Madappuli.K.D.G v Patrick.S.D et al

1952 Present : Gratiaen J. and Pulle J.

K. D. G. MADAPPULI, Appellant, and S. D. PATRICK et al., Respondents

S. C. 122-D. C. Kalutara, 26,779

Fishing-Custom-Proof.

The Court will not recognize an existing arrangement arrived at by particular fishermen for the purpose of regulating their respective rights to fish in the open sea as binding on other members of the community who were not parties to that arrangement unless such arrangement already possesses all the attributes of a valid legal custom.

Semble : Unless such an arrangement is inherently capable of adaptation to all future variations in numbers and circumstances, it cannot form the basis of a valid legal custom.

Per GRATIAEN J.-" Under the common law every member of the public has an equal right to fish in any part of the open sea. Such rights may be curtailed regulated or even abrogated by statute . . . . They may be regulated, but certainly not extinguished, by custom. "

APPEAL from a judgment of the District Court, Kalutara.

N. K. Choksy, Q.C., with D. M. Weerasinghe, for the plaintiff appellant.

N. E. Weerasooria, Q.C., with W. D. Gunasekere, for the 1st defendant respondent.

V. T. de Zoysa, for the 2nd and 3rd defendants respondents.

Cur. adv. vult.

November 18, 1952. GRATIAEN J.-

This unprofitable action commenced very nearly five years ago. It concerns the conflicting claims of the parties to enjoy, in one degree or another, a monopolistic right to fish with madelas or large fishing nets in a part of the open sea adjoining an area of the sea-beach in the Maggona district known as the Kuda Waraya.

The truth is that no such monopoly exists, because under the common law every member of the public has an equal right to fish in any part of the open sea. Such rights may be curtailed, regulated or even abrogated fey statute, but that has admittedly not occurred in Maggona. In some districts they may be regulated, but certainly not extinguished, by custom. In the large majority of cases, however, the situation of persons engaged in any locality in the hazardous enterprise of fishing, unregulated either by statute or custom, calls for a spirit of sensible compromise which alone would ensure, by private agreement, some convenient arrangement designed to prevent "a sort of warfare perpetually subsisting between the adventurers" (Fennings v. Grenville) 1[1 Taunton 241 at 248.]. One can but express the hope that even at this late stage the parties to the present dispute will appreciate the advantages which they would derive from such an arrangement. I do not doubt that the good offices of the Assistant Government Agent of the district, if invoked, would be readily available to them in this regard. If all else fails, the local authority is, we understand, empowered to introduce statutory by-laws and rules designed to avoid friction and unhealthy competition.

Prior to November 1947 the plaintiff had never interested himself in fishing with a madela at the Kuda Waraya. Indeed the evidence discloses that for many years certain members of the defendants' family (a group conveniently designated as "the Abrahams ") and of another family (" the Coorays ") had virtually shared a monopoly of fishing with madelas in these waters. In the result, the very limited number of persons exercising a common law right which in truth belonged to the entire community made it a simple matter for the persons concerned to regulate their activities by fishing in accordance with an agreed system of rotation instead of indulging in spirited and unprofitable competition with one another. In 1946 T. M. R. Cooray, the last surviving member of the " Cooray " family, died and the fishing rights in the Kuda Waraya were for the time being exercised exclusively by "the Abrahams". During this brief period, a

few members of the defendants' family continued to fish with madelas in the locality undisturbed by ou

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