Easter
Term
[2016] UKSC 14
[2014] EWCA Civ 846
JUDGMENT
Lynn Shellfish Ltd and others (Appellants) v
Loose and another (Respondents)
before
Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
13 April 2016
Heard on 9 and 10 February
2016
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Appellants
Guy Fetherstonhaugh
QC
Charles Harpum
Philip Sissons
(Instructed by
Andrew Jackson)
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Respondent (John
Henry Loose)
Michael Davey QC
(Instructed by
Parkinson Wright LLP)
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Respondent
(Michael George le Strange Meakin)
Zia Bhaloo QC
Tim Calland
(Instructed by
Charles Russell Speechlys)
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Intervener
(Crown Estate Commissioners)
Thomas Braithwaite
Zahler Bryan
(Instructed by Bond
Dickinson LLP (Southampton))
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LORD NEUBERGER AND LORD CARNWATH: (with whom Lord Clarke, Lord Sumption and Lord Hodge agree)
1.
The issue raised by this appeal is the extent of an exclusive
prescriptive right (ie an exclusive right obtained through a long period of
use) to take cockles and mussels from a stretch of the foreshore on the east
side of the Wash, on the west coast of Norfolk.
The factual and procedural background
An outline of the basic facts
2.
The proprietor of the exclusive right in question is the second
respondent, Mr Michael Le Strange Meakin, who is Lord of the Manors of
Snettisham and Heacham (“the Manors”) and the owner of a substantial amount of
land adjoining the east side of the foreshore. The land, the right to fish and
the Lordships have been in the ownership of the Le Strange family for many
generations, and we shall refer to Mr Le Strange Meakin and his predecessors as
“the Estate”. In 1970, the Estate granted a lease of the exclusive right to the
second respondent, Mr John Loose, who is still holding over under that lease.
3.
The appellants are individuals and companies who operate fishing boats
out of King’s Lynn in Norfolk. During the summer of 2007, 13 of the appellants’
boats fished for cockles in locations claimed by the respondents to be within
the area of the exclusive fishery vested in the Estate. Some of the appellants’
fishing activities took place at or near an area known as Stubborn Sand, and
some at or near an area known as Ferrier Sand. Both Stubborn Sand and Ferrier
Sand are now attached to the foreshore, but they had not been so attached in
the past.
4.
Although we were provided with a large number of detailed plans, the
following summary of the position on the ground should suffice for present
purposes.
5.
The stretch of foreshore between Wolferton Creek to the south and
Thornham Creek to the north (“the Foreshore”) is irregular in shape, but it can
be treated as going from north to south, with the Wash to the west, and land
(owned by the Estate) to the east. There are a number of sandbanks which are
separated from the Foreshore at low tide. The evidence establishes that some
sandbanks which are currently attached to the Foreshore at any rate at low tide
had previously been separated from it.
6.
The shifting nature of sandbanks is a feature of the shore on the
eastern side of the Wash, and, at least in that part of the Wash with which
this appeal is concerned, the trend over the past 400 years or more appears to
have been for previously separated sandbanks to become joined to the Foreshore
with the passage of time. Examples include Stubborn Sand, which is now attached
to the Foreshore but which was separated from it until sometime in the 18th
century; Ferrier Sand, which only became attached to the Foreshore around 50
years ago; and Blackguard Sand, which only became attached within the past 20
years or so. The attachment to the Foreshore of previously separated sandbanks
appears to have occurred as a result of the gradual silting up of channels
which had separated the sandbanks from the Foreshore.
7.
It is also clear that the low water marks (ie the lines showing the edge
of the sea at low water) of the Foreshore have moved significantly with the
passage of time. At least in recent periods the low water marks have, in very
general terms, moved further west - ie seaward, further away from the shore. We
refer to low watermarks in the plural because, of course, the extent of low
water varies from time to time. For present purposes, four different types of
low water measurement should be mentioned. (i) Mean low tide, the average of
neap and spring low waters, (ii) mean spring low tide, the average of spring
low waters, (iii) mean neap low tide, the average of neap low waters, and (iv)
the lowest astronomical tide, the most extreme neap low water, which occurs every
18.6 years. (Extreme low water was also referred to in oral argument, when it
was said to be the same as lowest astronomical tide, but that was corrected
subsequent to the hearing. However, it did not feature in argument as a
separate relevant measurement, save by way of explanation of a line on a
chart). There are, unsurprisingly, high water equivalents of these four low
water measurements.
