Barton v The Church Commissioners for England [2008] EWHC 3091 (Ch)

[2008] EWHC 3091 (Ch)

Case No HC02C00653

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/12/2008

Before

MR JUSTICE MORGAN

Between

FRANK OLIVER BARTONClaimant

THE CHURCH COMMISSIONERS FOR ENGLANDDefendants

Mr Lawrence Jones (instructed by Stockinger) for Claimant

Mr Nicholas Taggart (instructed by Lee Bolton Monier-Williams) for Defendants

Hearing Hearing dates: 19 th, 20 th, 21 st, 24 th 25 th and 26 th November 2008

Judgment

Introduction

[1]The issue in this case is: have the Church Commissioners for England (“the Church Commissioners”) established, on the evidence before the Court, that they and/or their predecessors in title (the Bishop of Hereford and the Ecclesiastical Commissioners for England) have acquired by prescription, whether at common law or by virtue of the doctrine of lost modern grant, a right to a several fishery (or a right of piscary) without stint, in gross, in the stretch of the River Wye between Wye Bridge and Victoria Bridge, at Hereford. I will refer to this stretch of the river as the river “between the bridges” or as “the disputed waters”. I will use both descriptions because I need to consider evidence as to user and enjoyment of the right from around 1759 and Victoria Bridge was not constructed until around 1898.

[2]Putting this issue into less technical language, it is whether the Church Commissioners have an exclusive right to take all the fish in the stretch of the River Wye between the bridges, as described above.

[3]The above issue has been ordered to be tried as a preliminary issue in this action. The action was brought by Mr Barton against the Church Commissioners. Mr Barton is the owner of a large barge and wishes to moor that barge on the River Wye between the bridges. He either has, or believes he will have, an appropriate right to moor, granted by a riparian owner. Mr Barton’s difficulty in the past has been that the Hereford & District Angling Association (“H&DAA”), which has taken a lease from the Church Commissioners of the fishing rights which the Church Commissioners say that they have in the stretch of the River Wye between the bridges, assert that Mr Barton’s mooring of his barge in that part of the river will be an actionable interference with the rights of the Association.

[4]The only parties to these proceedings, and therefore the only persons who will be bound by my decision, are Mr Barton and the Church Commissioners. Mr Barton claims standing to bring these proceedings by virtue of the mooring rights which he has, or may be able to obtain, granted or to be granted by a riparian owner in relation to the relevant stretch of water. He challenges the Church Commissioners’ claimed right not because the Church Commissioners are actively seeking to prevent Mr Barton mooring between the bridges but because the persons who are seeking to prevent Mr Barton mooring between the bridges are the H&DAA and they claim that their rights are derived from the Church Commissioners. However, Mr Barton has not made the H&DAA a party to these proceedings and the H&DAA, who are fully aware of these proceedings, and who provided members of the Association to give evidence at the trial, have not sought to intervene in these proceedings.

[5]The position of the Church Commissioners is that they claim the rights identified above. They do not however claim title to the bed of the River Wye between the bridges. Nor do they assert at this trial that they have title to the riparian land at this part of the river. They do own the Bishop’s Palace on the north, or left, bank of the River Wye but there is an issue between the parties whether that is riparian land or whether it is separated from the river by a towpath, so that it is not riparian land. That issue has not been explored in detail before me and I am not asked to make any decision on it. For the purpose of the trial of the preliminary issue, the Church Commissioners do not positively assert that they have rights over the banks of the River Wye between the bridges which would enable them, and persons authorised by them, to access the right of fishery which they claim in the river at that point. The Church Commissioners do not admit that they have no such rights but they do not ask the Court to determine those rights, at any rate at this stage. I consider that this may turn out to be unfortunate because, as I will later describe, previous disputes between Mr Barton and the H&DAA as to whether the mooring of Mr Barton’s barge interfered with the H&DAA’s rights of fishing (if any) have attached significance to the question whether the H&DAA had a right to use the bank for the purpose of fishing in the river, which right to use the bank was said to be interfered with by the moored barge.

[6]Because the only parties are Mr Barton and the Church Commissioners, I am not asked to decide anything as to the ownership of the bed of the river (save that the Church Commissioners do not claim it), nor as to the ownership of the banks, nor as to the rights of the Church Commissioners or the H&DAA to use those banks to gain access to the relevant part of the river.

[7]Despite my misgivings, which I expressed at the trial, as to the non-joinder of relevant parties to this action and the matters which are not being investigated at the trial of this preliminary issue, I have been asked to, and I will, determine the preliminary issue. However, I stress for the sake of clarity that I will not decide who owns the bed of the river, nor who owns the banks of the river, nor whether the Church Commissioners and/or the H&DAA have rights over the banks of the river. Similarly, I will not decide what specific rights Mr Barton has to moor in this stretch of the river nor will I decide whether any such mooring by him would interfere with any rights which the H&DAA may have to fish in the river, or to use the banks of the river.

Previous proceedings

[8]Before describing the procedural history of the present action, I will refer as briefly as I can to other proceedings which are relevant as background to the present proceedings.

[9]There have been two previous actions between Mr Barton and the H&DAA. I will refer to the first of these as the “1992 proceedings” and the second as the “1995 proceedings”. The 1992 proceedings have been concluded and the 1995 proceedings are still unresolved. The history of the 1992 proceedings and the 1995 proceedings is described in a judgment in the Court of Appeal in the 1995 proceedings. The 1995 proceedings had the title Bryan, Astley and Taylor v Barton and judgment in the Court of Appeal was given on 11th February 1997. There is a report of that judgment in The Times of 20th March 1997.

[10]Prior to the 1992 proceedings, Mr Barton had moored his barge, known as the Wye Invader, upstream from the waters which are disputed in the present case. The place where Mr Barton had then moored his barge was said by the H&DAA to be subject to fishing rights vested in H&DAA and they asserted that the mooring of the barge interfered with those rights. Accordingly, the H&DAA or, more accurately, the Trustees of the H&DAA in whom it was said the relevant rights were vested, commenced an action against Mr Barton seeking orders that he remove the Wye Invader from a part of the River Wye over which the H&DAA claimed rights, but the identified part did not extend to the disputed waters in the present case. In the 1992 proceedings, the H&DAA sought a summary judgment and after a hearing of four days, H. H. Judge Moseley QC found for the H&DAA and granted an injunction requiring Mr Barton to move his barge from a specified part of the river, which part did not include the disputed waters in this case. Judge Moseley’s reasoning was that the H&DAA had proved their title to the fishery over the stretch of river in question, that the mooring of the barge was a substantial interference with those rights, that the right of navigation on which Mr Barton relied under certain Wye River Navigation Acts did not avail him because, although the right of navigation carried with it an ancillary right of mooring, that right to moor was restricted to mooring in pursuit of navigation and Mr Barton was seeking to moor in other, wider, circumstances.

[11]Following the order made against him in the 1992 proceedings, Mr Barton moved his barge to a place on the bank between the bridges. That led to the 1995 proceedings in which Messrs Bryan, Astley and Taylor, as the Trustees of the H&DAA, claimed that the new position of the barge interfered with their fishing rights in the river between the bridges. The H&DAA initially obtained judgment as claimed, in default of defence. Mr Barton then applied for an order setting aside that default judgment and his application came before Judge Moseley. The Judge dismissed the application to set aside the default judgment. The Judge referred to the title to the fishing rights claimed by the H&DAA in the 1995 proceedings. This was different from the title they had successfully asserted in the 1992 proceedings. In the 1995 proceedings, the H&DAA relied upon rights granted to them by a lease from the Church Commissioners. Judge Moseley concluded that the H&DAA did have the rights claimed in the 1995 proceedings and that the mooring of the barge was a substantial interference with those rights. Following his failure to have the default judgment set aside, Mr Barton moved his barge to another part of the river but he also appealed to the Court of Appeal against Judge Moseley’s refusal to set aside the default judgment. The appeal came before Nourse and Morritt LJJ and Sir Iain Glidewell. There was a single judgment on the appeal, given by Morritt LJ, and the other two members of the court agreed. Morritt LJ summarised the history of the 1992 proceedings and the procedural history to that date of the 1995 proceedings. He pointed out that for the H&DAA to establish an actionable interference with their right they had to prove first, that they were entitled to the rights claimed, secondly, that the defendant had substantially interfered with those rights and, thirdly, that the defendant had no legal right to do so. He noted that Mr Barton claimed to have substantial merit on each of these three grounds. Morritt LJ appears to have proceeded on the basis that the Church Commissioners did indeed own the fishing rights in the disputed waters and that they had been leased to the H&DAA. He focused in particular on the question whether the Church Commissioners (and their lessees, the H&DAA) had established a right to use the bank for the purposes of enjoying the fishing rights. That seemed to be material because a way, or at any rate the most obvious way, in which the H&DAA could assert that their rights were being interfered with would be if the mooring of the barge interfered with their rights, if any, to use the bank. Morritt LJ concluded that Mr Barton had an arguable case that the H&DAA did not have a right to use the bank for the purpose of enjoying their right of fishing and in the absence of a right to use the bank there was a very real question whether the mooring of the barge did constitute a substantial interference with the right to fish. Further, the question of substantial interference being essentially one of fact, that question should be determined after a full trial. These remarks were made with reference to one particular part of the river but in view of the fact that there would be a full trial in relation to that part, it was concluded that the proper course was to permit a trial not only as to the river between the bridges but also elsewhere, where the H&DAA claimed fishing rights. In the course of the hearing of the appeal, Mr Barton had offered an undertaking to the court not to move the barge from its present position, which was elsewhere and not between the bridges. The result of the appeal was that the Court of Appeal accepted Mr Barton’s undertaking and the appeals were allowed with the default judgment being set aside.

[12]The decision of the Court of Appeal was 11th February 1997 but I was told, without any real particulars, that the 1995 proceedings had been stayed and were in limbo awaiting my decision in the present case.

[13]In 1995 and 1996, there was a pair of actions between the National Rivers Authority and Mr Stockinger. Mr Stockinger is a solicitor. At the time of the actions in 1995 and 1996 he was, apparently, not in practice as a solicitor but in the proceedings before me he acts as the solicitor for Mr Barton. Mr Stockinger is also the author of a book on the River Wye published in 1996 with the title “The Rivers Wye and Lugg Navigation, a Documentary History 1555–1951”. The proceedings concerning the National Rivers Authority were determined by Laddie J in a judgment given on the 15th February 1996. The dispute in those proceedings concerned the existence of, and the control of, the Company of Proprietors of The Rivers Wye and Lugg Navigation and Horse-Towing Path and concerned the Rivers Wye and Lugg Navigation Acts 1662 to 1809. The position of the National Rivers Authority in that litigation was that Mr Stockinger and others were “making a considerable nuisance of themselves” (I quote from Laddie J’s judgment) and posturing as being in control of the Company of Proprietors. The National Rivers Authority established their claim in those proceedings and Laddie J was very critical of Mr Stockinger’s behaviour. Mr Stockinger sought leave to appeal to the Court of Appeal against Laddie J’s judgment. His application for leave to appeal was heard by Nourse LJ and Sir Iain Glidewell on 11th February 1997 (the same day as the Court of Appeal gave judgment in Mr Barton’s appeal in the 1995 proceedings). The Court of Appeal refused leave to appeal and commented that Mr Stockinger’s submissions and certain documents put before the court were with “the clear purpose of inconveniencing both the court and the Environment Agency in order further to cloud matters.” Beyond stating that many of the ways in which Mr Barton’s case has been presented to me have also produced a result which is both inconvenient and clouds the real matters in dispute, I will refrain from further comment on the way in which his case has been conducted, as such comment will serve no useful purpose at this stage.

[14]Mr Barton also asked me to be aware of proceedings he had brought in the Admiralty Court in 1998. In those proceedings, Mr Barton was the Plaintiff and the Defendants were Hereford City Council and the Company of Proprietors of the Rivers Wye and Lugg Navigation and Horse-towing Path. The proceedings were determined by Rix J (as he then was) by a judgment given on 20th March 1998. By his order, made to give effect to his judgment, Rix J declared that Hereford City Council had good title to grant to Mr Barton a lease for years of the mooring from the bank to the mid-line of the River Wye, adjacent to Hereford Castle in the City of Hereford, at a site known as Corporation Wharf and that, similarly, the City Council had good title to grant to Mr Barton a lease for years of the fishing (save for public use) in the same part of the river. Rix J’s order also dealt with the question whether the River Wye at Hereford was a harbour, as to the identity of the Harbour Authority and as to the power of a Harbour Master appointed by the Company of Proprietors to give directions as to navigation. The Church Commissioners were not a party to these proceedings. The City Council and the Company of Proprietors did not oppose the declarations which were sought. Rix J, in his judgment, stated that he had concerns about making declarations in matters which were essentially agreed and where no issues arose and where his order would not bind third parties who were not privy to the litigation. The consensual nature of the litigation was emphasised by the fact that the parties agreed that there should be no order as to the costs of the litigation. In the proceedings before me, no one suggests that I am bound in any way by the decision of Rix J but, equally, as I understand it, it is not suggested that the decision in that case is of particular relevance to the issues I am asked to decide as between the parties to the action before me.

[15]In the course of the hearing, I was informed of various other disputes and/or litigation involving the City Council, the H&DAA and various riparian owners but the detail of those matters was not investigated and as I have already stressed my decision in this action does not bind persons who are not privy to the parties in this action.

The procedural history of this action

[16]Against that background I can now turn to the procedural history of the present action. Mr Barton commenced this action on 23rd April 2001. He served Particulars of Claim on 27th June 2002. The action was brought essentially to challenge the claim of the Church Commissioners to have fishing rights in the River Wye between the bridges. Mr Barton was also concerned to establish the existence of his own right to moor and to fish. He pleaded that those rights had been granted to him by the City Council. Mr Barton’s prayer for relief was for a declaration that the Church Commissioners did not have title to the fishing, in particular at a place he called Corporation Wharf. Corporation Wharf was the term used by Mr Barton to describe that part of the river running alongside Castle Green on the north or left bank of the River Wye, extending to some 200 metres in length, and extending in width to the mid-line of the river, which at that point was of the order of 70 metres wide.

