Loose v Lynn Shellfish Ltd & Ors [2014] EWCA Civ 846

[2014] EWCA Civ 846Case Nos: A3/2013/2611 & 2013/2672
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2013] EWHC 901 (Ch)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Sir William Blackburne
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 19 th June 2014
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE PITCHFORDLORD JUSTICE KITCHIN
Between
JOHN HENRY LOOSEClaimant/LYNN SHELLFISH LIMITEDDefendants/Appellantsand OthersAppellantMICHAEL GEORGE LE STRANGE MEAKINPart 20 Defendant/Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. Guy Fetherstonhaugh Q.C.and Mr. Philip Sissons (instructed by Andrew Jackson Solicitors) for appellantsMr. Tim Calland and Miss Jennifer Meech (Instructed by Charles Russell LLP) for Part 20 Defendant/appellantMr. Michael Davey Q.C.(instructed by Parkinson Wright LLP) for respondentHearing Hearing dates : 7 th& 8 th May 2014
JudgmentLord Justice Moore-Bick :Background
[1]These appeals arise out of the latest in a series of battles over a private (or “several”) fishery situated on the east coast of the Wash. Since 1761 the Le Strange family as Lords of the Manors of Heacham and Snettisham have claimed the right to take shellfish from the foreshore adjacent to the two manors and by exercising such a right over many years have established a private fishery by prescription. Although initially disputed, the existence of the fishery was eventually conceded by the present appellants, but its seaward extent remained in dispute and formed the principal issue for the judge to decide. It is a question which has troubled the courts on more than one occasion.[2]The fishery was let to the respondent, Mr. John Loose, for a period of three years from 6th April 1969 under a lease dated 22nd July 1970 granted by Hamon Le Strange, the predecessor in title of the Part 20 defendant, Mr. Michael le Strange Meakin, who is also one of the respondents to the appeals. It is convenient to refer to his interest and that of his predecessors as “the estate”, as the judge did below. The lease expired in April 1972 and Mr. Loose has since then held over on the same terms. Fishing for cockles was once carried out entirely by hand at low tide, but during the latter part of the 20th century methods were developed for fishing from boats by mechanical means known as ‘suction dredging’. It is now possible, therefore, to take cockles from the area of the foreshore at times when it is not exposed by the tide. The appellants (“the fishermen”) are owners of local fishing vessels. Mr. Loose claimed that they had unlawfully interfered with his rights by fishing for cockles in the area of the private fishery between July and September 2007. He brought a claim for damages reflecting the value of the cockles which he said they had taken. The fishermen denied that the area in which they had been working formed part of the private fishery, which gave rise to the dispute about its extent.[3]The matter was tried by Sir William Blackburne over a period of six days in November 2012. He held that the private fishery extended seawards as far as the mean low-water mark of spring tides (“MLWS”) and that the fishermen had been fishing in the area of the private fishery, as Mr. Loose alleged. This is the fishermen’s appeal against that decision. They say that the private fishery does not extend to some of the areas which are now exposed, and thus accessible from the foreshore, at low tide, because in former times they were not part of the fishery and have not become part of it simply as a result of the silting up of the channels which in the past separated them from the foreshore. Moreover, they say that the estate has never sought to exercise rights over those areas and cannot therefore have acquired prescriptive rights in respect of them. Mr. Loose (whose argument on this point was adopted by the estate) says that the private fishery covers the whole of the area of the sea bed exposed at low tides and accessible on foot from the shore. The judge ought therefore to have held that it extends as far as Extreme Low Water (“ELW”), which is the farthest point to which the water can recede as a result of the most extreme combination of natural forces, or at any rate to the level of Lowest Astronomical Tide (“LAT”), which is the lowest point to which the tide falls as a result of normal astronomical forces. The frequency of ELW is by definition impossible to predict. LAT occurs once every 18.6 years. The topography[4]In order to appreciate the nature of the issues to which the appeals give rise it is necessary to understand something of the topography of the area. I take the following description from paragraphs 12 – 14 of Sir William’s judgment: “12. The nature of the claims of the estate, and therefore of Mr Loose whose leased fishing rights are said to be co-extensive with those of the estate, is very much bound up with the shifting nature of the sandbanks and channels which are so much a feature of the eastern side of the Wash. I was taken in this regard to a series of charts going back over four centuries. The earliest was from 1588, the year of the Spanish Armada, and the next (and rather more informative) Henry Bell Chart (so-named after the person during whose mayoralty of King’s Lynn the chart was drawn) was from 1693. In those days King’s Lynn exercised an admiralty jurisdiction in its area of the Wash. Those and later charts show that whereas in earlier times tidal waters ran close to the shoreline of the area bordered by the relevant lordships, with clearly marked sandbanks separated from the foreshore at low tide, nevertheless with the passage of time and the effect of siltation and other natural phenomena the fresh water and tidal channels altered, both in terms of width and of direction, so that what were once distinct sandbanks became, when exposed at low water, part of the foreshore and thus accessible on foot from the shoreline. A striking example of this process is provided by the so-called Stubborn Sand. In the 16th and 17th centuries, this appears on the charts as an island at low tide, separated from the shore on its eastern side by a distinct channel of water and on its western side by what was known as the Old Channel. It was not then accessible on foot from dry land. The Old Channel led to King’s Lynn which lies to the immediate south and served as a navigable means of access to that port. By the 19th century Stubborn Sand had become and has since remained, when exposed at low water, a part of the foreshore. In effect it has ceased to be distinguishable as a distinct sand bank although it continues to bear that name. Indeed, as the later charts show, the Old Channel has long ceased to be a navigable channel and is nowadays really no more than a tongue of water when exposed at low tide: access by boat to King’s Lynn must now be by a channel lying further to the west13. Another