8.
The breeding and other habits of cockles and mussels differ to some
extent, but it is common ground that there is no need for present purposes to
make any distinction between the two types of shellfish (and any reference to
“shellfish” hereafter is to cockles and mussels). Shellfish are to be found on
the foreshore, but they are also to be found in the shallow seas. At least in
the past, shellfish were taken entirely from the foreshore at low tide by
individuals coming by foot from the shore and gathering them by hand. In recent
times, however, with the development of more sophisticated and aggressive
fishing techniques, in particular suction dredging, shellfish are increasingly
gathered from vessels at a time when the foreshore is not exposed by the tide -
as was done recently by the appellants as referred to in para 3 above.
The issues between the parties
9.
As mentioned above, it is accepted that the Estate is the owner by
prescription of the exclusive right to take shellfish over part of the
Foreshore (“the Right”), but what divides the parties is the extent of the area
over which it can claim the Right (“the Area”).
10.
The southern and northern boundaries of the Area are not in dispute:
they are Wolferton Creek and Thornham Creek respectively. The disputes involve
(i) the location of the western, seaward, boundary and (ii) issues relating to
former sandbanks near the eastern, landward, boundary.
11.
The dispute over the western, seaward, boundary is whether the Estate’s
Right extends to mean low tide, mean low water spring tide, lowest astronomical
tide, or some other mark. At first instance, Sir William Blackburne held that
it was the mean spring low water, whereas the Court of Appeal concluded that it
was the lowest astronomical tide mark. The appellants primarily contend that
the western boundary should be that shown in the Lynn Deeps Fishery Order 1872
(“the 1872 Order”), or alternatively mean low water, whereas the respondents
support the conclusion reached by the Court of Appeal.
12.
As to the issue relating to sandbanks, the appellants contend that,
unless the respondents can establish that the Estate’s prescriptive Right extended
to a sandbank before it became attached to the Foreshore, the Right cannot
extend to such a sandbank simply because it becomes attached to the Foreshore.
The respondents contend that the Right can and does so extend, and in that
connection they rely on two arguments. The first is that the Right is a
prescriptive right which applies to the Foreshore as it is constituted from
time to time. The second argument is that, if this first argument is wrong, the
respondents are entitled to invoke the doctrine of accretion, so that a
sandbank becomes, as it were, added to the Area the subject of the Right by
operation of law, when it becomes attached to the Foreshore. Sir William
Blackburne and the Court of Appeal accepted both the respondents’ arguments.
The factual evidence and
previous litigation
13.
The evidence included a number of charts and maps going back to 1588,
which, as mentioned, clearly establish that (i) the location of the low and
high water marks moved significantly over time, and (ii) various sandbanks,
which were initially separated therefrom, became attached to the Foreshore as
channels became silted up. The evidence also included a number of witness
statements, which concentrated on both relatively recent events and analyses of
the effect of earlier proceedings or deductions made from historic documents,
some private and some public.
14.
The private documents include a number of leases of exclusive fishing
rights granted by the Estate between 1857 and 1970. These leases describe the
extent of the exclusive fishery in different terms. For instance, the 1857
lease referred to “the extreme low water mark of the sea”, and the 1970 lease
described the boundary as “so far as may be worked without boats … at extreme
low water”. A 1903 lease identified the seaward boundary as the ordinary low
water mark. Other leases were less precise as to the boundary, some simply
referring to “the foreshore” and another to “the foreshore and so much of the
seabed that belongs to [the lessor]”.
15.
