“The soil of ‘navigable tidal rivers,’ … so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery prima facie in the public. But for Magna Charta, the Crown could, by its prerogative, exclude the public from such prima facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by Act of the Crown not later than the reign of Henry II. If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is, not that you say, this is usurpation, for it is not traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory. ”
“The 1868 Act followed the report of commissioners appointed to inquire into the Sea Fisheries of the United Kingdom (1866). The report acknowledged, at p 167, para VI, that: 'Fishermen cannot be expected to dredge the public grounds without immediate returns, unless the exclusive benefit derived there from be secured to them; we might as well expect one of the public to spend money in cultivating a public common, the benefit of which would be shared by all and not confined to himself, as that one or more fishermen should dredge a public ground without immediate return.' The commissioners went on to state at p 169: 'It is obvious, therefore, that if it be desirable to encourage the formation of oyster beds, either for fattening or breeding, some further powers must be given'. ”
“ An Order for the Establishment or Improvement, and for the Maintenance and Regulation, of an Oyster and Mussel Fishery on the Shore and Bed of the Sea, or of an Estuary or tidal River, above or below, or partly above and partly below, Low-water Mark (which Shore and Bed are in this Part of this Act referred to as the Sea Shore), and including, if desirable, Provisions for the Constitution of a Board or Body Corporate for the Purpose of such Order, may be made under this Part of this Act, on an Application by a Memorial in that Behalf presented to the Board of Trade by any Persons desirous of obtaining such an Order (which Persons are in this Part of this Act referred to as the Promoters).”
“Where an Order of the Board of Trade under this Part of this Act ..., confers a Right of regulating an Oyster and Mussel Fishery, and imposes Restrictions on or makes Regulations respecting the dredging and fishing for and taking Oysters and Mussels ... within the Limits of the regulated Fishery, or imposes Tolls or Royalties upon Persons dredging, fishing for, and, taking Oysters and Mussels ... within the Limits of such Fishery, the Persons obtaining the Order ... shall, by virtue of the Order and of this Part of this Act, but subject to any Restrictions and Exceptions contained in the Order, have the power to do all or any of the following Things; namely, (a) To carry into effect and enforce such Restrictions and Regulations; (b) To levy such Tolls and Royalties; (c) To provide for depositing and propagating Oysters and Mussels within the limits of the Fishery, and for improving and cultivating the Fishery. All such Restrictions, Regulations, Tolls, and Royalties shall be imposed on and apply to all Persons equally, and shall be for the Benefit of the Fishery only, and the Tolls and Royalties shall be applied in the Improvement and Cultivation of the Fishery ...”
"No Order made by the Board of Trade under this Part of this Act shall take away or abridge any Right of Several Fishery, or any Right on, to, or over any Portion of the Sea Shore, which right is enjoyed by any Person under any Local or Special Act of Parliament, or any Royal Charter, Letters Patent, Prescription, or immemorial Usage without the Consent of such Person."
“The real protagonists in this litigation are the Le Strange estate on the one hand and the defendant (possibly representing the interests of fisherman in King’s Lynn generally) on the other.”
“That, then, being the law, one must next turn to see what were the facts in so far as they bore on the question of the seaward boundary of the le Strange several fishery. First, there were the series of leases of fishery rights that had been granted at various dates ranging from 1857 up to 1970. If one looks at the earliest and latest of the leases in that series, one finds this. There is a lease from 1857 to 1867 that defines the seaward boundary of the fishery rights that were demised as "the extreme low-water mark of the sea on the extreme west." The two latest leases are one from 1965 to 1970, in which the demise was of " the foreshore and so much of the seabed as belongs to the landlord," and, finally, the current lease under which the plaintiff in this action claims, which defines the seaward boundary in these words: " ... as far as can be worked without boats at extreme low water which lie within the landlord's fishery." Those are the first pieces of evidence supporting the view, for which the plaintiff contended and which the judge accepted, that the seaward boundary extended at least to the mean low-water mark of spring, as opposed to ordinary, tides. Secondly, there was evidence, in particular from a Mr. Thursby, who was very familiar with the rights as they had in fact been exercised, that de facto the le Strange estate and its lessees had claimed and worked the mussel scalps between the low-water mark of ordinary tides and the low-water mark of spring tides for at least 17 years prior to this litigation. Finally, however, and perhaps most importantly of all, there was clear evidence, which the judge accepted, that the best mussel grounds, the favourite habitat of the mussel on this length of coast, lay between the low-water mark of ordinary tides and the low-water mark of spring tides. In the light of that evidence, one is entitled to ask oneself the question: is it really to be supposed that, when the Crown was granting to favoured subjects a valuable right such as a several fishery relating to shellfish in the tenth or the eleventh century, it was doing so by reference to an artificial line on a map - mean low water at ordinary tides - that, so far as I am aware, is a purely modern concept that emerged in the nineteenth century, and doing so in order to deny to the favoured subjects the primary benefit that one would suppose was intended to be conferred on them, namely the benefit of exploiting the fishery where it could best be exploited? The answer to this question is, obviously: “no, one would not suppose that.”
“So far as the extent of the fishery is concerned, I venture to think that it is totally artificial to suppose, or to argue, that there is any particular limit on the seaward side of the fishery. We have to approach this matter on the basis that, at least in theory, we are dealing with a right that was at some time the subject of a grant from the Crown - and it has to be, owing to Magna Carta, a grant prior in date to 1189. I doubt very much whether, in 1189, those who were granting rights of fishery were particularly concerned about tide levels of any particular description. What they were granting was the right to fish for shellfish - and shellfish from “the shore,” or “the foreshore.”
“This is a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible (a phrase considered further below), the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner's land is taken from him by erosion, or diluvion (i.e. advance of the water) it would be most inconvenient to regard the boundary as extending into the water: the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner's title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. It may of course be excluded in any particular case, if such is the intention of the parties. But if a rule so firmly founded in justice and convenience is to beexcluded, it is to be expected that the intention to do so should be plainly shown. The authorities have given recognition to this principle. They have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the Land, and whether or not the original boundary can be identified.”
“It is next said that a considerable portion of the "beach ground" consists of an accretion during the last fifty or sixty years, and that the custom cannot extend to that part. Custom, it is argued, is a local law, which must have existed from time immemorial - that is, from the beginning of the reign of Richard I - and cannot be applicable to land which can be shewn to have emerged from the sea in modern times. In Rex v. Lord Yarborough… it was established that lands “formed by alluvion, that is by gradual and imperceptible deposit, on the shore of the sea," belonged, not to the Crown as owner of the foreshore, but to the owner of the demesne lands of a manor, which were formerly bounded by the sea, as parcel of those demesne lands. Every manor must have existed prior to the statute of Quia Emptores; but it was not suggested that the operation of the rule was excluded by reason of the accretions having taken place in modern times. The reason of that rule is stated by Alderson B. in In re Hull and Selby Ry. Co… to be “that which cannot be perceived in its progress is taken to be as if it never had existed at all.”
“It is contended that the “local law” can only affect a definite close, which must have been available for the exercise of the customary right in the reign of Richard I., and that the evidence shews that a considerable part of the “beach ground,” now eleven acres in extent, was at that time covered by the sea, and therefore could not have been used for drying nets. In my opinion this contention ought not to prevail. It appears certain, from the evidence of geologists and from the discovery of Roman remains immediately to the west of the “beach ground,” that at least the western part of the “beach ground” existed in and long prior to the reign of Richard I. in substantially the same condition as it does at present. Within living memory the sea has gradually receded on this part of the coast, but there is nothing improbable in the suggestion that the reverse process may have gone on since the reign of Richard I., with the result that the line of high water is now practically the same as at that date, in which case the point under discussion would not arise. Assuming, however, that the sea has gradually and continuously receded, I think the land which has been added by accretion to the defendant's land must be subject to the customary right. The principle stated by Alderson B. in In re Hull and Selby Ry. Co.…, that “that which cannot be perceived in its progress is taken to be as if it never had existed at all” - a principle which is applied between two private owners, and between the Crown and a private owner - should be applied here. In the view of the law this is the same close as that which was affected by the local law in the time of Richard I. It is urged that this extension of area renders the custom uncertain, and, if the sea should still further recede, unreasonable. I cannot assent to that argument. It must not be forgotten that the persons claiming under the custom are bound to exercise their rights reasonably and with due regard to the interest of the owner of the soil.”
