Sale of land – Conversion – Chattels – Respondent owning land from which it operated commercial fishery – Appellant purchasing land from respondent – Respondent bringing claim in conversion in respect of stock of fish held in pools and lakes on land – Judge holding respondent retaining rights over fish – Appellant appealing – Whether title to fish passing to appellant with sale of land or remaining vested in respondent – Appeal allowed
The respondent was the former owner of a commercial fishery developed on freehold land on the west side of Kellet Lane, Borwick, Lancashire. The land was close to junction 35 of the M6 motorway. In 2016, the appellant company purchased the land from the respondent, acting by Law of Property Act receivers appointed by the legal chargee of the land. No rights in respect of the fish were granted or reserved on the transfer to the appellant.
A claim arose in relation to, among other things, the fish which were present on the land at the time it was acquired by the appellant and which the respondent asserted belonged to it. The coarse fish were present in nine man-made lakes and pools formed as a result of the extraction of gravel from the site in connection with the construction of the neighbouring M6 motorway. The respondent contended that the fish were of great value, putting its claim in damages at more than £1.1 million.
The respondent brought a claim in conversion on the grounds that it retained the proprietary rights over the fish which it held beforehand, notwithstanding the sale of the land. The judge accepted that argument and gave judgment for damages for conversion against the appellant: [2019] EWHC 2272 (Ch). The appellant appealed.
Held: The appeal was allowed.
(1) English law drew a distinction between wild animals and domestic animals; into which category an animal fell was a question of law. While it was possible to own a domestic animal, there was no absolute property in wild animals while they were alive. Whatever their individual characteristics, propensity and circumstances, all fish were treated as wild animals as a matter of law.
(2) There was no absolute property in wild animals while living, and they were not goods or chattels. However, there might be qualified property in them: (i) the young of wild animals born on land became the qualified property of the landowner until they were old enough to fly or run away; (ii) the freehold owner of land had, as an incident of his rights as such, the exclusive right to hunt, take, keep and kill wild animals while they were on his land or grant such rights to another as a profit à prendre (ratione soli); and (iii) a qualified property right arose per industriam when an animal was in someone’s possession (through their industry or effort), for so long as the animal remained in such possession and no longer, except that it might continue over animals which had the habit of going away and returning, such as bees, for so long as they intended to return.
If a person with no title to the land, who had acquired no rights from the landowner, asserted rights per industriam, they had to have close control over the animals to establish the necessary degree of possession. However, close control was not necessary where the person asserting those rights was the landowner or had acquired sufficient rights from the landowner, although it was still necessary to show some form of control. The judge had put forward a test of “separation and control”, which might suffice, and would be satisfied where the animals could not escape the confinement into which they had been placed by their keeper.
(3) In the present case, the fish in the lakes, from which they could not escape, were the subject of a general and exclusive right of the landowner to catch them, and then either to kill them or to do whatever else he pleased with them. He could exclude all others or authorise such others as he might choose to come on to the land and take the fish. They were in his possession because they were on his land and could not escape of their own accord. The respondent’s rights in relation to the fish during its ownership of the land were properly to be regarded as arising ratione soli, because such ownership was both necessary and sufficient as the basis of the asserted rights. But even if its rights were treated as having arisen per industriam, they were qualified and could subsist only for so long as the fish were within the respondent’s possession. The classic case was where they escaped from possession but the case was the same when ownership of the land came to an end, without the reservation of any right of access over the land such as would enable the previous owner to come and take the fish himself. From that moment on, the former owner no longer had possession of the animals and his former rights no longer existed.
(4) The judge was right to accept that the respondent, as owner of the land, had a qualified property in the fish, which had been acquired from elsewhere, in many cases at significant expense, brought to the lakes, released into the lakes and looked after by appropriate husbandry. They were in the respondent’s possession and could not escape into anyone else’s possession or into any kind of natural liberty.
However, irrespective of whether the respondent’s rights had arisen ratione soli or per industriam, they came to an end when the land was transferred to the appellant, which had acquired the exclusive right to fish in the lakes and pools by virtue of being the landowner. As the respondent was no longer the landowner, it had no rights of entry to reclaim the fish.
Accordingly, the respondent’s qualified rights over the fish came to an end when the ownership of the land passed to the appellant. Before the sale, the respondent had been entitled to take any of the fish and place them elsewhere or to sell them to another fishery business. As it had not done so, its rights came to an end on the transfer of the land.
Nathan Wells (instructed by Brown Turner Ross, of Southport) appeared for the appellant; Guy Vickers (instructed by Napthens, of Preston) appeared for the respondent.
Click here to read a transcript of Borwick Development Solutions Ltd v Clear Water Fisheries Ltd
Eileen O’Grady, barrister
