1. This suit is one of a series of disputes between the Colaba and Mandvi sections of Bombay fishermen with respect to certain fishing stakes and fishing grounds in tidal navigable waters oft' the Oyster Rock in the Port of Bombay. It is in the nature of a test case, and certain other suits have been stayed by the consent of the parties pending the hearing of the present suit.
2. In the present suit the plaintiff is a Colaba Hindu fisherman, and the defendant is a Mandvi Christian fisherman. But there are Hindus as well as Christians among the Mandvi fishermen. The stakes in dispute in the suit are Nos. 31 and 32 in the line of stakes lying to the south-east of Oyster Rock and known as Bhairchee Kau, which means further from the shore. The other. lines of stakes lie to the north-east of the Oyster Rock and are known as Durchee Kau or nearer the shore. We are not concerned with the latter stakes in this suit except indirectly.
3. Very briefly stated, the plaintiff claims that the locus in quo is a public fishery. The defendant on the other hand claims to be entitled to a several or exclusive right of fishing based on prescription, or alternatively, on the presumption of a lost grant or grants. He further relies on estoppel based on a tenancy agreement or agreements which the plaintiff as tenant gave to the defendant as landlord.
4. The defendant does not wish to raise any objection on the ground that the Advocate-General is not a party to the suit to protect the rights of the public. Nor does either party wish the Bombay Port Trust or the Secretary of State to be added as parties. It is clear that the Port Trust have fullnotioe of this suit and I should infer that the Government of Bombay are also aware of it. Under all the circumstances, I have not thought it necessary to insist upon other parties being added.
5. Oyster Rock itself lies some 1100 yards off the narrow spit of land now called Colaba, which forms the western side of the approach to Bombay Harbour. Here the Harbour entrance runs approximately north and south, the open sea being to the south. This entrance is over five miles in width from Colaba to Karanjst Island on the eastern side. The suit stakes, Marten J. therefore, are really on an arm of the sea, and their exact position is shown in the Admiralty Chart (Exh. YY). A line drawn from St. John's Church, Colaba, through the southern point of Oyster Rock would meet the Bhairchee Kau stakes, and a similar line drawn through the north point of Oyster Rock would meet Durchee Kau. The Bhairchee Kau stakes are numbered from west to east and are some 400 yards in length, and consist in all of some forty stakes. The westernmost stake is about 400 yards from Oyster Rock, and easternmost stake touches a line drawn from the Sunk Rock Light House to Dolphin Rock. To the east again of the latter line is the fairway for ships approaching the Harbour, the course being to the east of the Sunk Rock Lightship and the Middle Ground. There is, however, no gap in Bhairchee Kau as shown in the above Admiralty Chart. It is now one continuous line of stakes.
6. The depth of water at Bhairchee Kau is considerable, and varies from a minimum of twenty-three feet to a maximum of forty feet and upwards. Consequently, the fishing stakes which have to be driven into the bed of the Harbour are some seventy-two feet in length and measure at the ground level some feet in circumference. They are made up of three joints which are bound together. The top of the stakes projects some twelve feet or more above the surface of the sea depending on the state of the tide.
7. The fishing is done by means of nets fixed on rings to a pair of stakes some fifty-seven feet apart. The fishing usually takes place at high water when the tide is beginning to ebb, but occasionally the nets are fixed for the rising flood. Exhibit E is a model of two fishing stakes and the net which is used. Exhibit H is a model of a fishing stake and has the dimensions marked on it. Further details as to this mode of fishing will be found in the Gazetteer of Bombay City and Island (1909) Vol. I, at p. 140, and incidentally they corroborate what plaintiff has told us as to the method of erecting the stakes-a method which is not free from personal risk. Speaking generally, one may compare the fishing stakes and net to the goals at a game of Association Football. The goal net, however, is much deeper and tapers to a peak, and swings freely.
8. The space between each pair of stakes is usually known as a ' Dar ', and a good deal turns in this case on what may be described as a Dar and whether it may include the stakes themselves. So, too, one might argue whether the word ' goal ' or ' goals ' includes the goal posts and the goal net in the rear. Sometimes the fishermen call the space between the stakes ' Jaga '.
9. Now it is common ground that for some twelve years prior to the suit the plaintiff rented Dar between the two suit stakes from the defendant, and that the last tenancy agreement was one dated the 1st June 1916 (Exh. B), and that the defendant purported to terminate this tenancy by the notice to quit of the 26th April 1918 (Exh. C) expiring about the end of May 1918. The ownership of the stakes themselves is a matter of controversy, but it is common ground that, following an interview with the Harbour Master at the end of May 1918, the plaintiff repudiated the right of the defendant to let the Dar and refused to give up possession and has remained in possession ever since. The defendant retorted by bringing a suit in the Small Causes Court to recover the arrears of rent to June 1918 and damages for subsequent use and occupation. That suit, No. 18040 of 1918, was stayed to permit of the rights of the parties being tested in the High Court, and hence arose the present suit.
10. I can now explain the somewhat curious form which this action takes. The only substantive relief asked in the plaint is in paras (e) and (f). All the rest is declaratory. But para (e) which asked for repayment of certain sums paid by the plaintiff for rent was abandoned at the outset of the trial and para (f) is confined to interlocutory relief, viz., an injunction to restrain the defendant from proceeding with the Small Causes Court suit until the hearing and final disposal of this High Court suit. There is no counter-claim, and, therefore, I have a suit in which the only relief claimed at the trial is declaratory, apart from. the prayers for costs and further or other relief, the latter of; which is unnecessary having regard to Order VII, Rule 7, of the Civil Procedure Code.
11. The declaratory relief asked for is in effect (a) that the place in dispute is a public fishery and that the plaintiff is entitled to fish there as a member of the public; (b) that the defendant has no right to obstruct the plaintiff in the exercise of this right or to eject him from the place or to demand any rent for its use and occupation; (c) that the tenancy agreement (Ex. B) is not binding on the plaintiff; and (d) that the suit stakes are the property of the plaintiff and that the defendant has no manner of claim on them.
12. The defendant in his written statement pleads the tenancy agreements and the rent paid there under by the plaintiff; and then in para I am he pleads as follows :-
The defendant and the other fisherman of Mandvi do not claim any right to charge rent out fide the area where the said stakes are; but they claim the right to retch or place their nets between the stakes that belong to them and to fish the fame and to lease such rights. Such right has been exercised and has always been recognized from time immemorial by the defendant and other Mandvi fishermen, and their predecessors-in-title.
