SIMON
FACT SHEET NUMBER 1
OWNERSHIP OF FISH AND FISHERIES
Once a fishery
has been acquired a series of issues arise which affect the enjoyment of that
fishery.
·
What is the extent of the rights to fish?
·
Who owns the fish in the fishery?
·
What can be done to prevent others from unlawfully fishing
in your waters?
This fact sheet
looks at the issue from the point of view of what rights you have and what you
can do to protect those rights in civil and criminal law. It does not deal with statutory controls
such as, for example, the need to have a rod licence, or the methods by which
fish can be taken, which are regulated by the Environment Agency.
The right to catch fish is
a right associated with the ownership of the land which abuts and lies beneath
the water in question. Ownership of
such land carries with it the rights over the water above the bed and these
rights include the right of fishing.
These rights are known as riparian rights. Therefore the owner of land abutting
water has the exclusive right to fish for, take and carry away fish in the
relevant lake or river (unless these rights have already been disposed
of).
The right of
fishing, generally covered by the phrase “to take, or take and carry away
fish”, can be separated from the ownership of the land. The right is what is known as a profit a
prendre. This is a right which is
“appurtenant” or attached to the land and benefits it. It is a legal right, but can now be
registered at the Land Registry, see Fact Sheet 7 -
Registration of Fishing Rights on this subject. If the rights are registered at the Land
Registry, then the registration establishes good title to the fishing
rights. If not registered, the
rights will still have the status of an overriding interest, to which ownership
of the land over which the fishing rights are enjoyed are subject. The right of fishing can be disposed of
either by outright sale or by lease or licence.
The sale, lease
or licence of fishing rights may include the land underneath the water or may
be of the rights alone separately from the land. Unless otherwise stated, the grant will
be an unrestricted one to take all species. It is however possible to limit the way
in which fish are caught, e.g. rod and line only or the species that can be
fished for, e.g. game fish only. It
might also be that restrictions are imposed on the right to carry away
fish. For example there might be a
bag limit or an obligation to catch and return. There may also be a restriction on the
numbers who can fish the water, e.g. limiting the fishery to a certain number
of beats.
The grant of
fishing rights may also be subject to other uses which the grantor reserves to
himself. These might include the
right to water cattle, to retain a rod for the use of the grantor, or the right
to use the water for navigation purposes.
In the case of a
river fishery, the further question arises of what happens when the opposite
bank is in different ownership.
Lovett -v- Fairclough is authority for the principle that there is no
right to fish beyond the middle line where the opposite bank is in different
ownership. To cast beyond the
middle line is a trespass. In
This situation
can be the cause of friction, particularly on migratory fish rivers when the
number of days with good fishing conditions may be limited, and therefore both
banks of a fishery may be fished at the same time. In practice, in many cases anglers
will cast beyond the middle line and often this is accepted by both
parties. However if a good pool
lies on one side of the river it is possible to prevent anglers casting into it
from the opposite bank.
The basic
position is that fish once released into waters are “ferae naturae”
or wild animals. As such they
belong to no one in the same way as wild birds and animals on a person’s
land. There are some exceptions to
this principle which are explored below.
There is
therefore no ownership in fish until they are reduced to possession i.e.
caught. This is an important
consideration given the amount of money spent stocking fisheries. The rule is simple enough in the case of
river fisheries. Fish are free to
move up and down the river, and neither the owner nor the lessee of the fishing
rights can claim ownership of fish present in the relevant stretch of the
river.
In the case of
still waters the position is less straightforward. There is authority from the case of Snape
v Dodds, that fish in an enclosed water will belong to that owner provided
that he owns the whole of that fishery.
He would therefore be entitled (subject to obtaining the necessary
consents from the Environment Agency) to remove the fish to other waters or to
sell them.
However, many
still water fisheries or the rights of fishing in them are let or licensed to
the club or syndicate fishing them.
The problem arises if the lessee wants to remove fish to other fisheries
during or at the end of the term or to sell them. If the lease in question is of the bed
of the whole of the still water as well the rights then it is arguable that the
lessee has the same rights to remove fish as the owner itself. However, there is a counter argument
that as the fish are wild until caught, they remain the property of the
landlord.
If the lease
only grants the right to fish the water in question there is little doubt that
the lessee cannot remove fish for restocking elsewhere or sale whether during
or at the end of the term.
One way in which
this basic legal position could possibly be challenged is by the legal doctrine
of promissory estoppel. In simple
terms this provides that if one person (A) follows a course of action, in this
case spending large sums on stocking a fishery, with the knowledge of another
(B), here the owner, then B cannot rely on his strict legal rights if A
followed that course of action in the belief that B would give him rights, here
the removal of the fish, in return.
In such a case the law prevents the owner from relying on his strict
legal rights when his conduct makes it unreasonable that he should do so.
The case where
the principle was first established was one where an owner had allowed another
to build a bungalow in his grounds but did not make any written agreement in
relation to the transfer of the land on which it was built. In due course the owner sold the land
and claimed the bungalow formed part of it and that he therefore owned it. The court prevented this from happening
and gave the person who had built the bungalow rights in it.