example of the process of change in this part of the Wash concerns the line of what is known as Wolferton Creek. This is a fresh water outlet draining the land between Wolferton and Sandringham on the Norfolk coast to the east. In the earlier charts and maps this stream is shown as flowing into the Wash at low water in roughly an east/west direction. Later charts show the flow of the stream at low water as following a more northerly course. Its gradual shift to the north gave rise to a dispute as to the precise position of the fishery’s southern boundary. The details do not matter. In LeStrange v Lynn Corporation , to which I have already referred, the issue was settled by a determination that the boundary was the east/west line followed by the stream in earlier days14. Other sandbanks, notably the Sunk and Ferrier Sands, have ceased to be distinct “islands” at low tide. Both are now accessible on foot from the shoreline where it is bordered by the estate lordships. Although once it did not, the estate, and through it Mr Loose, now claims that its fishery extends seaward over sands which are now identified on contemporary charts (moving from north to south) as the South Sunk Sand, the Outer Ferrier Sand, the Ferrier Sand and (as to its northern part) the Peter Black Sand. These were formerly inaccessible at low water from dry land but with the silting up of the channels that once separated them from the dry land are now accessible on foot at low water from the eastern shoreline. . . . ” 5. Public and private rights[5]The general public enjoys a right to fish in tidal waters. Thus, Sir Matthew Hale in his treatise De Jure Maris stated that “the common people of England have regularly a liberty of fishing in the sea or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty.”[6]However, it is common ground that a private fishery may be established by prescription. Thus, in Malcolmson v O’Dea (1863) 10 H.L. Cas. 618 Willes J. giving the advice of the judges said:
“The soil of “navigable tidal rivers,” like the Shannon, so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery prima facie in the public. But for Magna Charta, the Crown could, by its prerogative, exclude the public from such prima facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by Act of the Crown not later than the reign of Henry II. If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is not that you say, this is usurpation, for it is not traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory.”
If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is not that you say, this is usurpation, for it is not traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory.”[7]These principles were expounded at greater length by Lord Haldane L.C. in A-G for the Province of British Columbia v A-G for the Dominion of Canada [1914] A.C. 153 at pages 168-171.[8]The presumption that a fishery enjoyed for a long period of time as a private right of property must have been created by grant occurring before legal memory has given rise to difficulty in this as in earlier cases. The point may be made by reference to Ferrier Sand, a large sandbank some 3½ kilometres long and 1½ kilometres wide which lies roughly to the south west of Stubborn Sand and from which, until the latter part of the 19th century, it was separated by the Old Channel. Until the Old Channel began to silt up Ferrier Sand was not accessible from the shore on foot and clearly did not form part of the estate’s fishery. By the end of the 19th century, however, the southern end of the channel had completely silted up and it was no longer separated from the southern end of Stubborn Sand at low water. Together with other sandbanks in the same general area it became part of the foreshore, but it does not appear that the estate or its lessees from time to time gathered shellfish there or sought to prevent others from doing so. The fishermen say that, because the estate’s right to a private fishery is established by prescription, it is limited to those areas of the sea bed in respect of which it has purported to exercise such a right and that for the best part of a hundred years after access on foot to Ferrier Sand became possible the estate made no attempt to do so. The estate, however, says that, having established that it has from time immemorial exercised a right to a private fishery on the foreshore adjacent to the two manors, it must be presumed that that right was created by royal grant before 1189 and that such a grant was likely to have extended to the whole of the foreshore as it existed from time to time. It therefore now includes Ferrier Sand. Loose v Castleton[9]The seaward extent of the fishery last arose for consideration in Loose v Castleton (1981) 41 P. & C.R. 19, a decision of this court. That case, like the present, involved an action by Mr. Loose against a person whom he alleged had been taking shellfish (in that case mussels) from an area of the foreshore falling within the private fishery. Having considered a large amount of documentary and other material relating to the history of the manors of Heacham and Snettisham and the actions of the lords of the manor from time to time, the trial judge, His Honour Judge Moylan, held that the estate had established a prescriptive title to the foreshore and the fishery. That part of his decision was not challenged on appeal and it is not disputed now that the estate has established its right to a private fishery. The only question for debate, as in that case, concerns its seaward boundary.[10]In Loose v Castleton this court, on appeal from Judge Moylan, was satisfied in the light of the decision in Gann v The Free Fishers of Whitstable (1865) 11 H.L. Cas. 192 that it is possible for a private fishery to exist in relation to an area of the sea bed below MLWS. It then turned to consider the circumstances of the case before it, which was concerned with gathering mussels. Bridge L.J., with whom both Ormrod and Megaw L.JJ. agreed, said at page 32:
“That, then, being the law, one must next turn to see what were the facts in so far as they bore on the question of the seaward boundary of the le Strange several fishery. First, there were the series of leases of fishery rights that had been granted at various dates ranging from 1857 up to 1970. If one looks at the earliest and latest of the leases in that series, one finds this. There is a lease from 1857 to 1867 that defines the seaward boundary of the fishery rights that were demised as “the extreme low-water mark of the sea on the extreme west.”
The two latest leases are one from 1965 to 1970, in which the demise was of “the foreshore and so much of the sea-bed as belongs to the landlord,” and, finally, the current lease under which the plaintiff in this action claims, which defines the seaward boundary in these words:
“… as far as can be worked without boats at extreme low water which lie within the landlord’s fishery.”