[17]On 26th July 2002, the Church Commissioners served a Defence and Counter Claim. On the 7th August 2002, the Church Commissioners amended their Defence and Counter Claim to bring a Part 20 Claim against the County of Herefordshire District Council. The Claim against the District Council was later settled on terms whereby the District Council essentially admitted the Church Commissioners’ Claim. I will refer to the terms of this settlement later in this judgment when I deal with matters of fact in chronological order. By way of defence to Mr Barton’s claim, the Church Commissioners asserted that they had title to what they described as a unstinted right of piscary over the College Hole. “The College Hole” was the phrase used by the Church Commissioners to describe the stretch of the River Wye between the bridges. The use of this phrase has proved controversial as Mr Barton asserts that the description “the College Hole” refers to a much more specific part of the disputed waters and not the entirety of the disputed waters. Accordingly, speaking generally, the phrase “the College Hole” was not used in the course of the evidence and submissions at the trial (save where those words of description were used in a document which falls to be considered). In paragraph 8.4 of their Defence, the Church Commissioners asserted a prescriptive claim to an exclusive right of fishery. They relied on user since at least 1839, without the permission of the City Council or any other person. The claim based on user was in general terms only and without any particulars. The Church Commissioners’ counterclaimed declaratory relief to the effect that they had the rights which I have described.

[18]Mr Barton did not serve a Reply or Defence to Counterclaim.

[19]In the years after 2002, the parties to this action plainly did a great deal of research into the history of the River Wye at Hereford. In due course, the parties produced elaborate and extensive evidence from persons said to have the expertise to comment on local history and the ancient titles being claimed on each side in this case. I will refer to that evidence, briefly, later in this judgment. However, by October 2008, the parties appear to have agreed that the way forward was not for the court to determine the Claim and Counterclaim based on documentary grants but rather to determine, as a preliminary issue, the Church Commissioners’ Counterclaim based on prescription or user and enjoyment of the right claimed. Accordingly, on 8th October 2008, on the hearing of a Pre-Trial Review, the court made an order by consent that there be a preliminary issue tried.

[20]The order of 8th October 2008 is, so far as material, in these terms:

“That there be tried as a preliminary issue the following question: whether the acts of the Church Commissioners, their purported predecessors in title and those who purport to derive title from them, the Hereford City Council, the riparian landowners and the public since 1759 establish that: 1) the Church Commissioners have, by way of implied, prescriptive or presumed grant, title to fishing rights to that stretch of the River Wye which lies between Wye Bridge and Victoria Bridge; and 2) such right is an unstinted right of piscary in gross: and 3) the Church Commissioners’ rights are not subject to any adverse rights vested in the Claimant; and that 4) the Church Commissioners have the ability to grant leases of fishing rights over the said stretch of the River Wye which are not subject to any rights of fishing or mooring vested in the Claimant.”

[21]The hearing before me was the trial of this preliminary issue. By an exchange of correspondence on 27th October 2008, the parties’ solicitors agreed, for the purposes of the preliminary issue (but only for that purpose), that the Court should assume that neither the Bishop of Hereford, nor any other ecclesiastical body, had an express grant of fishing rights in relation to the river between Wye and Victoria Bridges, prior to 1st January 1759.

[22]At an early point in the trial of the preliminary issue, I expressed concern that the pleaded case of the Church Commissioners in relation to prescription was unparticularised and that there had been no Reply or Defence to Counter Claim. I then directed that the Church Commissioners serve Particulars of their claim to have acquired a right by prescription and that Mr Barton serve a Reply and Defence to Counter Claim. These directions were duly complied with.

[23]In their Particulars, the Church Commissioners claim a right to an exclusive fishery without stint and in gross acquired by prescription at common law or under the doctrine of lost modern grant, the lost grant being said to be on a date earlier than 1759. The Church Commissioners pleaded that they relied upon acts of ownership of the right to fish the disputed waters and actual enjoyment of the right to fish those waters, by those to whom the Church Commissioners had granted that right. The Church Commissioners then pleaded in detail a long list of documents in support of their allegation. They also specifically pleaded actual enjoyment of a right of fishing in the disputed waters by members of the H&DAA and that the H&DAA had erected signs claiming the right to fish and employed a water bailiff to enforce their rights.

[24]In his Reply and Defence to Counter Claim, Mr Barton raised a large number of points. He contended that the claim to a right by prescription failed on the evidence, as the documentary and other evidence did not show open and notorious use of the disputed waters, any user was not continuous, any user was not exclusive and, further, the Church Commissioners could not rely upon the use of the fishery by the H&DAA because the members of the H&DAA, an unincorporated association, were a fluctuating body of persons unable to acquire rights themselves or to permit the Church Commissioners to acquire rights by prescription, by reason of the user by members of the association. Mr Barton also asserted that the claim to a right acquired by prescription was contrary to the agreed fact that there was no express grant to the predecessors of the Church Commissioners before 1759. In relation to the Church Commissioners’ reliance on a series of documents since 1759, Mr Barton contended that those documents related to other parts of the River Wye and did not relate to the disputed waters. Mr Barton then pleaded that the acts of user by the H&DAA were incidental, occasional and transitory and in any event were done with the permission of the City Council as riparian landowner. It was then contended that the acts being relied on were done on a public open space rather than private land and hundreds of local people had regularly fished in the disputed waters. It was denied that the H&DAA had anyone who could be described as “a water bailiff”. Mr Barton relied on the rights of navigation pursuant to the Rivers Wye and Lugg Navigation Acts 1662, 1695, 1727 and 1809. He contended that the right of navigation, including the right to moor, took precedence over any right to fish. He further pleaded that the City Council and others had not acquiesced in the user relied upon by the Church Commissioners.

The legal principles: a summary

[25]Before dealing with the detailed evidence in this case, it is helpful to set out some legal principles in relation to the right claimed in this case, in relation to prescription at common law and under the doctrine of lost modern grant and in relation to the position of a Bishop in the Church of England as a corporation sole.

[26]The law as to fisheries is well established. There was in the end no real disagreement between the parties as to the relevant legal principles. Those principles are expounded in specialist works such as Woolrych, the Law of Waters (2nd ed.) (1851) and Moore and Moore, The History and Law of Fisheries (1903) and are usefully summarised in Halsbury’s Laws, 4th ed., 2007 Reissue, Vol 1(2), Agriculture and Fisheries.

[27]The law distinguishes in various ways between rights of fishery in tidal waters and in non-tidal waters. The disputed waters in the present case are agreed to be non-tidal waters. Accordingly, in the following statement of the relevant legal principles, I will concentrate on rights of fishery in non-tidal waters.

[28]There is a distinction between a corporeal fishery and an incorporeal fishery. Fisheries are profits, in the sense of being an advantage, of the soil over which the water flows. The title to a fishery can arise from title to this soil. A fishery may be severed from the soil and it then becomes a profit à prendre in alieno solo and as such is an incorporeal hereditament. The term “corporeal fishery” is used to describe a corporeal hereditament such as, in non-tidal waters, the soil coupled with the right of fishing over it. A corporeal fishery may be owned by one who owns no land adjacent to it. The term “incorporeal fishery” is used to describe an incorporeal hereditament, that is, a right to take fish or a specified class of fish in a defined stretch of water without interference with the soil. An incorporeal fishery may be held freehold, or for a term of years absolute. An incorporeal fishery may be appurtenant to, or a parcel of, a manor.

[29]A fishery which is vested in an individual is called a private fishery. A fishery vested in the public at large is called a public fishery. A public fishery can only exist in tidal waters.

[30]A private fishery may be either a several fishery or a common of fishery. A several fishery is an exclusive right of fishing in a given place, either with or without the property in the soil. By “exclusive” is meant that no other person has a co-extensive right with the owner of the several fishery. The fact that some other person has a right to a particular class of fish in the fishery or has a right to fish in common with the owner of the several fishery does not destroy the severalty of the fishery. A common of fishery or a common of piscary is a liberty of fishing in another man’s waters in common with certain other persons who might be the owners of the soil or other persons enjoying the same right. It may be held as appurtenant to land, or in gross. If the common of fisheries is appurtenant to land, it may not be “without stint” i.e. unlimited. An incorporeal fishery may be held in gross or appurtenant to, or parcel of, a manor or appurtenant to land. An incorporeal fishery in gross is a profit à prendre. Under the Land Registration Act 2002, section 3(1), a profit à prendre in gross, when the subject of an absolute grant or for a lease of more than seven years is capable of registration at the Land Registry. An incorporeal fishery can be only transferred by deed. A lease of an incorporeal fishery must be by deed.

[31]There is a general presumption of law that the owner of land abutting on a non-tidal river is entitled to the soil of the river usque ad medium filum aquae. In the absence of any express reference, this presumption applies to all grants and leases of land described as bounded by a river, when the grant or lease is made by a person who is in a position to part with the soil of the river. There is a presumption that the owner of the soil of a river is the owner of the fishery over it. There is a presumption that the owner of a fishery is the owner of the soil of the river. This presumption will prevail over the presumption in favour of a riparian owner, in the event of a conflict as to the title to the soil which arises between the owner of a fishery and the owner of riparian land.

[32]The owner of a fishery does not have, by reason of necessity, any right to land on, or go along, the banks of the river for the purpose of taking fish, in a case where the right of fishery may be carried on by boats or other means, without interfering with the bank. A right to a fishing path or other use of the banks may be acquired by grant or prescription and, in the ordinary way, evidence of enjoyment of such a right for twenty years may be sufficient to justify the court presuming a grant of the right, providing the other requirements for prescription are satisfied. Such a right may be prescribed for as appurtenant to a corporeal fishery and, it seems, also to an incorporeal fishery. The fact that a public highway abuts upon a river does not confer a right to fish from the highway into the river.

[33]The right of navigation is a public right of way over tidal waters. A similar right may be acquired over non-tidal waters. The right is a right to pass and re-pass over the water and includes a right of anchoring, mooring, landing and grounding, where necessary in the ordinary course of navigation. Such a right takes precedence over a right of fishing and a navigator may place his ship in a fishery and stay there as long as is reasonably necessary for the purposes of navigation but he must not abuse this right. A fishery must not be carried on so as to be a nuisance to navigation.

[34]The law as to prescription is also well established. There was in the end no real disagreement between the parties as to the relevant legal principles. Those principles are usefully summarised in Halsbury’s Laws 4th ed. Reissue Vol 16(2), Easements and Profits à Prendre

[35]A profit à prendre such as a right of several fishery in gross, may be claimed by prescription at common law and under the doctrine of lost modern grant. The provisions of the Prescription Act 1832 do not apply to profits à prendre in gross: see Shuttleworth v Le Fleming (1865) 19 CBNS 687 at 709. Section 1 of the 1832 Act which governs prescription under that Act, in the case of an appurtenant profit, requires user for a period of 30 years.

[36]The doctrine of prescription at common law, and as to lost modern grant, is based upon the presumption of a grant, in that prescription presupposes that a grant was once made and validly subsisting, but has since been lost or destroyed. The presumption of a grant is derived from proof of enjoyment of the right which is claimed. A right claimed by prescription must be such that it could have formed the subject matter of a grant. Nothing which cannot have had a lawful beginning can be claimed by prescription. Recourse should only be had to the doctrine of prescription in cases where a grant of the right is not forthcoming. Prescription has no place if a grant is proved and its terms are known.

[37]The presumption of a grant is raised by proof of long enjoyment evidenced by acts of user on the part of the person claiming the right, or of his predecessors in title. The reason for the doctrine of prescription is that it is the policy of the law to do all that it can to quiet titles so as to avoid litigation and preserve the security of property. When open and uninterrupted enjoyment, of what appears to be an incorporeal right, has continued for a long time the court will, where such enjoyment is wholly unexplained, presume, if it is reasonably possible, that the enjoyment is referable to a right which had a lawful origin. Every presumption is made in favour of long user. Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that is reasonably possible to presume in favour of such a right. Where the user is equally consistent with two reasonable inferences, either of which would provide a lawful origin for the right enjoyed, the inference of a lost grant will not necessarily be drawn. The grant which is presumed is a grant by the owner of the land affected by the right. In the case of a several fishery which is an incorporeal fishery, the grant to be presumed is a grant by the owner of the soil of the river. The right claimed by prescription must be for an interest in fee, that is as a perpetual interest.

[38]Prescription at common law is based upon a presumed grant which the law assumes to have been made prior to 1189, the first year of the reign of Richard I. Enjoyment of the right must be proved from a time “whereof the memory of man runneth not to the contrary” that is to say during legal memory and the period of legal memory runs from 1189. As it is usually impossible to prove user or enjoyment further back than the memory of living persons, proof of enjoyment as far back as living witnesses can speak raises a prima facie presumption of an enjoyment from an earlier time. Where evidence is given of the long enjoyment of a right to the exclusion of others, the enjoyment being as of right in a manner referable to a possible legal origin, it is presumed that the enjoyment in that manner was in pursuance of a legal origin and in the absence of proof that the commencement of the user was modern, the user is deemed to have arisen beyond legal memory. Unexplained user of an incorporeal right for a period of twenty years is held to be presumptive evidence of the existence of the right from time immemorial but the rule is not inflexible, the period of twenty years being fixed as a convenient guide. In a claim to prescription at common law, it is not necessary to prove user during the specific period of twenty years before the commencement of the proceedings in which the claim is made. The rule is different from that laid down by section 4 of the Prescription Act 1832 in relation to a claim to prescription under that statute. It was not submitted to me that a period of thirty years user was needed for prescription at common law (or under the doctrine of lost modern grant) in the case of a profit, as distinct from an easement, by analogy with section 1 of the Prescription Act 1832, but see Edgar v Special Commissioners for English Fisheries 23 L.T. 732 at 736 per Willes J.

[39]The method of claiming easements under the doctrine of lost modern grant was the result of the ease with which claims under the common law doctrine of prescription were capable of being defeated by showing that the right did not, or could not, exist at a point of time later than the commencement of legal memory. The courts, following their approach in favour of a presumption that an alleged right had a legal origin when proof of long enjoyment was shown, adopted the fiction of a lost modern grant. The courts first laid down the rule that from the user of a lifetime the presumption arose that a similar user had existed from time immemorial. Then juries were told that from user during living memory, or even during twenty years, they might presume a lost modern grant, as distinct from a grant before 1189. Then they were told that they not only might presume a lost modern grant but that they were bound to presume the existence of a lost modern grant. The presumption of lost modern grant can be rebutted by evidence that the existence of such a grant was impossible but, conversely, a judge was not entitled to refuse to presume a grant merely because he was convinced that it had never in fact existed. The doctrine of lost modern grant may apply where the enjoyment cannot be otherwise reasonably accounted for but it is not reasonable to presume a lost grant in all circumstances. As with a claim to prescription at common law, it is not necessary to prove user during the specific period of twenty years before the commencement of the proceedings in which the claim is made. The position is therefore different from that required by section 4 of the Prescription Act 1832 in relation to a claim under that statute. Indeed, even in a case where the Prescription Act 1832 applies (and it does not apply to a profit à prendre in gross), the doctrine of lost modern grant can prove to be more flexible than the statutory provisions, because of this distinction.