The 1857 lease was for a term of ten years, and, during its currency, a
successful action for trespass at the Norfolk Summer Assize was brought, for
some reason in the name of the Estate rather than the lessee, against a Mr Rowe
who had taken mussels from the Foreshore between high and low water - Le
Strange v Rowe (1866) 4 F & F 1048. In his direction to the jury in
that case, Erle CJ said at p 1056 that “there is evidence of what to my mind
was a very strong act of ownership in respect to the taking of mussels”.
16.
The 1872 Order was the first of a number of orders regulating fishing in
the eastern side of the Wash. It applied for 60 years. The boundary of the exclusive
fishery in the 1872 Order was described as “the line of ordinary low water
mark, by the western side of the Stubborn Sand”. The chart attached to the 1872
Order indicated that the seaward extent of the exclusive fishery vested in the
Estate was “at least as far seaward as” mean spring low water (at least
according to Bridge LJ in the judgment referred to in paras 21 and 22 below),
and that that fishery included Stubborn Sand (which was by then joined to the
Foreshore) but not Ferrier Sand (which was still separate from the Foreshore at
that time). The Estate was involved in the drafting of the 1872 Order
(including the attached chart), which also established the Lynn Fisheries
Committee.
17.
The 1872 Order was made under the Sea Fisheries Act 1868 (31 & 32
Vict C45), which was enacted following a national review of fisheries, and was
intended to bring some clarity to the existence and extent of coastal private
fishing rights. Section 48 of the 1868 Act specifically provided that that no
order made under that Act “shall take away or abridge any Right of Several [ie
exclusive] Fishery … enjoyed by any Person under … Prescription or Immemorial
Usage, without the consent of such Person”.
18.
In 1885, proceedings were brought by the Estate against the local
authority, Lynn Corporation, with a view to establishing the southern boundary
of the fishery - Le Strange v Lynn Corporation. The decision of Lord
Coleridge CJ, in favour of the Estate, was only reported in a local newspaper,
but we were shown a fairly full note of the judgments of the Divisional Court,
who refused Lynn Corporation’s application for a new trial. The propositions
which this case supports for the purpose of the instant proceedings are
limited, but may be summarised as follows: (i) the Estate claimed its exclusive
Right extended over Stubborn Sand but not over Ferrier Sand or other
unconnected sandbanks, (ii) the decision effectively established the northern
and southern boundaries of the Area the subject of the Right, and (iii) the
proceedings illustrate how the Estate has taken steps to protect the Right over
the Area.
19.
The most recent lease was granted in 1970 for a term of three years to
Mr Loose, who continues to hold over 45 years later. In 1971, a Mr Castleton
took mussels from a location near Stubborn Sand, seaward of the mean low water
mark, but landward of the mean low water springs mark. This led to proceedings
against him by Mr Loose for declaratory, injunctive and financial relief. The
proceedings were heard in the King’s Lynn County Court by His Honour Judge
Moylan, who, in a judgment given in January 1977, found for Mr Loose. He
decided that the Estate, as the Lords of the Manors, had acquired the ownership
of an exclusive fishery over the Foreshore by prescription, and that the
western, seaward, boundary of the area concerned was “at least” as far from the
shore as the mean spring low water mark (as Mr Loose claimed). Judge Moylan’s
decision was subsequently upheld by the Court of Appeal - see Loose v
Castleton (1978) 41 P & CR 19.
20.
Judge Moylan’s judgment is only available in draft form, but it is clear
and coherent, and shows that he had little hesitation in reaching his
conclusion, saying that the “evidence builds up to a very strong case that for
nearly the last four centuries … the Lords of the Manors … have acted as the
owners and possessors of the soil of the Foreshore … and of a several fishery in
the waters over that soil”. Some of the documents of title relating to each of
the Manors included specific references to fisheries - in the case of one of
the Manors as long ago as the early 12th century and in the case of the other
in the 16th century; and, while other documents of title did not specifically
refer to fisheries, they included rights in general terms which could have
extended to fisheries. Judge Moylan also referred to “acts of ownership,
possession and user” supporting the existence of the Right, on the part of the
Lords of the Manors going back to the early 17th century, including acts
against third parties who were fishing on the Foreshore, leases granted of the
fishing rights claimed, and records of expenditure on preserving those fishing
rights.
