HL Deb 29 November 1911 vol 10 cc413-24

*LORD EVERSLEY rose to call the attention of the House to the two recent cases decided by the House of Lords, in its appellate jurisdiction, in respect of fisheries in the River Wye and Lough Neagh (Ireland); and to ask His Majesty's Government whether, in view of these decisions, they will consider the expediency of legislation for the purpose of giving greater legal sanction to immemorial and unquestioned user by the public or by classes of persons of fishing in parts of the lakes and rivers of the United Kingdom.

The noble Lord said: My Lords, in calling the attention of the House to two very remarkable and interesting fishery cases decided a few weeks ago, by a curious coincidence on the same day, and decided in both cases by a majority of four to three against the fishermen whose interests are concerned, I do not propose to criticise the judgments of the Judges in the two cases. I think it would be a very bad precedent if I were to call in question the judgments of the Supreme Court in this House and provoke a discussion between the Judges who might be present in this House. For the purposes of what I shall say to-night I shall take the judgment of the majority as the law of the land as declared by the Supreme Court, and I shall endeavour to show, that being the case, that it will work harshly on the fishermen concerned in the particular cases, and will prove equally harsh in many other cases in the future.

In the first of these cases, that of the River Wye, the freeholders of five parishes adjoining the river have for many past centuries, possibly since Doomsday, enjoyed by custom the right of fishing in a reach of the river seven miles in length, and they have enjoyed this custom or right without any question by anybody or any attempt on the part of the riparian owners during the whole of those centuries to interfere with them or in any way object to the exercise of it. The right of netting in this reach of the river was in former days exercised by a small community of fishermen living in the immediate neighbourhood adjoining the river, but of late years, in consequence of the very high fees which have been charged by the Conservancy of the river, the number of these fishermen has been considerably reduced, and practically the right has only been enjoyed by a very few. But the freeholders of the five parishes also enjoyed the rod fishing in the river. For the first time for centuries this custom or right has been called in question by the riparian owners. The case came up by way of appeal from the Court below, and the Muse of Lords, by a majority of four to three, decided against this custom, and declared that it was invalid, and that there cannot be a custom alleged on the part of the freeholders of a district in the nature of a profit-á-prendre, and also that a custom to take fish without stint in a river is unknown to the law of England. They have consequently declared the custom to be invalid; they have deprived the fishermen of their means of living; they have deprived the freeholders of the five parishes of which I spoke of their rod-fishing; and they have vested these rights in the riparian owners, who, as I said, have never from time immemorial claimed it before. I think, therefore, that anybody looking at this case will feel that the law as declared by the Judges, although no doubt good law—that is to say, a declaration of the law as it now stands—is open to very great question.

The other case, that of Lough Neagh, is a still more remarkable one. Lough Neagh is the largest lake in the United Kingdom; it is 24 miles in length by 16 miles in breadth, and is, in fact, an inland sea. It communicates with the sea by the River Bann. For several hundred years the fishermen in the neighbourhood have fished in tough Neagh without any question being raised of right. Nobody has ever for a moment questioned their right to do so. The fishermen at the present day are some 800 in number, and although many of them are not wholly dependent upon the fishing they owe their living in great part to the fishing, and with their families they constitute a community of something like 2,000 or 3,000 people. It appears that in the time of Charles II the Crown gave a grant of all the fisheries in the River Bann to the Lord Donegall of that day, and included in the grant were also the fisheries of Lough Neagh. It seems exceedingly doubtful whether the Crown had any right to make a grant of the fishing of the lough. I believe it is now settled law that the Crown is not the owner of the fisheries in inland lakes. Of course, it is just possible that there might have been a forfeiture to the Crown of all the land adjoining the lake and adjoining the River Bann, but that seems to be exceedingly unlikely. But, at all events, whatever the inception of this right may be, the fisheries in the River Bann have always been exercised by the Lords of Donegall and their successors, and are now by the present representative—or rather by the lessees of the present representative—Lord Shaftesbury.