[40]For a claim to prescription at common law or under the doctrine of lost modern grant, the user must have been “as of right”, having been enjoyed neither as the result of force, secrecy or permission, nec vi, nec clam, nec precario. Acquiescence on the part of the owner capable of making the grant lies at the root of prescription. A grant cannot be presumed from long user without the owner having had knowledge or the means of knowledge of the user. The owner cannot be said to acquiesce in an act enforced by violence or an act which fear on his part hinders him from preventing, or an act of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes or in return for recurrent consideration. An owner capable of making the grant claimed needs to have, at least, the means of knowledge of the user relied on in support of the grant. Some circumstances will put such an owner on inquiry and, if he neglects to make an inquiry, it may be that knowledge will be imputed to him. Where an ordinary owner of land, diligent in the protection of his interests, would have had a reasonable opportunity to become aware of the relevant user, the owner cannot allege that the user was secret.

[41]In general, what must be shown is continuous user. Unless satisfactorily explained, long intervals between the acts of user will go some way to defeat the right claimed. The period of non user of an alleged right which will operate to defeat a prescriptive claim has no fixed length. The user need not be constant; where the user has not been constant the evidence should show that the gaps in the user were not due to interference by the owner against whom the prescriptive right is claimed. The degree of continuity required differs according to the character of the right claimed.

[42]It has been said that as a general rule the evidence of user necessary to induce the court to presume a lost modern grant should be stronger than that upon which the court will presume a grant based on immemorial user: see Tilbury v Silva

(1890) 45 Ch D 98

at 123 per Bowen LJ. This is said to be because the presumption of a modern grant is a more violent inference than the presumption of an ancient grant based upon immemorial user. Direct evidence that the grant was never made is not admissible to rebut the presumption of lost modern grant raised by uninterrupted user.

[43]A party advancing a case of a presumed lost modern grant should plead a lost grant but need not state in his pleadings the date of, or the names of the parties to, the alleged grant. The court will not order particulars of an alleged lost grant.

[44]A profit à prendre can only be claimed by prescription in favour of persons who are, or whose predecessors entitle were, capable of taking a grant. A profit à prendre by prescription cannot be claimed by an undefined and fluctuating body of persons, not incorporated for the purpose of taking the grant: see Goodman v Saltash Corporation

(1882) 7 App Cas 633

at 648, 655.

[45]The law as to the position of a Bishop of the Church of England, and the legal nature of a corporation sole, is also well established. The legal principles are conveniently summarised in Halsbury’s Laws, 4th ed., 2006 Reissue Vol. 9(2), Corporations and 4th ed. Vol. 14, Ecclesiastical Law.

[46]A Bishop of the Church of England is a corporation sole. A corporation sole is a body politic having perpetual succession, constituted in a single person, who in right of some office or function, has a capacity to take, purchase, hold and demise real property to him and his successors in such office for ever, the succession being perpetual but not necessarily continuous. There may be periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy or no one in existence in whom the corporation resides and is visibly represented. A corporation sole may acquire land by adverse possession: see Hayward v Chaloner

[1968] 1 QB 107

. A corporation may prescribe to have a common of pasture: see Mellor v Spateman (1669) 1 Saund 339 and 343. A corporation may prescribe to have an exclusive right of pasture: see Johnson v Barnes (1873) LR 8 CP 527; and a several fishery: see Goodman v Saltash Corporation

(1882) 7 App Cas 633

The material before the court

[47]The preliminary issue in this case requires the court to investigate the evidence placed before it by the parties in relation to enjoyment or user of the claim to right of fishery. The Church Commissioners who make the relevant claim to have acquired a right of fishery by prescription rely upon user since the middle of the 18th century. They do not seek to establish user before that time.

[48]Before the court ordered the trial of a preliminary issue as to the claim based upon user of the alleged right, the parties had spent considerable time and effort in investigating the claims and cross-claims being made as to the existence of an express grant of a right of fishery in relation to the relevant part of the River Wye. Both the Church Commissioners and Mr Barton had assembled a considerable body of evidence including opinion evidence as to the existence at one time of an express grant of a right of fishery. The Church Commissioners asserted that the King had granted a several right of fishery to the Bishop of Hereford and that the right granted extended to the relevant part of the River Wye. Mr Barton contended that the right to fish in the relevant part of the River Wye had been granted to the City of Hereford.

[49]For the purposes of determining the preliminary issue as to the user of the right claimed, the Church Commissioners do not ask me to investigate and determine their case that the right claimed was the subject of an express grant to the Bishop many centuries ago. Accordingly, it is not necessary for me to investigate the arguments put forward on behalf of Mr Barton designed to contradict that case. Nor is it necessary to investigate the case put forward by Mr Barton that a right of fishery was granted to the City Council.

[50]The evidence presented on behalf of the Church Commissioners was principally in the form of documents which were created in the period beginning with the middle of the 18th century. These documents were relied upon by the Church Commissioners as showing acts of ownership of the right claimed and/or user and enjoyment of the right claimed. The Church Commissioners also tendered oral evidence of more recent fishing in the relevant part of the River Wye.

[51]The principal evidence given on behalf of Mr Barton was contained in Mr Barton’s own witness statement. That witness statement had been prepared before the Court ordered the trial of the preliminary issue. Mr Barton’s witness statement was therefore directed to the claims and cross-claims as to the existence of express grants of the right of fishery either to the Bishop of Hereford or to the City Council. Mr Barton’s witness statement was several hundred pages long and annexed several thousand pages of exhibits. Very little, if any, of this material was directed to the preliminary issue. Before Mr Barton was called to give evidence, I asked Mr Barton’s Counsel to provide the Court with a reduced version of Mr Barton’s evidence so as to identify those part of Mr Barton’s evidence, if any, which related to the preliminary issue. Notwithstanding my request, I was not given a reduced version of Mr Barton’s evidence at any time during the trial and, indeed, when Mr Barton came to give his evidence he was asked to confirm the entirety of his witness statement. In the course of the closing submissions for Mr Barton, I again requested Mr Barton’s Counsel to produce a reduced version of Mr Barton’s evidence to identify those parts of the evidence, if any, which related to the preliminary issue. I have not since been provided with any such reduced version. There has been no explanation for this failure.

[52]In addition to Mr Barton’s witness statement which referred to a large number of documents which were said to be relevant to the claims and cross-claims as to express grants of a right of fishery, the parties had taken considerable time and trouble to carry out research into the relevant history and, indeed, each party had tendered experts’ reports. I was not initially provided with copies of these reports. However, in view of the fact that I was asked to read the entirety of Mr Barton’s witness statement and its exhibits dealing with the claims and cross-claims as to express grants as to a right of fishery, I felt that I needed to be provided with copies of the experts’ reports so that I could understand more thoroughly the nature of the dispute as to the possibility of there being an express grant of a right of fishery to the Bishop of Hereford or to the City of Hereford.

[53]I will now briefly refer to some of the matters which have been debated by the parties and their expert witnesses insofar as they relate to the claims and cross claims as to the express grant of a right of fishery. I stress that I do not make any finding or determination in relation to these claims and cross-claims. I refer to some of the material because of its intrinsic interest but more especially to demonstrate that the order for a preliminary issue in this case has turned out to be the right course to have adopted.

[54]The Church Commissioners say that a right of fishery in the relevant part of the River Wye was granted to the then Bishop of Hereford by two charters of Henry I. Copies of these charters exist and can be consulted. The first was granted on an unspecified date between 1121 and 1127. The second was granted on an unspecified date between 1131 and 1135. The Church Commissioners point to the use of the words “in the waters” in the first charter and the words “in and outside the waters” in the second charter. These words are translated from the original Latin, in which the charters are expressed. It is also said that these charters were confirmed by a charter of King John on 21st June 1203. King John’s charter also uses the words “in the waters”.

[55]The expert evidence then takes the reader on a fascinating tour of English history since the 12th century, referring to the Civil War between Stephen and Matilda, to a number of potentially relevant events in the reigns of Henry VIII, Mary Tudor and Elizabeth I, to the Civil War between 1642 and 1646, to the ordinance of 9th October 1646, to the history of one Colonel John Birch who was, variously, a commander of the Parliamentarian forces which took the surrender of Hereford from the Royalists in December 1645, Governor of Hereford in 1646 and later an open supporter of a Stuart restoration and MP for Leominster in the Parliaments of 1660 and 1661. The experts then discuss the effect of the Restoration, the action of Charles II in reversing various matters carried out during the Commonwealth and negotiations between the Bishop of Hereford and John Birch.

[56]The case for Mr Barton challenges most of the steps in the reasoning put forward by the Church Commissioners. Mr Barton relies upon a charter of Richard I in 1189 whereby he granted the City of Hereford to the citizens of Hereford. Mr Barton also relies on a grant and conveyances of Hereford Castle and its curtilage in 1629, 1646 and 1647. It seems to be accepted by the experts that this parcel of land was sold to John Birch in 1646 and he in turn sold it to Sir Robert Harley and others in 1647. The conveyance to John Birch specifically referred to “all those fisheries on the River called the Wye in County Hereford”. It also seems to be common ground that the conveyance to John Birch in 1646 and the conveyance by him in 1647 were not matters which were liable to be reversed on the restoration of Charles II, as these transactions in 1646 and 1647 owed their legitimacy to the grant in 1629 by Charles I to Gilbert North, a member of his Privy Chamber. However, there seems to be an issue as to precisely what, if any, rights of fishery were conferred by the words in the 1646 conveyance and whether any such rights vested in the vendor in 1646. If they were so vested, there is an issue as to whether the rights transferred in 1646 were restricted to riparian rights so that they extended to the mid point of the river along the bank of the land conveyed, but no further.

[57]It can be seen from the above account of the evidence as to express grants of a right of fishery, that the question of an express grant was heavily disputed and the evidence said to be relevant was very lengthy and would require to be considered with great care. Given that one of the functions of the law of prescription is to quiet disputes as to the title to the rights claimed, it seems to me that the present case is potentially a good example of the law of prescription achieving that purpose. Although the evidence from the documents and other sources as to enjoyment and user of the rights claimed is detailed and needs to be examined with great care the exercise which I have carried out appears to me to have been more straightforward than an exercise which involved resolving the dispute as to the existence of and the meaning of the express grants being relied on. Furthermore, I have found that I have been able to reach a confident answer based on the evidence as to user and enjoyment and I can only speculate whether I would have been able to reach an answer with the same confidence in relation to the dispute as to an express grant.

The evidence as to acts of ownership, user and enjoyment

[58]In relation to the preliminary issue, neither party seeks to put forward evidence of acts of ownership of the right claimed, nor enjoyment and user of the right claimed, before 1759. The Church Commissioners’ earliest piece of evidence is an indenture of lease dated 13th July 1759. This lease was made between the Bishop of Hereford as lessor and a Mr Wood and a Mr Baynham as the lessee. The demise was of:

“All those his Lordship’s Fisheries and liberty of Fishing in the River of Wye within the Manors of Barton and Eaton Bishop in the County of Hereford and also all profits, Benefits and Advantages whatsoever to the said Fisheries belonging or Appertaining”

. The lease was for the period during which the then Bishop should continue as Bishop of Hereford. The lease reserved a yearly rent of three pounds three shillings.

[59]The 1759 lease was an act by the Bishop of Hereford asserting a right to a fishery in the River Wye. There is an issue between the parties as to the location of the fishery which was the subject of the 1759 lease. The lease refers to the fishery in the River of Wye “within the manors of Barton and Eaton Bishop”. I have some evidence as to the extent of the manors of Barton and Eaton Bishop in 1759. The main part of the manor of Barton was west of the City of Hereford. Mr Barton suggests that the eastern most boundary of the manor of Barton stopped at the western most boundary of the City of Hereford and some considerable distance from Wye Bridge. I am not certain that I could make a finding on the evidence as a whole as to how far east the manor of Barton extended in 1759. The position seems more clear in relation to the manor of Eaton Bishop which was further west of the City of Hereford so that no part of the River Wye now in dispute could have been described as being within the manor of Eaton Bishop. If the wording of 1759 lease stood alone, I do not think that I could reach the conclusion that the extent of the fishery the subject of that lease went so far as the disputed waters in this case. As will be seen, the wording in the 1759 lease does not stand alone. The Bishop who granted the 1759 lease remained Bishop until 1787 whereupon, pursuant to its terms, the 1759 lease would have come to an end.

[60]On the 5th June 1829, the Mayor and members of the Corporation of the City of Hereford carried out a survey of what was described as “their manorial right of fishery on the River Wye at Hunderton within the liberties of the said City”. The documents include various maps showing the area surrounding the City of Hereford before and after 1829. A map which purports to show “the liberty of the City of Hereford” in 1800 marks a location for Hunderton which is just outside the liberty of the City of Hereford. The 1829 survey obviously assumes that part or all of Hunderton is inside the liberties of the City of Hereford. I also have a map which Mr Barton says dates from 1866, although there is no date on my copy of the map. The 1866 map shows Hunderton Farm in the same place as was marked Hunderton on the 1800 map. The 1866 map also shows Hunderton Villa and Hunderton Lane and Hunderton allotments. These areas are to the west of the Newport, Abergaveny and Hereford Railway Bridge crossing the River Wye and that bridge is some distance to the west of Wye Bridge. The 1829 survey refers to there being a draught of the river at Hunderton, “at the Friars” and “at the College”. The reference to the Friars may be a reference to the site of Greyfriars Priory which is to the west of Wye Bridge. The 1929 Ordnance Survey map marks the left side of the river at that point as “the Friars”. Mr Barton suggests that the reference to “the College” is a reference to a part of the river in front of the College of Vicars’ Choral. The College of Vicars’ Choral is on the left or north bank downstream from Wye Bridge and therefore on a part of the river which is now in dispute. No one identified any other college that might have been referred to in the 1829 survey. One of the members of the Corporation present at the 1829 survey was an Alderman William Symonds. This appears to be the same person as Dr William Symonds to whom I will later refer. As will be seen, Dr Symonds prepared a detailed statement of the fishing with which he was personally connected in the period from around 1798 to 1838. The 1829 survey came within this period. At any rate, taking the 1829 survey at face value and assuming that the reference to “the college” is to the water in front of the College of Vicars’ Choral, the 1829 document is a statement by the City of Hereford that that part of the river was the subject of a manorial right of fishery vested in the City of Hereford. On the above assumption, this survey shows two things. The first is that the City Council believed that it had a right of fishery in a part (at least) of the disputed waters. (The possibility that the City Council had this belief in 1829 is supported by a Minute of the City Council in 1847, to which I will later refer.) The second is that on the occasion of the survey in 1829, the City Council took fish from a part of the disputed waters.

