Fitzgerald 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 had such possessory rights that he could bring an action for trespass at common law for the infringement of those rights. Rigby LJ: ‘There was another point about several fishery which we do not need to deal with, because the decision of the Queen’s Bench was overruled in that respect. But the important point was whether the grantee could sue in trespass, and in the Court of Exchequer Chamber it was held that he might. The Court of Exchequer Chamber said that it was not necessary for them to decide the question whether the count might not be a count in case, but that they saw no reason to doubt that the Queen’s Bench were right on that point. But that does not mean that the plaintiff can only sue in trespass. I cannot doubt, on the construction of the grant, the right of the plaintiffs by virtue of that grant to sue for a wrongful act which operates as a disturbance of the rights granted by the deed. The argument was pushed with the greatest courage to this extent – that a wrongdoer, unless he tried to do the very thing that the grantees were authorised to do, might destroy the whole subject-matter of the grant and be liable to no action. I never met with any case which gave the slightest colour to such a doctrine. I hold that the grantees of the incorporeal hereditament have a right of action against any person who disturbs them either by trespass or by nuisance, or in any other substantial manner.’


Lindley LJ, Rigby LJ, Lopes LJ


[1897] 2 Ch 96


England and Wales


CitedHolford v Bailey 1849
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Cited by:

CitedWatkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
ExplainedNicholas v Ely Beet Sugar Factory Ltd CA 1936
The plaintiff owned several fisheries and sought damages after the defendant polluted the riner. He was unable to prove any actual loss.
Held: Disturbance of a several fishery was an invasion of a legal right, and in such a case the injury to . .
CitedBorwick 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Animals

Updated: 20 November 2022; Ref: scu.199935