Khigdom, 

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

 twenty years' acijuicsccnce may bind parties whose private rights oidy 

 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 fo be binding, even for an hour, nnist be granted by deed," Pater- 

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

 on to the s.ame extent in former d.ays as now. They were not then so re- 

 gularly or so generally made, and were not of the same impas.sable 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 Viecomes 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 pccimiary advantage, as fish are not sold to any great extent. ; 

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

 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 tlie whole course of the 

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



