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FERNANDO et al. v. FERNANDO et al.
NLR22V260
1920. Present : Bertram C.J.
and De Sampayo J.
FERNANDO et al. v. FERNANDO et al.
184-D. C. Chilaw, 5,562.
Exclusive right to fish at a " modera"-Prescription-Custom-Diverticulum.
Pitipane street people and Sea street people at Chilaw came to an agreement
about 1871 as to fishing for prawns at the " moderas " (channels on either side
of a small island) through which the waters of the Chilaw river pass. The
plaintiffs, who, defendants alleged, belonged to another section of fishers,
claimed the right to fish at the spot.
The defendants (Pitipane street people) resisted the claim on the ground that
they had acquired, along with the Sea street people, by prescription or custom,
the exclusive right of fishing at the spot. Held, that the defendants' claim was
not one which was capable of being acquired by prescription, nor was it one
which could be supported on the ground of custom.
As the "modera" was not a diverticulum within the meaning of the term as used by
Voet 41, 1, 15, an exclusive right to fish there could not be acquired.
Prima facie, all the King's subjects have a right to fish in the waters of the
sea and in all tidal estuaries connected therewith.
A fluctuating and uncertain body of people, such as the inhabitants of a
district or a section of the inhabitants of a district, cannot by prescription
acquire a right of fishery against any individual member of the community, and
still less against the public itself.
The rights of the public or of sections of the public to fish in the sea or in
tidal waters are not governed by prescription, but may be regulated by custom. A
custom to be recognized by the Court must be a reasonable custom ; a custom
which deprived a section of the community of its common law rights in the very
matter which the custom was supposed to regulate is not a reasonable custom.
THE
facts are set out in the judgment of the District Judge (W. H. B. Carbery,
Esq.) :-
This is an action by the plaintiffs, who are residents of Alutwatta in Chilaw
town, asking for a declaration of this Court, as against the defendants, who
are, excepting the 20th and 21st defendants, residents of Pitipane, also in
Chilaw, entitling the plaintiffs, equally with the defendants, to the free and
unfettered right of fishing for prawns with "kattudel" (or " bandinaldel "or
"issan del") at the two moderas, the Chilaw and the Deduru-oya, where the mouths
of these rivers empty themselves into the sea.
Both the plaintiffs and the defendants are Sinhalese-speaking members of the "
Karawa" or "Fisher" caste.
There is, besides them, a branch of Tamil-speaking members of the same caste,
who reside at Sea street in Chilaw. Originally, there can be no doubt that all
these people were actually fishers, that is to say, that their occupation and
livelihood was fishing, but in course of time many of them have become educated
and rich, and therefore do not now carry on their ancestral avocation, that
having been left to the poorer members of their community. There have been two
cases previous to the present one about this same right of fishing. The first
case was D. C, Chilaw, 12,559, an action filed on April 24, 1844, by the
so-called Sinhalese-speaking fishers of Pitipane against the Tamil-speaking
fishers of the Sea street asking for an injunction of Court against the
defendants, that they be prevented from exercising this very identical right of
fishing for prawns, the plaintiffs exclusively claiming that right on the
strength of a Dutch grant and by prescriptive right from time immemorial.
It is necessary here to state that these Sinhalese-speaking fishers were known
by the prefix of " Mihindukulasuriya " (i.e., "descendants of a king), and the
Tamil-speaking fishers by the prefix "Warnakulasuriya," meaning much the same
thing. It is, however, interesting to note that the prefix to the names of the
four last plaintiffs in that case, D. C.,