13. There is a somewhat similar plea in para 17 which runs as follows:-
The defendant and the other Mandvi owners of stakes claim that the stakes respectively are their own property and they have the right to stretch or place nets for catching nets between the said stakes over the soil covered by water between the said stakes and that such right they can sell or let and that tha Port Trust have no right to interfere with such rights which have been enjoyed from time immemorial by the said fishermen and their pre deoesaors-in-title.
14. At the outset of the trial, defendant's counsel defined his client's position thus:-'I claim the exclusive right to fish in the Dars between the stakes which I call my own. And I claim the absolute right to lease and assign or deal with my exclusive right to fish in any way I like in my own Dar. I do not claim any right or ownership of the land between my stakes; but I do claim the exclusive right to the entire space between the stakes covered by water or otherwise.' Defendant's counsel also stated that he relied on prescription and on the presumption of a lost grant; and in the concluding stages of the trial he handed up an amended pleading dealing with this presumption.
15. Of the fifteen issues raised at the trial, No. 10 asks whether, 'by reason of the above tenancy, the plaintiff is stopped from denying the defendant's ownership of and the right to fish from the said stakes and to lease such rights and from raising his present claim.
16. No objection to issue No. 10 was taken at the time it was raised, and the case proceeded on the basis that it was open to the defendant on his pleading to raise this issue. In his final speech counsel for the plaintiff suggested for the first time that stopped was not, but ought to have been expressly, pleaded. To avoid any questions, therefore, the written statement should be treated as pleading estoppel, and it should be formally amended to raise that plea expressly.
17. Now I think that the experience of most lawyers is that fishery questions usually involve difficult questions of law and troublesome questions of fact and often result in a protracted trial. This suit is no exception to the general rule. I only hope will not meet a similar fate to Harris v. Earl of Chester filed  A.C. 623 and Johnston v. O'Neill  A.C. 552. The first of these cases was litigated with varying results up to the House of Lords, and there three of the learned Lords thought that by long user the free-holders in certain parishes had made out their claim to the fisheries in dispute on the river Wye, but the remaining four learned Lords thought that they bad not and so by a majority of one the claim failed. The other case cone Lough Neagh in Ireland. There again there was a striking difference of judicial opinion and it was only by a majority of four to three that a claim to a several fishery in an inland lake to the exclusion of the public was established.
18. In Srinath Boy v. Dinabandhu sen (1914) L.R. 41 IndAp 41; 16 Bom. L.R. 901. Lord Sumner in delivering the judgment of their Lordships of the Privy Council dealt fully with the law of waters applicable to the tidal navigable rivers of Bengal and the fishing rights therein. At p. 238 he says:-
The Indian Courts have in many respects followed the English law of waters. Sometimes their rules the same : sometimes only similar.
19. At p. 243 he further says:-
In proposing to apply the juristic rules of a distant time or country to the Conditions of a particular place at the present day regard must be had to the physical, social, and historical conditions to which that rule is to be adapted.
20. I have endeavoured throughout this case to direct counsel's attention to the historical conditions governing stake fishing in and around the Port of Bombay including the original cession of the town and island of Bombay by the Portuguese. But substantially the parties insisted on confining themselves to the Port Trust records, which only go back in this matter to 1876 or thereabouts as presented in evidence. It was not till the oral evidence was closed, and Mr. Rangnekar for the defence had entered on the second day of his summing up speech, that I was for the first time referred to pages 142-164 of Campbell's Bombay Gazetteer, Vol. XXVI, Part II, which was published under Government Orders in 189 and which sets out many valuable resolutions and letters of the East India Company relative to the fisheries in and around Bombay, the first of which dates back to 1670, and I should not have had this but for the industry and personal researches of Mr. Eangnekar for which I am much obliged. I have, however, no confidence that I have been put in possession of all relevant and available historical material, and I must decide this case as best as I can on what has been placed before me. I do not say this by way of complaint, but only to show that a lawyer's ideals cannot always be attained in practice. One must also remember that the fishermen in the present case have not the financial resources of a ducal house such as in Neill v. Duke of Devonshire and that it is not the practice in Bombay to obtain the opinion of counsel on evidence: and that even if counsel had advised the services of a legal antiquarian expert being obtained, it is very questionable whether such advice could have been followed in practice. At any rate no such expert evidence has been given before me.
21. The ostensible point which I have to decide is whether there is a public right of fishing by stakes at the spot in dispute, or whether the defendant is entitled to the exclusive right of fishing by stakes at that point. I say the ostensible point, because for the reasons which I will mention hereafter, I doubt whether the public are likely to benefit, even should the plaintiff succeed in the suit. It will be seen in the first place that the plaintiff is claiming the public right to fish by means of stakes. I doubt whether such a mode of fishing would be permissible under English law, which draws a clear distinction between fishing by fixed engines, such as weirs, stakes and so on, and fishing by lines or nets. Thus in Halsbury, Vol. XIV, at p. 575 it is said :-
When fishing over soil which is not within the limits of & several fishery, but is in private ownership, the public must fish hi the ordinary way. They may lay lines and draw their nets, but 'they must not set up stake news or fixed engines'.
22. For this proposition Bevins v. Bird (1865) 12 L.T. 306. is cited. There the respondent had fished for salmon for forty years with stake nets in tidal navigable waters, and it was held that he acquired no such right as against the general public who were entitled to fish there in the ordinary way and that he w as rightly convicted by the Justices for using fixed engines.
23. Further, the right claimed by the defendant, viz., to a several fishery with fixed engines but with no right or claim to the soil is also one which it would be difficult to establish under English law. Lord Hale, in distinguishing the several kinds of fishing, says:-
Fishing may be of two kinds ordinarily, the fishing with the net, which may be either as a liberty without the soil, or as a liberty arising by reason of and in concomitane with the soil, or interest or propriety of it: or otherwise it is ca local fishing that ariseth by and from the propriety of the soil. Such are gurgites, weares, fishing places, boraohio stachiae, etc, which are the very soil itself, and so frequently agreed in our books.