“one would expect sea-grounds, oyster-layings, shores and fisheries to follow the sea as it advances or retreats.”
“The land between high and low-water marks originally belonged to the Crown, and can only vest in a subject as the grantee of the Crown. The Crown by a grant of the sea-shore would convey, not that which at the time of the grant is between the high and low-water marks, but that which from time to time shall be between those two termini. Where the grantee has a freehold in that which the Crown grants, his freehold shifts as the sea recedes or encroaches. Then what was the object of the parties to the deed of 1773? To grant the land within certain limits. Those to the east and west were ascertained, but those on the north and south were to be ascertained by the high and low-water marks. I think that these words must be construed with reference to the rule of the common law upon the subject of accretion, and that as the high and low-water marks shift, the property conveyed also shifts.”
“…we can only look to the principle of the rule which gives the shore to the Crown. That principle I take to be that it is land not capable of ordinary cultivation, and so is in the nature of unappropriated soil. Lord Hale gives as his reason for thinking that lands only covered by the high spring tides do not belong to the Crown, that such lands are for the most part dry and maniorable; and taking this passage as the only authority at all capable of guiding us, the reasonable conclusion is, that the Crown’s right is limited to land which is for the most part not dry and maniorable. The learned judges whose assistance I had in this very obscure question point out that the limit indicating such land is the line of the medium high tide between the springs and the neaps. All land below that line is more often than not covered at high water, and so may justly be said, in the language of Lord Hale, to be covered by the ordinary flux of the sea. This cannot be said of any land above that line; and I therefore concur with the able opinion of the Judges, whose valuable assistance I had, in thinking that medium line must be treated as bounding the right of the Crown.”
"... to the Wolferton Creek, and thence following the course, at low water, of the said creek to the point where the water of this creek discharges itself into the old channel,thence in a northerly and north easterly direction along the line of ordinary low water mark, by the western side of the Stubborn Sand ..."
"Mr le Strange determined to apply for an order defining the limits of his shore fisheryand this he did, and obtained an order in March 1879. The Corporation had already got a similar order defining the limits of their fishery, and if you will be kind enough to look at that map, you will see that the Corporation Fishery is included within the whole of those red lines. ... It runs along Wolferton Creek and so along above the Stubborn sand to a point called Gore Point. I need not trouble you with anything further except to point out to you that the Stubborn Sand — or between that line and the coast — is left to Mr le Strange; Mr le Strange claiming, so far as these orders are concerned, only the oyster and mussel fishery and so forth, upon the shore from coastline down to low watermark, which is delineated by a red line just beyond the words Stubborn Sand."
“In 1992, during the negotiations for the renewal of the Wash Fishery Order, a large area of the public fishery in the Wash was taken from the public fishery without the consultation or approval of the fishermen and given to the Le Strange Estate; this included the Ferrier and Outer Ferrier Sands. I do not know by what authority this area was taken from us and given to the private sector. We claim the historic right to fish the Ferrier and Outer Ferrier Sands amongst other areas wrongfully taken from the Wash fisherman and the right to contest an area claimed by the Le Strange Estate by deceit. We would like the area returned to the public fishery under the control of ESFJC [the Eastern Sea Fisheries Joint Committee] and Natural England so that all Wash fishermen can earn a respectable living from this wild and natural habitat [t]aking into consideration that all of the Wash is part of an SSSI site and not just part of it. I deny the allegation of trespass as claimed by the Claimant as I do not believe that he is entitled to the Ferrier Sands as a private fishery. A number of fishermen, I cannot recall exactly whom, decided to force the issue of the ownership of the Ferrier Sands with the Claimant, by deliberately sailing onto the Ferrier Sands. This was intended to be a protest. This was not done in the dark but in the light of day for everyone to see and to bring this to a head…”