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BABA APPTJ et al. v. ABEBAN et al.
D. G., Matara, 26,827.
Fishing—One known method of fishing—Innovation therein—Fishing custom—Its validity—Its reasonableness.
Where it was usual to catch fish in a certain place with one knownkind of net, and where, when some fishermen – introduced in the' sameplace an improved method of fishing by a different kind of net, it wascontended that this innovation amounted to a breach of custom, the proofof the existence of such custom being the fact of there having been firming. by only the first kind of net till the time of such innovation—
Held, that it was essential that a custom to be binding should bereasonable, and that the use of one known method of fishing does notraise a custom in its favour strong enough to preclude the introductionof improved methods.
N this case the plaintiffs sued the defendants for damages,amounting to Rs. 375, arising from the interference of the
latter in the free exercise of their right of fishing with a nool-delin a place in Matara called “ Moderawella Waraya.”
The defendants had been in the habit of fishing with a dragnet called ma-del, Each of them took his turn in rotation. <
On the 26th January, 1873, it was the third defendant’s day to goout fishing.* He, however, did not do. so, because there was noshoal near enough. Seeing that no one went out fishing, theplaintiffs proceeded thither and. began to fish with nool-dels, theuse of which was objected to by the ma-del fishermen.
A quarrel ensued between the plaintiffs and defendants, in thecourse of which the defendants let go the fishes in the nool-del.It was the price of these fishes that the plaintiffs claimed.
The District Judge (Mr. J. A. Swettenham) found for theplaintiffs as follows on 6th September, 1873: —
“ The issues in this case are: (1) were plaintiffs interrupted bydefendants as alleged ? and (2) had plaintiffs a. right to fish wherethe cast their net ?
“ As regards the first point, I consider that it has been fullyproved that plaintiffs did cast their hil-del and did encircle& small shoal of fish which they were prevented from taking bydefendants' wrongful act in lifting up the net so as to allow thefish to escape ; all the .admitted facts confirm plaintiff’s story.
“ The spot at which plaintiffs were fishing appears to have been350' or 400 fathoms off the shore dose to some rocks and on, theshore side of them. Defendants plead a right by custom to fish
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the whole of Modarawella Waraya by drag nets (ma-del) to theexclusion of all other modes of fishing. It appears that these dragnets are used in rotation a day for eaoh net, and that it was thirddefendant’s turn on the day in question, but he did not fish asthere was- no shoal near enough- to capture; a. drag net cannot behauled over rocks.
" I am not satisfied that plaintiffs were fishing over groundusually swept by drag nets. The evidence does not establish thistand some of the statements go decidedly to show that plaintiffswere well outside of the ground usually traversed by drag nets.A ma-del does not exceed 600 fathoms in length; it is stretched inthe shape of a segment of a circle from the shore; the farthestpoint of a large 'net run along the shore would not exceed 240fathoms, which is 100 fathoms short of plaintiffs’ station on theday in question.
“ The custom pleaded – by defendants does not appear to me toform a defence in this case. It was set up as a defence in case No.21,959, District Court, and was then pronounced to be untenableby the Supreme Court.
“It is unreasonable that the ma-del owner, whose turn it is tofish, should, when not occupying the water in any way, be able toprevent any one else fishing. It is* unreasonable that a customwhich has existed solely for the convenience of drag net ownersshould be used as an engine for preventing the introduction, ofnew and improved nets. In fishing, as in every other industry,improved appliances when introduced diminish the profits of all whodo not at once adopt the innovation. The true remedy forthe sufferers is a timely, adoption of the invention, and not anattempt to restrict the use of it.
“ When no other net is being used at the spot it seems to me thatthe owners of a hiUdel or of any other kind of net have a perfectright to fish wherever they please, whether a drag net is usuallydrawn.over the place or not.
“ Judgmqpt for plaintiffs against defendants jointly and severallyfor the sum of Bs. 300 damages and costs of suit.’’
The defendants appealed.
Morgan, Q. A., for appellant.
– Ferdinands, for respondent.
26th June, 1874. The ' judgment of the Supreme Court wasdelivered as follows by Creasy, C.J.—*
It was held by this Court in case No. 16,645, C. B., GaHe (Lorensz'sReport, p. 161), that the common right of fishing in the open 6eamay be controlled by custom regulating the time and mode of
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( isa )1874. fishing; but such custom, must be reasonable, and the SupremeJtaui 86. Court • does not think a custom reasonable which excludes allObbasvTc.J. otfier modes of fishing except that with the ma-del, which is ahuge and costly net, and requires a great number of persons to workit. Such a custom was held untenable by this Court in the caseNo. 21,959, District Court, Matara. Moreover, this alleged customis not proved in the present case. The only evidence in supportpf it is that ma-del nets were exclusively used until nool nptswere introduced into the district. To hold that the use of theomy known form of net for a number of years raised a customby which any other form of net was excluded would be a bar toany kind of improvement in this branch of industry. Since theintroduction of the nool net the matter has been ' the subject ofconstant litigation, and the alleged custom has never beenacquiesced in by the owners of the latter kind of nets.
BABA APPU et al. v. ABERAN et al