24. Commenting on that passage, Lord Herschell in Attorney General v. Emerson  A.C. 649said:-
Much learning was displaced in the effort made at the Bar to explain the export meaning of the different words used by Lord Hale in this passage. I do not think it necessary to follow the learned counsel in their endeavour to distinguish with precision between the various erections or constructions enumerated. I think they all have this in common, that they are constructions or erections by which the soil is more or less permanently occupy, and that it is this Accupation of a portion of the soil which leads Lord Hale to say that they are ' the very Soil itself'. I invited the learned counsel for the appellant to cite any authority for the proposition that the mere grant of a several fishery conferred the right thus to occupy the soil. They were unable to do so. It may be that the temporary driving one or more stakes into the foreshore, as, for example, to hold a net in its during a single tide, might be regarded as ancillary to the grant of a several fishery. But I do not think constructions of the nature specified by Lord Hale can be so regarded. It need not be determined on the present occasion whether the right to maintain such structures as Lord Hale refers to necessarily imports in all cases the ownership of the soil, nor whether a kiddle such as has been proved to be in lawful use on the foreshore in question falls within the class specified by Lord Hale. It is impossible, I think, to deny that the right to maintain such a kiddle affords cogent evidence that the person possessing this right is the owner of the soil.
25. It is true that Lord Herschell there did not exclude the possibility of a several fishery with fixed engines but with no right to the soil. Rut this language throws considerable doubt on whether such a right would be legally practicable. So, too, in Neill v. Duke of Devonshire (1882) 8 App. Cas. 135 the Duke's weirs were held to be strong corroborative evidence of his paper title to the exclusive fishery which he claimed.
26. On the other hand it is quite clear that stake fishing is one of the ordinary modes of fishing along this coast, and that it is also an old mode of fishing. The evidence in the present case shows that stake fishing is practised at least some six or seven places in and near the Port of Bombay, such as Mazagaon, Worli, Karanja, Danda, etc. If one looks at the Admiralty Charts (Eshs. XX and YY), one finds in .different parts of the Harbour many spots marked as fishing stakes In that most interesting book 'The Rise of Bombay' by Mr. S.M. Edwardes, reprinted from Vol. XX of the Census of India Series 1901 by order of the Government of Bombay, there are copies of numerous old maps of Bombay. One of them, viz., Fryer's Map of Bombay 1672 is reproduced opposite page 89. There three rows of fishing stakes are shown, The southernmost one is opposite the island there called 'The Old Woman's Island' which is a portion of what is now known as Colnba, for what were formerly separate islands are now linked up. I have compared this map with the original in Fryer's Travels and it is evidently a copy as it purports to be. Then at p. 71 of the same book there is the following extract from the log book of David Davies' ship the Discovery in 1626, viz., 'The 13th October we went into the Bay of Bombay and rode without the stakes.' This was of course before the cession of Bombay Port and Island by the Portuguese to the English Crown about 1661. That was under the marriage treaty between Charles II and the Infanta of Portugal which is referred toon p. 89 of Mr. Edwardes' book but is set out more fully at p. 90 of Mr. Malabari's Book 'Bombay in the Making' and also in the well-known judgment of Sir Michael Westropp in Naoroji Beramji v. RogersT. Then in Campbell's Bombay Gazetteer, which I have referred to, one finds at p. 142 a reference in a letter of 1676 from the Surat Directors to the Company which says: 'We, finding it prejudicial to your ccoleries or fishing stakes of Bombay, Worli, Mazagaon and other places and much inconvenient to your people....'
27. In our Courts, we find a valuable decision of Sir Michael Westropp in Baban Mayacha v. Nagu Shravucha I.L.R (1876) Bom. 19 with reference to some fishing stakes within the three mile limit near Salsette some twenty miles up the Coast from Bombay. At p. 60 he says:-'The system of stake fishing along this coast is very ancient.' He then refers to Fryer's Map and proceeds :-
It has not been contended that the plaintiffs' stakes interfere with navigation, and the system is too long established, and permitted as one of the most ordinary modes of sea fishing, to be regarded with the jealousy with which stake-fishing is viewed by the English Law, which deems stake-fishing a private mode of fishing inconsistent with a common fishery. Moreover, the stakes are alleged to be shifted at particular seasons, and cannot be rogarded a title to the parts of the soil in which they are from time to time planted, as Lord Hale seemed to think was the case in England, from which opinion Mr. Hall expresses his dissent.
28. That case is important on other grounds, because the plaintiffs there were fishing by stakes but claimed to do so merely as members of the public and without any exclusive right thereto; and in spite of that they claimed a right to prevent the defendants from erecting other stakes and nets within such a distance as to interfere with the plaintiff's fishing. Sir Michael gave a most interesting judgment which requires to be read from beginning to end. His decision was in favour of the plaintiffs, and he put it on the ground that each member of the public ought to exercise his rights so as not to interfere with the rights of the other Marten J. members of the public. At p. 55 he says:
If the plaintiffs have, as we hold to be the case, a right to fish in the sea off Yerangal as members of the public, and the defendants have a similar right, we think that each were bound to exercise that right in a fair and reasonable manner, and not so as to impede the others from doing the same. There being a right, there must be a remedy, and we think that this suit, which sounds in ease, is a proper mode of seeking that remedy.
29. At p. 58 he says:
I asked the learned counsel for the defendants whether, if the defendants had placed one row of stakes immediately in front, and another row of stakes immediately behind those of the plaintiffs, such conduct, which would completely prevent them from exercising their equal right with that of the defendants to fish in the sea, would not be: actionable, and he did not venture to deny that it would. There undoubtedly was room enough for both parties to fish off Yerangal, and they should exercise their right is such a manner as not to impede each other in so doing. What is a reasonable distance at which one party should fix their stakes from those of the other, so as not to impede the latter from fishing, may depend on many circumstances, e. g., the strength with which the tide runs, the direction in which the fish usually run on the ebb or Hood tide, the variety of the currents occasioned by the conformation of the shore or upon other circumstances, which should be the subject of careful enquiry. Independently of custom, if there be any conduct of one party towards the other which prevents the latter from a fair exercise of his equal right, and special injury thereby results to him, such conduct is actionable. There appears to be no good reason why the principle, sic utere tuo ut alienum non laedas, should not be applied to rights as well as to property. There is a very great difference between fair competition and willful prevention.
30. Then, after referring to the custom that prevailed in the whale fisheries, the Court eventually remitted the case for a new trial on the merits, inasmuch as the case had originally been dismissed by the trial Judge on the ground that the plaintiffs were not in law entitled to the injunction which they claimed.
31. I should mention that it is not suggested in the present case that the stakes are shifted at particular seasons. This distinguishes to some degree the facts in the present case from those in Baban Mayacha v. Nagu, Shravucha. Probably this depends in any particular spot on the protection if any from the monsoon. Off Colaba, there would be some protection.