I may mention, in passing, that I believe the present Lord Shaftesbury has practically no interest in the matter, because the fisheries—both the eel fisheries and the salmon fisheries of the River Bann and Lough Neagh—have been leased for very long periods of years. The eel fisheries have been granted under a lease for 5,000 years, and, of course, the reversion to that can be of no value whatever. But the lessees of the present representatives of the Donegall family, having this lease of the eel fisheries of the River Bann, brought a suit against the fishermen of Lough Neagh and asked for an injunction against them to forbid them fishing for eels in Lough Neagh. I may mention that the value of the eel fisheries is very great both in the River Bann and in Lough Neagh. When I state the fact that the rental paid by the lessees to the Donegall estate is something like £880 a year, it will be seen that the value is very considerable; and the eel fisheries in Lough Neagh are also of great value. It has been held by the Supreme Court that. this grant by the Crown in respect of the River Bann is undoubtedly a good foundation for the title of the lessees of the Donegall estate, and they have also held that, although the user of the fisheries in Lough Neagh by lessees of the River Bann fisheries has been very small, yet the user is enough to substantiate that right also. They have, therefore, granted an injunction against the Lough Neagh fishermen to restrain them from fishing for eels in Lough Neagh. It is clear, further, that this judgment will have the same effect in challenging the rights as regards the other fisheries of Lough Neagh. The judgment only deals with the eel fisheries, but it was admitted in the argument before the Court that the principles involved would also determine the whole of the interest in all the fisheries in Lough Neagh. Therefore practically it has been held that the fishermen who have been in the habit for many centuries of fishing in Lough Neagh have got no legal right to do so, that they are there merely by leave and licence of the person interested under this right from the Crown, and that they may be dispossessed at any moment.

Although I do not wish to say anything which impugns the judgment of the Court in this matter, I must take notice of one very extraordinary fact. The Judges were evenly divided in the case—that is to say, of the seven Judges six were evenly divided—three in favour of the fishermen and three against them. But Lord Ashbourne, whom I see on the other side of the House, apparently went neither with one set nor the other. So far as I read his judgment he gave it as his opinion that the plaintiffs, the lessees of the Donegall estate, had proved their case only in respect of one-third of the Lough and not as regards the other two-thirds.


But that the injunction given by the Judge was quite right.


That may be; but I think I am right with regard to the two-thirds.




The noble and learned Lord seems to have given the most extraordinary care to this case and also to the other one. He decided in favour of the fishermen in the Wye case, and he decided in the manner I have just told your Lordships in the Lough Neagh case. He gave it as his opinion that as regards one-third of the lough the lessees of the Donegall estate had proved their title, but not as regards the other two-thirds; and therefore, if his judgment were to hold, the fishermen would still remain in possession of whatever rights they had as regards two-thirds of the lough. The noble and learned Lord apparently wished that the judgment of the Court might be amended in that sense, but it seems that that change could not be made at that stage of the proceedings, and the judgment of the Court is to the effect that the plaintiffs have established their right to the eel fisheries over the whole of the lough. There is this extraordinary result, therefore, that although three of the Judges held that the fishermen are entitled to the whole of the fisheries over the whole of the lough and one Judge held that they are entitled to fish over two-thirds of it, yet the judgment of the Court is that the fishermen are deprived of the right of fishing for eels over the whole of the lough. That seems to me to be a somewhat strange proceeding. The actual decision of the Court, if I am right in what I say, is that the plaintiffs are entitled to the fishing over the whole of the lough. Of course, the judgment cannot, now be impugned, but, as I say, it does seem to be a somewhat strange result.

My Lords, taking the two cases together, they seem to me to bang the door altogether against any possibility of the public or any classes of persons at any time hereafter proving a right of fishing by custom in any lake in the United Kingdom or in any part of any river. As regards lakes, the question has not previously been absolutely decided; and in a case which came up to the House of Lords affecting this very Lough Neagh it seems that Lord Cairns, who was undoubtedly one of the greatest Judges who ever sat on the English Bench, said it was an open question whether the public had any right over the lough or not, and the same opinion was expressed in the Court below by three other Judges of very great repute—namely, Chief Baron Palles, Lord Fitzgerald and Baron Dowse. They all said it was an open question whether the public had a right to fish in the lakes of England and Ireland—I will not say Scotland. But the judgment which has now been given seems to me to make it absolutely clear, as far as it can be made clear, that the public have no right whatever to fish by custom in any lake or river. That has been distinctly laid down by Lord Halsbury, Lord Macnaghten, and Lord Dunedin.

