The Court of Appeal has gone back to a Roman legal scholar from AD 161 to help determine who owned fish in a lake in Lancashire after it was sold.
Lord Justice Peter Jackson noted that English law concerning wild animals has its origins in statements of civil law that contrast captivity with natural liberty.
The court quoted the Second Commentary, written by Gaius, which said: “Wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power.”
This was, essentially, the decision that the Court of Appeal reached.
The court noted that Emperor Justinian came to a similar conclusion in his Book of Things (AD 535); he was responsible for a rewriting of Roman law that underpins much of modern civil law.
In Borwick Development Solutions Ltd v Clear Water Fisheries Ltd  EWCA Civ 578, the former owner of Borwick Lakes, located next to the M6 motorway near Carnforth, said the defendant owner should not operate a business using £1.2m worth of carp and other fish that it had introduced to the lakes and still owned.
The defendant argued that the former owner no longer held any right to the fish in the land and lakes, which had been formed in holes left following the construction of the M6.
The High Court found in favour of the claimant last year, but last month the Court of Appeal overturned the decision, ruling that the company did not own the fish once the land had been sold and the fish were no longer within its control.
Sir Timothy Lloyd noted that this might be seen as an “unsatisfactory result”, given the money spent by BDS on acquiring and maintaining the fish, but he noted that it was entitled to take any of the fish before the sale.
Peter Jackson LJ added: “Given its investment in the fishery, that is indeed a hard result for BDS, but it is not a consequence of the law relating to wild animals but of the circumstances in which its land came to be sold by receivers.
“Had there been a normal commercial sale, BDS could have demanded payment for the fish, as indeed it did in the negotiations with CWF before matters were taken out of its hands. But with the sale, possession of the fish was lost and its qualified property rights came to an end.”
David Bushell, consultant solicitor at Merseyside firm Brown Turner Ross, which acted for the defendant, said: “When a business falls into difficult times and is in the hands of a receiver, the transaction to purchase the land will include, in this case, fish, but may include other animals classed as wild that inhabit that land unless otherwise arranged.
“My client bought the land complete with the fish and we are happy that the court has now ruled in this matter.”
The case saw several other old – if not quite Roman – authorities cited, such as Hugo Grotius’s statements in respect of hunted wild beasts in his 1625 book On the Law of War and Peace, which Peter Jackson LJ said “shows that the classical legal scholars and philosophers were not unanimous on the question of the degree of control necessary for the acquisition of qualified rights”.