32. So, too, in Reg. v. Kastya Rama (1871) 8 B.H.C 63 it was held to be a criminal offence for villagers to remove the fishing stakes which had been planted by the villagers of a neighbouring village. There at p. 70 Mr. Justice Kemball said:-
It is admitted that the ordinary and recognised practice of taking fish along the coast is by means of nets attached to stakes.
33. Stake fishing has also been considered by the Madras High Court in Narasayya v. Sami I.L.R (1888) Mad, 43 where the plaintiffs in that case were held to have made out their claim by custom and usage to put up stake nets across a tidal river and were held entitled to an injunction to restrain the defendants from interfering with that right. That case rested, I think, on custom.
34. The fact, therefore, that stake fishing is an ordinary method of public fishing along this coast puts a serious difficulty in the way of the defendant for acts which he could rely on under English law to establish a several fishery may be attributed here merely to his exercise of a public right. When, too, one considers what that public right involves, there would seem no reason why a man who has once planted his stakes and kept them in repair should ever be turned out during his life, nor why if, from illness or old age, he wanted to retire, he should not be able to substitute a relative or a friend in his place with or without payment before any other member of the public could intervene. If this is so, then the real point in this suit is not so much whether the fishery is a public or a private fishery, but who can retain or obtain possession of the stakes and Dar? For once in possession, he could practically snap his fingers at any other member of the public. That is why I venture to think that though the ostensible point in the case is whether the fishery in public or private, the practical point is, who is entitled to possession
35. Turning to the actual issues raised, I will first deal with the question of estoppel raised by issue No. 10. That depends on the agreement of the 1st June 1916 (Exh. B) which is in the following terms: [After reading the agreement His Lordship proceeded.]
36. It will be observed that the agreement expressly states that the defendant is the owner of the Dar, that the plaintiff is to deliver up possession at the expiration of the tenancy, and that if the tenancy is to be renewed, he should pass a fresh rent note. Further, the agreement defines the boundaries by reference to the adjoining Dar on each -side. It further provides that if the tenant does not wish to continue the tenancy, he is to give one month's notice, and, on the other hand, if the landlord wishes to resume possession he is to give one month's previous notice. It will also be observed that the agreement throughout refers to the Dar and does not expressly mention the stakes themselves. Further, the promise by the tenant to deliver up possession is repeated no less than four times.
37. One point I should mention as to the duration of the tenancy. It is expressed to be ' for one year that is to say from the above-mentioned lunar date (the 1st June 1916) to the 25th November 1916, i. e, until the termination of the agreement'. Later on, the expression ' the next year ' is used in connection with a notice to be given by the defendant in the event of his non-renewal of the tenancy. The wording is not very happy, but both sides conceded that despite the reference to 25th November 1916 the agreement was for one whole year from the 1st June 1916. Similar wording was used in the earlier agreement (Exh. A) of 28th June 1915, and indeed in many, if not all, of the similar agreements as to the other Dars. The witnesses could not altogether explain the common form thus used, though it may have some reference to the fishing season which at this particular spot is during the monsoon months, June to October and a little beyond. At any rate it was not contended that the agreement Exh. B was void for ambiguity. After the expiration of the year, the tenancy agreement was, I think, renewed as a monthly tenancy having regard to Section 116 of the Transfer of Property Act.
38. Now I think it is settled law that a tenant cannot dispute his landlord's title unless he first gives up possession of the property to the landlord, and that it makes no difference in this respect whether the lease is determined by the expiration of the specific term fixed in the lease, or by a notice given in purauance of a power in the lease to determine it.
39. In Musammat Bilas Kunwar v. Desraj Ranjit Singh (1915) 17 Bom. I.R. 1006, p. c. Sir George Farwell, in delivering the judgment of their Lordships of the Privy Council, said as follows ;-
The other point in the case is one of estoppel. The property was let by the plaintiff to the defendant Ranjit Singh; he was let into possession by the plaintiff's gardener Bhairon, on her behalf and by her direction, and he regularly paid rent to her and applied to her to do all the necessary repairs; he has never given up possession to her although he duly received notice to quit, and ho has denied her title. Section 116 of the Indian Evidence Act is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title however defective it may be, so long ;is he has not openly restored possession by surrender to his landlord.
40. This case has been recently followed in this Court by my Lord the Chief Justice and Mr. Justice Heaton in Ekdba v. Dayaram (1919) 22 Bom. L.R. 82. There the Chief Justice said at p. 84 as follows :-
It is necessary to lay down perfectly clearly, that a tenant who wishes to dispute his landlord's title, must not only see that the tenancy has come to an end, but that the possession which was in him as a tenant has been surrendered. We cannot allow a tenant to hold over and remain in possession, and then use that possession as a lever to support a case in which he denies the landlord's title.
41. I may also refer to Gour Huri Mal v. Amirunnessa Khatoon (1881) 11 C.L.R. 9 which was a fishery case decided in 1881, and where it was held that a tenant was not entitled to plead that his landlord could not have an exclusive right of a several fishery in a navigable river. The case seems very close to the present one.
42. The law as thus stated was not and indeed could not be disputed by counsel for the plaintiff so far as regards landed property. His contention was that Section 116 of the Indian Evidence Act, 1872, only referred to immoveable property, and that a right of fishing could not be immoveable property. There is no definition of immoveable property in the Indian Evidence Act, but in Section 2(5) of the General Clauses Act 1868, it is defined to include 'land', benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to earth.' There is a similar definition in Section 3(25) of the General Clauses Act, 1897. In my opinion a several fishery is an incorporeal hereditament and would normally be considered real or immoveable property. Thus in Neill v. Duke of Devonshire (1882) 8 App. Cas. 135, 154 Lord Selborne says :--
The public could not, in law, prescribe for a profit a prendre in alieno solo, they could acquire no right adversely to the owner of the several fishery under any statute of limitation; and 'abandonment' which was suggested in the argument of the appellants' counsel, is a term which has no legal meaning as to an incorporeal hereditament, such as a several fishery, which can only pass by deed.
43. I may also refer to Ram Gopal Bysack v. Nurumuddin I.L.R(1892) Cal. 446 where a several fishery was held to be immoveable property within the meaning of the General Clauses Act and Section 106 of the Transfer of Property Act.
