Fishing rights — Dispute between members of angling club and landowners as to rights to fish in certain ponds — No lease, licence or other legal document had been completed conferring fishing rights on the anglers, although at one time a
This was an
appeal by William Maurice Goldsbrough, the first defendant in an action brought
by the plaintiff, Bernard Watson, the respondent to the appeal, from the
decision of Judge Gill at Middlesbrough County Court. The action had been
brought by the plaintiff on behalf of himself and all other members of the
Middlesbrough Angling Club. The second defendant, Constance Heather Goldsbrough
(the first defendant’s wife), and the third defendant, Kenneth Millward, took
no part in the appeal.
Miss Susan
Cooper (instructed by Person & Watson, of Middlesbrough) appeared on behalf
of the appellant; Ian Lamb (instructed by Goodswens, of Middlesbrough)
represented the respondent.
Giving
judgment, SIR NICOLAS BROWNE-WILKINSON V-C said: This is an appeal from
the order of His Honour Judge Gill sitting at Middlesbrough County Court. The
action concerns fishing rights over certain ponds. At the time of trial they
were owned by the first defendant, Mr Goldsbrough, and his wife, Mrs
Goldsbrough. The plaintiff is a Mr Watson, who is suing on behalf of himself
and all other members of the Middlesbrough Angling Club. The trial took place
on June 25 1985. At the trial Mr Goldsbrough acted in person, he having
previously instructed legal advisers whose instructions had been terminated.
Before the conclusion of the hearing Mr Goldsbrough apparently left the court.
In those circumstances we have not had the benefit of a full judgment from the
learned judge, the matter proceeding thereafter in the presence of only the
plaintiff’s legal advisers and the learned judge. It has therefore been quite
difficult for us to reconstitute the relevant facts.
They seem to
be as follows. In 1965 the land in question was owned by the parents of the
second defendant, Mrs Goldsbrough. On the land were two ponds. The farmland,
the farmhouse and the ponds were in the occupation of Mr and Mrs Goldsbrough,
apparently as licensees of Mrs Goldsbrough’s parents. At some time between 1970
and 1972 Mr Watson approached Mr Goldsbrough on behalf of the angling club to
ask if they could fish the ponds and do works of improvement to them. There was
a conflict of evidence between Mr Watson on the one hand and Mr Goldsbrough on
the other; it appears the judge clearly accepted Mr Watson’s evidence and
rejected that of Mr Goldsbrough. At some stage around that date Mr Watson on
behalf of the angling club sent to Mr Goldsbrough a draft fishing lease, the
exact terms of which I shall have to return to shortly. Briefly, it provided
that Mr Watson was to have the exclusive rights of fishing over the ponds,
together with a right to kill, take and dispose of the fish, for a term of 10
years at a rent of 5 pence per year. There was also to be an option to renew
for a further term of 10 years. But clause 5 contained a provision that the
lease might be determined at any time by either party giving to the other not
less than 12 months’ notice in writing expiring on the first day of February in
any year.
The lease as
sent to Mr Goldsbrough had been executed by Mr Watson. The evidence before the
judge was that Mr Goldsbrough declined to execute that or any other legal
agreement, since he was not the owner of the land and in addition there was
apparently a mortgage on the land. However, Mr Watson’s evidence was that Mr
Goldsbrough did agree that the angling club could have a lease or an option to
purchase the ponds in question. In those circumstances, the club went ahead and
expended substantial sums of money in dredging the ponds and improving them and
in stocking the ponds, which were apparently then either totally or virtually
free of fish, with fish caught elsewhere and put into the ponds. The angling club
incurred considerable expenditure and put in considerable effort in taking
those steps.
The major
expenditure and effort was incurred during the years 1972 to 1974. Thereafter
the club continued to do certain work, the later work being more by way of maintenance
of the ponds and looking after them as angling grounds rather than by further
major capital expenditure. The result of the angling club’s efforts was that
the ponds became well stocked with coarse fish and were sound fishing grounds
for the club.
