Title – Foreshore – Defendants acquiring paper title to manors and lordships – Defendants claiming rights over foreshore – Claimants asserting ownership of foreshore – Defendants conceding claimant’s ownership – Whether other ancient rights attaching to manors and lordships and exercisable by defendants – Whether right extending to foreshore – Claim allowed in part
In 2000, the defendants purchased the lordship marcher of St Davids and the manor of Trevine in Pembrokeshire. The St Davids lordship was originally purchased in the name of the second defendant, a company owned by the first defendant, but was later conveyed to him by that company. By reason of those acquisitions, the first defendant claimed various rights over the Pembrokeshire foreshore and narrow sea, based upon ancient prerogative rights said to have been exercised by the lords marcher in Wales since the Norman conquest. He objected to various applications by lessees of the claimants to register leases granted by the latter over the foreshore, contending that the Crown had no title to land within the Welsh marches and that he, as lord marcher of St Davids, was entitled to the foreshore. The defendant claimed a title deriving from the bishops of St Davids, who had been lords marcher until 1874 when the then bishop had resigned and the ecclesiastical property had passed to the Ecclesiastical Commissioners; the latter had in turn transferred that property to the University of Wales in 1946. He argued that the bishops had held in capite of the Crown and by grants contained in an ancient charter of 1115. The claimants maintained that they had title to the land either by virtue of the presumption that the foreshore and narrow sea belong to the Crown or by adverse possession.
The claimants brought proceedings against the defendants to establish their title in order to remove a caution lodged by the first defendant against first registration. The defendants conceded, following the trial of a preliminary issue, that the Crown had acquired title to the lands by adverse possession. The first defendant continued to assert other ancient rights over the land including wreck, several fishery, treasure trove, sporting rights and estrays. The claimants submitted that the status of lord marcher did not carry with it any proprietary rights and that any privileges attaching to it had been removed by the abolition of feudal tenure, under section 1 of the Abolition of Tenures Act 1660. They denied that the charters in question conferred the rights claimed or that those rights had otherwise been acquired.
Held: The claim was allowed in part.
By virtue of sections 62(3) and 205(1) of the Law of Property Act 1925, the effect of the conveyances to the defendants had been to convey such rights of the lords of the manors of the City and Suburbs of St David’s and Trevine as existed at the date of the conveyance. By 1542, or at the latest 1660, any privileges that had belonged to the bishops of St Davids in their capacity as lords marcher or as tenants in capite of the Crown had been abolished. In determining the extent of any rights conferred by the Crown to the bishops, as contained in the ancient charters, any grant should be construed in favour of the Crown as grantor and the charters should not be found to confer rights unless they did so by express words or necessary implication: Feather v The Queen (1865) 6 B&S 257 and The Rebeckah (1799) 1 Ch Rob 227 applied.
Furthermore, rights in the nature of franchises, being branches of the royal prerogative subsisting in the hands of a subject, could be created only by express grant or by prescription, which itself presupposed a grant at an ancient date: Spook Erection Ltd v Secretary of State for the Environment [1989] QB 300 applied. A franchise had the status of an incorporeal hereditament. It could be lost if not used for a long period, by analogy with the principle that long and open use in breach of covenant could give rise to a presumption that the covenant had been released: Attorney General v Parmeter (1811) 10 Price 378 and Attorney General of Hong Kong v Fairfax [1997] 1 WLR 149 applied.
The evidence showed that a prescriptive right to a moiety of wreck, namely half of any wreck washed up on the foreshore, had been claimed and acknowledged as a franchise vested in the lords of the manors of Trevine and of the City and Suburbs of St Davids, which was limited to wrecks on the foreshore abutting those manors. A right to estrays, namely ownership of tame animals found straying in the manor and whose owner was unknown, had been established in relation to the manor of Trevine. Those rights now vested in the first defendant. However, the right of estray was not exercisable over the foreshore since the manors acquired by the first defendant did not extend over it. There was a presumption that the foreshore was vested in the Crown, which had not been rebutted on the evidence; the Crown had always had title to the foreshore and did not need to acquire it by adverse possession. The right to a moiety of wreck remained, since, in the absence of adverse possession, nothing could have removed the acknowledged entitlement of the bishops and their successors to half of any wreck found on the foreshore abutting the tow manors in question.
Frank Hinks QC and Thomas Braithwaite (instructed by Farrer & Co LLP) appeared for the claimant; Stephanie Tozer (instructed by Darwin Gray, of Cardiff) appeared for the defendants.
Sally Dobson, barrister
