2. Poaching fish is the unlawfully entering on another's fishery in order to catch fish. The law of fisheries is not uniform in the United Kingdom. In England the general rule is that any one of the public may fish freely in the sea and in all navigable rivers; and where he can fish he can catch salmon as well as every other kind of fish. But there is an exception to this generality, which consists in this. that as the crown could before Magna Charta (which took away such right) legally grant a several or exclusive fishery in the sea or a navigable river to an individual, and as this was, in point of fact, often granted, it follows that it is not uncommon to find, even at the present day, an individ ual, generally the lord of an adjacent manor, still claiming a several fishery in these places. If he can prove that he has exercised this exclusive right as far back as one or two centuries, it will be inferred that his right dates from before Magna (liana, and therefore will be legal. When such is the case the public have no right to fish even in a navigable river or the sea at the specified places, the sole fishery hieing vested in this individual owner. In streams not navigable the rule is that each riparian owner—i.e., the owner of the lands on the bank of the stream—has a right to a several or exclusive fish ery up to the middle line of the stream. If he is owner on both sides of the stream, then he.lms the exclusive fishery in the whole of the stream, so far as his lands extend. As to ponds, whoever is owner of the soil is the owner of a several fishery there. unless he has let it to another. As to lakes, it is not clearly ascertained how the fishery is to be divided between the owners of the lands Wattling thereon; but much will depend on the title to the lands and the subsequent user. As a general rule, there is no such thing as a right in the public to fish anywhere, except in ts tidal river or the sea, and that is subject to the exception of an individual claiming a several fishery, its before mentioned. It is often supposed that, at all events, if a high way adjoins a private stream, any one 111:ly fish in the stream or angle there; but this is a delusion. Nobody is entitled to use a highway for the collateral purpose of either fishing or poaching, the use of the highway, so far as the public are concerned, being confined to the purposes of traveling or transport. The gen eral rule as to all several—i.e., exclusive—fisheries is that whoever goes and poaches the fish commits an offense, for which he may be summoned before justices and fined £5, over and above the value of the fish taken; and if the fishery where he poaches is adjoin ing the dwelling-house of the owner of the fishery, it is a still higher offense, for it is then an indictable misdemeanor. It is immaterial what kind of fish is caught by poachers, whether salmon, or trout, or minnows; and it is immaterial how the fish are caught. But a milder punishment is awarded to the poaching angler, for even though he poach in a fishery adjoining the owner's dwelling-house, he incurs only a penalty of £5; and where the fishery does not adjoin a dwelling-house, he incurs a penalty of only £2. Whenever a fish-poacher is caught in the act of poaching, he may be at once appre hended, not only by the owner of the fishery, but by anybody; but this can only be done while he is on the spot or near it, for if he escape to the highway or to other lands before being arrested, lie cannot then be apprehended, but can only be summoned before justices in the usual way. In this respect a privilege is given to anglers, for in no case can these be arrested if angling during the day-time; they can only be summoned for the offense. The poacher, when arrested, must be taken within a reasonable time before s justice of the peace, and charged with the offense. Though anybody may arrest the fish poacher, still it does not follow that the fish poached can be taken from the poacher; on the contrary, the rule is the same as with reference to game, that whoever first catches the fish, whether legally or illegally, is entitled to keep it; and though game can on certain occasi.ms be taken from the poacher, this is by reason of an express provision in the game act; but there is no similar provision as to poached fish, to that the poacher, whatever other punishment he may incur, does not lose his fish. With regard, however, to the poaching implonents, such as nets, it is provided by an express section of the larceny act (24 and 25 Vict. c. 96, s. 25), that the owner of the fishery or land where the poacher is caught, or his servant, may demand, and if refused may seize, the net, rod, line, book, or other implement used for taking the fish, but no other person 'can seize these. It may also be observed that the English salmon fishery act (24 and 25 Vict. c. 109), though singling out salmon from all other fish forpeculiar protection. does not deal
specially with poachers. Its chief object is to restrain the owners ofssalmon-fisheries themselves from fishing at certain times and by certain means, for which purpose it close season is declared, during which no person, whether otherwise entitled or not, can legally catch salmon. Of course, poachers are prohibited from catching salmon at the times and by the means forbidden to the owner, and in this sense come within the salmon acts. Thus, all persons are prohibited from poisoningsalmon-rivers, from fishing sahnon with lights, spears, gaffs, stroke, halls, or snatches; using fish-roe as a bait; selling or buying salmon-roc; using nets having meshes larger than 2 in. ; from asing fixed engines, fishing without a licenSe, etc. Sec 24 and 25 Viet. c. 109, 28 and 29 Viet. c. 121, 36 and 37 Vict. c. 71.