On July 17
1980, Mr and Mrs Goldsbrough became the freehold owners of the land. The club
continued to fish the waters. They apparently paid a small amount of money and
made small gifts to the Goldsbroughs. Right from 1972 onwards there was the
expectation that they had some security in their use of the ponds for fishing.
However, after the Goldsbroughs became the owners of the freehold they set
about selling certain parts of the land and also negotiating for the sale of
the ponds. According to Mr Watson’s evidence and the documentation before the
learned judge, on a number of occasions prices were agreed at which the club
could purchase the ponds, but Mr Goldsbrough failed to give his solicitors
instructions to go ahead with such sales. Over the years the price crept up
from £9,000 to, at the end of the story, £20,000.
Shortly before
the proceedings began, it emerged that Mr Goldsbrough was in negotiation with
the third defendant (Mr Millward) for the sale of the ponds to Mr Millward at a
price in the region of £20,000. In those circumstances, these proceedings were
started in order to stop the sale to Mr Millward. Ex parte relief was obtained;
the sale to him was never completed and he has gone out of the picture. It was
in those circumstances that these proceedings were brought by the club through
Mr Watson as plaintiff.
By the
pleadings, the plaintiff claimed either that there was a binding agreement to
grant a lease or, alternatively, to grant an option to purchase or,
alternatively, that in the circumstances I have related the defendants (Mr and
Mrs Goldsbrough) were estopped from denying that the plaintiffs had some form
of interest in the ponds and the fishing in the ponds, the claim in estoppel
being a claim to a proprietary estoppel.
The judge
heard the evidence of Mr Watson and the evidence of Mr Goldsbrough. He had
before him a written statement from Mrs Goldsbrough. He also had before him a
most voluminous body of papers. As I have said, at the end of the hearing Mr
Goldsbrough left without awaiting to hear the final outcome and the notes of
the learned judge’s judgment simply record this:
Mr Lamb, I
need not trouble you further upon the law. . . This is an increasingly familiar
type of case — proprietary estoppel: equity stepping in to provide a remedy
where the legal formalities and requirements have not been complied with but
where the plaintiff has been induced to expend money or effort on the
defendant’s land in the expectation of receiving some appropriate interest to
satisfy the justice of the case. The court has to consider what form of order
would achieve this. I need hardly say I entirely accept the evidence of Mr
Watson. It was modest and careful and supported up to the hilt by the
documentary evidence: the invoices for hire of heavy equipment for clearing the
ponds (I entirely reject the notion that this could all have been done without
being noticed by Mr Goldsbrough, or that all that happened was a few people
came and did damage to the ponds) and the letters to and from the various
landowners and gentry who were canvassed for help in allowing the members to
fish out coarse fish from their rivers so they could stock the ponds. All this
indicated prolonged and dedicated work by the club, and it was outrageous to
deny it and to try to sell the resulting fishing grounds to
and yet the valuation of these ponds is now £10,000 per acre. Mr Goldsbrough
would have it that this was purely due to an increasing interest in land
covered by water. It is obvious to me that the plaintiffs have by their efforts
created this valuable asset, and are entitled to some security in it. (I had in
mind at this point to grant a lease for a further 10 years at a rent and asked
counsel how I should value it: but at this point he stated that the club had
lost their enthusiasm for a prolonged relationship or contact with Mr
Goldsbrough, and would prefer a sufficient licence to enable them to fish out
most of their stock of fish and to transfer it to other waters).
The order
actually made reads as follows:
It is
declared that the Middlesbrough Angling Club do have a right to security
commensurate with their work and expenditure in having established valuable
fishing grounds. And in order to effectuate the said right it is ordered that:–
1. The Plaintiffs do have an exclusive right to fish the ponds for a term of 5
years from 1985 to 1990 and to terminate on March 26 1990. And to remove their
stocks of fish therein. And subject thereto to leave the ponds in a proper
order for fishing. Paying therefor a token rent of 5 pence per annum, in the
terms of and with the landlords and tenants covenants contained in a proposed
lease dated September 1 1972 but omitting clauses 4 and 5 thereof, and the
option to renew, so far as the same are consistent with this order. 2. The
counterclaim be dismissed. 3. There be liberty to apply.
It is against
that order that Mr Goldsbrough (but not Mrs Goldsbrough) appeals.
Miss Cooper
has presented the appeal on behalf of Mr Goldsbrough under substantial
difficulties. She, of course, was not present at the hearing and the note of
the judgment (as I have indicated) is scanty. Her first attack is on the
findings of fact made by the learned judge. She sought, but we refused, an adjournment
to enable her to apply to put in further evidence which she said, I have no
doubt with some force, would have had an impact on the judge if it had been
before him at the trial. We refused that adjournment, because there were no
grounds for putting in such further evidence on the appeal, since it was all
available at the time of the hearing and therefore could not properly be
admitted on the appeal. In the absence of such evidence, she was facing an
uphill task in seeking to persuade us that the judge’s findings of fact as
contained in his judgment were not justified.
The first two
findings she attacks were the judge’s finding implicit in the order that the
club had had an exclusive right to fish the ponds during the period up to the
date of the hearing; she submitted that the judge failed to take into account
that several other groups of people had fished the ponds. She says there was no
evidence that the rights were exclusive and on that basis there was nothing to
justify the judge’s findings that the club’s rights to fishing were exclusive.
On that I am unable to accept her submission. The draft lease sent to the first
defendant, Mr Goldsbrough, plainly showed that the intention (at that stage
anyway) was that the club should have exclusive rights of fishing. That was
certainly sufficient evidence for the judge to go on, backed as it was by Mr
Watson, and it would be quite impossible for us to upset that finding merely on
the basis of the evidence of Mr Goldsbrough, which the judge obviously found not
acceptable.
The next
attack on findings of fact was that there was no sufficient evidence for the
judge’s finding that the club had carried out prolonged and dedicated work on
the ponds or that the club had established valuable fishing grounds in the ponds.
Again, I cannot accept that. There was Mr Watson’s evidence that they had done
such work. As the judge himself said, there was the documentary evidence
showing expenditure. True, it was not in every way complete in that they were
not receipts for expenditure incurred so much as tenders to do work. But there
was plainly evidence which the learned judge could properly accept from what Mr
Watson said, namely that plant had been hired and fish had been brought in. In
those circumstances, the attack on the findings of fact, in my judgment, must
fail and we must proceed on the basis that the learned judge found the facts
correctly.
There is a
further ground of appeal, which suggests that no estoppel of the kind the judge
dealt with could exist, since at the time of the alleged agreement (namely,
1972) Mr and Mrs Goldsbrough were mere licensees of the land against which the
proprietary estoppel is alleged. In my judgment that is not well founded. True
it was that at that date they did not have the legal estate. But if they
entered into the agreement and stood by watching the work being done and
subsequently became the owners of the land, then the estoppel established
against them was ‘fed’ when they acquired the legal estate and thereby became
binding on the land itself.
I move to what
in my judgment is much the most difficult point on this appeal. Assuming, as I
do, that the judge was right in finding that the acts done by the club were
done in reliance on an assurance by Mr Goldsbrough that they should have some
form of permanent or semi-permanent right to fish, what is the appropriate
remedy to afford to them in the circumstances that occurred? Without in any sense wishing to state
definitively what are the principles of proprietary estoppel, in outline they
are these. An owner of land cannot stand by and watch somebody else expend
money on his land in the knowledge that the person expending the money either
mistakenly thinks that he already has an interest in that land or has an
expectation encouraged or known to the owner that he will obtain such an
interest from the owner. If an owner does so behave, in equity an estoppel is
raised against him and the court makes an order securing to the person who
establishes the estoppel the rights in expectation of which he incurred the
expenditure or did the work. The doctrine is one of comparatively recent
development (if not recent origin), but so far as I am aware it has never been
applied so as to give the person establishing the estoppel any right greater
than that which he either mistakenly thought he had or thought he was going to
be afforded.
