With the second the confusion begins; it is called a free fishery. Naturally persons have considered this means a fishery where any one could fish, but the meaning is very different. What the precise meaning is no two lawyers are agreed upon. All are agreed that it is a private fishery; but one class say, and, most likely, correctly, that it means a right to fish in another man's water by virtue of a royal grant, precisely as a " free warren " means a right to take game on another man's land by virtue of a royal grant. If this meaning is adopted things are fairly clear, but if the other meaning, that it is a peculiar kind of several fishery differing from it in certain of its incidents, the confusion is tremendous. Practically, it may be said that a free fishery is an exclusive right of fishing which has in its origin nothing to do with the ownership of the soil, and which may even exclude the owner of the soil from fishing on his own land.
The third right has also a very confusing name, a common fishery. Persons naturally, and Parliament also, have jumped to the conclusion that a common fishery means a public fishery, and speaks in the Salmon Fishery Act, 1873, of a " Public or Common Fishery" as if they were synonymous. No idea could be more mistaken. A " common fishery," or to speak more correctly, a " common of fishery," is a private fishery, but one where rights of common may be exercised by the tenants of a manor. Precisely in the same way as commoners exercise rights of pasture over the wastes of the manor, so they exercise rights of common of fishery over the water of the manor. A common of fishery is not very usual, but it does exist in some places, and here the commoners have the right of fishing in the lords' waters. For practical purposes any right of fishing may be treated as a several fishery, that is the legal presumption, and if any one alleges the contrary he must prove it. The ownership of the land implies the ownership of the fishing.
At common law every one could take his fish as he pleased, there was nothing to prevent him doing so, at all times, in all places, and by all modes he thought fit. By statute various restrictions have been placed on the rights of owners as to fishing, both as to times, places, and modes. The statute law of fishing is the history of these restrictions.
The restrictions are of two kinds: general, those that apply to all fish whether in private or public waters; partial, those that only apply to particular fish, particular modes of fishing, or particular places.
The restrictions go back to the earliest times. Two sections of Magna Carta provide against the Crown granting private fisheries in public waters, and against the erection of weirs in navigable rivers. From that time to the present, Act after Act of Parliament has been passed imposing restrictions on fishing. As to salmon, the majority were repealed in 1861, but since then no less than sixteen statutes have become law placing restrictions on fishery rights. As regards fish other than salmon and trout, most of the restrictions have been imposed by modern legislation, dating from 1878.
The chief of the general restrictions, which apply to all fisheries and to all fish are:-
With the exception of mature eels, all fish that are found in inland waters have a close time, during which it is unlawful to catch or to sell them. This close time varies for different kinds of fish. Thus salmon have one, trout another, coarse fish another, young eels and elvers another, all fixed by statute, and most of these statutory times can be locally varied by by-laws; but whatever the variations, it may be taken that in all places in England and Wales there is a close time during each year when fish cannot be taken. A list of these close times is given below.
By statute no fishing weir can now be erected in any navigable river in England or Wales. Whether a person can erect a new weir in a non-navigable river for fishing purposes is a point that has not been expressly decided. The balance of authority would seem to be against it. The point was raised in a modern case, argued but not decided. Still less has the point been settled whether, in a non-navigable river, an existing weir which has no fish trap can be altered into a weir with a fish trap for fish other than salmon. The whole tendency of modern law is against the creation of new fixed fishing traps.
No person can use dynamite or other explosive substances to kill fish. This applies to the owner, equally as to any one else. No person can use any fish roe for fishing for any kind of fish. No person can use poison to kill or destroy fish.
These prohibitions are universal, and apply in all parts of England and Wales.
As to partial restrictions, these are also general and local. The general apply throughout all England and Wales (except to the Tweed district), unless they have been locally varied as to particular fish. The most important are those as to salmon. For this purpose salmon has a very wide meaning, and applies not merely to salmon as popularly understood, but to all migratory fish of the genus "salmon," whatever may be the local name; this includes salmon, sea trout, white trout, and all trout that migrate to the sea. Whether it includes trout that migrate from one part of the river to another at certain times of the year has never been definitely settled.
The restrictions fall within two heads:-The modes of killing salmon; the times of killing salmon.
The prohibited modes are the use of poisonous substances which may sicken or kill fish-the use of poaching methods such as lights, spears, otters, stroke hauls, or gaffs. The use of all but the last is absolutely, the improper use of the last is only, forbidden. The use of proper methods in an improper way-the chief of these are the use of fixed engines; the use of fishing weirs or dams; the use of nets with too small a mesh, the standard mesh being two inches from knot to knot. There are a series of provisions restricting the mode of using legal nets, such as they may not be used near a weir or dam, nor in a mill-race, nor too closely together, nor in a way to unduly increase their normal catching power. Under this head are included the provisions for the construction of fixed engines, fishing weirs, and fishing mill-dams. Certain of these restrictions can be increased by by-laws, a power which has been locally exercised in many cases.