Fishing rights – private fishery – Doctrine of accretion – Claimant leasing private fishery from estate – Defendants allegedly infringing claimants’ fishery rights by fishing cockles in private fishery – Claimant seeking damages – Whether doctrine of accretion covering disputed fishing area – Whether claimant proposing preferable method of assessing value of cockles landed from private fishery – Claim allowed in part
The claimant leased a private fishery from an estate which also owned a portion of the foreshore and other property on the eastern side of the Wash. The defendants were owners of fishing vessels which the claimant alleged had wrongly fished in the private fishery for cockles between July and September 2007. The claimant brought proceedings against the defendants for damages.
The defendants denied that they had trespassed upon the fishery. In any event, they denied that they had landed the quantities of cockles which the claimant asserted and the value per tonne which the claimant attributed to those quantities, if any, which they had landed. An issue arose, inter alia, whether the private fishery extended to the land which, by the process of accretion, had become accessible on foot at low water from the estate’s coast line. The doctrine of accretion broadly provided that gradual accretions of land from water belonged to the owner of the land gradually added to and, conversely, land encroached upon by water ceased to belong to the former owner.
The defendants accepted that the process whereby the boundary of land bounded by tidal waters was liable to change as a result of natural forces might result, depending on the effects of those forces, in a gradual increase or decrease of the land in question; and that the doctrine of accretion operated to adjust the legal boundary of the land so affected. However, they argued that the doctrine had a limited operation and only applied where the process was gradual and imperceptible. It did not apply where the change in the boundary was as a result of a sudden and substantial occurrence, as in the present case, when the lowest astronomical tide (LAT) was exceeded as a result of unusual atmospheric conditions. The claimant contended that the best way of measuring the fishery’s seaward boundary was the LAT.
Held: The claim was allowed in part.
(1) There was no reason in principle for limiting the application of the doctrine of accretion to some types of alteration in the boundary between land and sea and not to others. Aside from the practical difficulties of distinguishing between one type of alteration and another, it did not matter that, provided that the process of change had been gradual and imperceptible, in the sense that it occurred only slowly and change was not noticeable from one day to the next, the change might result in some natural feature, whether it was a sandbank of a reef, becoming a part of the accreted land. The doctrine of accretion, if it was relevant at all, did not exclude from its operation a sandbank that was once always surrounded by the sea, even at the lowest of low tides and which, by the slow process of siltation of the adjacent channels, had become accessible from the shoreline at low tide. Land added by accretion took on the same character and became subject to the same rights as the land to which it had become added. The fact that the process of accretion had caused sandbanks to become adjoined to the foreshore at low water did not prevent the principle from applying to the sandbanks. Accordingly, the estate’s private fishery had extended to the land, including the sandbanks, which, by the process of accretion, had become accessible on foot at low water from the estate’s coast line. Viewed from the standpoint of a fisherman, any measure adopted to determine the seaward boundary of the fishery presented practical problems. However, it was difficult to see why practicality should lead to a conclusion different from the LAT: Loose v Castleton (1981) 41 P & CR 19; (1978) 122 SJ 487 (CA) applied; Baxendale v Instow Parish Council [1982] Ch 14 and Southern Centre of Theosophy Inc v State of South Australia [1982] AC 706 considered.
(2) On the evidence, it was appropriate to assume that one-third of the total catch of cockles recorded against each of the defendants’ vessels for each of the days when they were observed fishing in the estate fishery was attributable to cockles caught in that fishery. The court would apportion the catch rateably to the different sizes of cockles landed, so that if only two sizes were caught, the apportionment would be shared rateably between the two sizes. The damages for which each defendant was liable would be calculated by assessing the numbers of gallons of cockles which had been landed by each vessel from the estate fishery, taking as the price per gallon the price which was being actually achieved on the market for those cockles. Although that method of computation was arbitrary, the court was satisfied that the defendants had not been in the area of the estate fishery simply for fun but had been there to fish for cockles and had been successful in their search on some occasions; nor was it accepted that the quantities said to have been landed were as small as the defendants alleged. On the other hand, given the inadequacies of the evidence as to precisely what had been landed from the estate fishery, the defendants would be given the benefit of all reasonable doubts on the matter.
Michael Davey (instructed by Parkinson Wright LLP) appeared for the claimant; Guy Fetherstonhaugh QC and Philip Sissons (instructed by Andrew Jackson Solicitors) appeared for the defendants; Jennifer Meech (instructed by Charles Russell LLP) appeared for the estate.