[61]On 16th April 1838, the then Bishop of Hereford granted a lease of a fishery to Dr Symonds. The lease described Dr Symonds as having been one of the Aldermen and a member of the Corporation of the City of Hereford. The lease recited:

“whereas the said William Symonds hath for the space of Forty years and upwards last past been Tenant from year to year by parol to the said Lord Bishop and his predecessors of the said Fisheries and Right of Fishing hereinafter mentioned and described at and under the yearly rent of Three Pounds three shillings ….”

The lease then demised to Dr Symonds the following:

“all those his the said Lord Bishop’s Fisheries and liberty of Fishing in the River Wye within the respective Manors of Barton and Tupsley and Eaton Bishop in the County of Hereford And also all liberties privileges and profits emoluments benefits and advantages rights members and appurtenants whatsoever to the said Fisheries belonging or in any wise appertaining or reputed to belong or appertain”

. The demise was for a term of twenty one years, if Dr Symonds should so long live. The lease reserved a rent of three pounds three shillings per annum.

[62]The 1838 lease contained a covenant by Dr Symonds to deliver to the Bishop:

“….a full true and perfect account or terrier in writing stating and setting forth the boundaries and abuttals of all such parts of the said River Wye within the several Manors aforesaid over which the said William Symonds shall solely freely and uninterruptedly exercise a right of fishing and landing of Netts (sic) in respect of this present demise and over which he is therefore during the whole of the said period of forty years solely and freely and uninterruptedly exercised in like manner such right of fishing and landing of Nets And also stating and setting forth in such account or terrier in writing the name or names of the parish Township or Vill or the respective parishes Townships or Vills within or through which the said fisheries and right of fishing shall or may be situate and the number and situations and names of the several places on the edges or Banks of the River Wye which the said William Symonds has during the whole of the said period of forty years last past and during which time he has rented the said fisherie under the See of Hereford as aforesaid freely and uninterruptedly used exercised and enjoyed for the purpose of the landing Netts and the taking of Fish which said account or terrier or respective accounts or terriers shall be certified to be correct by two or more credible witnesses …. ”

[63]The 1838 lease refers to the manors of Barton and Tupsley and Eaton Bishop. I have earlier referred to the evidence as to the location of the manor of Barton and the manor of Eaton Bishop. Mr Barton says that the manor of Tupsley is to the east of the City of Hereford and lies between the River Wye to the south and the River Lugg to the north. More information about the location of the fishery referred to in the 1838 lease is provided by the terrier which was prepared on 1st October 1839 to which I will later refer at the appropriate place in the chronology.

[64]In or around 1838, the then Bishop of Hereford bought riparian land on the south or right bank of the River Wye which, then or thereafter, became known as Bishop’s Meadow. The land was acquired by the Bishop pursuant to two conveyances, the first being dated 9th October 1838 and the second being dated 16th June 1843. The conveyancing steps undertaken by these instruments were somewhat complex and not altogether familiar to the modern reader and I will not attempt to describe each of those conveyancing steps. It is possible to summarise the instruments by saying that the 1838 conveyance conveyed the relevant land to John Burden to hold on trust for the Bishop of Hereford and the 1843 conveyance conveyed the relevant land to the Bishop to hold absolutely. The 1843 conveyance contained a number of recitals as to the source of, and the expenditure of, money whereby the land was to belong to the See of Hereford.

[65]The 1838 conveyance of Bishop’s Meadow conveyed the land together with various profits such as a common of pasture and a common of turbary but also together with waters, watercourses, easements, profits, hereditaments and appurtenances belonging or in any wise appertaining to the land conveyed or demised held enjoyed reputed or known as parcel or member of the land conveyed. The 1843 conveyance also contained certain wording referring to rights transferred with the land. The 1843 wording referred to waters, watercourses, liberties, privileges, easements, profits, advantages, rights, members and appurtenances to the land conveyed or in any wise appertaining or accepted reputed or deemed taken or known or used occupied or enjoyed as part parcel or member of the land conveyed.

[66]I now turn to the terrier dated 1st October 1839 prepared by Dr Symonds pursuant to the covenant he gave in the 1838 lease. This document describes itself as:

“A full true and perfect Account or Terrier stating and setting forth the Boundaries and Abuttals of all such parts of the Rivers Wye and Lugg within the several manors of Barton and Tupsley, Eaton Bishop and Holmer and Shelwick belonging to the Lord Bishop of Hereford over which I the undersigned William Symonds (as Lessee of the Fishery and right of fishing of and belonging to the said Lord Bishop of Hereford have for the last forty years rented and held under the See of Hereford and which I now rent and hold of the said Lord Bishop under a certain Indenture of Lease for Twenty one years determinable as therein mentioned bearing date the Sixteenth day of April One thousand eight hundred and thirty eight, and agreed to be undersigned by me to Mr Thomas Jeffreys sic) have solely and freely and uninterruptedly exercised the right of fishing, and also stating and setting forth the number, situations and Names of the several Places on the Edges of the Banks of the said Rivers Wye and Lugg, which I the said William Symonds have during the whole of the said period for forty years last past and during which time I rented the said fishery under the See of Hereford solely and freely and uninterruptedly used exercised and enjoyed for the purpose of the landing of Nets and the taking of Fish, as follows…”

[67]The 1839 terrier then referred to the River Wye, to the River Lugg and to 21 River Wye landing places and 3 River Lugg landing places. The text relating to the River Wye stated:

“the Right of Fishery in the River Wye includes the Lower part of Huff Pool above Eaton Bishop Church and also above the Weir Cliff, and from that point all the way down the River Wye through the manors of Eaton Bishop, Barton and Tupsley and the Palace Fee to Bullingham Ford.”

[68]The wording in relation to the River Lugg describes the relevant part of the River Lugg again using the phrase “all the way down” and referring to the manors of Holmer and Shelwick and Barton and Tupsley.

[69]The wording of the terrier which relates to the River Wye landing places contains the following: “the Landing Places for the Nets on either side of the River Wye from the commencement of the Wye Fishery at Huff Pool to the termination of the same Fishery at Bullingham Ford”.

[70]The terrier lists 21 River Wye landing places. The sixteenth landing place is described as:

“on the said Causeway Farm upon the second Meadow above Wye Bridge”

. The seventeenth landing place is said to be “at the Friars”. The eighteenth landing place was described as follows:

“opposite Bridewell and the Quay on the Timber Yard there late belonging to Thomas Bird, Esquire”

. The nineteenth landing place refers to a location at the top of the “silver stream”. The twentieth and twenty first landing places refer to locations on the Bartonsham Estate.

[71]The 1839 terrier was signed by Dr Symonds in the presence of a number of named witnesses who described themselves as having been employed by Dr Symonds as fishermen and they appended their signature or mark to vouch for the correctness of the contents of the terrier.

[72]In the course of the hearing, the many places on the River Wye referred to in the 1839 terrier were pointed out. It is not necessary for the purposes of this judgment to describe the precise location of each and every place mentioned in the terrier. I am satisfied by the various maps to which I have been taken, to help locate the places referred to in the terrier, that the part of the River Wye which is part of the river “all the way down” from Huff Pool “to the termination of the same fishery” at Bullingham Ford includes all of the disputed waters. The terrier refers to “the Palace Fee”. Although there were various suggestions as to where the Palace Fee might be, I find that it is much more likely than not that the Palace Fee describes the land owned freehold by the Bishop of Hereford in the City of Hereford and includes, at the least, the land and curtilage of the Bishop’s Palace. This reference to the Bishop’s fee provides corroboration, if any were needed, that the part of the River Wye which is referred to in the terrier includes the disputed waters. I am also satisfied that the description of the sixteenth, seventeenth, eighteenth and nineteenth landing places on the River Wye refer to places to the west of the disputed waters, within the disputed waters and to the east of the disputed waters. It was submitted on behalf of Mr Barton that the fact that there might have been a landing place within the disputed waters did not say anything as to whether the Bishop had the fishery in those waters. It was thereby submitted that it was possible for the Bishop to have acquired a right to land on the bank of the disputed waters while at the same time the fishery in those waters was vested in someone other than the Bishop. Whilst that is a logical possibility, it is much more probable than not that the reason the Bishop and his lessee had a landing place at the eighteenth landing place on the bank of the disputed waters was that the Bishop and his lessee enjoyed the fishery in the disputed waters.

[73]The fact that the terrier was witnessed by a number of fishermen employed by Dr Symonds shows that Dr Symonds had not taken the right to fish in the river for the purposes of recreational angling but as part of what must have been a considerable commercial activity.

[74]In my judgment, the statements made by Dr Symonds in the terrier are of great significance for the purpose of the present dispute. The statements are admissible in evidence to prove the truth of the statements. The statements are to the effect that Dr Symonds has held, and exercised, an exclusive right of fishery, as lessee of the Bishop of Hereford, for the period from around 1798 to 1838, the date of the twenty one year lease to him, and that the extent of the river over which rights were granted by the 1838 lease is described in the terrier.

[75]I referred earlier to the fact that the 1829 survey on behalf of the City of Hereford was attended by Dr Symonds as a member of the Corporation of the City of Hereford. I then referred to two matters which were shown by the 1829 survey, on the assumption that the survey referred to a part of the disputed waters. The first was that the City Council believed that it had a right of fishery in a part (at least) of the disputed waters. As to that, it was plainly possible for the City Council to have that belief and at the same time for Dr Symonds to take a grant of the right of fishery from the Bishop. The second thing shown by the 1829 survey is that, on the occasion of that survey, the City Council took fish from a part of the disputed waters. In the 1839 terrier, Dr Symonds stated that he had solely and freely and uninterruptedly exercised the right of fishing in the part of the river which was the subject of the letting from the Bishop. On the assumption that the 1829 survey did extend to a part of the disputed waters, then it follows that on one proven occasion (i.e. on the survey in 1829) the City Council had taken fish from a part of the disputed waters. This fact does not in the end justify me in rejecting what Dr Symonds stated in the 1839 terrier. At most, I ought to read the terrier as qualified to the extent that the evidence shows that there was an occasion in 1829 when the City Council took fish from the disputed waters.

[76]The 1839 terrier suggested that Dr Symonds had agreed to “undersign” the 1830 lease to Mr Thomas Jeffreys (sic). Whether the reference to “undersigning” meant assigning or under-letting, neither of those events happened. What happened instead was that on 16th April 1840, Dr Symonds surrendered the 1830 lease to the Bishop of Hereford and on 13th April 1841, the Bishop of Hereford leased his fishery in the River Wye to Thomas Jeffries the elder and William Williams Bird. The 1841 lease recited the 1838 lease and the 1840 surrender and demised to Mr Jeffries and Mr Bird the same fishery as had been demised to Dr Symonds by the 1838 lease, as more particularly described in the 1839 terrier. The demise was for a term of seven years from the date of the surrender by Dr Symonds (16th April 1840), if Mr Jeffries and Mr Bird or either of them should so long live. The lease reserved a rent of three pounds and three shillings per annum. The 1841 lease also contained a covenant by the lessee to prepare a further terrier essentially stating the same matters as were required to be stated by Dr Symonds under the 1838 lease, save that the period of user, which was to be the subject of the terrier, was the thirty year period before 1841. The documents before the court do not include a new terrier prepared by the lessees under the 1841 lease.

[77]The term of seven years created by the 1841 lease was due to expire in around April 1847 (provided that either of the joint lessees survived for that period). The question of the Bishop’s assertion of a right to the fishery was considered by the City of Hereford on two occasions in 1847. This consideration was minuted by the City Council on 5th August 1847 and on 9th November 1847. The 5th August 1847 minute states:

“Wye Fishery Resolved that the Town Clerk apply to the Bishop’s secretary on the subject of the Right of Fishery in that part of the River Wye which is within the Manor of the City of Hereford and now leased by the Lord Bishop of Hereford to Mr T W Bird and others. The Town Council being advised that such right of fishery belongs to the City.”

[78]The Council minute of 9th November 1847 states: “Wye Fishery Resolved, [six named persons] in a Committee to consider upon the claim of the Bishop of Hereford to the ffishery in that part of the River Wye which lies within the Liberties of the City of Hereford”.

[79]The two minutes from 1847 are of some significance. First they show that the Bishop was leasing the fishery in a part of the river said to be within the liberties of the City of Hereford. This contradicts the case put for Mr Barton at the trial that the various leases I have recited related to a part of the river other than the disputed waters. Secondly, the minutes show that the City Council was aware that the Bishop was leasing the disputed waters. The minute of 5th August 1847 resolved that the town clerk would communicate with the Bishop’s secretary on the subject of the fishery. That resolution does not refer to the particular form that the communication would take but it is fair to say it does not suggest that the communication would take the form of a strong objection. It seems that the City Council did communicate with the Bishop or his secretary because the minute of 9th November 1847 suggests that the Bishop had responded making a claim to the fishery in the relevant part of the river. There is no minute from that period nor indeed from any later period when the City Council attempted to object to what the Bishop was then doing and, as will be seen, continued to do. The City Council took no action of any kind to interfere with the Bishop granting leases of the fishery nor did the City Council take any action to interfere with the lessee’s enjoyment of the fishery. The inactivity on the part of the City Council, with notice of the Bishop’s claim, amounts to acquiescence by the City Council in the user and enjoyment of the right by the lessee holding under the Bishop.

[80]Not long after the matter was raised in the minutes of the City Council in 1847, the Bishop granted a further lease of the fishery. On 27th April 1850, the Bishop demised the fishery to a Mr Wheatley, said to be the secretary of the Herefordshire Association for Protecting the Fish in the River Wye and Lugg near Hereford. The fishery as so demised was described as being the Lord Bishop’s fisheries and liberty of fishing within the manors of Barton and Tupsley and Eaton Bishop, but was more particularly described as having the upper and lower termini of the fishery described in the 1839 terrier. One part of the description in the terrier was repeated and this was the part that referred to the river from Huff Pool “all the way down” to Bullingham Ford. The fishery was demised for the term of seven years from the 30th September 1849 at a rent of three pounds three shillings per annum. Under the 1850 lease, the lessee covenanted to prepare a terrier describing the relevant part of the river so leased and used for the previous thirty years.