Those are the first pieces of evidence supporting the view, for which the plaintiff contended and which the judge accepted, that the seaward boundary extended at least to the mean low-water mark of spring, as opposed to ordinary, tides. Secondly, there was evidence, in particular from a Mr. Thursby, who was very familiar with the rights as they had in fact been exercised, that de facto the le Strange estate and its lessees had claimed and worked the mussel scalps between the low-water mark of ordinary tides and the low-water mark of spring tides for at least 17 years prior to this litigation. Finally, however, and perhaps most importantly of all, there was clear evidence, which the judge accepted, that the best mussel grounds, the favourite habitat of the mussel on this length of coast, lay between the low-water mark of ordinary tides and the low-water mark of spring tides. In the light of that evidence, one is entitled to ask oneself the question: is it really to be supposed that, when the Crown was granting to favoured subjects a valuable right such as a several fishery relating to shellfish in the tenth or the eleventh century, it was doing so by reference to an artificial line on a map — mean low water at ordinary tides — that, so far as I am aware, is a purely modern concept that emerged in the nineteenth century, and doing so in order to deny to the favoured subjects the primary benefit that one would suppose was intended to be conferred on them, namely the benefit of exploiting the fishery where it could best be exploited? The answer to this question is, obviously:
“no, one would not suppose that.” ”
[11]In his concurring judgment Ormrod L.J. said at page 37:
“If, however, the court adopts the approach — as, of course, it must — set out in a few simple words by Willes J. in Malcolmson v. O’Dea, which Bridge L.J. has already read, the whole approach to the case becomes comparatively simple. It is plain from the paragraph in Willes J.’s advice to the House of Lords that, once there has been established over a long period of time — and, of course, what is a long period of time will vary from case to case — a succession of acts of purported ownership in relation to a fishery such as this, the court will, as Willes J. said, assume, or presume, that the claimant to such rights was at all times acting lawfully and not unlawfully. . . Following the principles of Malcolmson v. O'Dea, I would answer the question by saying that there is clear evidence of claim to ownership extending over 100 years in the whole of this area; there is nothing to indicate a modern origin for that right, and nothing in the historical documents to negative, or render uncertain or unsound, the presumption of a lost grant. I therefore agree that the plaintiff succeeds on the first issue in this case. I can deal very briefly with the other two issues. So far as the extent of the fishery is concerned, I venture to think that it is totally artificial to suppose, or to argue, that there is any particular limit on the seaward side of the fishery. We have to approach this matter on the basis that, at least in theory, we are dealing with a right that was at some time the subject of a grant from the Crown—and it has to be, owing to Magna Carta, a grant prior in date to 1189. I doubt very much whether, in 1189, those who were granting rights of fishery were particularly concerned about tide levels of any particular description. What they were granting was the right to fish for shellfish—and shellfish from “the shore,” or “the foreshore.”
Prima facie, it would seem to me, once a several fishery is established, unless there is some evidence to the contrary one would suppose that that fishery extends far enough to enable the grantee to get the fish (mussels in this case) where they normally grow. We have seen the evidence of Dr. Loose as to the habits of mussels. It is not, therefore, to my mind, necessary or useful, or anything but artificial, to try to limit a fishery such as this by reference to some purely abstract line on a chart. I say “abstract” because all “means” are of necessity abstract, and it would be quite ludicrous to try to apply a line on a chart to the physical conditions prevailing in an estuary such as this. As Mr. Claiborne said more than once, obviously the seaward boundary of this fishery will shift; there will be changes in the tide and changes, perhaps, in sandbanks in the neighbourhood there, or even possibly elsewhere. The ordinary, sensible conclusion must be that the fishery extends to where the mussels are exposed at low tide, wherever that is. So I again agree with the judge on that.” The issues in this case[12]The primary question for the judge in the present case concerned the territorial extent of the private fishery, which gave rise in turn to the three questions which we have to decide. The first concerns the nature, and hence the scope, of the estate’s rights. The second concerns the effect of the doctrine of accretion. The fishermen say that it provides the only basis on which there could ever be an increase in the area over which the estate’s rights extend, but that it does not apply in this case where large sandbanks have become accessible at low tide as a result of the silting up of former channels and shifting sands. The estate, on the other hand, says, if it is necessary to do so, that those areas that have become part of the foreshore are to be treated by the application of the doctrine of accretion as having been added to the area of its fishery. The third question concerns the seaward boundary of the fishery, in particular whether it extends beyond MLWS and, if so, how far.[13]The judge held, following Loose v Castleton, that the grant was movable, in the sense that it extended over the whole of the foreshore as it might exist from time to time, and that the doctrine of accretion therefore had no part to play. However, he also held that, if the doctrine of accretion was relevant, it was capable of applying to an enlargement of the foreshore caused by the gradual silting up of channels previously separating it from isolated sandbanks such as Ferrier Sand and that in those circumstances the fishery extended to the enlarged area. Accordingly, he held that the estate’s fishery extended to the whole of the land (including Ferrier Sand and other sandbanks) which is now accessible on foot at low water. Finally, he held, largely as a matter of practicality, that the seaward boundary of the fishery was MLWS.[14]The fishermen obtained permission from the judge to appeal on the question of the relevance and effect of the doctrine of accretion and Mr. Loose obtained permission to appeal against his determination of the seaward boundary of the fishery. The estate has not itself appealed against the judge’s order, but its interests are aligned with those of Mr. Loose and it took the lead in putting forward many of the arguments on which they both relied.[15]Before us Mr. Fetherstonhaugh Q.C. on behalf of the fishermen contended, as he had before the judge, that any enlargement of the area of the private fishery since the date of the grant could have occurred only as a result of the doctrine of accretion, but that the doctrine did not apply to discrete areas of land such as sandbanks which became accessible from the shore as a result of the silting up of channels which had formerly separated them from the foreshore. Alternatively, he submitted that if the doctrine of accretion did apply in relation to the foreshore itself, it did not carry with it an extension of the estate’s rights over the enlarged area. Finally, he submitted that both for reasons of principle and practicality the seaward boundary of the fishery should be treated as the mean low water (“MLW”), that is, the mean low-water mark of ordinary tides.[16]Mr. Calland for the estate and Mr. Davey Q.C. for Mr. Loose both contended that the judge’s decision on the nature of the estate’s grant was correct for the reasons he gave, but Mr. Loose (with the tacit support of the estate) argued that the seaward boundary lay at the level of LAT. As will become apparent, the issues raised by the appeals overlap to a considerable extent, but it is nonetheless convenient to address them separately as far possible. The nature and scope of the estate’s rights[17]Although the fishermen’s appeal is directed to the doctrine of accretion, it is convenient to begin by considering the origin and nature of the estate’s rights. Although the court in Loose v Castleton was concerned with the seaward extent of the private fishery, at least in so far as it related to mussels, it was not necessary for it to consider directly the problems brought about by changes in the seabed and the consequent extension of the foreshore to include sandbanks that had previously been separated from it. Mr. Fetherstonhaugh Q.C. for the fishermen submitted that since the court is dealing with what are in substance rights acquired by prescription, those rights should be defined by reference to the evidence of actual user. The presumption of a lost grant dating from before 1189 is nothing more than a legal fiction, which should not provide the means by which a private individual can lawfully encroach upon the public’s ancient right to fish in tidal waters. He submitted that, in the absence of any evidence that the estate had purported in the past to exercise private rights over Ferrier Sand and other sandbanks in the vicinity, the court should not hold that it had acquired exclusive fishing rights over them. In other words, evidence of actual user rather than the interpretation of a fictitious lost grant should determine the scope of the estate’s rights. Alternatively, he submitted that if the estate’s rights were to be determined by reference to such a grant, it should be assumed that they extended only over the foreshore as it existed at the date the grant was made. Mediaeval monarchs were well aware that the foreshore of the Wash was liable to vary in its extent and would not have wished to grant private rights over an unpredictable area of the seabed.[18]Mr. Calland for the estate and Mr. Davey Q.C. for Mr. Loose submitted that the authorities, principally Malcolmson v O’Dea, Neill v Duke of Devonshire (1882) 8 App. Cas. 135 and Loose v Castleton itself, establish the principle that a person who has purported to exercise private rights of fishery over the foreshore for a long period of time is to be presumed to have acted lawfully and therefore under the terms of a lost grant from the crown. Whatever may be the position in relation to the estate’s exercise of rights over Ferrier Sand, it was not in dispute that the estate had established a private fishery on at least part of the foreshore adjacent to the manors of Heacham and Snettisham. The existence of an ancient grant was therefore to be presumed and it was more likely than not that it extended to the whole of the foreshore that might from time to time be exposed at low tide. In other words, it was a grant in respect of a movable area of land.[19]In support of his submission that the estate had not exercised a prescriptive right over the whole of the area exposed at low tide Mr. Fetherstonhaugh drew our attention to a series of leases of the fishery dating from 1857 to 1970 and to the steps taken by Parliament to regulate fishing for shellfish in the area of the Wash around King’s Lynn. It is convenient to refer first to the legislative intervention. In 1868 Parliament passed the Sea Fisheries Act giving the Board of Trade power to establish ‘regulating fisheries’ for the purposes of controlling fishing for oysters and mussels in certain areas. (It was later extended to include cockles by the Sea Fisheries Act 1884. The statutory provisions are now to be found in the Sea Fisheries Regulation Act 1966.) In 1872 the first of a series of orders was made under the Act imposing a licensing regime on fishing for shellfish in the area of the Wash adjacent to the estate’s fishery. The position was summarised by Bridge L.J. in Loose v Castleton as follows:
“The Order with which we are concerned is the Lynn Deeps Order 1872. Paragraph 2 of this Order begins with the words: “The following are the description and limits of the fishery (as shown on plans deposited at the Board of Trade and marked ‘Lynn Deeps Fishery Order 1872’)”—and then the Order proceeds to define the limits of the fishery. The language of the Order describing the landward boundary of the deep-sea fishery in the relevant area does indeed refer to the low-water mark of ordinary tides. The interpretation of the Order was the subject of litigation between the corporation of King’s Lynn and the then holder of the title to the le Strange estate in 1885. One of the results of that litigation was that it was held that, in view of the words at the opening of paragraph 2 of the Order, “(as shown on plans deposited [etc.]),” where there was a conflict between the deposited plans and the express language of the Order the plans were to prevail. The plans annexed to the Order, and, indeed, to its successor, the Lynn Deeps Order 1932 , show, as the boundary between the statutory area conferred on the corporation of King's Lynn and the le Strange estate on this length of coastline, not mean low-water mark but the Admiralty chart datum line, which is at least as far seaward as, if not further seaward than, the mean low-water mark of spring tides. Finally, on this subject, it is to be observed that in the current Order, that of 1932, there is an express reservation of the right of the le Strange estate in the words to be found in article 19 : “Nothing in this Order contained shall take away lessen prejudice or interfere with any right power or privilege of Charles Alfred le Strange Esquire his executors administrators or assigns … .”
[20]The order currently in force (the Wash Fishery Order) was made in 1992. The chart attached to it shows the boundary of the deep-sea fishery lying almost entirely below MLWS and, in the contentious area around Ferrier Sand, to the west of the line represented by LAT. Moreover, as in the case of the earlier orders, it contains an express reservation of the estate’s rights. As a result I do not think that Mr. Fetherstonhaugh is able to derive much support from this quarter.[21]The leases of the fishery to which we were referred date from 1857 to 1970. The court in Loose v Castleton was referred to the same leases as evidence of the seaward extent of the fishery, but did not consider that they supported the conclusion that it was less extensive than the estate claimed. Bridge L.J. pointed out that both the earliest lease and the most recent define the seaward boundary by reference to “extreme low water”, and although some of the intervening leases define it by reference to the 1872 Order, that order, and for that matter the current order, expressly leave untouched any rights enjoyed by the estate. Although of historical interest, I have not found the leases of great assistance in deciding whether areas of the seabed, in particular Ferrier Sand, which were at one time submerged at low water but are now exposed, fall within the scope of the private fishery. The particular terms in which a lease was granted on any given occasion may reflect many different considerations and I do not think that one can infer from the terms of the various leases granted in the period between 1857 and 1970 anything of relevance in relation to the true scope of the estate’s rights.[22]Nor do I think that there is any force in the submission that the estate has surrendered any of its rights. It may be that a right of this nature may be lost by prolonged absence of user (see the discussion in Crown Estate Commissioners v Roberts [2008] EWHC 1302 (Ch), [2008] 2 P. & C.R. 15), but if so, it would depend on what inference could be drawn from the facts of the particular case. The argument that the estate must be considered to have abandoned any right over Ferrier Sand by reason of its failure to exercise those rights for a hundred years after it became accessible in the latter part of the 19th century was, I think, adequately answered by the judge, who pointed out in paragraph 76 of his judgment that people are sometimes slow to realise the full extent of their rights and there may be many other reasons why they have not exploited them to the full from the outset.[23]In this context Mr. Calland drew our attention to Neill v Duke of Devonshire (1882) 8 App. Cas. 135, a case which concerned a private right of fishery in the navigable tidal waters of the river Blackwater. The Duke was able to place before the court strong evidence that he and his predecessors had established a private fishery in a particular stretch of the river. The defendants, who were said to have trespassed on that stretch by cot-fishing, sought to establish that they had established a right to fish there by virtue of the fact that the practice was of long standing and was well known to the Duke. The defence was rejected, however, on the grounds that the Duke had established a prior title and the public could not obtain by prescription a profit à prendre in the form of a right to fish. Nor could the Duke’s rights be lost by abandonment, since an incorporeal hereditament, such as a several fishery, could pass only by deed. The decision is also of relevance to this case in that it provides support for the proposition that where rights are asserted over a single unbroken entity such as a river (here the foreshore adjacent to the two manors) it is 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: see per Lord O’Hagan at page 166. The case therefore tends to undermine the argument that in the absence of evidence of user the estate is unable to claim rights over that part of the foreshore represented by Ferrier Sand.[24]Nonetheless, I have some sympathy for the approach for which Mr. Fetherstonhaugh contended. The presumption of a lost mediaeval grant may have some logic in law to commend it, given that Magna Carta prohibited the creation of new private fisheries and that private rights cannot be acquired by prescription over rights enjoyed by the public at large. If the existence of the right to a private fishery is to be recognised, therefore, some other explanation has to be found for its creation and where the exercise of a right over a long period of time can be shown, a grant made at a time when the crown could still create private fisheries provides a legally acceptable explanation. However, it will no doubt appear unsatisfactory to many that the law should adopt such a contrived means of recognising what is, in reality, no more than a prescriptive title. If the law were to recognise a prescriptive title for what it really is, it might well result in its being limited to the areas over which it could be shown to have been habitually exercised. That would have the added advantage of minimising the encroachment by private rights on the ancient right of fishing in tidal waters enjoyed by the public at large.[25]However, the authorities seem to me to be clear. The principle enunciated by Willes J. in Malcolmson v O’Dea was followed and applied by this court in Loose v Castleton and provided the basis for the court’s decision that the private fishery extended to seaward at least as far as MLWS, which was sufficient for the case before it. It is clear from the judgments of both Bridge and Ormrod L.JJ. that the court proceeded on the assumption that mussels had been found in that part of the Wash since before 1189 and that the conditions under which they were most likely to flourish had not changed. As a result, having found that the estate had exercised a right to take fish from the foreshore, it determined the seaward extent of the fishery by reference to the notional grant, rather than any evidence of actual user. In my view, therefore, the authorities require us to resolve the primary issue raised by the present appeals by deciding what must be taken to have been the nature and scope of that notional lost grant.[26]In my view there are really only three possibilities. One is that the seaward boundary of the private fishery was defined by fixed limits, perhaps by reference to certain landmarks or by measurement from one or more points on the shore. Another is that it was limited to the foreshore as it existed in 1189 when the grant is assumed to have been made (see, for a modern example, Baxendale v Instow Parish Council [1982] 1 Ch. 14). A third is that it was defined by reference to the movements of the tide and hence by the low water mark from time to time. Given the nature of the presumed grant, I find it difficult to accept that the seaward boundary is likely to have been defined by fixed limits. Even in the 12th century people were aware that the foreshore in the area of the Wash was liable to change as the result of shifting sands and they must also be taken to have been aware that shellfish, particularly mussels, but no doubt other species as well, colonise different parts of the foreshore as conditions change. The same objection may be made in respect of a grant limited to the foreshore as it was at the date in question. One would not expect a grant of this kind to be limited to an area which might or might not be productive, particularly in the absence of fixed landmarks that could be used to define its limits. This is essentially the point made by the court in Loose v Castleton, which, although as a matter of law not binding on the parties to the appeals, is strongly persuasive.