44. Turning, then to the agreement, Exh. B, I think it purports to demise a several fishery, viz., a right of fishing, which is in the exclusive ownership of a particular person over a particular locality. It seems to me, therefore, that it is no answer for the plaintiff to say that no such right was in fact demised, because the plaintiff had no several fishery, but only a right to fish as a member of the public. That argument directly challenges the landlord's title, and that is exactly what the law of stopped prevents the tenants from doing. After all, that law seems only a reasonable one, viz,, that if a tenant disputes the validity of the document under which he has obtained possession, he must first restore the status quo ante by giving up possession, and none the less so, because in the agreement before us, he has expressly contracted so to do. In my judgment, therefore, the defendant is entitled to succeed on the question of estoppel, so far as regards at any rate the Dar.
45. What then about the of cakes and the position which the stakes occupy? Does the agreement comprise them? In my opinion the agreement does include the site of the stakes having regard to the boundaries which are fixed by the agreement. If the boundaries are, as stated in the agreement, to be those of the adjoining Dars, prima facie the tenancy would include the site of the suit stakes. Counsel have stated that the suit Dar could not run right up to the adjoining stakes, because otherwise the owner of the adjoining stakes would be unable to pull his nets up and down his own stakes. In fact, a small space is left between, say, the easternmost stake of one Dar and the westernmost stake of the other, and this is no doubt necessary for practical fishing. But if one assumes that prima facie the boundary of one Dar is half way between the easternmost stake of the one Dar and westernmost stake of the other, I think that would be a reasonable solution of the suggested difficulty. I think, therefore, that the tenancy agreement in question included the present site of the suit stakes.
46. What then about the stakes themselves, viz,, the pieces of wood? As to them, I think the defendant is prima facie entitled to them. On the facts of this case, I am of opinion that the defendant owned both the Dar and the stakes before they were first let out to the plaintiff, and that it was the defendant's stakes which the plaintiff first made use of when he entered originally into the tenancy. I think, therefore, that he must give up the fishing stakes on the termination of the tenancy, and that he cannot claim to retain them on the ground that he has repaired them from time to time or even renewed them. Prima facie the boundaries mentioned would include every fixture within their limits at the creation of the tenancy. Hence the stakes themselves would be included, I am satisfied that originally those stakes belonged to the defendant. It is most improbable, therefore, that he would for a rent of say Rs. 25 give a year's lease and allow the tenant to remove stakes worth upwards of Rs. 120. The agreements of other Dars are mainly in the same form, and the witness Shivram Hassia let Marten J. one of his Dars for the first time some two years ago, and yet nothing was expressly said about the stakes. Did he too make a present of the stakes to his tenant ?
47. Further, from a technical point of view, I take it that each new writing constituted a new tenancy, and that even if the stakes could be considered as tenant's fixtures under an earlier agreement but were not removed there under, it would not necessarily follow that they would remain tenant's fixtures, under the subsequent agreement. It is true that the notice to quit gave them notice to remove their stakes if any, but this was a common form notice sent round to all the various tenants, and it was explained by the defend to mean that if any of the parties had put down entirely new stakes, the defendant wished them to be at liberty to remove them. In fact in the present case that notice was not complied with by the plaintiff, and I doubt whether he is now entitled to obtain the benefit of it.
48. In my judgment, therefore, issue No. 10 must be answered in the affirmative.
49. I may next take issues Nos. 11 and 13, which in effect raise the question whether the plaintiff can avoid the agreement of 1st June 1916 (Exh. B) on the alleged grounds of fraud or mistake. Strictly speaking, I should have taken these issues before issue No. 10, but there seems to be so little substance in them, that it is sufficient to mention them briefly here. At the outset of the trial plaintiff's counsel was prepared to drop prayer (c) of the plaint, viz., that the tenancy agreement was not binding and also the charge of fraud if the defendant did not rely on stopped. But on defendant's counsel stating that he did rely on stopped, the charge of fraud was maintained, and subsequently plaintiff's counsel obtained my leave to retain prayer (c) of the plaint.
50. The charge of fraud is, in my opinion, wholly unfounded and should never have been made or persisted in. The alleged fraud is that the defendant falsely and fraudulently represented to 'the plaintiff that he is the owner of the place where the 'suit' stakes were fixed'. But this tenancy began in 1966 according to the defendant and in 1896 according to the plaintiff. Further the renewals in 1915 were the result of the decision of the secretary of the whole Koli community. Indeed up to the interview with the Harbour Master in July 1918 which I will deal with later, nobody ever doubted the right of the defendant and other Mandvi men to the ownership of these Dars. I am satisfied that the defendant honestly thought that he was the owner of the Dar and that he had grounds for thinking so and that if he did make any representation, it was not fraudulent.
51. Then it was said that there was a mutual mistake of fact and therefore the agreement was void under Section 20 of the Indian Contract Act. Mutual mistake is not, I think, pleaded, bat even if it was; I am of opinion that the mutual mistake, if any, was one of law, viz., as to what legal rights the defendant possessed. If so Section 21 would apply and the contract would not be avoidable. But even if Section 20 does apply, then under Section 72 a person to whom anything is delivered by mistake must return it. So presumably the plaintiff would still have to give up possession of the suit Dar to the defendant. I need not, however, pursue the matter further nor consider whether any mutual mistake was established on the evidence. Nor need I consider whether, in the absence of fraud, it is open to a tenant to avoid the principle of estoppel by alleging a mutual mistake as to his I landlord's title As the tenancy agreement Cannot then be 'I avoided either on the ground of fraud or mistake, it follows that in my judgment the defence of estoppel succeeds and is an answer to the whole action.
52. The conclusion which 1 have thus arrived at on the question of estoppel is sufficient to dispose of this present suit. There has been no offer mule by the plaintiff at the trial to give up possession, and then to let the matter be fought out on the other issues. Even if there had been, there would have been some difficulty in acceding to that suggestion having regard to what was stated by the Chief Justice in Ekoba v. Dayaram (1919) 22 Bom. L.R. 82 unless of course the defendant consented to it. On the other hand, much time has been spent over the evidence in this case, and both parties have at various stages expressed their desire that my judgment should deal with the specific rights claimed by the defendant and the plaintiff respectively. That is in one sense the reason why the parties stayed the Small Causes Court suits and came to the High Court. Further, the issues raised at the trial which included the plaintiff's claim to have the tenancy agreement set aside on the ground of fraud or mistake and the alleged distinctions between the Dar and the stakes would have made it difficult to confine the evidence solely to estoppel. The parties have also intimated their probable intention of contesting this matter to the Privy Council, or at any rate in the appellate Court. On the whole, therefore, I think I may accede to the wishes of the parties, and give my opinion on the rest of the issues raised apart from the question of estoppel.
