Saturday 04 Sep 1819 (p. 1, col. 5-6 and p. 4, col. 1-6) CARLISLE ASSIZES, 1819. BEFORE MR. JUSTICE BAYLEY. [continued] RIGHT OF FISHERY IN THE RIVER DERWENT. LAWSON v. PEAT.—In this cause, Wilfrid LAWSON, Esq. was plaintiff, and Mr. John PEAT, the defendant. The declaration set forth that the plaintiff is possessed of a certain fishery in the Derwent, which had been much injured by obstructions raised lower down the river by Mr. PEAT. Mr. Sergeant HULLOCK addressed the jury in a very able speech of great length. Mr. LAWSON, he said, is the possessor of considerable estates in the county of Cumberland, which formerly belonged to Sir Wilfrid LAWSON; through a part of this property ran the Derwent. The defendant, Mr. PEAT, is the lessee of a fishery lower down the river, under the present Earl of Lonsdale. No question would arise as to the right of Mr. LAWSON to a fishery; that was acknowledged on all hands, and had never been disputed; it belonged to him by virtue of the manors of Isell, Blindcrake, and Redmain, extending the length of nearly three miles on one side of the Derwent, and on the other side, about a mile. Neither, on his part, did the learned Serjeant mean to contend that the defendant, or the Earl of Lonsdale, had no right to a fishery; this was also admitted;—but the question at issue was, Whether such obstructions have not been thrown in the way of the plaintiff's right by the defendant as to injure its value, and consequently to render them illegal. In 1725, the fishery now held by Mr. PEAT, belonged to Mr. Henry CURWEN. At that time there were stells or bars, merely composed of pieces of wood set upright, and placed upon a weir. About 1741, or 42, it occurred to Mr. GREEN, the then holder, to remove this wood-work to a weir near Seaton mill: the origin of the existing stells were then put up; and these caused a much greater obstruction than the earlier erections. He was apprehensive that he should be told by his Lordship, that the lapse of time will prevent any removal, and this, he was afraid, was law. Be it so. The question then resolves itself into this: whether the stells have not been altered within the last 20 years, so as to cause an increased obstacle? On this point the law stands thus. If A is possessed of a fishery higher up a river than one belonging to B, the lowest occupier has no right to adopt such measures as will prevent the passage of fish into the upper fishery. But if B does erect such obstructions, and A suffers him to go on, in the enjoyment of them undisputed, the law will presume that some agreement or grant has taken place. Twenty years, however, must elapse before this encroachment can become a legal right: yet, in some cases, time alone is not sufficient. Suppose A be a minor, absent, or ignorant of what B has done; the law then will not make any such presumption. The learned Sergeant should submit to his Lordship, that the acts complained of to-day, were done while the owner was a minor, and if he proved this, no prescriptive right could have been obtained on the part of the defendant. The late Sir Wilfrid LAWSON died in 1806, and a minority of six years ensued. The late Mr. LAWSON, the plaintiff's predecessor in the possession of the property, died in 1812—and the present Mr. LAWSON did not come of age till 1816—so that there was no one to see that injurious encroachments were made— Mr. Justice BAYLEY.—The trustees might have seen to this, and were fully competent. Mr. Sergeant HULLOCK continued. He spoke in reference to the alterations and additions. He should have no difficulty in shewing that the stell hecks (the bars) had been altered within the last 20 years. These prevented fish of ordinary size from passing up the river. The fish, thus kept back, went into the coops, and when there, could only get out again by the assistance of Mr. PEAT himself! About 40 years ago, the stells were placed nearly upright, and were 2½ inches asunder; this space, the learned Sergeant understood, was sufficient to admit the passage of a fish of 5 or 6 pounds weight. In 1794, it occurred to Mr. PEAT, that if the stell hecks were placed nearly in an horizontal position down the stream, the obstruction to the passage of fish would be increased. Accordingly, he made a trial in a part of the erection, and in a few years the remaining portion underwent a like change, and the space between the bars was reduced to 1½ inches. He should be able to show that even last summer Mr. PEAT reduced the space at the bottom, from 1½ inches to 1¼ inches, leaving the part above as before. If, then, he proved that any alteration had been made within the last 20 years, he should be entitled to a verdict; for no man can legally alter his property in such a way as to prejudice the right of another. He should clearly show that Mr. PEAT had raised greater obstacles to fishing in Mr. LAWSON's part of the river than existed 20 years ago. At one time, they had salmon there as well as trout; but now scarcely a fish is seen or heard of higher up the stream than Mr. PEAT's coops and bars, in the regular fishing season. The period of salmon fishing differs in different rivers. By the existing law no salmon can be caught in the Derwent from the 10th of October, to the 10th of February. In that interval obstruction is removed to permit the fish to pass up the stream for the purpose of spawning. Time was, when the whole was taken away; but now, only two or three of the stell and coop hecks are removed, and through these alone, even in the breeding season, can the fish pass up and down the river. Mr. John NORMAN sworn. Has been a steward in the LAWSON family 19 years. Mr. LAWSON is Lord of the Manor of Isell, beginning at Ouse-bridge, and extending about three miles, the Derwent passing through it, but not navigable. When he first went into the LAWSON family, Sir Wilfrid lived at Brayton Hall, and possessed this manor. He died June 14, 1806, and was succeeded by Mr. Thomas LAWSON, who died in 1812, whose successor is the plaintiff. Witness knows that fishing within the limits described has taken place frequently, he having been present on one occasion when the river was dragged; it was done by order of Sir Wilfrid, and ten men were employed, part of whom were on each side, both shores belonging to the baronet. Witness never knew or heard of any interruption. In the early part of witness's time, fishing was better than at present: large trout were caught, but he never remembered getting a gilse. The fish are now neither so large in size nor great in quantity as formerly. Cross-examined.—Never caught any other fish than trout. The river at the place in question is more than six yards wide, and 8 or 9 miles from the sea. The farms are let to different tenants. Some stakes were once put down in the river, but were drawn out by order of Sir Wilfrid. Resumed.—These stakes were near Ouse-bridge, and had been put down by Sir F. VANE, near Sir W.'s property. There never was a doubt to whom the river belonged. Mr. LAWSON is in possession of the woods bordering upon it, and the tenants do not fish. By the Foreman of the jury (Mr. DAND, of Wigton). Were the trout caught, the common trout of the river, or sea trout?—A. Common trout—I never saw any sea trout there. Dorothy HENDERSON, aged 64, lived at Isell when she was only 16, at which time Sir John MORDAUNT resided at Isell Hall. Has seen Thomas PEARSON, the bailiff, draw the river for Mr. CLENNELL, agent of the owner. One Richard WRIGHT fished at times for Brayton: has seen them catch little trouts—some one pound, some two, and some three—but not many big ones. Has seen salmon in the river when sitting upon Isell bridge, on a summer evening, after harvest—more than half a dozen at a time. Cross-examined.—Nobody was hindered from fishing that she knew of. Sir John's farmers used to fish—the fish were generally river trout—never saw any other. John WILSON, aged 77, remembers that WRIGHT was gamekeeper to Sir W. LAWSON, about 20 years ago—first knew him about that time. He also remembers LOWES, a gamekeeper, who preceded WRIGHT. Witness has helped LOWES to draw the river, who took the fish to Brayton; this was about 40 years ago—they began at Ouse-bridge, and continued down to Isell. They caught trout of all sizes, both sea and grey trout—and witness has taken small salmon, about six or seven pounds each. Has also assisted WRIGHT, who succeeded LOWES,—this, about 12 years ago—Sir Wilfrid has been present, and witness has borne him across the river upon his back. Caught grey and sea trout in WRIGHT's time—also small salmon and gilse from a quarter of a pound to 4 pounds weight, which were carried to Brayton. He did this when he first began, but the fish grew smaller and thinner: this, however, was not found out for a dozen years. He has not fished in the river these 12 years past. Cross-examined.—Witness is a Smith by trade. At the period spoken of, he worked for Sir Wilfrid, and was an experienced fisherman. Has fished the river all the way down to the mouth, and fishing is not now good in any part of it as it was 40 or 50 years ago—there are not so many trout as there used to be. Has known kipper salmon (salmon out of season) caught there, which is no uncommon thing in the Derwent—the killing of which renders fish scarce. Many-a-one has fished in the part of the river mentioned with nets, and in every other way, and witness never knew of interruption. Resumed.—He means that fishing has diminished from Ouse-bridge to Ribton Hall. By the Judge.—Has not seen gilse or sea trout in the river within the last 20 years, nor never knew WRIGHT catch any thing but river trout within that period. Thomas WYBERGH, Esq. sworn. Is father of the plaintiff, and has been acquainted with the property in question 35 years. The fish, when he first began fishing, was two-thirds more in quantity than at this time. Has been present many times when LOWE and WRIGHT have dragged the river with nets, and has fished in it with rod a hundred times. Has seen sea trout caught frequently, from 1½ to 3lb. each, and has known a gilse taken. In later times has seen what were called sea trout taken, about half a pound in weight, and believes they were so; in the course of last summer one of that size was caught—and this summer a salmon was caught, but it had been up the river the whole winter. Never knew of any objection to the LAWSON family's exercise of the right. Cross-examined.—Mr. WYBERGH said he now fishes as many hours at a time as he ever did—generally going out after breakfast and remaining till half past four. Of late years, the quantity of river trout, as well as other fish, has diminished, but more pike (which come out of Bassenthwaite lake) are now caught than formerly. By the Judge.—Cannot swear that he has seen either gilse or river trout within the last 20 years. He ought to state, that about six weeks ago, when drawing the river, a sea trout, and only one, was caught, about a pound weight. William SENHOUSE, sworn. He obtained a copy of the grant which he held in his hand from the Rolls Chapel. This document was read: it was a grant of the property in question by James I. in the seventh year of his reign, to Sir Wilfrid LAWSON, and Matilda his wife, and the heirs of their bodies, &c. Samuel FLETCHER, aged 53, has fished in that part of the Derwent in question with nets; he began about 25 years ago, and the fishing was then better than it is now. Has caught pike, sea and grey trout, and bass, from a ¼ of a pound to 3½lb. weight, but few of the latter. About 20 years ago, there were "a gay few" sea trout—but not in the part of the river now in question; he caught sea trout 20 years ago at Ouse-bridge. Mr. SCARLETT, defendant's counsel.—You have been caught yourself, I believe FLETCHER, eh?—Yes. William ROBINSON had fished with WRIGHT 23 years ago, and when he first began, caught pike and sea trout, but the fish diminished, and no sea trout were to be seen even in the latter part of Sir Wilfrid's time. Never saw a sea trout of six or seven pounds weight. He drew the river in August 1813, and there were no sea trout. Mr. Sergeant HULLOCK here observed, that he was not in a condition to carry this part of the case any farther. He would now call evidence in reference to the alterations. Mr. Justice BAYLEY.—I think the evidence is exceedingly strong to prove that the obstacles were complete, certainly a great number of years ago. Jonathan THORNTHWAITE was then sworn. Is a carpenter living at Workington. He recollects being employed in 1772 on the coops and stells at Workington. Andrew GREEN was at that time tenant of the fishery, and the stell hecks were upright. Witness does not recollect any alteration till 1794. (A model of the coops and bars was exhibited.) The upper part of the stell hecks above the higher coop was laid in a sloping direction in that year, but not quite flat; in other respects it remained as before. He knew that an alteration was afterwards made—the sole tree (the foundation of the hecks) was raised half a yard higher from the ground, the posts were put upright, and a new frame was made—but witness did not see this done. About three years afterwards, 1797, the other stell hecks were put in anew and laid nearly flat, to make one part like the other. In 1802, to the best of his remembrance, the hecks between the high coop and the island, were laid in the same direction as those above described. The coop hecks at that time were all horizontal, and continued till about 13 or 14 years ago. New wooden coop hecks were put in last year, horizontally, and were set closer together. When witness first knew the stell hecks they were 2½ inches apart—this was in Mr. Anthony PEAT's time, 6 years ago. About four years since, he received orders to lay the bars of the lower coop hecks only 2 inches asunder, which he did, and the other part was afterwards altered in the same manner. Last summer the bars were again reduced on each side to 1½ inches, and so they remained when witness last saw them. Witness once put a fish through an aperture of 2¼ inches, which weighed 10 pounds. The edges of the bars of the coop hecks are sharp, but those of the stell hecks are taken off. Mr. Sergeant HULLOCK.—I apprehend that what I have now shown has made no alteration in my case for the better. Mr. Justice BAYLEY.—The obstacles having been proved complete so long ago, what has since been proved makes no difference. The question asked by the foreman of the jury at the outset shewed me at once the point we had to try. The verdict must be against you, brother HULLOCK. What will you do? Mr. Sergeant HULLOCK.—My Lord, I shall choose the lesser of two evils, and submit a nonsuit. Plaintiff Nonsuited. [to be continued]