[27]There is another piece of evidence which seems to me to point strongly in the same direction. On the Henry Bell chart drawn in 1693 (named after the person who was mayor of King’s Lynn at the time) Stubborn Sand is shown as being separated from the narrow foreshore at low water by a clear channel. It was not, therefore, accessible on foot and so did not form part of the foreshore at that time. By the 19th century, however, the channel had disappeared as a result of the work of natural forces and Stubborn Sand had become accessible on foot at low water. It was accepted by the fishermen that the estate had exercised fishing rights over Stubborn Sand from the time that it became part of the foreshore and, as Bridge L.J. observed in Loose v Castleton (which concerned the mussel scalps on Stubborn Sand), there was no evidence that there had been any protest at its action or any suggestion that it was infringing the public’s rights. The court in that case held that taking mussels on Stubborn Sand involved an interference with the estate’s rights, which is consistent only with the view that by the latter part of the 20th century those rights extended over a much greater area than could have been possible at the end of the 17th century.[28]All this seems to me to point strongly towards a grant of the right to take shellfish from the foreshore as it exists from time to time. However, although he accepted that movable property rights can exist, Mr. Fetherstonhaugh submitted that they are explicable and can be supported only by reference to the doctrine of accretion. It is therefore necessary to describe that doctrine before going any further. Accretion[29]The doctrine of accretion was developed as a practical response to the need to determine the extent of a parcel of land adjoining the sea or other body of water where there is a shifting shoreline. In Southern Centre of Theosophy Inc v State of South Australia [1982] A.C. 706 the appellant was the owner of land which bordered Lake George. Over the course of time the high water mark receded, exposing an area of about 20 acres that had previously been covered by water. The appellant brought proceedings to vindicate its title to the area of land exposed by the withdrawal of the water and to establish that it retained a water frontage. Lord Wilberforce described the nature of the doctrine of accretion as follows (page 716B-D):
“ . . . their Lordships find it advisable to consider briefly the nature of the doctrine of accretion. This is a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible (a phrase considered further below), the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner’s land is taken from him by erosion, or diluvion (i.e. advance of the water) it would be most inconvenient to regard the boundary as extending into the water: the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner’s title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to gradual processes of change.”
[30]Mr. Fetherstonhaugh submitted that in order for a private fishery to exist it must be possible to identify with reasonable certainty the land over which the rights extend from time to time, in support of which he relied on The Mayor and Corporation of Carlisle v Graham (1869) 14 L.R. Ex. 362. Thereafter the extent of the fishery can grow only as the area of the land in question is increased by accretion: see Scratton v Brown (1825) 4 Barn & Cress 485.[31]I am unable to accept that submission. The purpose of the doctrine of accretion is to regulate the boundary between adjacent titles, that in the land adjoining the foreshore and that in the foreshore itself. In the ordinary way the boundary between the two moves in accordance with imperceptible movements of the high water mark brought about by natural forces. That is what is meant by accretion and diluvion. In general, the title to the whole of the foreshore, however, is in the crown, so that changes at the low water mark have no bearing on any adjacent title, as was noted by the Divisional Court in Anderson v Alnwick District Council [1993] 1 W.L.R. 1156 at 1163. The doctrine of accretion may or may not underpin the existence of most movable titles in land, but it is not essential, as appears from the example of lot meadows given by Sir Robert Megarry V.-C. in Baxendale v Instow Parish Council at page 20G. In particular, it is not needed to explain the existence of rights over adjacent areas of land within the same ownership. In any event, however, a private fishery is a franchise, that is, an incorporeal right in the nature of a profit à prendre, and it was open to the crown before 1189 to grant a private right of that kind over such part of the foreshore as it saw fit. Even where the crown granted title to the soil of the foreshore, that did not automatically carry with it a several fishery: see Attorney-General v Emmerson [1891] A.C.649 per Lord Herschell at page 654. It follows that the seaward extent of the fishery is not necessarily determined by the existence or extent of the estate’s title to the foreshore. Accordingly, the problem of identifying an inherently unstable boundary between adjoining titles does not arise, whatever the scope of the estate’s title to the foreshore, and the doctrine of accretion has no application.[32]Nor do I think that Mr. Fetherstonhaugh can derive any assistance from TheMayor and Corporation of Carlisle v Graham. The case concerned a change in the course of the tidal reach of the River Eden, which ceased to flow through a channel known as “the Loop” over which the corporation had a several fishery and started to flow through another channel known as “the Goat”. The corporation claimed that its right had moved with the water, but the court held that since any grant from the crown depended on ownership of the adjacent land, there could be no grant in respect of a channel which flowed through land privately owned. It is true that Bramwell B. expressed the view that the extent of any several fishery had to be capable of ascertainment, but that was in relation to the particular characteristics of the river. It cannot in my view be regarded as precluding the grant of a several fishery over an area of the foreshore, access to which will be affected by the movements of the tide.