The law of Scotland, as to poachers of fish, differs considerably from that of England. In Scotland the fundamental rule is that salmon stands on :,different footing from all other fish, and prima facie belongs to the crown; so that no person in Scotland isentitled to fish salmon (even by angling) unless he can produce a grantor charter from the crown, conferring upon him such right. But, in point of fact, nearly all the great landed pro prietors are in possession of such rights as pertinent to their lands. And the theory of the crown's original right to the salmon applies not merely to rivers, but to the sea coasts all round Scotland. Hence the public have no right to fish with nets even in the sea, except by leave of the crown, or of the grantee of the crown at the spot in question. Where a salinpn-river belongs to several proprietors, the rule is that none can fish by using fixed engines; but the only legal mode is the mode of fishing by net and coble (or boat). As regards poachers of salmon, the law is contained in the act 7 and 8 Vict. c. 95. By that law, whoever poaches salmon in a river, lake, or within a mile of the sea-shore, incurs a penalty of besides forfeiting the boat, net, or other engine used to catch the fish. While the law is as above stated with respect to fishing salmon with nets, even a grant from the crown is required to enable a riparian owner to angle for salmon. Hence the right of angling for salmon is not a pertinent of the property in the banks, and each owner is not entitled to angle up to the middle of the stream. Anglers, although riparian owners, or who have a permission from such, arc therefore all poachers, and incur a pen alty. The Scotch salmon acts (25 and 26 Viet. c. 97, 27 and 28 Vict. c. 118, 31 and 82 Viet. c. 128) also forbid owners of fisheries and others fishing salmon by fixed engines, during close-time, etc. As regards other fish than salmon. the general rule is that the riparian owner is entitled to catch all the fish he can, provided he do not interfere with the superior right of some crown grantee of the salmon-fishery. A person who pooches trout or other fresh-water fish with it net, or by double-rod fishing, or cross-line fishing, or set-lines, etc., incurs a penalty of .4;5, besities forfeiture of the fish caught. And lie may be arrested if he is but not if he is fishing in another way. Moreover, a mere angler of trout, though a poacher, cannot be arrested, nor yet punished by any penalty; though he is liable to an action at law, which. however, is virtually no remedy aL all. So, in the case of all poachers of trout (exceptangling poachers. who can neither be arrested, nor yet have their fish or fishing-rod taken from them by force), the owner of the fishery, or any person authorized by him, may seize the nets, boats, and fishing implements, if the poachers are found on the spot. Though angling for trout is thus privileged in Scotland (above what it is in England) in this respect, that the poach ing angler cannot be arrested or fined by justices of the peace, but is only liable to an action, yet the poaching angler of salmon may be fined. The public have no right to angle from a highway adjoining a stream Where a stream runs through a farm, the fanner has no right to angle for trout, unless the lease expressly allow it; but lie cannot fish for salmon With a net, or even by angling, for it interferes with the crown grantee, if there is one. It has also been held that he cannot fish for trout with a net, but this decision is supposed to be doubtful, and would probably be qualified if the point were raised. There are special salmon statutes for the river Tweed and for the Solway. and the Scotch rivers running into these, and for some other rivers; but these statutes do not substantially differ from the general law. In Ireland the law of pOachers of fish is the same as in England in all the main points, for the sante statute applies. See Paterson's FeAerg Laws of the United Kingdom: