Fisheries – Prescriptive rights – Extent – Private fishery established by prescription – Fishery conferring exclusive right to take shellfish from foreshore – Respondent alleging that appellants interfering with his rights by fishing for cockles in area of private fishery – Whether extent of prescriptive private fishery defined by reference to evidence of actual user or terms of presumed lost grant – Appeal dismissed – Cross-appeal allowed
Since 1761, the lords of the manors of Heacham and Snettisham had claimed the right to take shellfish from the foreshore adjacent to those manors on the east coast of the Wash. Through the exercise of such a right, they had acquired a private fishery by prescription, which they leased to the respondent from 1969 onwards. Although cockles had once been gathered entirely by hand at low tide, in the latter part of the 20th century methods had been developed to gather them at times when the foreshore was covered by water, operating from boats using mechanical means known as The respondent brought proceedings against the appellants, the owners of local fishing vessels, contending that they had unlawfully interfered with his rights by fishing for cockles between July and September 2007 and claiming damages reflecting the value of the cockles that had been taken. The appellants contended that the area in which they had been working did not form part of the private fishery.
Allowing the claim in the court below, the judge held that the private fishery extended as far seawards as the mean low-water mark of spring tides (MLWS) and that the appellants had been fishing within that area: see [2013] EWHC 901 (Ch); [2013] PLSCS 114.
The appellants appealed. They contended that the fishery did not extend to former sandbanks, including Ferrier Sand, that had become accessible at low tide only as a result of the silting up of the channels that had formerly separated them from the foreshore, since the estate had never sought to exercise rights over those areas and so could not have acquired prescriptive rights over them. They submitted that any extension of the area of the fishery could occur only through the doctrine of accretion, which did not apply to large sandbanks that had become accessible as a result of the silting up of former channels and shifting sands.
The respondent cross-appealed, arguing that the fishery was based on a presumed lost grant extending to either: (i) the whole of the area of the seabed exposed at low tides and accessible on foot from the shore as far as the extreme low water (ELW) mark, as the farthest point to which the water could recede as a result of the most extreme combination of natural forces; or (ii) the level of lowest astronomical tide (LAT), as the lowest point to which the tide fell as a result of normal astronomical forces and occurred once every 18.6 years.
Held: The appeal was dismissed; the cross-appeal was allowed.
(1) Although the general public enjoyed a right to fish in tidal waters, a private fishery could be established by prescription and could exist in relation to an area of the sea bed below MLWS: Malcolmson v O(1863) 10 HL Cas 618 and Loose v Castleton (1978) 41 P&CR19 applied. A person who had purported to exercise private rights of fishery over the foreshore for a long period of time was to be presumed to have acted lawfully and therefore under the terms of a lost grant from the Crown. The presumption of a lost mediaeval grant in such cases had some logic in law to commend it, given that Magna Carta prohibited the creation of new private fisheries and that private rights could not be acquired by prescription over rights enjoyed by the public at large. If the existence of the right to a private fishery was to be recognised, it was therefore necessary to find some other explanation for its creation. Where the exercise of a right over a long period of time could be shown, a grant made at a time when the Crown could still create private fisheries provided a legally acceptable explanation.
(2) Where rights were asserted over a single unbroken entity, such as the foreshore adjacent to the two manors, it was unnecessary, in order to establish a claim to the whole, to demonstrate an active assertion of those rights in relation to every part of it: Neill v Duke of Devonshire (1882) 8 App Cas 135 applied. Where the estate had exercised a right to take fish from the foreshore, the seaward extent of the fishery fell to be determined by reference to the nature and scope of the notional grant, rather than any evidence of actual user. Given the nature of the presumed grant, the seaward boundary of the private fishery was unlikely to have been defined by fixed limits, such as certain landmarks, or measurements from one or more points on the shore, or the extent of the foreshore as it had existed in 1189 when the grant was presumed to have been made. Even in the 12th century, people had been aware that the foreshore in the area of the Wash was liable to change as the result of shifting sands and they must also have been aware that shellfish colonised different parts of the foreshore as conditions change. A grant of that kind was unlikely to be limited to an area that might or might not be productive, particularly in the absence of fixed landmarks that could be used to define its limits: Loose v Castleton considered. The evidence pointed clearly to a grant over the foreshore as it was from time to time. As conditions changed and more or less of the sea bed was exposed at low water, the area of the private fishery would expand or shrink. In an area of the coast where landmarks were constantly shifting and the shellfish could be expected to move to take advantage of changing conditions, that was the most natural grant to make.
(3) The enlargement or reduction of the fishery did not depend on the doctrines of accretion and diluvion. The purpose of those doctrines was to regulate the boundary between adjacent titles, namely the title in the land adjoining the foreshore and that in the foreshore itself moved in accordance with imperceptible movements of the high water mark brought about by natural forces. However, in general, the title to the whole of the foreshore lay with the Crown, so that changes at the low water mark had no bearing on any adjacent title: Anderson v Alnwick District Council [1993] 1 WLR 1156 applied. The doctrine of accretion was not needed to explain the existence of rights over adjacent areas of land within the same ownership. Moreover, the doctrine of accretion could be excluded by a conveyance in clear terms and, in relation to the private fishery, the grant itself ensured that changes in low water levels resulted in the enlargement or reduction of the area of the fishery.
In any event, there was no reason for restricting the application of the doctrine of accretion to some types of alteration in the boundary between land and sea and not to others. The silting up of a channel was a gradual and imperceptible process and, if its effect was to alter the natural boundary between land and water, there was no reason in principle why the title to the land should not extend as far as that altered boundary.
(4) The grant of a right to take fish from the area of the seabed exposed at low water related to an area that had no seaward boundary other than that provided by the level of the tide. The seaward boundary could not be determined simply by reference to practical utility. Where the grant related to a fluctuating area of the seabed, the grant would probably have extended to such part of the seabed as might from time to time be exposed at low water. MLWS was an artificial concept, representing an average of a range of low water levels. At regular intervals the water would inevitably fall below that level and it seemed unlikely that the grant was not intended to extend to the low water mark on those occasions, which, in modern terms, was best identified by LAT. The fishery did not extend as far seawards as ELW, since the Crown should not be taken to have intended to grant exclusive rights over an area of the seabed that would be exposed only under an extreme combination of unusual circumstances. Accordingly, as a matter of law, the fishery extended to LAT.
(5) The estate had not surrendered any of its rights over Ferrier Sand notwithstanding its failure to exercise them for 100 years after it became accessible in the latter part of the 19th century. Although a right of that nature might be lost by prolonged absence of user, all would depend on what inference could be drawn from the facts of the particular case. The facts of the instant case did not support a finding of abandonment. People were sometimes slow to realise the full extent of their rights and there might be many other reasons why they had not exploited them to the full from the outset.
Guy Featherstonhaugh QC and Philip Sissons (instructed by Andrew Jackson Solicitors, of Hull) appeared for the appellants; Tim Calland and Jennifer Meech (instructed by Charles Russell LLP) appeared for the respondent; Michael Davey QC (instructed by Parkinson Wright LLP, of Worcester) appeared for the estate.
Sally Dobson, barrister