[81]On the 29th March 1859, the Bishop again leased the fishery this time to Mr Hampden and Mr Evans. The fishery was described in the same way as before and more particularly described by reference to the 1839 terrier. The rent was again three pounds and three shillings per annum. The lessee under the 1859 lease again covenanted to prepare a terrier as to the previous thirty year’s use. The fishery was demised for twenty one years from the 2nd February 1859.

[82]The Ecclesiastical Commissioners Act 1860 made new arrangements as to the ownership of property belonging to a bishopric. Section 2 of the 1860 Act provided that upon the first avoidance of the see of any Bishop in England after the passing of the 1860 Act, the lands, hereditaments and emoluments of or belonging to the see were to vest absolutely in the Ecclesiastical Commissioners for England. Section 3 of the 1860 Act provided for the possibility, after such vesting had occurred, of an arrangement being made, assigning to the Bishop of the relevant see and his successors, such lands and hereditaments as were appropriate to form an endowment for the see.

[83]The first avoidance of the See of Hereford after the passing of the 1860 Act was on the 23rd April 1868. On that date, pursuant to Section 2 of the 1860 Act, the lands and hereditaments of the Bishop of Hereford vested in the Ecclesiastical Commissioners. On the 19th June 1868, an Order in Council was made authorising the transfer of certain property which formerly belonged to the Bishopric of Hereford to the then Bishop. The property so disposed of was described as all or any of the lands, tithes, hereditaments and endowments previously belonging to the Bishopric. The Order in Council took effect on 23rd June 1868 when the Order was gazetted.

[84]In the 1860s and 1870s, there were various Acts of Parliament which sought to control salmon fishing in rivers. It is relevant to refer briefly to controls of this kind in order to understand a later document which refers to the enjoyment and user of fishing in the River Wye. The statutory controls which existed in the first half of the nineteenth century are described in Moore and Moore, The History and Law of Fisheries (1903), at pages 181 to 182. In 1860 there was a Royal Commission on salmon fishing. A Mr Partridge who described himself as one of the conservators of the Wye gave evidence to the Commission. His evidence discussed the practice in relation to salmon fishing on the Wye and the effect on the numbers of salmon. He referred to the role he played in forming an association to seek to preserve the salmon on the Wye. In his evidence he referred to the fisheries on the Wye being in private hands and there being no public right of fishing. The Salmon Fishery Act 1861 introduced various controls on fishing for salmon. Section 17 of the 1861 Act introduced a close season for salmon fishing. Sections 31 to 34 of the 1861 Act provided for a central authority to superintend salmon fisheries and by Section 33, the local justices were empowered to appoint conservators for the preservation of salmon.

[85]The 1861 Act was amended by the Salmon Fishery Act 1865. The 1865 Act provided for the creation of fishery districts, a fishery committee and conservators. Sections 33 to 37 provided for the issue of fishing licences. The legislation was further amended by the Salmon Fishery Act 1873. Part II of the 1873 Act dealt with fishery districts. Part V dealt with boards of conservators. Part VI provided for water bailiffs and Part VII dealt with the subject of bye-laws.

[86]The operation of the legislation of 1861, 1865 and 1873 in relation to the River Wye can be seen from various documents before the Court. These documents show the existence of the Wye fishery district, of a board of conservators for that district and the making of various bye-laws over the years.

[87]On 21st June 1870, a Mr Beddoe, a solicitor acting for the Bishop of Hereford wrote to the secretary to the Ecclesiastical Commissioners referring to the holding of a court at Hereford by the Special Commission for English Fisheries. The purpose of this court was to enquire into the legality of certain stop nets used in the River Wye. The use of the stop nets was said to be by the lessee of the Ecclesiastical Commissioners for the purpose of catching salmon. Mr Beddoe, the solicitor, stated that he would be expected to show the user of these nets as far back as living memory went. He referred to the difficulty of proving an express grant of the fisheries to the Bishop.

[88]The court hearing duly took place in June 1870 and on the 28th June 1870, the Special Commission gave a written judgment. The Commission held that the type of stop net used in the River Wye was a fixed engine. However, such a net would be saved from the general prohibition in Section 11 of the 1861 Act if it could be shown that the manner of fishing had been lawfully exercised by virtue of “any grant or charter, or immemorial usage”. The Commission referred to a statute of Henry VI and a further statute of George I which, it held, prohibited this manner of fishing. It was held that the evidence did not lead to the reasonable conclusion that this manner of fishing was in use before those statutes. Accordingly the nets were illegal. The Commission ordered that the nets should cease to be used. What is relevant for present purposes is that the order referred to the nets being claimed by Mr Stephens as lessee of the Ecclesiastical Commissioners. Mr Stephens appears to have been a sub-tenant holding from a lessee holding from the Bishop during the earlier years when Mr Stephens fished the relevant part of the river and later Mr Stephens became a direct tenant of the Bishop.

[89]On 2nd July 1870, Mr Beddoe, the solicitor, reported to the Ecclesiastical Commissioners on the decision of the Commission. He referred to the fact that, at the hearing, evidence had been given that the mode of fishing in question had been continuously adopted during the preceding seventy years. That 70 year period took one back to around 1800 which was, approximately, the beginning of the 40 year period referred to in Dr Symonds’ terrier. Mr Beddoe reported that the difficulty lay in the fact that it had to be shown that the user had existed before the statute of Henry VI. Mr Beddoe referred to the fishery being under lease at a fixed rent of three pounds three shillings per annum.

[90]On 14th October 1873, the Justices of the Peace for the County of Hereford, in whom it appears that the title to Hereford Castle was vested, granted a lease of the site of the castle and its curtilage to Hereford City Council for a term of two hundred years from the date of the lease. The lease did not expressly refer to any right of fishing in the River Wye. The lease was granted for the purpose of the demised premises being used as a pleasure ground, or place of public resort or recreation for the inhabitants of the City of Hereford.

[91]On 17th January 1874, the Board of Conservators of the Wye Fishery District passed certain bye-laws pursuant to the Salmon Fishery Act 1873. These bye-laws required to be confirmed by the Home Secretary. There were objections to the proposed bye-laws and those objections were considered at a public inquiry held in December 1874. The proceedings at the public inquiry together with the evidence given were reported in the Hereford Times and reprinted in a pamphlet. Counsel appeared for various objectors to the bye-laws. Mr A T Lawrence appeared for a large body of owners of fisheries, licensees and lessees, from Hereford to the tideway. Mr Gwillim, instructed by Mr Beddoe, appeared for the Ecclesiastical Commissioners. Mr William Stephens gave lengthy evidence to the inquiry. He stated that he rented “the Bishop’s fishery at Hereford” and the Hampton fishery. He had been a lessee of fisheries on the Wye for twenty years. He said that both fisheries belonged to the Ecclesiastical Commissioners and were fourteen miles in length and had about ten places where he could draw the river. There was one draught place at high water which was “at Hereford, below the Bridge”. He described the process of making a draught of the river and the time taken. He referred to “the palace draught”. He stated that his sons had kept a register of what was caught during “freshes” at Wye Bridge from 1868 to 1874. I understand a “fresh” to be a freshet, that is, a sudden rise in water levels in a river. He stated that he had eight years to run on his lease of the Bishop’s fishery. He also stated that “there was a pretty good company of poachers at Hereford”. A Mr Wigley also gave evidence to the inquiry. He stated that he had been employed by Mr Stephens for nine years.

[92]In the late 1870s, there was correspondence between the solicitor for the Bishop of Hereford and the Ecclesiastical Commissioners as to a re-endowment of the Bishopric of Hereford under the Ecclesiastical Commissioners Act 1860. That correspondence referred to the existence of a fishery in the River Wye. It was considered that the Bishop should have restored to him the fishery in the River Wye from Wye Bridge down to an identified point which is essentially the point where Victoria Bridge is today.

[93]On 21st May 1878, the Bishop’s solicitor wrote to the Ecclesiastical Commissioners referring to the portion of the fishery in the River Wye to be transferred to the Bishop. This portion was said to be held, with other fisheries, under a lease dated 29th March 1859 for the term of twenty one years from the 2nd February 1859 by Mr Grenville Hampden who survived his co-lessee Mr Thomas Evans at a rent of three pounds three shillings per annum. (Thomas Evans had died on 4th May 1872.) The letter stated that the rental of the whole of the fisheries was twelve pounds and then stated that the net receipt for the fisheries after deducting the reserved rent was eight pounds seventeen shillings. This indicates that the rent of £12 was being received by the lessee who held the lease from the Ecclesiastical Commissioners.

[94]On 7th August 1879, Messrs Cluttons, agents for the Ecclesiastical Commissioners wrote to agents representing a Mr Wegg Prosser. The letter proposed an exchange of land and other rights between Mr Wegg Prosser and the Bishop of Hereford. In particular, it was proposed that the Ecclesiastical Commissioners would sell to Mr Wegg Prosser their fishery rights in the part of the River Wye extending from a point upstream down to Wye Bridge in Hereford.

[95]On the 2nd August 1878, Granville Hampden, as the surviving lessee under the lease of 29th March 1859, surrendered that lease to the Ecclesiastical Commissioners in consideration of a payment to him of ten pounds. The payment to the lessee no doubt reflected the fact that the lessee had been receiving a rent of £12 from a sub-tenant or tenants, as referred to above.

[96]The transaction with Mr Wegg Prosser, which was referred to above, appears to have been completed in March or April 1880.

[97]On 31st July 1880, an Order in Council was made giving effect to a scheme under the Ecclesiastical Commissioners Act 1860 for the re-endowment of the See of Hereford. Under the scheme, there were vested in the Bishop of Hereford certain lands and hereditaments including the fisheries and rights of fishery belonging to the Ecclesiastical Commissioners in the River Wye opposite the Bishop’s Palace from Wye Bridge to an identified point which is essentially the place where the Victoria Bridge is today. The Order in Council was gazetted on the 20th August 1880. Accordingly, there was vested in the Bishop the right of fishery in the disputed waters with the remainder of what had been earlier called “the Bishop’s Fishery” either having been sold to Mr Wegg Prosser (upstream of Wye Bridge) or retained by the Ecclesiastical Commissioners (downstream of Victoria Bridge). The Ecclesiastical Commissioners thereafter continued to act on behalf of the Bishop of Hereford in relation to the portion of the fishery vested in the Bishop.

[98]On 14th May 1881, the solicitors for Mr Wegg Prosser, the purchaser of the fishery from the Ecclesiastical Commissioners upstream from Wye Bridge wrote to the Ecclesiastical Commissioners stating that three persons accused of poaching on Mr Wegg Prosser’s fishery were being prosecuted in the magistrates court and the Ecclesiastical Commissioners were invited to give evidence to prove due execution by the Ecclesiastical Commissioners of the conveyance of the fishery to Mr Wegg Prosser.

[99]Following the re-endowment in 1880, the Ecclesiastical Commissioners retained its right of fishery downstream from Victoria Bridge. On 30th June 1884, Cluttons wrote to the Ecclesiastical Commissioners with a proposal to sell the fishery, downstream from where Victoria Bridge is today, to Mr Stephens.

[100]On 31st January 1885, Mr Stephens published a notice in the Hereford Times stating that tickets for the fishing season, which was to commence on the 2nd February 1885, could be obtained from Mr Stephens and that any person fishing without a ticket would be treated as a trespasser.

[101]On 28th October 1885, the Ecclesiastical Commissioners put up for sale by public auction, at a hotel in Hereford, its right of fishery downstream from where Victoria Bridge is today. The fishery was sold at auction to Mrs Lucy and the fishery was conveyed to her by an indenture of 24th June 1886. The indenture recited the title of the Ecclesiastical Commissioners by reference to the former title vested in the Bishop of Hereford. The indenture contained an acknowledgment of Mrs Lucy’s rights to production and delivery of various documents referred to in a schedule. These documents included various leases granted by the Bishop of Hereford to which I have already referred and also the terrier dated 1st October 1839 prepared by Dr. Symonds.

[102]In 1890, Mr Stephens asked the Ecclesiastical Commissioners for a reduction in the rents he was paying for various parcels of land and other rights. It appears from Cluttons’ correspondence in 1890 that Mr Stephens was then the tenant of Bishops Meadow and also of the Bishop’s fishery downstream of Wye Bridge to where Victoria Bridge is today, the rent for the fishery being £5 per annum. The fact that the rent of £5 was for the fishery in the disputed waters is confirmed by the description in a later letter of 23rd February 1893 to which I will refer.

[103]In 1893 a Mr Charles Hampden Lucy who appears to have been the husband of Mrs Lucy, the purchaser under the indenture of 24th June 1886, wrote to Mr Stephens stating that Mr Stephens was fishing in water in which Mr Lucy had leased the fishery. Mr Lucy stated on 9th February 1893 that he had leased from a Mr Underwood “the Crown fishing”. He referred to the part of the River Wye commencing at the quay on the timber yard lately belonging to Thomas Bird Esq. deceased. That is a reference to the Bishops Meadow. Mr Stephens replied to Mr Lucy by stating that he rented the fishery in that part of the river from the Ecclesiastical Commissioners and referred Mr Lucy to them. On the 17th February 1893, Mr Lucy wrote to the Ecclesiastical Commissioners referring to the correspondence with Mr Stephens asking them to request Mr Stephens not to fish beyond the boundary of the fisheries managed by the Ecclesiastical Commissioners. Mr Lucy referred to the purchase of the fishery “below the Castle fishery”. This was a reference to the purchase by his wife on 24th June 1886. The indenture of that date described the fishery being purchased by Mrs Lucy as starting where the Bishop’s fishery terminated. That description of the fishery purchased by Mrs Lucy therefore clearly contradicted the claim being made by Mr Lucy in 1893.

[104]On 23rd February 1893, Cluttons advised the Ecclesiastical Commissioners of the extent of the Bishop’s fishery let to Mr Stephens. This was described as extending the whole width of the river from Wye Bridge down to the point which is today Victoria Bridge. Cluttons advised the Ecclesiastical Commissioners to resist Mr Lucy’s claim. They added that Mr Stephens had been tenant of the Bishop’s fishery for a long period and no similar claim had ever been made that Cluttons were aware of. There is no further information as to what happened in relation to Mr Lucy’s claim.