53. Apart, then, from estoppel, the defendant's case is founded on prescription, and this is raised in issue No. 12. He relies in the first place on Sections 15 and 4 of the Indian Easements Act, viz., in Section 15 the words-
Where...any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruptption, and for twenty years, the right to such...other easement shall be absolute.
54. Explanation 4 provides:
When the property over which a right is claimed under this section belongs to Government;, this section shall be read as if, for the words 'twenty yews ' the words 'sixty years' were substituted.
55. Then under Section 4-
An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
56. In the explanation to that section ' the expression ' land ' includes also things permanently attached to the earth.'
57. He next relies on the definition of easement in the Indian Limitation Act IX of 1908. Section 2(5) says: -
Easement' includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to or subsisting upon, the land of another.
58. He says that in law waters are merely regarded as land covered with water, and that consequently fish ' grow or subsist upon land' because the land includes the water, and that it has been so held in Chundee Churn Roy v. Shih Chunder MundulI.L.R(1880) Cal. 945 That, however, was a decision on the Indian Limitation Act, and the definition of easement in the Indian Easements Act is quite different. I confess I have considerable difficulty in seeing how the Indian Easements Act applies to a case like the present, where the right claimed to a several fishery makes no claim to the soil itself. It was said that the defendant was the ' owner of certain land ' within the meaning of Section 4 because he was the owner of the Dar, and that ' the certain other land not his own '' in respect of which he was doing something was the bed of the Harbour. This contention may help to explain how the defendant came to claim the Dar and not the soil, but I am far from satisfied that it is correct There seems to me much force in Mr. Coltman's contention that the defendant is really claiming to be the owner of both the dominant tenement and the servient tenement, viz., the Dar and that hence there can be no easement. There is also the difficulty as to whether the enjoyment proved here was 'of right ' within the meaning of Section 15. I will, however, deal with this in considering the presumption of a lost grant.
59. Now Section 2(o) of the Indian Easements Act preserves 'any right acquired or arising out of a relation created before the Act came into force' and accordingly I think it would be open to the defendant to found his case on prescription or the presumption of a lost grant quite irrespective of the Indian Easements Act. [After discussing the evidence on the point his Lordship proceeded:-] I, therefore, think that the defendant has proved that he and his grandfather have been in possession of the suit Dar by themselves or their tenants or servants for sixty years and upwards, viz., for a period beginning at least twenty years prior to the death of the grand-father in 1874.
60. Another considerable body of evidence dealt with the position which the Government of India and the Bombay Port Trust have adopted towards the fishermen. The records of the Port Trust in this matter going back to 1876 or thereabouts have been put in, and it is contended that they show that after a considerable struggle the fishermen's rights have been formally recognized by Government and the Port Trust. Whether the bed of the port is at this particular spot vested in the Government of India or in the Port Trust, I do not propose to decide. Prima facie the soil would, I think, be vested in the Government of India in right of the Crown. In Srinath Roy v. Dinabandhu Sen Lord Sumner says :-
The freehold of the bed of navigable waters was deemed to be in the East India Company as representing the Crown and now h vested in the Government of India in right of the Crown.
[After referring to the submission of the counsel on the point his Lordship proceeded:-]
61. In 1877 or thereabouts very serious complaints began to be made of the danger to navigation caused by some of the fishing stakes outside the then limits of the Port Trust but at the entrance to the Port. Representations were made by the Port Trust to Government and enquiries as to the legal position were made. So far as these records have been placed before me, I have not found that insistence on the rights of public navigation which one might have expected. (See Halsbury's Laws of England, Vol. XXVIII, pp. 400-403. But I cannot assume that these rights of navigation or any attendant remedies against improper obstructions were overlooked. At any rate the result was that the Government of India introduced the Obstruction to Fairways Act, 181, which eventually was passed into law.
62. Section 10 runs as follows:-
Whenever the maintenance or creation of an obstruction in any fairway has become lawful by long usage or otherwise, and such obstruction is removed or destroyed under Section ii, or its creation is regulated or prohibited under Section 8, any person having a right to maintain or create such obstruction shall be entitled to receive from the Secretary of State for India in Council reasonable compensation for any damage caused to him by such removal, obstruction, regulation or prohibition.
63. It is further established that under that Act a large number of stakes, viz,, those off Chandi Kau outside the entrance to the Port and some miles south of Oyster Rock were removed, and compensation amounting to 11s. 42,000 or thereabouts was paid to the owners of the stakes. It is further proved that under this same Act some of the easternmost stakes which then existed off Bhairchee Kau were removed compulsorily. In that case, however, no compensation was paid as the fishermen were given other places for their stakes. Now it is quite true that I have only to deal with Bhairchee Kau, and that I am not directly concerned with the stakes off Chandi Kau, But I think it is in favour of the defendant, so far as it goes, that Government have recognised that fishermen may have a, legal right to retain their fishing stakes within territorial waters and to be entitled to compensation, if for any purpose they are desired to be removed. I think also one may fairly say that if as regards Bhairchee Kau the fishermen, whose stakes were removed, had not accepted the position, they would have prima facie been entitled under Section 10 to compensation. Some other provisions as to removing obstructions and paying compensation will be found in Sections 10 and 12 of the Indian Ports Act, 1908, which was amended by Act VI of 1916, but I do not think I need pursue that.
64. Then coming down to the time of the present dispute the defendant relies on what is the present fishery position taken up by the Port Trust. They have called the Harbour Master, Capt. Mackenzie, who has an experience going back some twenty-two years of the Harbour, first, as a pilot and afterwards for the last two or three years in his present position. As a result of this experience he accepts as accurate the following statement made in para 4 of the letter of the 7th August 1918 (Exh. 11) written by the Port Trust to the solicitors for the defendant. This letter was written by the Port Officer and runs as follows :-
With reference to correspondence ending with your letter dated 26th July 1918,1 have the honour to state that, after going through the office records, I have come to the conclusion that the Port officer is only empowered to remove fishing stakes, fishing buoys, etc, when placed outside the authorised areas.
(2) That within the authotised fishing areas any person or persons can plant fishing stakes etc, and if such be an obstruction to the others who have already planted their stakes etc. then it is a cape for their castemen or Patels to decide, and settle the dispute between themselves and failing to come to any conclusion, then the law Court is open to them.