Is it a right state of law which declares that the public under no circumstances whatever can acquire a right by custom to fish in the lakes and rivers of this country? What the effect of such a decision will be is very difficult to say. I believe in the case of the very large majority of the lakes in England and Ireland the public in fact have enjoyed from time immemorial the custom of fishing in them, and I think I am right in saying that in a large number of rivers the public have exercised the right of fishing over parts of them. Let me take the case of the River Thames. In the case of the Thames below Staines the public have had a right of fishing because the fishing in that part has fortunately been vested in the Corporation of London; but above Staines, though there are very large parts of the river where the public have in point of fact exercised the right of fishing by custom, there are other parts where the riparian owners have maintained and exercised their exclusive right. But in the parts of the Thames which are still open I am told that something like 7,000 disciples of Izaak Walton habitually fish.

As far as I understand the two cases to which I have referred, neither the public nor any classes of persons can in future ever claim by way of custom a right of fishing in any part of any river or of any lake, and I must say that for my part I think the law which lays that down is open to grave question. I can conceive no better foundation for a right of any kind than long established user. The law, I believe, gives a right in the case of land to possession after twelve years' usage; and yet apparently a custom may be exercised for hundreds of years by fishermen in the lakes and rivers of this country without giving any right whatever. I believe I am correct in saying that no such law exists in any other part of Europe. In the greater part of Europe the fishing in navigable rivers belongs to the Government in trust for the inhabitants generally of the country, and that is also the case with the larger lakes. In the case of the smaller lakes, and in the case of the rivers which are not navigable, the right of fishing as a rule belongs to the community of the district, and is for the benefit of the people forming that community. Riparian owners generally on the Continent have no exclusive right. Nobody wishes to interfere with the exclusive right of riparian owners where it has been actually exercised in this country; but it does seem to me that where that exclusive right has not been maintained, and where the public have for generations exercised the custom or right of fishing in the lakes and the rivers, the law of this country ought to be amended so as to recognise and maintain that right. At all events, I venture to think that the question is one which deserves the most serious consideration of the Government with a view to revising and amending the law. I venture, therefore, to put to the Government the Question of which I have given notice.


My Lords, I do not in the least degree complain of the noble Lord in having brought forward this subject, because, although it involves the consideration of two very important cases that have been decided in this House, it also shows a condition of the law which it is quite right should be presented to the consideration of Parliament. Let me say, in the first place, that for the legal decisions of this House the House itself at large is, of course, in no way responsible. These decisions are given by those of us who sit judicially, and we have nothing whatever to do with public or private convenience. All we have to do is to ascertain the truth of the facts presented to us, and to apply the law of the country, as we believe it to be, to those facts. The ulterior consequences are not for us; they are for the Legislature. All we have to do is to try and apply the law to ascertained facts. I do not think that the noble Lord would have been successful, even if he had attacked any of the Judges, which he has not done, in inducing one or other of them to rise either to defend themselves or to inveigh one against the other.

Although both these decisions were, as a matter of fact, arrived at contrary to my expressed opinion, I have no doubt whatever that the noble Lords who came to these conclusions did so after the greatest care and pains—I know they did—and with a single desire to administer justice according to their view of the law of the land. That being so, let me state in a few words the purport of both of these cases, which as presented by the noble. Lord were a little disfigured, I think, in his statement, although in substance I do not complain of his description. The first of them was this. In the River Wye, for a distance of something like seven miles, there has been, certainly since a long time previous to the year 1637, and, as I believe, as far back as Doomsday and probably before the Conquest, but certainly for three or four hundred years, a claim of right acted upon and recorded in the rolls of the manor for all the freeholders in five parishes adjoining the river to fish in that river. There was no question that this supposed right was recorded for centuries and acted upon, until a year or two ago. A question arose as to whether or not there could be in law such a right not vested in any corporation. There were two opinions, and in substance the one which prevailed was that there could be no such right. The other, in which I shared, was that the great Judges who sat here before—Lord Cairns, Lord Selborne, Lord Watson, and others—had established a precedent for presuming some antecedent creation of a corporation so as to be the possessors of a right which must have had some legal existence if it had been constantly used for centuries. That was the difference between us.