The attack
launched by Miss Cooper in the present case is to the effect that the learned
judge has given to the club a right greater than that which they could properly
have expected to get when they incurred the expenditure. In my judgment, that
attack is well-founded. For this purpose one must look again at the proposed
lease, a copy of which, dated September 1 1972, was sent by the plaintiffs to
Mr Goldsbrough and of which he was aware. I have already indicated that it was
a lease initially for a period of 10 years at 5 pence per year of fishing
rights which were exclusive and enabled the club to kill, take and dispose of
any or all fish in the above ponds. It also contained an option for a further
renewal of 10 years on the same terms to be exercised by not less than 12
months’ notice in writing given by the club.
In clause 2(c)
the tenants (that is to say, the club) under the draft covenanted with the
landlord ‘to use their best endeavours to preserve a proper and sufficient stock
of fish in the said ponds and to leave such ponds as well stocked at the
determination of as at the commencement of his Lease. ‘Finally, in clause 5 it
was provided that the lease can be determined at any time by either party
giving to the other not less than 12 months’ notice in writing expiring on the
first day of February in any year.
There are
certain somewhat unusual features of that document. The first is that, although
the initial term was for 10 years and there was an option to renew for a further
10 years, the final clause (clause 5) enabled the landlord to put an end to the
rights by giving one year’s notice expiring on February 1. Second, it is not
clear (and I will return to this point) exactly how many fish the club were
entitled to take out in exercise of the rights granted under that lease if it
had been granted. In my judgment, in seeing what is equitable to award to the
plaintiff in this case it cannot be right to give the plaintiffs a right
greater than that which they themselves expected to receive or thought they
were going to receive when they incurred the expenditure which gave rise to the
estoppel. The best evidence of that must be the lease which the club itself put
forward under which their maximum security of tenure was for a period
determinable by one year’s notice expiring on February 1 in every year. To give
the club, as the learned judge did, five years’ security of tenure is to give
the club more than they could ever have expected to get even if Mr Goldsbrough
had behaved in the way which the learned judge plainly thought he ought to have
behaved.
Second, the
order as made by the learned judge appears to give the right to the club to
fish out their stock of fish in the ponds within the five-year period that he
has awarded. First, it seems to me obscure what is the meaning of the order
made. Is it to give a right to take all the fish out that were in the ponds (it
being the evidence that there were few, if any, fish in 1972) or is it to
remove a lesser amount of fish and if so how many? Second, when one looks at the lease, it is to
my mind clear that there is an obligation at all times to preserve a proper and
sufficient stock of fish in the ponds; ie there should be no right there to
fish out the ponds completely, although there is a right to take out fish up to
the extent of leaving a proper and sufficient stock.
In those
circumstances, in my judgment the learned judge erred in giving the club such
wide relief. I believe the right order is that the club should have one year’s
security of tenure terminating on February 1 after the material date from which
notice could have been given and during that period have the right to fish the
ponds by line, killing, taking and disposing of any or all of the fish in the
ponds, provided that in so doing they preserve a proper and sufficient stock
of fish in the said ponds. In my judgment, the right period for a commencement
of that equitable right under declaration of the court should be the date of
the learned judge’s judgment. The first date by which notice given on that date
could expire on February 1 would be February 1 1987. I would myself, therefore,
vary the learned judge’s order to declare that the plaintiff on behalf of
himself and the other members of the Middlesbrough Angling Club have a right to
fish the ponds down to February 1 1987, together with the right to kill, take
and dispose of any or all fish in the ponds during that period provided that
the fishing of the ponds is such as to preserve a proper and sufficient stock
of fish in the said ponds. I would vary the learned judge’s judgment to that
extent.
MUSTILL LJ
agreed with the order proposed and the reasons and did not add anything
further.
The judge’s order was varied as mentioned in
the Vice-Chancellor’s judgment. There was no order as to costs of appeal and
the order for costs below was not disturbed.