(3) The Port Officer can on no account interfere in their internal disputes, i. e. disputes as to rights of fishing within the authorised areas as his duty is only to see that the authorised fishing areas are not extended by placing fishing stakes or buoys outside the areas allotted for fishing purposes in Harbour.
(4) I may add that the owners of the fishing stakes or buoys may lease or sell their right of fishing on their stakes or buoys or let them or hire or transfer their stakes or buoys to other members of their family or to any other person by private agreement and charge rent for the buoys or stakes (Pars or doors) but they are on no account to charge rent for the place, i.e., land or soil which is entirely the property of the Fort as conservators of the Port.
(5) It should, however, be noted that if any owner of the fishing stakes etc. fails to renew the stakes broken or replace those washed away and such land or soil falling vacant, others shall have right to plant) stakes etc. and therefore in order to keep their rights over their stakes or buoys they should keep them repaired when broken or renewed when washed away; but if they abandon their stakes etc. others shall have the right to plant stakes and fish there, but all such disputes must be settled between themselves or in a Court of Law.
[After referring to the evidence of Capt. Mackenzie his Lordship proceeded :-]
65. I think I have now dealt with some of the more material portions of what I will call the present day evidence.
66. As regards the historical evidence, we have, as I have already intimated, very scanty materials. No expert with historical knowledge has been called, and the principal book relied on, viz., Campbell's Gazetteer was not referred to till all the evidence was closed. Many interesting extracts might be quoted from that work, but it only goes down to 1798 or 1819. It shows that from the beginning the Kolis were encouraged by Government having regard to the great importance of a good supply of fish, and that various expedients were resorted to. Perhaps the strongest statement in favour of the defendant is contained on p. 162 in a letter from the Collector of the 16th December 1791 where he says :-
The indulgences granted these people are an exclusive right to all the fishery, not only in all water surrounding this island but for several leagues out in the sea and where they and their property are protected and secured from being plundered by pirates, by the armed vessels belonging to the Honourable Company. On shore they are indulged by having the privilege of building their habitations on any spot of ground most suitable to the advantage of their business, and if this ground happens to be the property of the Honourable Company they are allowed to occupy it without paying any rent. They have also large spots of grounds granted them for the convenience of drying their fish, and other ground to repair and dry their nets on- For thin likewise, if it be the property of the Honourable Company, no ground rent is exacted. Thus your Honourable Board will perceive that these people are never employed by (Government without being paid for their labour and that the indulgences granted thorn are highly beneficial to their private emoluments.
67. But I doubt whether this letter can be taken literally and some of the earlier extracts seem to me to be inconsistent with a grant to the fishermen of definite fishing grounds in perpetuity and free from Government control. I do not, however, propose to go into all these extracts. I have at most a partial history and inferences there from might be misleading. Nor do I propose to go into the fascinating story of the Christian King who granted this very fishery as a reward to the fishermen for defeating the Habshis but that unfortunately the grant was lost because its custodian threw it into the sea in revenge for an adverse decision of the Koli caste. It would appear that Habshis (viz., Abyssinians) did exist on the opposite coast and they were at times defeated. But the rest of the story 1 cannot accept on the present scanty materials.
68. But what does this evidence all amount to '( In the first place, the defendant has never been able to satisfy me that what he and his grand-father have done was necessarily inconsistent with a public right of stake fishing. Once it is granted that the public right of fishing in navigable waters on this coast may be exercised by stake fishing, it almost follows that quasi permanent right may be obtained in particular spots. For there is no one entitled to eject the stake-holder, and in practice it would be difficult, if not impossible, to prevent him from transferring his right to his relatives or friends.
69. Where indeed stake fishing is general, I think caution is necessary before one accepts the view that each Dar owner has a prescriptive right to a sheet of water and to affix his stakes in the subsoil although he has no claim to the soil itself, personally, too, 1 doubt whether the suit stakes have always been in their present position. The two Admiralty Charts in evidence are not quite consistent about these stakes. And if one turns to Fryer's Map of 1672, the stakes there shown were much further out into the Harbour, and were indeed in the present fairway being almost due south of Cross Island.
70. Another great difficulty in the way of the defendant is to explain how he and his ancestors obtained their individual right by prescription. One test is to see how they could have acquired it by any grant now lost. This is, I think, a fair test. The common law doctrine is that all prescriptions presuppose a grant (per Lord Lindley in Gardner v. Hodgson's Kingston Brewery Company  A.C. 229. I accordingly directed the defendant to bring in a supplemental pleading as to the presumption of a lost grant and it amounted to this. Either there were three lost grants, viz., (a) from the East India Company to the fishing class of Koli community; (b) from latter class to Mandvi and Colaba men; and (c) from latter men to defendant's predecessors-in-title, or alternatively, there was a direct grant from the East India Company to the defendant's predecessors-in-title.
71. Mr. Coltman in a forcible argument pointed out the legal difficulties in the way of the first contention. Could there be such a grant (a) unless the fishing class were thereby made a corporation or there was a grant upon trust for them. (See Goodman v. Mayor of Scltash (1882) 7 App. Cas. 633; Attorney-General v. Mathias (1858) 4 K & J, 579; Lord Rivers v. Adams (1878) L.R.361 But even if grant (a) was made, how could grant (b) be validly made? In the first place, what right could the corporators have to dispose of the right (compare In re 'Ike Company or Fraternity of Free Fishermen of Faversham ` and secondly, how could it be validly granted to the Mandvi and Colaba men, for according to English law they could only be constituted a corporation by a grant' from the King. (See Willingale v. Maitland (1866) L.R. 103. Similarly there would be other legal objections to the validity of the suggested grant (e). It was said in answer that in this country a grant may be made to a fluctuating body like a village or a caste: The Secretary of State for India v. Mathura-bhai I.L.R (1889) Bom. 213 and The Secretary of State v. Haibatrao Harii I.L.R (1903) Bom. 276. But in the former case the question as to fisheries, etc., was left open and in Lutchmeeput Singh v. Sadaulla Nushyo I.L.R (1882) Cal. 698. Lord Rivera v. Adama (1878) L.R. 361 was followed.
