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Nick
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Nick
Joined: 02 Nov 2004
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 Posted: Sun Mar 14, 10 6:55 pm Post subject: |
 
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| Quote: |
Finally (pp 191�192):
'� the catching of shell-fish on the sea-shore � would seem to constitute an integral part of the public [right] � The fishery for lobsters, crabs, prawns, shrimps, oysters, and various other shell-fish � is carried on in every fishing village on the coast, and is one very useful and valuable branch of the fishing trade. The catch of these fish is, therefore, part of the public [right] � '
and reference is made to certain American authorities, as well as to Bagott v Orr.
Mr Alesbury drew our attention to the relevant passages in the current edition of 49 Halsbury's Laws (4th edn). The soil of the foreshore is owned prima facie by the Crown (para 292) and there is no public right of passing along the foreshore 'except in the exercise of the rights of navigation or fishery' (para 301). The public has no right to shoot birds (para 307) or to excavate or remove materials (para 310), not event to take seaweed (para 317). As regards shellfish, Halsbury states (para 318):
'There is certainly no right to take shellfish there, such as mussels attached to rocks on the shore, for these belong to the owner of the shore.'
The authority listed for this last proposition is Le Strange v Rowe (1866) 4 F & F 1048, 176 ER 903. That case, like Loose v Castleton (1978) 41 P & CR 19, was concerned with the right to take mussels from a part of the Norfolk coast. It seems to us that the plaintiff asserted the rights of the owner of a several (private) fishery, and that the case, as reported, does not exclude the public right to take shellfish from the sand of the foreshore, in the absence of any private right. In Truro Corp v Rowe [1902] 2 KB 709 at 714�716 the jury found that the storage of oysters on the foreshore, after they had been dredged by the defendant in the exercise of public 'rights of fishing over the foreshore covered with water' was incidental to the fishing for oysters. The court held that the defendant had no right to appropriate a section of the foreshore for his own purpose but declared that the right to fish included 'oysters and other shell-fish'.
Mr Alesbury submits that digging for bait interferes with the soil of the foreshore to an extent which could only be justified as a profit � prendre and that a public right to take lugworms, which have some commercial value, would be quite unlike any other public right. There is no question of Mr Anderson acquiring this or any other profit � prendre as a member of the general public (cf Alfred F Beckett Ltd v Lyons [1967] 1 All ER 833, [1967] Ch 449) and he submits that there is no authority to support the claim. A public right has never been acknowledged, and never claimed, and the fact that bait-digging may have been tolerated over many centuries should not give rise to an inference that the right exists.
We return to the issue raised in the present case. Does the public right of sea-fishing include the ancillary right to take lugworms from the foreshore for bait? If it does not, then some narrow distinctions arise. The sea-fisherman may take a small fish from a sea-water pool on the foreshore and use it as bait for a larger fish; if the authorities referred to above are good law, he may take and use small crabs for the same purpose; but, if the council is correct, he may not take or use a single lugworm, without permission, express or implied.
We accept that past tolerance by foreshore owners does not establish the existence of a right, but we do not consider that this undoubted factor can be
[1993] 3 All ER 613 at 624
totally ignored. The authorities we have been referred to go back to Elizabethan times. There was no need to claim a right unless the activity was challenged, and we can see no indication that it ever was challenged. The most likely explanation is that no one doubted that the right to take fish from the sea included the right to dig worms from the foreshore as bait. We find it difficult to envisage either private owners of the foreshore or representatives of the Crown in previous centuries attempting to interfere in the operation of 'every fishing village on the coast' in this way.
We base our decision, however, on wider grounds. Many of the authorities show that the underlying reasons for the public rights to navigate and to fish were economic. Sea fishing from boats or from the land was a vital source of food for many coastal communities. The public right to take fish from the sea and tidal waters was jealously guarded from Magna Carta onwards. To restrict the use of worms as bait, which themselves were only to be found in the sand of the foreshore and therefore beneath the surface of the water when the foreshore was covered by the tide, would itself have been a restriction on the right. We hold therefore that a public right to take worms from the foreshore is recognised by the common law and may properly be described as ancillary to the public right to fish.
But it does not follow that the right is unrestricted or that it may be exercised by any member of the public at any time or place. Mr Wood does not contend for a right to take for commercial or other purposes. It is ancillary to the right to fish. This means, in our judgment, that the taking of worms must be directly related to an actual or intended exercise of the public right to fish. Taking for commercial purposes such as sale clearly is not justified in this way. At the other extreme, digging for bait by an individual fisherman for his own use on the occasion in question clearly is justified. Intermediate cases include one which is demonstrated by the facts of the present case: Mr Anderson was digging for his own use, but at a different place and on the following day, during a competition (which he won). Another case is where the worms are taken for use, not by the digger, but by another person who might be a companion or who might be, for example, a paying customer on a commercial sea-angling venture.
It seems to us that these are essentially questions of fact and degree, which are for the magistrates to decide. The distinction between commercial and private use is fairly straightforward. Digging bait for one's own use for sea fishing on a particular occasion, even in the future, is unlikely to present much difficulty. If the present appeal had turned on this issue, it might have been necessary to remit the case for a further finding of fact, but it does not. The rule, as we would state it, is that bait-digging on the foreshore is justified by the public right to take fish, when the bait is taken by or on behalf of persons who require it for use in the exercise of that right. |
So, you're probably OK, as long as it's not too commercial, in terms of crabs, razor clams and probably sand eels etc. The mackerel on't seem to pose any problems, either. |
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