Aug 31 1819 Carlisle Assizes (Lawson v. Peat [a])...#10 - Cumberland and Westmorland Newspaper Transcriptions

Aug 31 1819 Carlisle Assizes (Lawson v. Peat [a])...#10

The Times, Tuesday, Aug 31, 1819; pg. 3; Issue 10712; col A

                                CUMBERLAND ASSIZES
                    CARLISLE, WEDNESDAY, AUGUST 25.

             LAWSON, ESQ. V. PEAT. - RIGHT OF FISHERY.

Mr. TINDALL stated the pleadings.

Mr. Sergeant HULLOCK opened the case to the Jury. The plaintiff was Wilfred
LAWSON, Esq., who had a considerable property on the banks of the river Derwent.
The property had belonged to Sir Wilfred LAWSON, who died in 1806. It came next
to the plaintiff's eldest brother, Thomas LAWSON, who died just as he had become
a major, in 1812. The plaintiff, at that time a minor, succeeded, and became of
age in 1816. The present action was brought in consequence of obstructions in
the river Derwent, which prevented fish from going up the river so far as the
plaintiff's property. The Derwent flowed from the lake Bassenthwaite, and
emptied itself into the sea at Workington. Near Workington the land upon its
banks was the property of the Earl of LONSDALE, and had been leased from 1725 to
the present day, successively, to CURWEN, PELHAM, and the PEATs, father and son.
Coops and stells had been placed in the river for catching fish; and in 1741,
GREEN removed these from a mill-wear at which they had been originally placed to
another mill-wear higher up the river. This last station was at Seaton-mill, and
opposite to the defendant's house, Salmon-hall - a most appropriate name, it
must be admitted, for an enormous appetite for salmon these PEATs, father and
son, possessed. But the alteration made in 1741 it was now too late to challenge
with any success. The plaintiff had three manors upon the same river, higher up,
and extending about three miles along the banks. No dispute existed as to the
right of fishery in Lord LONSDALE. But the exercise of a good right of fishing
might be illegal, and that was the ground of the present action. The plaintiff
could not call in question what was done in 1741, because the lapse of so much
time created a presumption that the encroachment on the plaintiff's right had
been made with his consent. But if the form of placing the coops and stells,
previously altered in position, had been so changed as to constitute an
increased impediment, that was an injury to the plaintiff's sight. The law was
this: - You are to create no obstruction in your lower part of the river, which
is to prevent fish from passing up to my higher part; but if you have created an
obstruction more than 20 years ago without any interruption or challenge, a
legal presumption arises that you had my consent. But if within the period of 20
years you have increased that obstruction, I can with effect complain of that
increase, and get the increased obstruction removed. The coops and stells (of
which models were exhibited in Court) had been so constructed 25 years ago, that
the hecks (cross bars of wood) were placed perpendicularly, and with interstices
of 2 inches and a half. Fish of 6lb. weight could then pass through them. Those
hecks were now placed horizontally, and with interstices so contracted that no
fish at all could get through. The first alteration of this last kind had been
in 1794: that, indeed, was more than 20 years since; but in the year 1818 the
interstices had been contracted from one inch and a half to one inch and a
quarter. If, then, he could prove any alteration to the prejudice of his
client's right within the last 20 years, he should be entitled to their verdict.
He was not aware of any peculiar privileges as to the right of fishing vested in
the LONSDALE family. If any pretension of that kind should be made, he was ready
to meet it. He would not force any discussion of that kind, but if it should be
brought forward, he was prepared for it. Another circumstance which he would
mention, although not part of this case, was, that in the fence-months the coops
and stells were not taken up as required by law. There were certain months of
the year when it was unlawful to fish salmon. This period varied in various
parts of the kingdom. The period in the Derwent was, from the 10th of October to
the 10th of February. During this period fish was obstructed, contrary to law,
by those coops and stells.