72. This leaves the alternative direct grant. It may be that the Crown or East India Company unlike the Crown in England would not be fettered by Magna Charta in making such a grant: see Vireta v. Tatayya I.L.R (1885) Mad 467 and Hori Das Mai v. Mahomed Jaki I.L.R (1885) Cal. 434. But it seems to me unlikely that any such grant was ever made. In Baban Mayaoha v. Nagv, Shravucha I.L.R (1886) Bom. 19 Westropp, C.J. said:-
West, J., in speaking of the prerogative' of the Crown in India in this respect said: ' I am not aware that in any case they have been so used as to exclude any subject in this country from fishing in any part of the sea. No grant of a fishery in the present case has been set up either as directly proved or as to be inferred from prescriptive enjoyment.
73. If I could not find a legal origin for this stake fishing, the case would be quite different, but as it may be explained as a mere user of a public right, one is not driven to make the presumptions one might otherwise do. Thus in Gardner v. Hodcjaon'8 Kingston Brewery Co  A.C. 229, 235. Lord Macnaghten at p. 235 says:-
There is certainly no need to resort to the presumption of a lost grant when the facts of the case, so far as they are known, suggest a much simpler and a more natural explanation.
74. And Lord Lindley says at p. 240:-
For that doctrine only applies where the enjoyment cannot be otherwise reasonably accounted for.
75. So, too, in speaking of prescription under the English Prescription Act, where, like Section 15 of the Indian Easements Act, the enjoyment has to be of ' right'. Lord Lindley in the same case says at p. 239 :-
A title by prescription can be established by long peaceable open enjoyment only : but in order that it any be so established the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the Court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established.
76. The right of navigation affords, I think, some analogy. Speaking very generally, this right entitles one to cast anchor or moor in territorial harbours. That right involves no claim to the ownership of the soil itself. It is merely an incident of the right of navigation and must be used as such: and is subject to the proper discretion of the harbour authorities in the interest of all having the like right and may be subject to statutory restrictions, such as Section 30 of the Indian Ports Act, 1908 Accordingly in general the right will prevail against the owner of the foreshore who may not cut adrift the mooring buoys used by yachts or other vessels for the purpose of navigation: see Attorney-General v. Wright  2 Q.B. 318. On the other hand it will not enable a coal hulk to be mooted in the harbour permanently: see Denaby and Cadeby Main Collieries, Limited v. Anaon  1 K.B. 171.
77. So here the stake fisherman may fix his stake as the sailor does his anchor or mooring buoy. Neither claims the soil for each is exercising a public right. The stake like the mooring buoy may belong to and be used by a particular man or a shipping Company. But all this does not involve an exclusive right to any particular waters. It is only because all persons having the like right, namely, the general public cannot all fish or anchor in the same spot that by a natural process different persons go to a different spot and that in course of time a particular spot may be identified with a particular person. Custom here is not pleaded or relied on, so I need not deal with that.
78. The defendant very naturally relied on Viresa v. Tatayya I.L.R (1885) Mad. 467. But there the facts were not found by the lower appellate Court and consequently the case was sent bank for a re-hearing. It really only amounted to this that prescription was possible in Jaw in that particular case if sixty years' enjoyment as of right was proved or alternatively that the plaintiffs could obtain similar protection to that in Baban Mayaoha v. Nagw Shra-uucha I.L.R (1876) Bom. 19.
79. There are other details and points in this case which I do not propose to discuss. Nor do I propose to deal with all the authorities that were cited to me. I have to the best of my ability considered all the facts and weighed the able arguments of counsel. In the result I am of opinion that the defendant has not made out his case to the exclusive right which he claims.
80. Accordingly, in my judgment, the defendant's rights are those of a member of the public who is entitled to fish in the sea by means of stakes. That right would not, I think pass by grant or descent. As Sir Michael Westropp puts it in Baban Mayacha's case at p. 53 ' such aright could neither pass by livery, grant, descent or devise, ' I am satisfied that the right of the public to fish in the sea does not come within the description of property of any kind. On the other baud the same case shows that the defendant will be entitled to be protected from improper interference with his public right of fishing. The judgment ends too with the warning that the parties ' should recollect that it is certain that the law is capable of compelling them to exercise their common rights fairly towards each other, and not in a spirit of malice or rapacity.' (p. 61).
81. In Naraaayya v. Sami I.L.R (1888) Mad. 43the stake fishermen got further protection because custom was pleaded or proved. Here custom is not pleaded. But though the right to fish may be public, the right to the stake is private and is a subject of property. If, therefore, the stakes were let out with covenants for repair, surrender and non-removal and possibly also with a covenant for compensation if by negligence the existing right to fish there from was lost, it would be questionable whether such an agreement could be successfully attacked. But I decide nothing as to that. The right claimed before me is to lease a several fishery which is a very different matter.
82. I only hope the good sense of the parties will enable them to come to some working arrangement, and will not insist on their respective rights being gradually ascertained as the result of protracted and costly litigation. In Baban Mayacha's ease Sir Michael Westropp said (p. 26) :-
Excepting, however, the information derivable from the previous litigation between the inhabitants of the villages of Malavni and Manori, who once again encounter each other in the present suit, there is an absolute dearth of authority in our India law boots with respect to fisheries in the open sea.
83. This was in 1876. It shows that the fishermen of old were content to settle their disputes without coining to the High Court. Their successors would, I think, be wise to follow their example so far as is now practicable having regard to the litigation already started.
[His Lordship after recording the findings on the issues proceeded:- ]
84. The practical results of my findings are that the defendant succeeds on the issue of estoppel and that consequently the suit must be dismissed. He did not, however, ask that this issue of estoppel should be tried as a preliminary issue and he has failed on the important issue as to his claim to a private or exclusive fishery, and it is this claim which has occupied a large proportion of time at the trial. On the other hand the plaintiff has charged fraud but has failed on that issue and also on some other questions of fact. On the whole I think that the fair order will be that the plaintiff pays half the defendant's cost of the suit.
85. The plaintiff appealed from the decree; but the parties arrived a compromise and obtained a consent order, on the 7th February 1921, in the following terms:
Plaintiff to pull up and remove the stakes in suit on the 21st February 1921 and to be at liberty to retain the same. Defendant to have time from the date of such removal until the 7th March 1921 to put in fresh stakes at or in the immediate vicinity of the site of the present stakes. Plaintiff undertakes not to put in fresh stakes at or in the immediate vicinity of the site of the present stakes or in any other place as will interfere with fishing from stakes placed by the defendant at or in the immediate vicinity of the present stakes up to 8th March 1921 or if the defendant puts in fresh stakes as aforesaid thereafter whilst such stakes may be maintained by repairs or renewals. Each party to pay his own costs of the appeal. Liberty to apply.