Watercourse – Riparian rights – Fishing rights – Abandonment – Extinguishment – Claimant and defendant owning adjacent properties – Dispute arising concerning defendant’s rights as mill owner and fishing rights enjoyed by claimant – Whether claimant entitled to operate or control sluice gates at mill – Whether defendant enjoying riparian and milling rights – Whether defendant’s fishing rights partially extinguished – Issues determined accordingly
The clamant and the defendant owned adjacent properties in Maiden Newton, Dorset, which stood on the River Frome. A channel carrying water from the river passed through the claimant’s property and on to the defendant’s property. An issue arose concerning the relationship between the defendant’s rights as the owner of her property (the mill) and fishing rights that the claimant enjoyed.
As it approached Maiden Newton from the north, the river passed under an embankment carrying a railway line. On the southern side of the embankment were sluice gates. Further south, the river bifurcated. The western channel turned sharply to the west before swinging back to the south. The eastern channel continued to the south before arriving at the mill. For most of its length, the western channel was broadly parallel to the eastern channel. As the eastern channel neared the mill, it divided into two parts, “the east leat” and the “west leat”. The east leat led to a set of three vertical-lift sluice gates to the north of the mill building. When the gates were open, water flowed under them and then through a pair of brick-lined bypass tunnels beneath the mill building.
The court was asked to determine, among other things: (i) whether the claimant was entitled to operate or control the sluice gates at the mill to achieve the best condition of the watercourse over which he had fishing rights for the enjoyment of those rights; (ii) what, if any, riparian and milling rights the defendant enjoyed; and (iii) whether the fishing rights had been extinguished as regards the west leat.
Held: The court determined the issues accordingly.
(1) The express terms of the fishing rights granted and reserved did not entitle the claimant to operate or control the sluice gates at the mill; nor did he have any implied rights to do so. The grant/reservation of fishing and ancillary rights should not be taken to have carried a right for the grantee to interfere in the ordinary operation of the sluice gates by the owner of the mill. Moreover, an implied right was neither necessary nor reasonable: Jeffryes v Evans (1865) 19 CB (NS) 246 and Gearns v Baker (1875) LR 10 Ch App 355 considered.
(2) In all the circumstances, the eastern channel was an artificial channel, albeit one that had been in existence since at least the beginning of the seventeenth century (and probably much longer than that). The basic principle was that there was no natural right to water in an artificial watercourse. However, there were various cases in which riparian rights had been held to exist in respect of an artificial channel. Nothing was known as to the circumstances in which the relevant watercourse, the eastern channel, had been constructed or the ownership at the time of its banks, but the evidence indicated that it had been in existence for hundreds of years and that mill-owners would have been using the water in it to supply power over those centuries. Therefore, it was to be inferred that the eastern channel was originally constructed on the basis that the owner of the mill should have the same rights as he would have had if the watercourse had been natural: Baily & Co v Clark, Son & Morland [1902] 1 Ch 649 followed.
(3) Rights could not be acquired by prescription in relation to a flow of water through an artificial watercourse having a temporary character. “Temporary” in that context was not confined to a purpose that happened to last in fact for a few years only, but included a purpose which was temporary in the sense that it might within the reasonable contemplation of the parties come to an end. In the present case, the eastern channel had existed and served a mill for centuries. It represented a permanent alteration of the face of nature, not a temporary alteration for the purpose of and co-extensive with the carrying on of a particular business. None of the relevant rights had been abandoned. Mere non-user of rights did not suffice to establish abandonment and there was no question of the defendant or her predecessors in title having made it clear that she or he had a firm intention that neither she or he nor any successor in title should thereafter make use of the easement. Accordingly, the defendant had the benefit of riparian and milling rights: Arkwright v Cell (1839) 5 M&W 203, Burrows v Lang [1901] 2 Ch 508 and Gotobed v Pridmore (1971) 217 EG 759 considered.
(4) The claimant’s fishing rights had not been extinguished as regard the west leat as it had not been shown that there was no practical possibility of them ever again benefiting the person entitled to them: Huckvale v Aegean Hotels Ltd (1989) 58 P & CR 163 considered.
(5) The register should be altered to reflect the fact that the claimant had no right to fish from the eastern bank of the east leat between the mill building and the southern boundary of the claimant’s property or in adjacent waters; the claimant neither owned the eastern side of the east leat nor was entitled to fish there; the claimant had not proved any actionable interference with his rights; and it was not appropriate to grant any injunctive relief against the claimant.
Stephen Jones (instructed by Scott Rowe, of Axminster) appeared for the claimant; Nathan Wells (instructed by Beviss & Beckingsale, of Honiton) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read the transcript of Pearson v Foster.