Relating that to
the issue of ownership of fish, it will be clear that there has to be something
in the nature of a promise from the owner upon which the lessee of the fishing
rights relies before such a case could be started, or at least some conduct by
the owner leading to the belief that the fish stocked were the property of the
tenant. Mere acquiescence in the
stocking of the fishery may not be sufficient.
All the above
emphasises that there can be real difficulties in recovering an investment in a
fishery, and the best way of dealing with the issue is to anticipate it. It is therefore very advisable to
negotiate suitable terms with the owner when the fishery is taken on. These might reserve the right to remove
fish above a certain size at the end of the term or require the landlord to
make a payment for fish left. It is
much easier to negotiate a fair deal before the problem arises rather than
afterwards.
There are two aspects to
the protection of fisheries. First
is the right to prevent entry on to the fishery or unauthorised exercise of the
rights. Second are rights to
protect against theft of fish and damage to fish and fisheries. These rights are enforceable both as a
criminal and civil remedies.
3.1 Trespass
It is a basic principle of
common law that a person who owns land or an interest in land can take action
to prevent trespass on that land or to the interest. The owner does not have to prove damage
in order to start a claim. If
trespass is proved then the court has the power to award damages or to grant an
injunction.
A claim in trespass can be
brought to protect an easement or profit a prendre (see above) over land, as
well as ownership of the land itself.
This means that action can be taken to prevent unauthorised use of the
fishing even if you only have a lease of the fishing rights.
However it is important to
emphasise that there has to be a sufficient interest in land to enable action to
be brought. In simple terms this
will require either ownership of the land or the rights or a lease of
them. Many angling rights are
enjoyed by licence, or other informal agreement that may not amount to an
interest in land.
In those cases it is only
the owner that has the right to bring an action. Where possible, when taking on a water
as licensee, it is sensible to agree a term that the owner will lend his name
to an action where asked to do so, provided a suitable indemnity for costs is
offered. Incidentally, that is also
an issue that can also crop up when waters are polluted. In order to bring a claim for damages it
is essential to have a sufficient interest in the land to bring the claim.
3.2 Problems
where there is a public access to the waters edge
In practical terms,
trespass, for the purposes of this fact sheet, means fishing without
authority. In most cases this will
be obvious, as it will be necessary to cross land owned or leased by the
fishery owner before fishing can take place. However, in some cases, there may be a
public right of way adjacent to the fishery, or the fishery may be tidal, where
a public right to fish exists. Even
in these cases, right of action will often be available.
It is decided law that a
footpath is limited to the beaten path, and in any event the public right is
limited to passing and repassing on foot.
There will in most cases be a bank between the path and the fishery, and
there will be no public rights over the bank as it does not form part of the public
right of way. Therefore, if a
person fishes from that bank or if he passes across the bank to reach a boat,
that act is unlawful. Additionally
the owner of land also owns the air above it. Therefore it would also be an unlawful
act to cast a line through that air space, from land not belonging to the
fishery owner.
If the fishery owner only
enjoys the rights to fish and not the leasehold or freehold in the bed and
banks of the fishery, the owner can still prevent an unauthorised person from
exercising the right to fish.
In the case of tidal
waters, there is a public right to fish from a boat or from the foreshore at
low water. There is however, no
right to gain access for a boat to the foreshore on foot from privately owned
land adjacent to tidal waters.
3.3 Criminal
offences relating to fisheries
Action can also be taken to
prevent the unauthorised taking of fish or in common parlance poaching. The main remedy in this case is likely
to be criminal although civil remedies do exist.
Paragraph 2(1) of schedule
1 of the Theft Act 1968, makes it an offence where a person unlawfully takes or
destroys any fish or attempts to do so in water which is private property or in
which there is a private right of fishery.
A private individual can bring a criminal prosecution, but it is
normally undertaken by the Police or by the Environment Agency.
There is also a second,
less serious offence, of fishing without authority. Where a person takes or destroys fish
from a private fishery by angling during daylight hours, then that does not
amount to the full poaching offence set out above. However it is still an offence
punishable by fine only not exceeding £200. This lesser offence only relates to
fishing with rod and line. This
offence is designed to punish the unauthorised angler less severely than the
poacher.
At common law it would also
be possible to bring an action against the poacher or unauthorised angler on
the principles set out above. It is
also possible that if a poacher were caught taking valuable fish, e.g. specimen
carp that a civil action could be brought to recover the value of the fish that
were unlawfully taken. In such a
case it would be necessary to prove that that the fish did belong to the fishery
owner, see ownership issues above, and the value of the fish in question.
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Please note that this fact sheet
is intended to give general guidance on the stated area of law. We cannot accept any responsibility for the
consequences of relying on this fact sheet in relation to particular
circumstances of which we are not aware. If you want more information on
any issues raised in this fact sheet or require advice on a specific issue
please contact Simon Jackson.
Simon Jackson
Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691
791439
Fax: 01691 791583
e-mail. srbj@btconnect.com
www.anglinglaw.co.uk