[105]On 31st March 1894, the Bishop of Hereford demised to Hereford City Council a small area of land extending to some 12 square yards at Bishops Meadow for the purpose of erecting a landing stage for a ferry which crossed the River Wye at that point. The demise was for a term of 21 years from the 25th December 1893. The demise was subject to a proviso that nothing contained in the lease should be construed as a demise of any right of fishing or fishery rights in the River Wye which belong to or were vested in the lessors or the Bishop of Hereford or their or his tenants and the lease was not to confer on the City Council or anyone else any licence to fish in or any right in upon or over the river. The reference in the proviso to the “lessors” was a reference to the Ecclesiastical Commissioners who joined in the lease and were described in it as the “lessors”.

[106]Mr Stephens gave an interview to the local newspaper in around 1895. He stated that he had known the river intimately for fifty years and had been lessee of different fisheries for nearly forty years. He was able to discuss matters back to a time which was before “the existence of the board of conservators”. As the interview appears to have been given in 1895, a period of fifty years would take Mr Stephens back to 1845. The reference to the period before the board of conservators is probably the period up to the Salmon Fishery Act 1861 or possibly the Salmon Fishery Act 1865. Mr Stephens referred to standing on Wye Bridge and looking at the fish in the river but he does not refer specifically to members of the public fishing from Wye Bridge. He referred to the amount of fishing by members of the public at a time “before the board of conservators took absolute possession of the river”. In my judgment, this is a reference to the time before the early or middle 1860s. At that time, according to Mr Stephens, there was very extensive fishing by the public by persons who, Mr Stephens said, “are now called poachers”. The poachers were said to have fished without let or hindrance. Mr Stephens is not precise as to where the poachers fished. The fishing which is referred to appears to have been from boats rather than from the bank. Mr Stephens also referred to fishing which he himself had done opposite the Bishop’s Palace. A further article on the same page of the newspaper refers to another part of the river where day anglers paid a substantial sum for a licence to fish.

[107]Mr Stephens is also quoted on page 26 of the Tale of a Wye Fisherman by H. A. Gilbert. I have not been told the date of this publication. The book refers to the College Hole as being one of the most famous draughts for salmon nets “in old days” and refers to Mr Stephens describing College Hole in favourable terms and referring to catching 140lbs worth of salmon in 30 hours in May 1896 in College Hole.

[108]On 30th December 1896, Mr Beddoe wrote to the Ecclesiastical Commissioners reporting a proposal that Mr Stephens should surrender his lease of the fishery held from the Bishop of Hereford with a view to a new lease being granted to the Marquis of Worcester and two others. Mr Stephens was agreeable to that course. The intended new lessees wished to take the fishery to prevent net fishing in that part of the river.

[109]Mr Stephens must have surrendered his lease of the fishery because on 5th August 1897, the Bishop of Hereford demised the fishery to the Marquis of Worcester and two others. The fishery was described in detail as being the entirety of the waters which are disputed in this case. The demise extended to certain rights to use the bank of the river. The demise was for a term of 21 years from 2nd February 1897 subject to the lessor’s right to determine the right at the end of first 7 or 14 years thereof. The lease reserved a rent of £12 per annum.

[110]In or around 1898, the City of Hereford constructed a bridge over the River Wye in commemoration of Queen Victoria’s Diamond Jubilee. The bridge was called Victoria Bridge. In order to construct the bridge, the City of Hereford arranged to take a lease of a small part of Bishops Meadow on which to place a pier for the intended bridge. Accordingly, on 29th September 1898, the Ecclesiastical Commissioners and the Bishop demised to the City of Hereford some 59 square yards at Bishops Meadow to be used as the site for a pier for Victoria Bridge. The lease was for a term of 5,000 years from 25th December 1897 at a yearly rent of £1. The lease was subject to a proviso that nothing in the lease was to be construed as a demise of any right of fishing or fishery rights in the River Wye which were said to belong to or were vested in the Commissioners or the Bishop of Hereford or their or his tenants nor should the 1898 lease be deemed to confer upon the City Council any licence to fish in the river. Also on 29th September 1898, the City Council surrendered to the Bishop the lease dated 31st March 1894 which had related to the land used as a stage for the ferry. On 17th March 1905, the Bishop and the City Council entered into a deed supplemental to the lease of 29th September 1898 whereby there were demised to the City Council a further 201 square yards to be used for purposes ancillary to the use of the Victoria Bridge.

[111]On 9th July 1909, the Hereford Times published an article on the subject of fishing on the River Wye in or near Hereford. The article referred to the fact that “24 years ago” the City Council had the opportunity of buying “the Ecclesiastical Fishery” which was described as extending down stream from Hereford Castle Green. This was plainly a reference to the time that the Ecclesiastical Commissioners sold the fishery, down from where Victoria Bridge is today, to Mrs Lucy. The article continued by quoting a letter from a visitor to Hereford who had stated that all the fishing was in private hands and inaccessible to the general public. The article stated that the letter was not precisely accurate because there was said to be a Free Fishery within the precincts of the city of Hereford. However it was suggested that this Free Fishery contained next to no fish. The article then recommended the formation of an angling club in the City of Hereford. It stated that the Wye Fishery Club had been in existence about 18 years ago, that is, around 1890 or 1891.

[112]Around this time, the case of Lord Chesterfield v Harriswas making its way through the Courts. This case which concerned a claim to a right to fish, said to have been acquired by prescription in another part of the River Wye, was decided by Neville J on 18th November 1907, reported at

[1908] 1 Ch 230

, by the Court of Appeal on 27th June 1908, reported at

[1908] 2 Ch 397

and by the House of Lords on 17th July 1911, reported at

[1911] AC 623

. The progress of the case was discussed in the columns of the Hereford Times and would have given some prominence to the general question of fishing rights in the River Wye.

[113]In August and September 1911, two letters were published in the Hereford Times about fishing on the River Wye. On 29th August 1911, one writer described as “an old fisherman” protested about a Mr Lucy insisting on payment for fishing downstream from Victoria Bridge. The letter writer suggested that there had been previous fishing “without let or hindrance” for over half a century. This statement was supported by another letter writer on 4th September 1911. Again, the reference was to a part of the river claimed by Mr Lucy and not the part of the river between the bridges.

[114]On 10th June 1913, a memorandum prepared by the Ecclesiastical Commissioners referred to the fishing in the River Wye between the two bridges (i.e. Wye Bridge and Victoria Bridge) belonging to the Bishopric but stating that at the present time the fishing was “of no value”.

[115]On 19th February 1914, the Ecclesiastical Commissioners and the Bishop of Hereford demised Bishops Meadow to the City of Hereford for a term of 999 years from the 25thDecember 1913 for the purpose of the land being used as a public recreation ground. The lease expressly accepted and reserved onto the Bishop of Hereford the exclusive right of fishing, from the demised premises or otherwise, in the River Wye as shown on a plan attached to the lease. The copy lease in the documents before the Court does not include the plan.

[116]In 1921, the H&DAA was formed as an unincorporated association. It has remained an unincorporated association ever since. On 15th September 1925, an agent for the Ecclesiastical Commissioners let to the H&DAA by its secretary, a Mr Stone, on a yearly tenancy at £5 per annum, the fishery or a right of fishing with rods in the waters of the River Wye said to be known as “the College Hole”, opposite the Bishop’s Palace and extending the whole length of the river from Wye Bridge to Victoria Bridge. The rent payable under the yearly tenancy was reduced by an agreement made on 20th April 1927 and again reduced by an agreement made on 13th April 1933.

[117]The City Council minutes for 20th October 1925 reported that the local angling association, presumably the H&DAA, had applied to the City Council for permission to fish from the bank of the river on Castle Green. The City Council resolved that a letter should be sent to the association setting out conditions on which permission would be granted. Such a letter seems to have been written on 21st October 1925 and on 30th October 1925, the H&DAA replied thanking the City Council for the permission and referring to the conditions which would apply to the permission. In my judgment, this letter does not detract from the case that there was user as of right. The permission sought from the City Council was not to enjoy a right of fishery but to be upon the bank and to fish from the bank. The right of fishery claimed in this case does not extend to a pre-existing right to fish from the bank of Castle Green.

[118]In September 1927, the minutes of the Development Committee of the City Council referred to concerns expressed by the Ross & District Angling Club as to the effect of a proposed sugar beet factory on fishing in the river. The Development Committee stated that the matter was one for the promoters of the scheme and not a matter for the City Council. The City Council did not at that time appear to have given any thought to any possible claim it might have to enjoy a fishery in the River Wye.

[119]In January 1937, the minutes of the City Council reported that the Bishop of Hereford had signified his intention of presenting to the City the freehold of Bishops Meadow in commemoration of the Coronation of George VI. The City Council resolved to accept the gracious offer of the Bishop with gratitude.

[120]On 30th June 1937, the Bishop of Hereford conveyed Bishops Meadow to the City of Hereford for £2. The conveyance expressly excepted and reserved onto the Bishop of Hereford, so that the same might be enjoyed by him and persons authorised by him, the exclusive right of fishing from the property conveyed “or intended so to be or otherwise in the River Wye” as shown on the plan annexed to the conveyance together with all rights of way over the property conveyed and all other rights necessary for the full and free enjoyment of such rights of fishing. The 1937 conveyance also stated that the term of 5000 years, created by the lease of 29th September 1898 and the deed of 16th March 1905, and the term of 999 years, created by the lease of 19th February 1914, would merge in the freehold.

[121]On 21st March 1946 the Ecclesiastical Commissioners made a scheme pursuant to the Episcopal Endowments Stipends Measure 1943 for the purpose of vesting in the Commissioners the endowments and other property of the Bishopric of Hereford or the Bishop of Hereford. The scheme itemised the property affected and included the fisheries and rights of fishery belonging to the Bishop of Hereford and defined the fishery so as to extend to all of the disputed waters. The scheme was approved by an Order in Council on 18th April 1946, which was gazetted on or about 19th April 1946.

[122]The Church Commissioners Measure 1947 created the Church Commissioners for England and dissolved the Ecclesiastical Commissioners with effect from 1st April 1948, and on that day all property formerly vested in the Ecclesiastical Commissioners vested in the Church Commissioners.

[123]The City Council minutes for 24th October 1973 referred to a letter dated 21st September 1973 from the H&DAA seeking permission for members of the H&DAA to fish the River Wye adjoining Castle Green, when certain bank improvements had been completed. The City Council resolved that because the City Council did not own the fishing rights at this point and because Castle Green was a public open space, the City Council did not raise any objection to the request.

[124]On 28th October 1976, the Church Commissioners demised the exclusive right of fishery in the disputed waters to a Mr Lewis and a Mr King, described as the trustees of the H&DAA for the term of 21 years from the 2nd February 1976, at an initial yearly rent of £350, subject to review to market rental value on later rent review dates. An endorsement on the lease records that the rent was increased on a number of occasions and in particular to £750 per annum with effect from 2nd February 1991.

[125]By a lease dated 15th December 1999, the Church Commissioners demised to a Mr Astley and a Mr Taylor, described as the trustees of the H&DAA, the exclusive right of fishing in the disputed waters for a term of 28 years from the 2nd February 1997 (subject to a right of determination at the end of the tenth and twentieth years of the term) at an initial yearly rent of £1,350, subject to later review to the market rental value of the rights demised.

[126]In around 2002, the Church Commissioners joined the County of Herefordshire District Council (“The District Council”) as a part 20 Defendant. The District Council is the freeholder of Hereford Castle and its curtilage, being the land initially conveyed to its predecessor in title by the conveyance of 1647. It will be remembered that Castle Green and its curtilage is let to the City Council pursuant to a lease dated 14th October 1873 for a term of 200 years from the date of the lease. The Church Commissioners claimed against the District Council the same declaratory relief as they counterclaimed against Mr Barton. On 2nd November 2006, Master Teverson made an order disposing of the claim against the District Council.

[127]The order of 2nd November 2006 recited that the Church Commissioners and the District Council had agreed terms of settlement and that the proceedings between those parties would be stayed. Part 1 of the schedule to that order contained a number of admissions by the District Council in favour of the Church Commissioners. In particular, the District Council admitted that the Church Commissioners had title to the fishing rights in the disputed waters and had such title since time immemorial. The Church Commissioners agreed to grant to and vest in the District Council all of the Church Commissioners’ rights to the fishing at Corporation Wharf which was an area defined as the stretch of the River Wye adjacent to Castle Green up to the half way point in the river. By a subsequent deed of confirmation and conveyance, pursuant to the terms of settlement, the Church Commissioners conveyed to the District Council the exclusive fishery in Corporation Wharf defined as aforesaid. The deed of confirmation and conveyance contained a number of confirmations repeating the effect of the admissions made by the District Council in the Consent Order, in particular the admission that the Church Commissioners had title to the fishing rights in the disputed waters and had such title since time immemorial. In addition to these terms, the Church Commissioners undertook to grant to the District Council a right of first refusal to purchase the Church Commissioners’ fishing rights in the disputed waters in the event of the Church Commissioners seeking to sell those rights within a period of 50 years from the date of the order of 2nd November 2006.

[128]When Mr Barton commenced the present proceedings, his Particulars of Claim relied on two documents dated respectively 5th November 1997 and 9th October 1998, which were said to grant him rights for the period up to 4th November 2002. Mr Barton has not subsequently amended his Particulars of Claim to identify any later grants to him but in the documents before the Court there are four leases dated respectively 24th September 2008, 13th October 2008, 15th October 2008 and 26th October 2008 which on their face grant to Mr Barton a right to moor against the bank of the River Wye within the area of the disputed waters for a period which has not yet expired.

[129]In addition to the evidence of enjoyment and user contained in the documents over the decades, I heard oral evidence from members of the H&DAA as to fishing by the members of that association in the disputed waters for many years. The witness who was able to give evidence as to the longest period of user during living memory was Mr Taylor. Mr Taylor was born in 1931 and became a junior member of the H&DAA in 1942 when he was eleven. He was able to give evidence of his own fishing in the disputed waters and of the fishing by others who were members of the H&DAA. In particular, he referred to the H&DAA issuing a booklet in 1931 for the purpose of giving guidance to persons coming to visit and fish the River Wye with the consent of the association. He was also able to give evidence about fishing in the disputed water during the Second World War.

[130]Members of the H&DAA also gave evidence that the association was formed in 1921 and had employed a water bailiff since 1921 for the purpose of challenging fisherman as to their membership of the association or their otherwise holding a licence from the association permitting them to fish in the River Wye. The Association had acquired, and exercised, rights to fish in other stretches of the River Wye apart from the waters which are disputed in this case. The Association currently has 500 to 600 members. In the period 1960 to 1985, there were 700 to 800 members. The Association had erected two notices declaring that the fishing belonged to the Association. One such notice was erected near the bank in front of the public house, the Saracen’s Head, which was on the right bank of the river just downstream from Wye Bridge. This notice remained in place until a date in the 1990s, or possibly later, when it was removed by the licensee of the Saracen’s Head. There was a second notice affixed to the tennis courts on Bishops Meadow and this was taken down by the City Council in around 2006 when it was carrying out work in that area.

[131]Mr Barton called a number of witnesses who gave evidence that they had fished in the disputed waters at a time when they were not members of the H&DAA and so that they had not fished with the permission of the H&DAA.

[132]Mr Desmond Davies, the licensee of the Saracen’s Head said that he fished regularly in the disputed waters from 1976 up to the present. He was a member of the H&DAA from 1977 to 1979, but not thereafter. He was not cross-examined on this evidence.

[133]Mr Paddy Lane gave evidence that he fished regularly in the disputed waters and had done so from around 1961 or 1962 to the present time. He stated that he had been approached by a water bailiff and asked for his rod licence which he had produced. He had been asked to stop fishing between the bridges by a member of the H&DAA but he had asserted his right to fish as a citizen of Hereford. He had fished by boat between the two bridges. He had only ever seen two other people fish in the river by boat between the two bridges. Those other two fished in front of the Bishop’s Palace. One of those two was not a member of the H&DAA. When cross-examined, he said that he had never been a member of H&DAA. He stated that he fished as often as he could which might be three or four times a week and members of the H&DAA would have seen him. A water bailiff employed by the H&DAA had asked to see his licence. This had happened four or five times in forty years.

[134]Mr Wayne Lloyd gave evidence that he had fished regularly in the disputed waters for the period from 1982 to the present. He stated that he had been approached by the water bailiff and asked for his rod licence. He had been asked to stop fishing between the bridges by a member of the H&DAA and he asserted his right to fish as a citizen of Hereford. He had fished by boat between the two bridges and he had seen the same two other people fishing by boat off the Bishop’s Palace, as had been seen by Mr Lane. When cross-examined, he stated he fished as often as possible. He described how one could walk onto a part of the river bed, consisting of shingle, which became exposed in the summer. Mr Lloyd had never been a member of the H&DAA.

[135]Mr Raymond Shorthouse gave evidence that he had fished regularly in the disputed waters in the period from 1979 to the present. He had been a member of H&DAA at one time but was no longer a member. He had never been stopped from fishing between the bridges by a member of the H&DAA. When cross-examined he stated that he was a member of the H&DAA from the middle 1980s to the end of the 1980s. He had once been challenged for fishing when not a member of the H&DAA.

[136]I heard evidence from Mr Eric Slater who lives at Wye Terrace, Hereford. Wye Terrace is on the left bank of the river upstream from Wye Bridge. Mr Slater fished the River Wye from his bank at frequent intervals from 1984 to the present. He had not fished in the waters between the two bridges since the late 1960s. When fishing from his bank (outside the disputed waters) he was cautioned by a bailiff and received letters from solicitors for the Wye Fishing Association. He had not been challenged by the Wye Fishing Association since. He had never been a member of the H&DAA.

[137]Mr Barton relied on a number of statements admitted under the Civil Evidence Act 1995. A statement from Mr Kidley explained that Mr Kidley had been the water bailiff for the H&DAA for a period of about three years starting in either 1991 or 1992. Mr Kidley acted as water bailiff for the stretch of the River Wye fished by the H&DAA and this stretch, was of course, much longer than the stretch of the disputed waters. During his time as water bailiff, he checked and stopped a minimum of about 150 people fishing without a card showing they were members of the H&DAA. He described the situation as chaotic and some persons he challenged told him to mind his own business, or said something even stronger. The H&DAA did not take any action against non-members who were fishing. Even today when he walks along the river he sees persons whom he says are not members of the H&DAA. He referred to the position where anglers stood on the bank between the bridges when the H&DAA organised a fishing competition.

[138]I also received a statement from Mr Colin Rumsey. He said that the H&DAA, from time to time, sought the consent of the City Council to use the fishing in various places within the City of Hereford and that the City Council had always consented to rod fishing. He also stated that the H&DAA had always fished in Hereford with the consent of riparian owners and/or pursuant to their members’ rights as citizens of Hereford. These statements by Mr Rumsey were general assertions and were not particularised. Further, they were not put to any of the witnesses from the H&DAA. I have seen a number of documents from the City Council which touch on these matters and can therefore analyse the effect of such documents. Mr Rumsey’s statement was a hearsay statement and I conclude that I can give next to no weight to the general statements made in it, where they are not supported by other evidence.

[139]I also received Civil Evidence Act statements from Mr Hodges, Mr Litchfield and Mr Milne-Redhead. Mr Hodges stated that he fished between the bridges hundreds of times between 1938 and 1978. Mr Litchfield stated that he fished between the bridges fifty times between 1980 and 1990. Mr Milne-Redhead stated that he fished between the bridges on unspecified occasions. None of these three witnesses stated whether they were members of the H&DAA at any time although the tenor of their statements suggests that they were not.

Discussion and analysis

[140]The first question which I will consider is as to the geographical location of the part of the River Wye which is referred to in the various documents relied upon by the Church Commissioners. When I referred to the various documents from the 19th century earlier in this judgment, I described the evidence as to the extent of the stretch of the river which was the subject of those documents. Mr Barton submits that those documents did not deal with the disputed waters. I do not agree. In my judgment, the only possible reading of Dr Symonds’ terrier and the subsequent documents which refer to it is that the Bishop of Hereford was, at least from 1838, leasing, or at least purporting to lease, the fishing in the River Wye to an extent which included the disputed waters.

[141]I now need to consider separately the extent of the river which was the subject of the 1759 lease. On the balance of probabilities, I hold that the extent of the river which was the subject of the 1759 lease was the same extent as was the subject of the 1838 lease and later leases. There is no reason to suggest that the Bishop’s position in relation to the river had changed between 1759, the date of the lease, and 1798, which is the beginning of the 40 year period which is described in Dr Symonds’ terrier. Further, given that the description of the relevant part of the river is somewhat general in both the 1759 lease and the 1838 lease, I am not inclined to hold that just because the description is different in those two leases, it must follow that the extent of the river is different for the purposes of those two leases. I think it is more probable than not that the Bishop of Hereford intended both in 1759 and in the period 1798 to 1838 to lease the full extent of the river in which he had or was asserting a right to the fishery and that extent is likely to have been the same throughout this period.

[142]In considering a claim to have acquired a right by prescription it is relevant to investigate acts of ownership asserted in relation to the right which is claimed as well as acts of enjoyment or user of the right: see the discussion in the opinion of the judges delivered by Willes J when advising the House of Lords in Malcomson v O’Dea (1863) 10 HLC 592 at 614-615. A lease of the right which is claimed is an act of ownership asserting the existence of the right. By reference to Dr Symonds’ terrier, it is clear that from 1838, all of the leases to which I have referred amounted to such acts of ownership by the Bishop of Hereford or the Church Commissioners in relation to the right now asserted. For the reasons given earlier, I conclude that the extent of the river which is the subject of the 1759 lease is the same extent as is the subject of the 1838 lease. Therefore, the grant of the 1759 lease was an act of ownership in relation to the right now asserted. The Bishop or his successor in title granted leases of the right of fishery, including the right of fishery in the disputed waters, in 1759, 1838, 1841, 1850, 1859, on unspecified dates to Mr Stephens, 1897, 1925, 1976 and 1999. Further, the acts of the Bishop of Hereford or his successor in title in taking surrenders of some of the leases, as he or they did on a number of occasions, are also acts of ownership in relation to the right asserted. The Bishop or his successor in title took surrenders of leases in 1840, 1878 and 1897.

[143]The various leases reserved a rent to the lessor. There is very little direct evidence as to the payment of such rent. On the balance of probabilities, it is likely that rent was paid. After all, the lessees were exercising the right of fishery and the Bishop allowed the leases to continue for lengthy periods of time. It is unlikely that he would have allowed that to happen if the lessees under those leases had not paid the rent reserved. Further, Mr Stephens referred to the fact that he paid rent to the Bishop of Hereford. He sought a reduction in 1890, which also suggests that rent was being paid. Further, the Church Commissioners recorded in 1927 and in 1933 that they had agreed with the H&DAA a reduction in the rent payable under the 1925 tenancy and that suggests that rent was paid under that tenancy.

[144]There is no direct evidence of enjoyment and user of the fishery by the lessee under the 1759 lease. However, the lessee would have taken the lease for the purpose of using the fishery and it is therefore quite likely that there was such enjoyment and user. According to its express terms, that lease continued until 1787. There is no evidence as to the position between 1787 and 1798. Dr Symonds’ terrier says in terms that he exercised the right of fishing for the 40 year period which dates back to 1798. Further, in relation to the leases granted in 1841, 1850 and 1859, the lessees thereunder covenanted that they would, if requested, draw up a terrier which recorded the part of the river which had been fished for the preceding 30 years. The undertaking of this obligation indicates that it is more probable than not that there had been an exercise of the right of fishery on a part of the river within the extent of the river which was the subject of the relevant lease. The evidence in relation to Mr Stephens, which I have summarised above, shows that the part of the river which he held as tenant of the Bishop, or held as a sub-tenant from the lessee of the Bishop, was fished by Mr Stephens.

[145]The evidence as to enjoyment and user, to which I have referred, has been expressed in general terms with reference to the stretch of the River Wye over which the Bishop of Hereford asserted a right of fishery. The extent of the river over which the right was originally asserted was obviously much greater than the extent of the disputed waters which are now relevant. The Ecclesiastical Commissioners transferred the fishery in the river upstream from Wye Bridge to Mr Wegg Prosser in 1880 and the fishery in the river downstream from what became Victoria Bridge to Mrs Lucy in 1886. If there is evidence that there was user and enjoyment of a part or parts of the river, in which the Bishop or the Ecclesiastical Commissioners at the relevant time asserted a right of fishery, then that user can in an appropriate case be treated as user of the full extent of the river in which the Bishop or the Ecclesiastical Commissioners asserted a right of fishery. A question of this, or a similar, kind has been the subject of authority in relation to claims to have acquired title by adverse possession of land. It is a matter of fact and degree as to when one is justified in holding that acts of possession on part of an area of land can be treated as acts of possession in relation to the whole of that land. That approach has, in particular, been applied to the case of a river in Lord Advocate v Lord Blantyre

(1879) 4 App Cas 770

and Lord Advocate v Lord Lovat

(1880) 5 App Cas 273

and these and other authorities are referred to in the recent decision of Roberts v Swangrove Estates Ltd

[2007] EWHC 513 (Ch)

(Lindsay J), not affected by anything said on appeal at

[2008] 2 WLR 1111

. In my judgement, the approach adopted in these cases can equally well be applied to a case of prescription when one is considering evidence as to enjoyment and user of the right claimed. Indeed, the approach is particularly appropriate when one is considering the question of the enjoyment of a right of fishery in a river. It is plainly not necessary for the party claiming the right to show that he, or someone authorised by him, has fished every separate part of the river. In the present case, in relation to the full extent of the fishery claimed by the Bishop of Hereford, there is evidence of enjoyment and user of that fishery and there is no evidence which would justify the court in distinguishing between one part of it and another part or parts of it. Accordingly, in my judgment, it is appropriate to hold that the evidence of enjoyment and user of the fishery claimed by the Bishop of Hereford and his successors in title establishes enjoyment and user of the disputed waters or, alternatively, enjoyment and user which could justify the presumption of a grant of a right which included the disputed waters, if the other matters relevant to the presumption of such a grant can be shown.

[146]I next need to consider the period during which enjoyment and user has been proven. There was probably user of the fishery claimed from 1759 to 1787. There has clearly been enjoyment and user of the fishery claimed from 1798 to 1840. There was probably user from 1840 onwards until the present day. It is possible that there were gaps from time to time over the long period in question.

[147]In relation to prescription at common law, the position in relation to gaps in the enjoyment and user is described in the judgment of Harman J in RPC Holdings Ltd v Rogers

[1953] 1 All ER 1029

at 1031-1032. Where the court is asked to infer an immemorial user from evidence going back as far as living memory can run, the court can act on evidence of user whether it is continuous or discontinuous. In the present case, such gaps as there might possibly have been in the user would not be fatal to the claim to prescription at common law, if the other requirements for prescription were shown.

[148]In relation to prescription based on the doctrine of lost modern grant, the Church Commissioners can point to the evidence in Dr Symonds’ terrier of 40 years continuous user as the minimum period of continuous user. A period of that length satisfies the requirements of the doctrine as to the length of the period of the user. If the City Council fished in the disputed waters in 1829 and if the City Council was the owner of the fishery (subject to the Bishop’s claim to prescription) then the period from 1798 to 1829 was still thirty one years. The period of user does not need to be the period immediately before the action is brought: compare section 4 of the Prescription Act 1832.

[149]I now need to consider whether further matters must be demonstrated as to user and enjoyment in view of the fact that the claim in the present case is to a several fishery, that is, an exclusive right. This gives rise to several questions of law. If the acts of ownership relate to ownership of a several fishery, is it necessary to show user and enjoyment of the right claimed? If so, what amounts to user and enjoyment and, in particular, does the user and enjoyment have to be exclusive user and enjoyment, or will something less than this suffice? If exclusive user and enjoyment has to be shown, who has to be excluded; is it the person otherwise entitled to the right and persons claiming under him or does the person claiming a right by prescription have to demonstrate that he excluded the whole world?

[150]Where there are acts of ownership asserting a right to a several fishery, the need for evidence of use and enjoyment was considered in the judgment of Willes J, giving the opinion of the judges summoned to advise the House of Lords in Malcomson v O’Dea (1862) 10 HLC 592 at 614-615. My reading of that passage is that in the case of a right which is capable of continuous enjoyment, there needs to be proof of actual exercise of the right claimed if the acts of ownership are to be given any weight. However, Willes J regarded payment and receipt of rent under a lease of the right as evidence of the exercise of the right. In the present case, I have already made findings to the effect that there was payment and receipt of rent under leases granted by the Bishop or his successor in title. Even if one were to read the judgment of Willes J as requiring user of the right, in addition to receipt of rent for the right, there is no suggestion that the user must be exclusive user if it is nonetheless referable to the grant of an exclusive right.

[151]Even if it were necessary to find that there was actual use of the right in a way which was exclusive, in my judgment, what has to be shown is that the person who otherwise was entitled to the right (subject that is to the claim to prescription) and persons deriving title under that person, were excluded. This approach is consistent with the basic principle underlying prescription. If someone asserts and exercises a right openly and there is acquiescence by the person otherwise entitled to the right, then the law presumes a grant of the right asserted. On this approach, it is not necessary in order to demonstrate exclusive user to show that the person claiming prescription not only excluded the person otherwise entitled and those claiming under him but also excluded the whole world.

