Borwick Development Solutions Ltd v Clear Water Fisheries Ltd: CA 1 May 2020

Only Limited Ownership of pond fish

BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or animals domitae naturae.
Held: The appeal was allowed: ‘ the judge was wrong to find that BDS’s qualified property in the fish survived the transfer to CWF of the land on which the lakes stood. Given its investment in the fishery, that is indeed a hard result for BDS, but it is not a consequence of the law relating to wild animals but of the circumstances in which its land came to be sold by receivers. Had there been a normal commercial sale, BDS could have demanded payment for the fish, as indeed it did in the negotiations with CWF before matters were taken out of its hands. But with the sale, possession of the fish was lost and its qualified property rights came to an end.’
‘captive wild creatures are considered to be qualified property per industriam, even though they are also on land presumably owned by the same person. As explained by Sir Timothy at paragraph 25 above, the two rights are not symmetrical. One is an exclusive right to reduce the animal into possession by virtue of land ownership, the other an exclusive right to possession of the animal by virtue of some effort.’

Peter Jackson, Rose LJJ, Sir Timothy Lloyd
[2020] EWCA Civ 578, [2020] WLR(D) 265
Bailii, WLRD
England and Wales
Appeal fromBorwick Development Solutions Ltd v Clear Water Fisheries Ltd ChD 24-Jul-2019
Dispute as to ownership of fish in fishing lake on its sale, and whether solar panels were fixtures. The fish had been purchased for the fishery. Small fish might escape through meshes, but larger fish were captive. The contract of sale of the land . .
CitedGreyes Case 1593
Grey brought an action of trespasse against Bartholmew : the case was : A man did purchase divers fishes, viz. carpes, tenches, trouts, Be. arid put them into his pond for store, and then died.
The question was, whether the heire or the . .
CitedRex v Steer 1704
A quantity of carp was stolen from a private pond.
Held: the fish were the property of the owner of the pond. The fish could not swim away from an enclosed pond and thereby become lost. . .
CitedBlades v Higgs and Another 8-Jun-1861
Wild animals, whilst living, though they were the property of the owner of the soil on which they were living, were not his personal chattels. Animals ferae naturae killed by a trespasser became the property of the landowner.
Lord Chelmsford . .
CitedRegina v Townley 1871
Bovill CJ made it clear that in animals ferae naturae, there was no absolute property. There was only a special or qualified property. . .
CitedThe Attorney General for The Provinces British Columbia v The Attorney General for The Dominion of Canada and Another PC 2-Dec-1913
Canada – Lord Haldane set out the principles under which fishery rights might be acquired by prescription.
Fish stocks are a public resource, and there is no property in fish until they are caught. The right to fish in tidal waters or in the . .
CitedHesketh v Willis Cruisers Ltd CA 1968
Where the fishing rights have not been severed from the lake or river bed, they simply pass automatically as part of the land; and there is no need for them to be separately transferred to the purchaser of the land . .
CitedCresswell and Another v Director Of Public Prosecutions Admn 30-Nov-2006
The defendants opposed the actions of DEFRA in trapping and then killing badgers. They were accused of criminal damage to the traps. They asserted a lawful excuse in seeking to release the badgers. While a wild animal was alive, there was no . .
CitedBuckle v Holmes KBD 1925
The defendant’s cat had killed what were said to be valuable racing and homing pigeons and some bantams of the plaintiff. The plaintiff sued for damages for the loss, but was unable to prove that the defendant knew the cat to have any specially . .
MentionedBuckle v Holmes CA 1926
. .
CitedYoung v Hichens 21-Nov-1844
The plaintiff was fishing in the sea for pilchards and had drawn his net around a large number of fish, but at a moment when his net remained open by some seven fathoms and he was about to close it, the defendant rowed up to the opening of the net . .
CitedEwart v Graham HL 1859
The parties disputed the scope and extent of a reservation to the respondent’s father in an Act of Parliament of ‘all rights of hunting, shooting, fishing and fowling’ over certain specified land which had been owned by the respondent’s father and . .
CitedFitzgerald v Firbank 1897
The owner of a right of fishing asserted a cause of action without proof of special damage against someone who had polluted the river in which the right was exercised.
Held: A right of fishing was of such a nature that a person who enjoyed it . .
CitedThe Ship Frederick Gerring Jr v The Queen 1-May-1897
(Supreme Court of Canada) The court was asked whether a vessel was forfeit to the Crown on the grounds that it had been used for fishing within a three mile limit from the Canadian coast. The fishing process had started outside the limit. A large . .
CitedHamps v Darby CA 1948
The court was asked as to a civil action concerning the depredations of homing pigeons on crops.
Evershed LJ quoted from Holdsworth’s History of English Law about keeping a singing bird which is of value even though not in monetary terms: ‘For . .
CitedKearry v Pattinson CA 1939
A claim was made for damages by the plaintiff bee-keeper, against the defendant, his neighbour. The plaintiff’s bees swarmed and settled in the garden of the defendant. He sought to recover his bees but the neighbour initially refused to give the . .
CitedPurcell v Minister for Finance 1939
(Supreme Court of Ireland) Legislation providing for compensation for malicious injury causing actual damage to property, payable out of public funds. Mr Purcell caught eels in a river, not being the owner of the land over which the river ran nor, . .
CitedPierson v Post CA 1805
Post and his hounds were pursuing a fox on waste ground in Long Island when Pierson intercepted and killed it. Post sued, claiming ownership of the fox, and won at trial. The court was asked: ‘Whether a person who, with his own hounds, starts and . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Animals, Torts – Other

Updated: 01 November 2021; Ref: scu.650616