The other case was the case of Lough Neagh. That was a different kind of question; it was whether there could be a public right for anybody who pleased to fish in waters which were not tidal waters but fresh water. There is no question that from time immemorial the inhabitants of the district of Lough Neagh had, in fact, fished without question, and we were told that hundreds of families subsisted and had subsisted for many years upon the produce of that fishing. Whether that is really accurate I cannot say, but that is what was stated. A question arose in that case whether a title created as long ago as the time of James I and confirmed by Charles II was a sufficient title. The deeds of the Donegall family went back to the year 1605, and the question arose whether it was only a paper title or whether it was a real title. On the one side it was maintained that it was a title supported by sufficient proof of user and enjoyment. I will not say a word about the complicated story which had to be unravelled in regard to that. That was the contention on one side. On the other hand, there were some Judges who, like myself, considered that it was merely a title on paper, and had never been accompanied by any enjoyment for all these centuries, and that whether the public were entitled to claim the right or not, the fact that they had used the fishing showed that there was no private right in those proprietors who claimed the fishery. I accept, of course, the decision of the noble Lords who came to the conclusion referred to. I am only wishing to explain to the House the nature of the strange conflict which arose, dating from very long ago, as to the right of fishing in Lough Neagh. Those are the facts. The noble Lord is quite mistaken as regards the part taken by Lord Ashbourne. Lord Ashbourne is here, and if it is necessary he is perfectly well able to protect himself. I will not, therefore, trouble any further on that subject.

The result was that in both cases the claims of the fishermen were negatived. I cannot help feeling that the result of these decisions does make it impracticable for any one to maintain hereafter that the public can have, in law, any right to fish in fresh water. I have never myself expressed assent to the doctrine that the public cannot in law have a right to fish in fresh water. It is quite true that Lord Cairns, in a great case, some thirty years ago, did not commit himself on that subject.

But what had certainly been generally considered to be the law has now been established in this House that the public can have no such right. Of course, that is a question quite apart from these particular decisions, which we are bound to take as correct, and which I am quite certain were arrived at after the most anxious consideration. It is true, I think, that the law now, at all events, is certainly established that the public can have no right of fishing at all in any fresh waters in this country.

I am now asked what view the Government propose to take with regard to it. I think that it is a thing well worth consideration. I do not wish to be understood as in the least committing the Government, but, speaking for myself and only for myself, I do feel that in this matter the course of laws and decisions, which have always been scrupulously careful to protect private property, have not always been so careful to protect public rights. Probably it was because in the case of the public it is everybody's business and therefore nobody's business. But for my part, if it can be done without interfering with fair and just vested interest belonging to individuals and which have been enjoyed by them, I would be very glad if something could be done in order to prevent what I think is an anomaly and unwise from every point of view, and sometimes unfair. I would suggest that the best course would be for the noble Lord, who takes a great interest in these and kindred subjects, to place on paper some definite proposal. It will not be an easy task; but if a proposal is submitted to us I will most carefully consider it myself and will ask for the consideration of my colleagues of the subject.


My Lords, I do not rise to say anything in reference to what has just fallen from the noble and learned Earl, but I think that by the two speeches to which we have just listened an impression might be formed in the minds of the public without due weight being given to the position of the plaintiffs in these actions. I do not think that the noble and learned Earl in his advocacy of the rights of the public really told your Lordships the full extent to which the rights of the public in the Lough Neagh case had been extended, and it was because of that usurpation that it became necessary for the plaintiff to take the action which he did. The noble and learned Earl said a moment or two ago that the law, while being very scrupulous with regard to private property, had not, been, perhaps, so careful in safeguarding public rights.


