The claimant owned a commercial fishery. The fish, most of which had been purchased by the claimant, were contained in nine man-made lakes. Mesh screens had been inserted to prevent movement of fish into any other lake or a natural water course, although small fish could pass through the mesh. The claimant sold the land on which the fishery had been developed to the defendant. The contract of sale did not, however, deal with solar panels attached to the property, or the fish stock, both of which remained on the land. The claimant claimed ownership of both and brought a claim for damages under the tort of conversion. The defendant contended that there had been no conversion of either the fish or the solar panels since the claimant had not, at the relevant time, had any proprietary interest, in them.
On the claim and the issue whether by rearing and/or introducing fish into a closed commercial fishery, the claimant had qualified property per industriam in the fish—
Held, claim allowed in part. Fish, even if captured, were wild animals and so could not be subject to absolute property rights. Qualified property per industriam in fish in a commercial fishery depended on separation and control. The owner or operator of a fishery, by his industry, had qualified property in the fish while they were in the confines of the fishery. Accordingly, the claimant did have qualified property in the fish which were introduced into, and were confined within, the nine lakes or pools, and which were unable to pass out of that closed system. Further, that property had not passed when the land was conveyed to the defendant. Accordingly, the claimant had a possessory title on which it could found its conversion claim. However, the solar panels were a fixture on the property and passed automatically with the sale of the land to the defendant. As a result, the claimant did not have title to maintain a claim in conversion in relation to the panels (paras 66–70, 87–89).
Guy Vickers (instructed by Napthens llp, Preston) for the claimant.
Nathan Wells (instructed by Brown Turner Ross, Southport) for the defendant.