[152]I have considered the cases of Neill v Duke of Devonshire

(1882) 8 App Cas 135

, Blount v Layard (1888) [1891] 2 Ch at 681 (reported as a footnote to Smith v Andrews) and Smith v Andrews

[1891] 2 Ch 678

itself in connection with the question whether it has to be shown that the Bishop and his successor in title excluded the whole world from fishing in the river for the purpose of establishing the right claimed by prescription. Those cases do discuss the position where there is an exclusive fishery and evidence of fishing by the public. In those cases, the essential question was whether the evidence of fishing by the public impugned the claim to a several fishery, based on a paper title. In Blount v Layard , Bowen LJ (at page 691) said how unfortunate it would be if the owner of an exclusive fishery were forced to insist on his rights by reason of a fear that tolerated fishing by members of the public might crystallise into a public right of fishing, which it would not do. These cases are authority for the proposition that fishing by members of the public will not create a public right of fishing, nor lead to an inference of abandonment of any pre-existing exclusive right of fishery. Thus if it is established that there existed an exclusive right of fishery, whether acquired by an actual or by a presumed grant, followed by tolerated acts of fishing by the public, those facts would not lead to a loss of the pre-existing grant. Thus, if I held, for example, that there was exclusive user of the fishery from 1798 to 1829, a period of 31 years, and that such user sufficed to establish a lost modern grant before 1798, that presumed grant would not be treated as abandoned by reason of fishing by the public, tolerated by the Bishop and his successor in title, in the middle of the 19th century.

[153]Having set out what I understand to be the relevant legal principles, I will now consider the detailed evidence before expressing my conclusions on this question of exclusive user.

[154]There is no real evidence as to the character of the user before 1798. Dr Symonds’ terrier expressly states that the user was exclusive for the 40 year period which began in 1798. I have already referred to the City Council survey in 1829 which shows, on the assumption that the survey related to the disputed waters, that on that specific occasion in 1829 the City Council took fish from the disputed waters. Apart from that occasion, there is nothing else in the evidence to contradict or qualify the statements in the terrier up to 1839. The period of user from 1798 to 1829 was for some 31 years.

[155]Mr Barton points to the interview with Mr Stephens reported in the Hereford Times in 1895. Mr Stephens certainly refers to user by members of the public who fished in some part or other of the River Wye. The description of the matter in Mr Stephens’ interview is not specific as to where the fishing by the public took place nor as to the precise period of time being referred to. At the time apparently described by Mr Stephens, the fishery claimed by the Bishop extended to several miles, perhaps as much as 14 miles. It is therefore quite possible that the fishing by the public would have occurred somewhere in that length of the river. There is no specific evidence that the public fished in the disputed waters which are now relevant in this case. However, I earlier described the principle whereby, as a matter of fact and degree, it may be appropriate to treat user of a part of parts of the river as user of the entire stretch of river, which is the subject of the right which is asserted. That principle could, in my judgment, possibly apply in reverse also. User by others in a part of parts of the river may, as a matter of fact and degree, be relevant to the ability of the claimant to show whatever is required to be shown by way of user in relation to the entire stretch of river, which is the subject of the right claimed. It is very difficult to make any reliable finding on this question of fact and degree because the evidence on this point consists of a single imprecise fragment contained in the interview with Mr Stephens. I also need to consider whether I can make a finding as to the period during which this user, described by Mr Stephens, continued. In view of the contents of Dr Symonds’ terrier, I do not think I would be justified in holding that there was any significant fishing by the public in the part of the river described in the 1839 terrier before that date. I also have to consider what Mr Stephens might have been describing when he referred to the conservators of the Wye Fishery District taking possession of the river. Based on the documents I have seen as to the actions of the conservators, it might have been the case that they took possession of the river by the mid-1860s. It seems clear that fishing by the public did not involve the public claiming a right to fish derived from the Bishop. But, equally, I do not think it is possible for me to hold that the public were claiming a right to fish derived from any private owner or the City Council. The public were simply acting without “let or hindrance” as it was described. There is no suggestion that, during the relevant period, the City Council or anyone else had done anything which would be recognised as granting to the public, or some section of the public, a right to fish in the river so that the acts of public fishing should be considered to be referable to such a right.

[156]There is very little evidence of the character of the user from the mid-1860s to 1897 when Mr Stephens surrendered his lease to the Bishop. In 1881, alleged poachers were prosecuted in Mrs Lucy’s part of the fishery (acquired in 1880 from the Ecclesiastical Commissioners). Mr Stephens plainly made extensive use of the right of fishery which he held from the Bishop or the Ecclesiastical Commissioners. In his evidence to the inquiry in 1874, he referred to there being poachers at Hereford. He stated in his advertisement in the Hereford Times in 1885 that persons fishing without his authority would be treated as trespassers.

[157]There is no specific evidence as to the user of the disputed waters between 1897 and 1925.

[158]Since 1925 the right to fish in the disputed waters and elsewhere has been held by the H&DAA. In the case of the disputed waters, the Association has held as tenant or lessee of the Bishop or the Church Commissioners. During some of the time since 1925, there has been fishing by persons who were not members of the Association. I referred earlier to the evidence given by the witnesses called by Mr Barton. Their evidence is of fishing by persons, who were not members of the Association, which goes back many years. There was oral evidence at the trial of fishing of this kind back to the 1960s. I accept that evidence. The hearsay statement from Mr Hodges would support a finding of fishing of this kind back to 1938. I am less confident that I can rely on this hearsay evidence in order to find there was fishing otherwise than by members of the H&DAA as far back as 1938 but even if I made that finding in reliance on that statement, Mr Hodges does not give any evidence about the scale on which any such fishing occurred. He refers only to his own position. I do not think that I am able to extrapolate backwards so as to make a positive finding that there was fishing by members of the public before whatever date is the earliest date spoken to in the evidence given on behalf of Mr Barton. The H&DAA was formed in 1921 and employed a water bailiff from that date. It took the right to fish in the disputed waters in 1925. There might have fishing by persons who were not members of the H&DAA before the 1960s or even before 1938, the date put forward by Mr Hodges alone, but I am not able on the evidence to make such a finding on the balance of probabilities. I do not think the evidence of user by persons who were not members of the H&DAA is user by persons deriving a right from the person otherwise entitled to the right of fishing, that is, other than the Bishop or his successor in title and the H&DAA. Whatever the witnesses now say was their subjective state of mind to the effect that they were fishing as “citizens of Hereford”, there is simply no evidence of any objective fact which would allow me to find that any other person, whether a riparian owner or the City Council, had granted rights to the public or to the citizens of Hereford so that such fishing would be treated as referable to any such right.

[159]I can now express my conclusions as to whether the acts of ownership coupled with the acts of user and enjoyment suffice to establish a right of fishery which is exclusive. There were clear acts of ownership in relation to an exclusive fishery. Rent was paid and received in relation to leases of such a fishery. That suffices according to the judgment of Willes J in Malcomson v O’Dea . Further there was user, whether exclusive or otherwise, referable to the acts of ownership. Further, the user was exclusive in the sense which is relevant, that is, user which excludes anyone else who might own the right of fishery and persons claiming under any such person. It was not necessary for the Bishop and his successor in title to exclude the whole world. In any case the period during which there appears to have been significant fishing by the public was from a date after 1839 and up to the mid-1860s. As a minimum, I am entitled to find exclusive user without any significant public fishing between 1798 and 1829, a period of 31 years.

[160]The result in law of the above findings as to user is that the Church Commissioners have established a sufficiently long period of relevant user of the claimed right of fishery to entitle, and require, the court pursuant to the doctrine of lost modern grant to hold (if all other requirements of prescription are satisfied) that there was a lost grant of a several fishery in a part of the river which includes the disputed waters.

[161]Mr Barton submits that the user and enjoyment which is relied upon was not sufficiently open to found a claim to a right by prescription. I do not agree. The relevant question is whether the user was sufficient to give to the owner of the right, if diligent in the protection of his interests, a reasonable opportunity of becoming aware of the user. The user by Dr Symonds and by Mr Stephens was not only open but on a sufficient scale easily to satisfy this test. There is no reason to think the use by the other lessees of the Bishop in the 18th and 19th centuries were any different. From 1925, the fishing has been openly carried on by the H&DAA on a scale which also satisfies the test.

[162]Mr Barton’s case was that the person or body which truly had the right of fishing in the disputed waters was Hereford City Council. If so, it is clear that the City Council actually knew of the fishing by those claiming under the Bishop because it is referred to in the City Council minutes of 1847, 1925 and 1973, to which I have referred. Further, the City Council was a party to a number of legal instruments which expressly referred to the Bishop’s assertion of the right to the fishery; I refer to the leases of 1894, 1898 and 1914 and the conveyance of 1937. In my judgment, it is clear that the City Council acquiesced in the claim by the Bishop and his successors to be the owner of a right of fishery in the disputed waters since 1847.

[163]Mr Barton asserts that the City Council gave permission to the user of the fishing by the H&DAA so that the fishing by the H&DAA was pursuant to that permission and not as of right. I do not agree. In the minutes in 1925, the City Council gave permission to use the riparian land. In this case, the right which is said to have been acquired by prescription is a right to the several fishery and not a right to use the riparian land of the City Council. In the minutes in 1973, the City Council stated that its consent was not needed to the use of the riparian land and expressly did not give permission to fish in the river, on the basis that the City Council did not have the right to fish in the river. None of this amounts to the right claimed in this case being enjoyed by reason of a permission given by the City Council.

[164]In those circumstances, it is not necessary to inquire further whether it was the City Council, or someone else, who had the right to the fishery which is now asserted by the Church Commissioners. Further, the acts of permission relied upon by Mr Barton do not deal with the situation from 1759 to the first alleged permission in 1925.

[165]In these circumstances, whoever it was who owned the right to fish in the disputed waters, whether as an incorporeal hereditament or as part of a corporeal hereditament, has acquiesced in the exclusive user of the fishery by the Bishop and his successors in title so as to entitle, and require, the court to hold that there must have been a presumed grant of a several fishery to the Bishop, which is now vested in the Church Commissioners.

[166]At one time, Mr Baron submitted that it was not open to the court to find prescription in this case because the user relied upon was user by an unincorporated body of persons and such user could not give rise to a presumed grant to such a body of persons. In the end, Mr Barton did not press this point. He was right not to do so. The grantee to whom the presumed grant was made was the Bishop of Hereford or his successor in title. Even if the only relevant user was user by the H&DAA, which was an unincorporated association, that user was pursuant to the grant by the Bishop or the Church Commissioners to the relevant natural person or persons who held as trustee or trustees for the members of the Association. The case is entirely different from a case where the claim is that the grant was made to a fluctuating body of persons. In any case, this point did not affect the evidence of user from 1759 to 1925.

[167]At one time, Mr Barton asserted that the public, or more narrowly, the citizens of Hereford, had a public right of fishing in the disputed waters by reason of the fact that some parts of the riparian land were designated as open space. I asked Counsel for Mr Barton to explain to me how this claim or assertion was put and he was wholly unable to do so. Indeed, in the course of his reply, he expressly withdrew a lengthy part of his written closing submissions which had made such an assertion. There seems to me to be nothing in this point which requires further consideration.

[168]Based on my reasoning so far, I have concluded that this is a case where the evidence shows that there was a presumed grant of a several fishery to the Bishop of Hereford and that right is now vested in the Church Commissioners. I should add that I have considered the case of Lovett v Fairclough

(1990) 61 P&CR 385

where Mummery J held on the facts of that case that the claimant to the fishery had failed to establish a fishery in gross by prescription. The particular difficulty in that case was that the user which was relied upon was by a number of individuals so that a later user was not entitled to add his period of user to that of an earlier user. The earlier user had not transferred rights to the later user. The right claimed in the present case is a right of several fishery. Although disputes about such a right are not commonplace at the present time, a study of the cases over the centuries reveals many examples of such rights being successfully established. Further, the claim to prescription in the present case is essentially by the Bishop, a corporation sole, which has continuity as a legal person, notwithstanding the changes in the individuals who are the Bishop from time to time. Further, the vesting of the rights of the Bishop in the Ecclesiastical Commissioners, the re-endowment of the Bishop and the later vesting in the Ecclesiastical Commissioners and then in the Church Commissioners are all clearly provided for and established. In these circumstances, since the established legal principles applied to my findings of fact in this case produce the result that the court is entitled, and required, to find a presumed grant of a several fishery in the disputed waters, I will determine the issue accordingly.

[169]The preliminary issue asked whether the right of fishery in the present case was without stint. The right of fishery in the present case is in gross so that there is no question of it being appurtenant to land and limited by reference to the needs of any such land. Further, there is no feature of the evidence which would justify holding that there was a limit expressed in the presumed grant. I drew attention to the statement in Jackson, The Law of Easements and Profits (1978) at page 34 which questioned whether one could have a right of fishery in gross without stint. Neither party wished to make submissions on this passage. In my judgment, basing myself on statements in Megarry & Wade, The Law of Real Property, 7th ed., at para. 30-033, Chesterfield v Harris

[1908] 2 Ch 397

at 421, Staffordshire and Worcestershire Canal Navigation v Bradley

[1912] 1 Ch 91

and Lovett v Fairclough

(1990) 61 P&CR 385

at 396, I hold that the right of several fishery, in gross, established in this case is without stint.

[170]I understand that the Church Commissioners accept that there is a public right of navigation in the disputed waters and that the general law, to the effect that the public right of navigation is a superior right to a right of several fishery, also applies in this case. It is not said that the terms of the specific Wye Navigation Acts alter the general law in this respect. I also understand that the Church Commissioners accept that a public right of navigation carries with it certain ancillary rights such as an ancillary right of mooring, which is also therefore superior to the right of several fishery. These matters should therefore be reflected in the answer to the preliminary issue.

The answer to the preliminary issue

[171]The answer to the preliminary issue is that the Church Commissioners have established, in reliance on the legal principles as to prescription, a right to a several fishery, in gross, without stint in the disputed waters. Such a right in a part of the disputed waters has been transferred by the Church Commissioners to the District Council. The right of fishery is not subject to any adverse right save for the admitted superior right of public navigation in the disputed waters, which right of navigation carries with it an ancillary right to moor. The Church Commissioners have the ability to lease their fishing rights, as described above.