Eileen O’Grady, barrister
Fishing rights – private fishery – Doctrine of accretion – Claimant leasing private fishery from estate – Defendants allegedly infringing claimants’ fishery rights by fishing cockles in private fishery – Claimant seeking damages – Whether doctrine of accretion covering disputed fishing area – Whether claimant proposing preferable method of assessing value of cockles landed from private fishery – Claim allowed in partThe claimant leased a private fishery from an estate which also owned a portion of the foreshore and other property on the eastern side of the Wash. The defendants were owners of fishing vessels which the claimant alleged had wrongly fished in the private fishery for cockles between July and September 2007. The claimant brought proceedings against the defendants for damages. The defendants denied that they had trespassed upon the fishery. In any event, they denied that they had landed the quantities of cockles which the claimant asserted and the value per tonne which the claimant attributed to those quantities, if any, which they had landed. An issue arose, inter alia, whether the private fishery extended to the land which, by the process of accretion, had become accessible on foot at low water from the estate’s coast line. The doctrine of accretion broadly provided that gradual accretions of land from water belonged to the owner of the land gradually added to and, conversely, land encroached upon by water ceased to belong to the former owner.The defendants accepted that the process whereby the boundary of land bounded by tidal waters was liable to change as a result of natural forces might result, depending on the effects of those forces, in a gradual increase or decrease of the land in question; and that the doctrine of accretion operated to adjust the legal boundary of the land so affected. However, they argued that the doctrine had a limited operation and only applied where the process was gradual and imperceptible. It did not apply where the change in the boundary was as a result of a sudden and substantial occurrence, as in the present case, when the lowest astronomical tide (LAT) was exceeded as a result of unusual atmospheric conditions. The claimant contended that the best way of measuring the fishery’s seaward boundary was the LAT.Held: The claim was allowed in part. (1) There was no reason in principle for limiting the application of the doctrine of accretion to some types of alteration in the boundary between land and sea and not to others. Aside from the practical difficulties of distinguishing between one type of alteration and another, it did not matter that, provided that the process of change had been gradual and imperceptible, in the sense that it occurred only slowly and change was not noticeable from one day to the next, the change might result in some natural feature, whether it was a sandbank of a reef, becoming a part of the accreted land. The doctrine of accretion, if it was relevant at all, did not exclude from its operation a sandbank that was once always surrounded by the sea, even at the lowest of low tides and which, by the slow process of siltation of the adjacent channels, had become accessible from the shoreline at low tide. Land added by accretion took on the same character and became subject to the same rights as the land to which it had become added. The fact that the process of accretion had caused sandbanks to become adjoined to the foreshore at low water did not prevent the principle from applying to the sandbanks. Accordingly, the estate’s private fishery had extended to the land, including the sandbanks, which, by the process of accretion, had become accessible on foot at low water from the estate’s coast line. Viewed from the standpoint of a fisherman, any measure adopted to determine the seaward boundary of the fishery presented practical problems. However, it was difficult to see why practicality should lead to a conclusion different from the LAT: Loose v Castleton (1981) 41 P & CR 19; (1978) 122 SJ 487 (CA) applied; Baxendale v Instow Parish Council [1982] Ch 14 and Southern Centre of Theosophy Inc v State of South Australia [1982] AC 706 considered.(2) On the evidence, it was appropriate to assume that one-third of the total catch of cockles recorded against each of the defendants’ vessels for each of the days when they were observed fishing in the estate fishery was attributable to cockles caught in that fishery. The court would apportion the catch rateably to the different sizes of cockles landed, so that if only two sizes were caught, the apportionment would be shared rateably between the two sizes. The damages for which each defendant was liable would be calculated by assessing the numbers of gallons of cockles which had been landed by each vessel from the estate fishery, taking as the price per gallon the price which was being actually achieved on the market for those cockles. Although that method of computation was arbitrary, the court was satisfied that the defendants had not been in the area of the estate fishery simply for fun but had been there to fish for cockles and had been successful in their search on some occasions; nor was it accepted that the quantities said to have been landed were as small as the defendants alleged. On the other hand, given the inadequacies of the evidence as to precisely what had been landed from the estate fishery, the defendants would be given the benefit of all reasonable doubts on the matter.Michael Davey (instructed by Parkinson Wright LLP) appeared for the claimant; Guy Fetherstonhaugh QC and Philip Sissons (instructed by Andrew Jackson Solicitors) appeared for the defendants; Jennifer Meech (instructed by Charles Russell LLP) appeared for the estate.Eileen O’Grady, barrister
