Coxe and Teunon, JJ.
1. The suit out of which this appeal arises was framed as one for the recovery of possession of a certain portion of the river Daratana on establishment of plaintiff's right to fish therein.
2. A Civil Court amin was deputed to locate the site of plaintiff's alleged fishery and the tract of river. in dispute, and it was thereupon found that what plaintiff claimed was (i) the exclusive right to fish for shrimps or prawns by means of a stake-net placed across the river and fastened to posts fixed at stations 1 and 13 on the map prepared by the amin, and (ii) the right to prevent the defendants and others from placing any similar stake-net across the river at any point between his net and stations 17 and 18, some 600 yards to the north, and stations 3 and 8, a similar distance to the south.
2. As it appeared that shrimps are caught only at ebbtide, when the current is from north to south, the plaintiff-respondent's claim in respect of the portion, of the river lying to the south of stations 1 and 13 has been dismissed, but the plaintiff has been given u decree declaring his exclusive right to fish by means of a stake-net at stations 1 and 13, and restraining the defendant from placing any stake-net across the river between those stations and stations 17 and 18 to the north.
3. The findings on which this decree is based are that at the site in question the plaintiff has been catching shrimps by means of stake-nets for the last 30 or 40 years openly, publicly, peacefully, without interruption and as of right.
4. It has been found that the river Daratana is a tidal and navigable river, and the decree is therefore assailed in appeal substantially on two grounds, viz., (i) that in public waters an exclusive right of fishery cannot be acquired as an easement under Section 26 of the limitation Act (XV of 1877), and (ii) that the, user of the plaintiff should have been referred to the general or common right of all members of the public to fish in this tidal and navigable river.
5. It appears to be now settled that private rights of fishery in public waters may be acquired either by a grant from the Crown or by prescription from which a grant may be presumed: vide the cases of Hori Das Mai v. Mahomed Jaki (1885) I.L.R. 11 Calc. 434 Satcowri Ghosh Mondal v. Secretary of State (1894) I.L.R. 22 Calc. 252, Viresa v. Tatayya (1885) I.L.R. 8 Mad. 467. In the present case there is no suggestion of any grant, and the question therefore is whether the exclusive right of fishery in a tidal and navigable river can be acquired by proof of mere enjoyment in the manner provided in Section 26 of the Limitation Act, 1877. In the case of Arzan v. Bakhal Chunder Roy Chowdhry (1883) I.L.R. 10 Calc. 214 the point was apparently not taken and it was tacitly assumed that the provisions of the Limitation Act, as regards easements were applicable as against the Crown. But in the case of Viresa v. Tatayya (1885) I.L.R. 8 Mad. 467 the contrary assumption was apparently made, and in the case of Secretary of State v. Mathurabhai (1889) I.L.R. 14 Bom. 213 two learned Judges of the High Court of Bombay indicated the opinion, but did not decide that the provisions of Section 26 of the Limitation Act were not applicable for the acquisition of easement as against the Crown. This view appears also to find support in the case of Nityahari Roy v. Dunne (1891) I.L.R. 18 Calc. 652 where the question was with respect to an exclusive right of ferry. Though, speaking for myself, I am inclined to agree in the reasoning of the learned Judges in the case already cited, from I.L.R. 14 Bom. 213, we do not think it necessary to decide the question, as in our opinion the second contention of the appellants must prevail.
6. As we have stated, no grant of the exclusive right of fishery now claimed has been proved as suggested it is clear therefore that when the plaintiff first began to fish at the site in question, he did so in the exercise of the common right which he shared with all members of the public. When, if ever, the assertion of this general right developed into an assertion of an exclusive right does not appear. Reliance has been placed on certain criminal proceedings in 1897 and in 1903, when, in the first case, certain persons were bound down to keep the peace, and, in the second case, others were successfully prosecuted for cutting down plaintiff's extended net. But obviously wanton or malicious disturbance of the plaintiff when engaged in the peaceful exercise of his common right renders the wrongdoers liable to punishment, and these cases therefore do not advance his present claim.
7. There is authority in the case of Baban Mayacha v. Nagu Shravucha (1876) I.L.R. 2 Bom. 19 and Narasayya v. Sami (1888) I.L.R. 12 Mad. 43 for the proposition that the method of exercising the common right may be regulated by custom, and had the plaintiff's claim been of this nature and been supported by satisfactory evidence, plaintiff might possibly have obtained a certain measure of relief, but in the absence of circumstances indicating that the plaintiff's user was in assertion of a right other and higher than the general right, it can be referred only to such general or common right and his present suit must therefore fail. The appeal is therefore decreed and plaintiff's suit dismissed. Under the circumstances, we think it right that parties should bear their own costs throughout.