driffield navigation guide

Good stuff Kevin! I'm certainly no lawyer either, but you raise some very interesting points!

From what you say there seems to be a basic assumption that if you have a right of access to the water - be it by inter-tidal zone, public access, private landowners permission, or by boat - you have a right to fish. If I've got this right, you're saying that this is not necessarily the case with

1. public access to (the edge of) non-tidal waters
2. boat access to non-tidal waters
3. when someone other than the land owner has a deed or suchlike that grants them ownership of certain fishing rights.

Have I got that about right?

I've just looked at the 'guidebook' page where it says: "Fishing from a boat is the domain of the DNT, so it is free, but remember that a Visitors License is required for the boat, ..." hmm ... thank you for drawing attention to it! I'm sure the DNT will be looking into it very soon :)

Thanks for a very useful and thought provoking contribution Kevin. 

Fishing from boats? As I understand it you are probably correct, but it has not as far as I know caused any problems to date.  Perhaps most boat owners fish whilst stationary from their moorings, and so are renting the bit of bank concerned presumably with the fishing rights included.  The mooring rights also go with the land.  I will have to take this up with some of the long-standing Commissioners for their advice here. 

I have been told in the past that the Acts of Parliament which govern the Canal state very clearly that the fishing rights go with the land owners - which in some places is the Trust.  They would thus not have been the property of the Environment Agency or Yorkshire Water in the past, unless they had been riparian owners of some of the land.  Thus as I understand it at present there are no exceptions to the land owners having ownership of fishing rights on our Navigation.  

Which then raises the question - can the rights be saleable?  Where an Act of Parliament specifically gives a right to the landowners, (as opposed to them being a common law right), can they then sell these rights on?  Or would they have to sell a strip of the bank in order that the rights would also transfer?  I can see renting or even leasing being legal, but selling suggests over-riding a specific provision of the law.

In summary, I think the comment in the original piece is helpful - if someone asks for money, confirm his authority.  If he is the landowner, then pay.  If not, please contact the Commissioners with details.

Trying to clarify the points I made (or confuse even further?). Firstly an answer to John G for a private email. Yes, I am Kevin Clifford and through my work with H&DAA I have been involved with leasing and purchasing fishing rights divorced from the ownership of the land, leasing fishing rights on tidal waters and buying the freehold to land that incorporates the fishing rights.

1. The public have a legal right to fish any tidal river free of charge. That right doesn't allow them to exercise it from private property though (the banks above mean high water or a private bridge, etc). So you can fish from a boat or gain access along the bank via a public access or walk along the bank below the mean high water mark from a public access point. Anyone intersted I can quote the recent case law but the source of it dates back to Runnymead and Magna Carta.

2. On non-tidal waters the situtaion is different. Fishing rights here usually belong to the owner of the land whose land abuts the river. But the landowner may have sold the fishing rights to anyone in the past. In which case the fishing rights have been divorced from the ownership of the land. Now this seems straightforward but in the actual ownership of such things are rarely that simple. Property ownership disputes can sometimes be settled by reference to Land Registry records but ownership of fishing rights if divorced from the land have to be demonstrated by deeds of transfer. In more recent times when property next to rivers has been sold it has often been seen as more profitable to sell the fishing rights and land seperately. This way often a higher sum is achieved than by selling the land with the fishing rights. My fishing Association bought the fishing rights at Butterwick on the River Rye at auction in such a way. The land was sold seperately without the fishing rights.

Obviously, I am talking about the law as I understand it. As Roger says people fishing from boats on the non-tidal river Hull system rarely if ever causes a problem. And hopefully long may it remain so. I say rarely, because I know of a couple of instances. One at Frodingham Bridge where someone fishing from a boat (an angler who I know) was challenged by the farmer there (who I also know) who actually sells day tickets. The farmer wanted his £3, the angler told him to whistle.

The Environment Agency (or their predecesors) are sometime the owners of banks alongside rivers. They have legal rights to compulsory purchase land for the purpose of carrying out their functions (usually flood prevention puposes). As I said earlier I don't know if this has ever taken place on the Hull system. It is questionable that they would have the right to compulsorily buy the fishing rights but they may in some instances be sold to them incidentally by the agreement of the landowner.

So then as far as Roger's query asking if fishing rights can be sold, I believe the answer is an unequivocable, yes! Let me quote just one (of many legal references I have which all agree on this point). This one is from William Howarth, a lecturer in law at the Department of Law, University College of Wales. "In the case of private fisheries in non-tidal waters three legal presumptions apply as to the ownership of fisheries, underwater and waterside land, in the absence of evidence to the contrary. That is to say, the presumptions will not apply where a lease or conveyance of a fishery or land determines the question of ownership which is at issue. The first presumption is that the owner of land which abuts a river or lake, known as the riparian owner, is the owner of the soil in the river bed up to the middle of the river (case law - Micklethwait v Newlay Bride Co 1886). So that in the absence of any contrary stipulation in a lease or conveyance, bankside, or riparian, owners own the bed of a river or lake up to the middle point. The second presumption is that the owner of the soil is also the owner of the right of fishery over it (Carlise Corp v Graham 1869). Clearly this presumption will be rebutted where it can be shown that ownership of the fishery has been severed from the ownership of the land by a lease or conveyance of the fishery to someone other than the landowner, but in the absence of such evidence, the law assumes that the fishey is corporeal and so owned by the owner of the land beneath it."

I think Roger's point that the upper Hull/Driffield Navigation is specifically different from all other rivers because a particular Act of Parliament determined that the fishing rights 'must' be held by the landowners requires some evidence to support it. I have to ask if anyone can quote chapter and verse because, frankly, I have grave doubts. For what purpose would a Navigation Act impose such a constraint upon the landowners? Roger says "Where an Act of Parliament specifically gives a right to the landowners, can they sell these rights on?" Who then owned the fishing rights before this Act of Parliament gave it to the landowners?

Phew!

Kevin

At the far end of the navigational section of the Frodingham Beck the farmer charges you for fishing I have been told he Is out of order to do so I this correct