[33]Scratton v Brown concerned the construction of a conveyance of property lying between the high and low water marks, the question being whether it should be understood to refer to the high and low water marks existing at the date of the conveyance or the high and low water marks existing from time to time. It is not surprising that the court should have referred to the doctrine of accretion as supporting the conclusion that the conveyance was of the land lying between high and low water marks from time to time. It does not, in my view, support the conclusion that accretion is the only basis on which a right in the nature of a profit à prendre can be created over a fluctuating area.[34]For these reasons I am unable to accept the submission that the enlargement (or for that matter reduction) of the area over which the estate enjoys a private fishery depends on the application of the doctrines of accretion and diluvion. For the reasons I have given I think that the evidence points clearly to a grant over the foreshore as it is from time to time, a conclusion which is consistent with the decision in Loose v Castleton and was specifically envisaged by Ormrod L.J. in that case (see the passage in his judgment cited earlier). Accordingly, as conditions change and more or less of the sea bed is exposed at low water, the area of the private fishery will expand or shrink. In an area of the coast where landmarks are constantly shifting and the shellfish can be expected to move to take advantage of changing conditions, that seems to me to be the most natural grant to make. Mr. Fetherstonhaugh submitted that there is an established principle that a grant made by the crown should be construed in favour of the crown: see Crown Estate Commissioners v Roberts [2008] 2 P. & C.R. 255, per Lewison J. at paragraphs 78-80. In that case, however, the court was dealing with a written document framed in ambiguous terms. The position here is different. There is no question of ambiguity; the question is whether the presumed grant was of a right over a fixed or movable area. The question is akin to that which faced the court in Loose v Castleton and should in my view be answered in a similar way. The court in that case had no difficulty in holding that the grant should be taken as extending as least as far as MLWS, although in the nature of things that was an inherently movable point.[35]It follows from what I have said that the judge was right in my view to regard the doctrine of accretion as irrelevant. It also follows that I reject Mr. Fetherstonhaugh’s submission that Loose v Castleton was decided per incuriam, the court’s attention not having been drawn to Southern Centre of Theosophy Inc v State of South Australia or Scratton v Brown. Accretion – the grounds of appeal[36]Although I do not think that the doctrine of accretion is relevant to the outcome of the fishrmen’s appeal, I should refer briefly, as did the judge, to some of the arguments put forward in relation to it, particularly as they reflect the grounds on which they were given permission to appeal. As I have already observed, the doctrine was developed in relation to land bounded by water, but Mr. Calland submitted that, if necessary, it could properly be applied to determine the area over which the estate’s fishery extended. Thus, he submitted, the gradual silting up of a channel between a previously detached sandbank and the foreshore (as appears to have happened in the case of the channel between the foreshore and Stubborn Sand) would result in the inclusion of the sandbank in the area over which the estate was entitled to exercise its rights. Mr. Fetherstonhaugh resisted that argument. He submitted that in a situation of that kind each area should be regarded as having been enlarged by accretion as far as the point at which the two met. That, he submitted, would be the proper way in which to apply the doctrine of accretion to the silting up of a channel between an island and the mainland. Alternatively, he submitted that although the process of siltation may have occurred slowly, even imperceptibly, it resulted at some point (if the estate were correct) in a sudden addition to the foreshore of an extensive area of sand which it had not previously encompassed. There was not, therefore, a gradual extension of the foreshore of the kind contemplated by the authorities.[37]The judge rejected Mr. Fetherstonhaugh’s arguments, principally because he could see 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. I am inclined to agree. The silting up of a channel is a gradual and imperceptible process and, if its effect is to alter the natural boundary between the land and the water, I see no reason in principle why the title to the land should not extend as far as that altered boundary. To hold that it does seems to me to be entirely consistent with Lord Wilberforce’s explanation of the principles on which the doctrine of accretion is based. Moreover, a distinction can in my view, be drawn for these purposes between an island in separate ownership from the mainland and a sandbank forming part of the foreshore. I can see force in Mr. Fetherstonhaugh’s submission that the silting up of a channel separating an island from the mainland leads to an increase in the area both of the island and the mainland to the point where the margins of the two meet, but such an approach can be applied to the present case only by treating different areas of the foreshore as if they were in different ownership. That is not relevant, however, to determining the scope of a right of this kind which does not depend on title to the land. The silting up of a channel separating two areas of the foreshore simply adds to the area of the foreshore as a whole.[38]Mr. Fetherstonhaugh submitted that even if it were right to regard the foreshore as having been extended by the operation of the doctrine of accretion, it was not right to regard the scope of the private fishery as having been extended commensurately, since, in the absence of Parliamentary authority, that would require a further grant from the crown, which has not been possible since 1215. The judge rejected that argument on the authority of Mercer v Denne [1904] 2 Ch 534, which concerned the customary right of fishermen at Walmer to dry their nets on the beach. As a result of the withdrawal of the sea the area of the beach increased and a dispute arose whether the fishermen had a right to use for that purpose the part of the beach that had been added by accretion. The court held that they did, because existing rights over land could be exercised over additions to that land resulting from accretion.[39]Mr. Fetherstonhaugh submitted that Mercer v Denne could be distinguished on the grounds that the area of the addition to the beach at Walmer represented new land, rather than a natural feature previously separated from the shore at low tide over which the public had been entitled to exercise certain rights. This seems to me to be simply another way of putting the argument that the doctrine of accretion does not apply in a case of the present kind. If the doctrine does apply, Mercer v Denne is in my view authority for the proposition that land added by accretion is subject to the same rights as the land to which it has been added. If, as I think, however, the extension of the private fishery does not rest on the doctrine of accretion, this line of argument does not advance the fishermen’s case.[40]Mr. Fetherstonhaugh also submitted that, if the estate’s argument were correct, it would be possible for the private fishery to extend farther and farther across the Wash as the sea receded, with a corresponding erosion of the rights of the public. I think the judge was right to recognise that in theory that could be the case, although as he pointed out, if sea levels were to rise, the area of the fishery would be reduced. There might be more in this objection if the movable nature of the grant depended on a grant of title to the foreshore itself, but in my view it does not and for that reason I do not think that the doctrine of accretion has any application in the present case. If, as I think, the grant was of a right to take fish from the area of the seabed exposed at low water, it related to an area that had no seaward boundary other than that provided by the level of the tide. The grant itself ensured that changes in low water levels resulted in the enlargement or reduction of the area of the fishery and the doctrine of accretion has no part to play. Even if I am wrong about that, however, and the grant should be taken to relate to an area of the foreshore extending to a defined distance from the high water mark, it is difficult to see how the doctrine of accretion could have any part to play, since by definition the grant would limit the area over which the right could be exercised. That the doctrine of accretion may be excluded by a conveyance couched in clear terms is made clear by Baxendale v Instow Parish Council.[41]It follows that neither of the grounds on which the judge gave the fishermen permission to appeal succeeds. The seaward boundary of the fishery[42]The parties all contended for different seaward boundaries to the fishery: Mr. Loose and the estate for ELW, alternatively LAT, and the fishermen for MLW. Mr. Fetherstonhaugh submitted that in the 19th century the estate elected to limit the fishery to MLW and that it had behaved over time in a way that indicated that it regarded MLW as defining the limits of its rights. MLW, he submitted, is the technical limit of the foreshore and provides a practical commonsense solution consistent with principle. The estate, on the other hand, relied on the fact that this court in Loose v Castleton had held that the fishery extended at least to MLWS. Mr. Loose submitted that either ELW or LAT was more consistent with the nature of a grant to take fish from the foreshore wherever they might be found.[43]The judge dealt with Mr. Fetherstonhaugh’s arguments in paragraphs 69-75 of his judgment. He considered in some detail the history of the estate’s dealings with the regulating fishery and the orders made in relation to it, the stance which it had taken in litigation with the Corporation of Lynn in 1885 and the fact that it had not asserted in any practical way rights over the wider area before the latter part of the 20th century. I do not find it necessary to rehearse his careful findings of fact because, as he himself observed, it is difficult to see how any of these matters can advance the fishermen’s case. Mr. Fetherstonhaugh submitted that, because the estate’s rights can be established only by prescription, it is relevant to identify the area over which the estate has sought to exercise rights. If it has claimed rights only as far as MLW, it cannot have acquired rights beyond that point.[44]This is no more than another aspect of the argument relating to the scope of the estate’s rights. For the reasons given earlier I am unable to accept that the estate’s rights are defined by evidence of actual user rather than by the terms of the assumed grant. That being so, if it is to be confined to MLW it is necessary to show that the grant was limited in that way or that it has been surrendered in part, but in my view the evidence does not support either conclusion. I have already said that I do not regard the reasoning in Loose v Castleton as undermined in any way by the fact that the court failed to take into account the doctrine of accretion. In my view the judge was right to hold that it established for all practical purposes that the seaward boundary of the fishery extended at least to MLWS.[45]The judge considered that the location of the seaward boundary of the fishery raised a question of an essentially practical nature, there being a need for both the estate and the public to know the limits of the private fishery. In his view MLWS represented the most practical solution and had the advantage of being consistent with the decision in Loose v Castleton. Mr. Davey Q.C. on behalf of Mr. Loose submitted, however, that the court should accept ELW as the boundary of the fishery, or at any rate LAT, on the basis that the grant should be understood as extending to all parts of the seabed exposed from time to time at low water.[46]It is quite true that a practical way needs to be found of resolving disputes between the fishermen and the estate about the area over which the private fishery extends and practical considerations are likely to loom large in any case in which the estate or a lessee seeks an injunction to prevent interference with their rights. However, with all due respect to the judge, I do not think that the identification of the seaward boundary of the fishery can be determined simply by reference to practical utility. At root the question comes back to the scope of the grant. In Loose v Castleton it was unnecessary for the court to decide more than that the fishery extended at least to MLWS; it did not need to decide, and did not decide, whether the boundary in fact lay further out.[47]If one accepts that the grant related to a fluctuating area of the seabed, the question is how that area must be taken to have been described. The probability, in my view, is that the grant would have extended to such part of the seabed as might from time to time be exposed at low water. MLWS is an artificial concept, representing an average of a range of low water levels. At regular intervals the water will inevitably fall below that level and it seems to me unlikely that the grant was not intended to extend to the low water mark on those occasions, wherever that might be. In modern terms that level is best identified by LAT. I am unable to accept that the boundary extends seaward as far as ELW, because I find it difficult to accept that the crown can be taken to have intended to grant exclusive rights over an area of the seabed which would be exposed only under an extreme combination of unusual circumstances. In my view the better view is that as a matter of law the fishery extends as far as LAT. The chart attached to the 1992 Order suggests that in most respects the area bounded by LAT is not significantly larger than that bounded by MLWS. What, if any, steps the court might be persuaded to take by the grant of an injunction or otherwise in respect of an infringement of the estate’s rights may vary from case to case.[48]For these reasons I would dismiss the fishermen’s appeal and allow the appeal of Mr. Loose to the extent indicated.

Lord Justice Pitchford :

[49]I agree.

Lord Justice Kitchin :

[50]I also agree.