May I say that that observation was not intended to reflect upon the litigants in either of these cases. I was most anxious to avoid doing that. It was a general observation in regard to the history of the law, and since the noble Viscount has referred to it may I say that I believe in the Lough Neagh case the landowners who have established their rights do not intend to exercise them to the full at all events. It is very difficult, in a case which took eight days to hear the evidence, to give more than the most general expression of what the case was. I have not desired to express the smallest criticism or censure upon the litigants in either of these cases, and I hope the noble Viscount will understand that.


Nothing could be more clear than the noble and learned Earl's determination not to cast any reflection on the decision, although he explained his own position very clearly. It is only fair to the plaintiff to say, with regard to this public right, whatever it; was, that it had been in reality only exercised since the lease was granted, for which he had paid £8,000, and in respect of which he was liable to pay in addition a very large sum annually; and this public user had been so developed that it nullified the whole advantage of the contract which he had entered into in taking up the lease. I do not think the noble and learned Earl mentioned to your Lordships the fact that up to 1905 no eel fishing had been carried on. Practically until a year or two ago there had been no eel fishing, but of late the fishing had been so extended, whole bridges of boats being utilised for the purpose, that the plaintiffs were forced to take this step. From the decision of the learned Judge in Ireland and from the decision of the Court of Appeal in Ireland it was made perfectly clear that such a development of the public right practically resulted in the nullifying of the whole of the advantage of the private right for which Captain O'Neill had paid a large sum, and which was undoubtedly the property of the riparian owner to that extent. I have made this point clear because I think the effect of the noble Lord's speech would be to give an idea that the owner, not being the landlord but the lessor, had attempted to drive out the public from something which they had enjoyed from time immemorial, whereas in fact he was merely endeavouring to establish his own right against a usurpation which had only grown up in the last few years, and which, if allowed, would have had the effect of transferring to the public generally the right which belonged to him and for which he had paid a considerable sum of money.


My Lords, I entirely dispute the statement made by the noble Viscount. So far as I have been able to learn the facts, they are these. For centuries these fishermen had fished for eels all over the lough. Some few years ago the Conservancy Board for that district made a new regulation under which eel fishing in certain parts of the lough was prohibited. In 1905 the fishermen succeeded in getting the by-law to that effect displaced. They went to law, and got a mandamus from the Court requiring the Board to allow the eel fishery to go on as it had done from ancient days. In consequence of that, since the year 1905 there has been a reversion to the fishermen of the eel fishery which they had enjoyed in previous years. In that case I think the argument of the noble Viscount falls to the ground. I can only say, with regard to the Lord Chancellor's speech, that I thank him for the attention he has given to the subject and for the suggestion he has made. He has put the onus upon me of drawing up a proposal, a somewhat difficult task, but I will endeavour to do it to the best of my ability.


My Lords, I have no desire to take part in this discussion, as I sat judicially in both of the eases to which the noble Lord referred. He has rather invited your Lordships to sit in judgment on the decision that was given in one of those cases. It is obvious that it would be quite out of place for me to say anything with regard to the decisions which have been given; they are now recorded in the Law Reports and speak for themselves. The judgment which I gave was, I may say, very carefully prepared as the result of much thought, and so were the judgments of the other learned Lords who took part in the decision. There never were two cases more closely examined into and jealously scrutinised on both sides than these two cases, and I am not at all prepared to accept the statement of the noble and learned Earl in reference to the last case he spoke of. Whenever a suggestion is brought forward for legislation on this matter it will, of course, receive the attention it needs, and, as the noble and learned Earl has very fairly said, whenever such a case comes up the question will necessarily at once arise as to the preservation of vested interests. It is obvious that no Bill could ignore vested interests and legal rights; they would have to be considered and dealt with by compensation and otherwise. That is an obvious fact which will lie at the root of every consideration which is sought to be applied to this question.