210 THE FISHERY LA WS. 



held (in 1 868) l that there is no such right ; this decision, 

 though not in itself binding on English, still less on Scottish 

 tribunals, has now been followed in England, and would not 

 improbably be followed in Scotland. The prevailing opinion 

 in the United States is that both the bed of the river 

 and the right of fishing belong to the riparian owners. 

 Even if a public right of fishing did exist, still it would 

 not include or carry as a consequence any right to use 

 the banks of the river for fishing. The bank belongs 

 to the owner of the adjacent ground, and he is no more 

 bound to let strangers come on it to fish than for any other 

 purpose. And if there is a public right of way along the 

 bank a towing-path, for example that does not strictly 

 entitle any one to stand there and fish. The land and the 

 power of controlling its use belong to the landowner, subject 

 only to his duty to allow the road or path to be used for 

 the kind of traffic to which it is appropriated. A loiterer 

 on a high road is, strictly speaking, a trespasser ; and one 

 who loiters or stops to fish is in no better case. The 

 inhabitants of a particular place on a river-side might 

 possibly have a customary right to fish from the bank, or to 

 use it for drying nets ; but such a right, if it could or did 

 exist, would make no difference to the position of a stranger. 

 In Scotland, however, a right to use the bank seems to be 

 more easily allowed than in England when once the right 

 to take fish is established. It must be added that, where 

 public rights of both fishing and navigation exist in the 

 same waters, the fisherman must give way to the merchant 

 sailor in case of need, navigation being deemed of greater 

 public importance than fishing. 



1 A contrary opinion seems to have been entertained by the Court 

 of Queen's Bench in England in the same year ; but the point was not 

 before them foV argument or decision. 



