304 THE LAWS OF ANGLING. 



in a river ; which is so constantly passing from the soil of one to 

 another, that no man can, in strictness, be said to go twice to the 

 same river ; and yet, by a grant of any quantity of land covered with 

 water, which is the only legal designation of a river, not only a certain 

 tract of the river, but the fish contained in it, shall pass. See Coke 

 on Littleton, 4. a. 



In the Register, a very ancient law book, we find two writs relating 

 to fish : the one, for the unlawful taking of fish in a several fishery, 

 and the other, in a free fishery. And of these in their order. 



A several fishery, is that which a man is entitled to in respect of his 

 being the owner of the soil, and is what no one can have in the land 

 of another, unless by special grant or prescription : and whoever shall 

 fish in such a several fishery, without a licence, is liable to an action of 

 trespass, in which the plaintiff may well demand " wherefore, in the 

 plaintiff's several fishery, the defendant was fishing, and his fishes 

 took," &c. for though the fish beferce natura, yet being taken in the 

 water of the owner of the river, they are said to be his fish, without 

 saying in his soil, or water, 3d Coke's Reports, 553. Child and 

 Greenhill's case : but he must set forth the nature and number of the 

 fish taken, 5 Coke's Reports, 35. Playter's case, and 3d Coke, 18. 



A free fishery is a right to take fish in the water and soil of another, 

 and is derived out of a several fishery. If one seized of a river, grants, 

 without including the soil, a several fishery, or, which amounts to no 

 more than that, his water, a right of fishing passes, and nothing else. 

 Plowden's Commentary, 154, b. Coke on Littleton, 4. b. And the 

 word several, in such case, is synonymous with sole, and that in so 

 strict a sense, that by such a grant not only strangers, but even the 

 owner of the soil is excluded from fishing there. Co. Lit. 122, a. 

 And farther, where one prescribes to have a several fishery in a water, 

 which prescription always supposes a grant precedent, the owner of 

 the soil, as much as a stranger, is liable to an action if he fishes there : 

 2 Roll. 258, the case of Foriston and Catchrode in the Common Pleas. 

 Mich. 29 and 30 Eliz. But here tb> writ shall vary from that in the 

 case of a several fishery, and demand " wherefore the defendant, in the 

 free fishery of the plaintiff, at N., without the licence and consent of 

 the plaintiff, was fishing," &c. expressing the nature and number of 

 the fish taken : but because the soil does not pass by such a grant, and 

 the fish are ferae natura, he shall not call them his fish, as in the 

 former instance. See the case of Child and Greenhill, above cited. 



The doctrine deducible from these principles is, that that which, 

 united with the soil, would be a several fishery, when severed by grant, 

 though the grant be of a several, or sole, and not of a free fishery, in 

 terminis, becomes a free fishery. 



There is yet another case that I shall mention, which will give the 

 intelligent reader a clear notion of this matter. A man grants to one, 

 or more, a liberty of fishing : * here nothing but a naked right to 



* I find in Dndef. Warw. 11-12, in margins, an account of the following 

 prant, which for its singularity deserves notice. 31 Hen. 111. "Thomas 

 de Clinton, of Aminton, levied a fine to Phil. Marmion, that he and his 

 heirs, his wife, and their heirs, might, when they o:,me to Tarn worth, or to 

 their castle at Middleton, fish with a boat any where in his water of Amin- 

 ton, with one not, called a fleu-net, and a trainil and saynaj for which 

 liberty he gave him six marks of silver." 



