River – Fishing rights – Mooring – Claimant maintaining right to moor barge on disputed waters – Angling club alleging actionable interference with lease of fishing rights from defendants – Whether defendants establishing exclusive right to take fish from disputed waters – Preliminary issue determined in favour of defendants
The claimant owned a large barge that he wanted to moor in a stretch of the River Wye between Wye Bridge and Victoria Bridge at Hereford. He understood that he had an appropriate right to do so by virtue of a grant by a riparian owner. The local angling association had taken a lease of the fishing rights from the defendants, who claimed to have such rights along the same stretch of river. The association asserted that if the claimant moored his barge on that part of the river, it would constitute an actionable interference with its rights.
The claimant brought proceedings to challenge the defendants’ claim to fishing rights between the bridges. A question was ordered to be tried as a preliminary issue as to whether the defendants had acquired by prescription, whether at common law or by virtue of the doctrine of lost modern grant, an exclusive right to take all the fish without stint, in gross in the stretch of river between the two bridges.
Held: The preliminary issue was determined in favour of the defendants.
A general presumption of law maintained that the owner of land abutting a non-tidal river was entitled to the soil up to the centre of that river. In the absence of any express reference, that presumption applied to all grants and leases of land described as being bounded by a river, when the grant or lease was made by a party that was in a position to part with the soil. There was a presumption that the owner of the river soil owned the fishery above it and that the owner of a fishery was the owner of the soil. That presumption would prevail over the presumption in favour of a riparian owner in the event of a conflict as to the title to the soil arising between the owner of a fishery and the owner of riparian land.
The doctrine of prescription at common law, and as to lost modern grant, was based upon the presumption of a grant, in that prescription presupposed that a grant was once made and validly subsisting, but had since been lost or destroyed. The presumption of a grant was derived from proof of enjoyment of the right that was claimed. A right claimed by prescription had to be such that it could have formed the subject matter of a grant. Nothing which could not have had a lawful beginning could be claimed by prescription. Recourse should be had to the doctrine of prescription only in cases where a grant of the right was not forthcoming. Prescription had no place if a grant was proved and its terms were known.
For a claim to prescription at common law or under the doctrine of lost modern grant, the user must have been “as of right”, having been enjoyed neither as the result of force, secrecy or permission. In general, what had to be shown was continuous user. The degree of continuity required differed according to the character of the right claimed.
In the instant case, in reliance upon the legal principles as to prescription applied to the findings of fact, the court was entitled and required to find a presumed grant of a several fishery in the disputed waters. The right of fishery was in gross (not tied to any particular piece of land) and without stint (unlimited). There was no question of it being appurtenant to the land and limited by reference to the needs of any such land. Further, no feature of the evidence could justify holding that a limit was expressed in the presumed grant: Chesterfield v Harris [1908] 2 Ch 397, Staffordshire & Worcestershire Canal Navigation v Bradley [1912] 1 Ch 91 and Lovett v Fairclough (1991) 61 P&CR 385 considered.
The defendants had transferred the right to fish in a part of the disputed waters to the local authority. The right of fishery was not subject to any adverse right save for the admitted superior right of public navigation, which carried with it an ancillary right to moor and the defendants were entitled to lease their fishing rights.
Lawrence Jones (instructed by Stockinger) appeared for the claimant; Nicholas Taggart (instructed by Lee Bolton Monier-Williams) appeared for the defendants.
Eileen O’Grady, barrister
