';; :'-,.' ( 102 ) 



the right of fishing is in the tenant also." This point was 

 decided (Duke of Riclimnod v. Dempster, 14th January 

 1860, Just. c. 33, sc. Jur. 133.; The Court of Justiciary, 

 consisting of five Judges, per Tnglis, C. J., carne to the 

 following conclusion: " We are of opinion that an agri- 

 cultural tenant has not, as such, any right to fish in a stream 

 running by or through his farm, with any net of any kind 

 or description" (Pater son) a decision said to be open to 

 question. 



CIY. "The nature of a right of fishery proper is an 

 incorporal hereditament, and as such 



Nature of right of fishing. -/- 111 



can be conveyed only by deed. 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" 

 (Paterson, p. 57^. A " fishery may be let by verbal agree- 

 ment ; and even where no rent has been agreed upon, the 

 landlord is entitled to sue the tenant for a reasonable rent 

 under an indebitatus count for use and occupation" (p. 67.) 

 " The purchasers of a fishery in the River Galway and Lough 

 Corrib petitioned the Court of Chancery to be quieted in 

 the possession and enjoyment of their several fishery. The 

 defendants were represented by ten persons, who were paupers, 

 who set up as a defence that the river was, except in a cer- 

 tain specified portion, open to the public, and had been so 

 from time immemorial. Evidence was given on both sides, 

 and the plaintiffs, who produced grants from the Crown, 

 and evidence of user, contended that the evidence of user 

 on the part of the defendants was evidence merely of a 

 succession of trespasses. There had been a trial of an issue 

 some years previously which settled the right to the fishery 

 in the plaintiffs. The M. 11. accordingly, without put- 

 ting the plaintiffs to any further trial, granted the decree 

 declaring the petitioners' rights and continuing the injunc- 

 tion (p. 117-8). 



C V. " Property is essentially an exclusive thing, and 



the incident of fishing is also so. 



Right of property in fishery. . ,, 



All other persons, therefore, except 



the owner of the soil beneath, or the riparian owner, have 

 no more right to fish in his water, than they have a right to 

 seize any other perquisite of the soil. Whether a stranger 

 fishes with a net or a rod can make no difference in point of 

 law; it is the taking of the fish, not the manner of taking 