21.
Judge Moylan went on to accept that, as “the most successful mussel beds
are found between mean low water and low water mean springs, … the seaward
boundary of the fishery is and always has been at least as far out as the line
of low water mean springs wherever that may be from time to time”, which is
what the Estate had claimed.
22.
The Court of Appeal upheld Judge Moylan’s decision for reasons given by
Bridge LJ, with whom Megaw and Ormrod LJJ (both of whom gave short judgments)
agreed. The main issue on the appeal was whether the evidence of title relating
to the two Manors was such as to undermine Judge Moylan’s conclusion. In that
connection, Bridge LJ said at p 30 that the evidence was sufficient to raise
“the presumption of a lost grant dating from some period … before the end of
the reign of Henry II”. At p 32, Bridge LJ rejected the contention that there
was a rule of law that the seaward boundary was limited to the mean low water
mark. On the evidence, he agreed with Judge Moylan that the boundary was mean spring
low water, but, as Judge Moylan made clear, Mr Loose’s case was that it was “at
least” mean spring low water.
23.
In concluding where the seaward boundary of the Area lay, Bridge LJ’s
reasoning was controversial. Having given two reasons which were each based on
evidence of fact which had not been referred to, let alone specifically
accepted, by Judge Moylan, Bridge LJ said this at p 33:
“perhaps most importantly of all,
there was clear evidence … that the best mussel grounds … 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 …, it was doing
so by reference to an artificial line on a map - mean low water at ordinary
tides - …, 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 …’.”
24.
Successive Fishery Orders were made after the 1872 Order expired. The
most recent is the Wash Fishery Order 1992 (SI 1992/3038) (“the 1992 Order”),
which was made pursuant to the Sea Fisheries (Shellfish) Act 1967. So far as
the legal effect of the 1992 Order is concerned for present purposes, it
included in article 16 a statement that “[n]othing in this Order shall affect
prejudicially … any right … of [the Estate]” and it also stated that “nothing
herein contained shall be deemed to be a consent to or be construed to
recognise … the existence of any right, power or privilege of the [Estate]”.
However, during the currency of the negotiations leading up to the 1992 Order,
and relying on Loose v Castleton, the Estate successfully
persuaded the relevant Fisheries Committee and the Crown Estate that certain
sandbanks which were part of the foreshore but had previously been detached
from it, including Ferrier Sand, should be excluded from their respective
jurisdictions. This caused resentment among the fishing community in the
location, and this then led to the testing of this outcome by the appellants
fishing in the areas described in para 3 above, and this in turn resulted in
the instant proceedings.
The proceedings below
25.
At the hearing before Sir William Blackburne, the appellants
(unsurprisingly) accepted Judge Moylan’s finding that there was an exclusive,
or several, fishery vested in the Estate, which had been let to Mr Loose.
However, they concentrated on (i) an aspect which was not conclusively
determined in Loose v Castleton, namely the seaward boundary, and (ii)
another aspect which appears to have been barely touched on in Loose v
Castleton, namely the sandbanks which had formerly been separated from the
Foreshore, but which had become attached thereto.
26.
In relation to the formerly detached sandbanks, there was no suggestion
by the respondents that the Estate had exercised an exclusive right to take
shellfish over any of the sandbanks which, at least on the evidence currently
available, had previously been separated from the Foreshore, with the sole
exception of Stubborn Sand. Thus, with the exception of Stubborn Sand, it was
common ground that former sandbanks (such as Ferrier Sand and Blackguard Sand),
so long as they were separated from the Foreshore, had not been treated as part
of the exclusive fishery claimed by the respondents. It was also accepted that
they had been available to members of the public for fishing as of right, and,
at least in the case of some of those sandbanks, that members of the public had
actually taken shellfish from them within living memory.
27.
The appellants contended at trial (i) that the seaward boundary of the
Area was the mean low water mark, and (ii) that none of the formerly separated
sandbanks (including Stubborn Sand) was subject to the Right. In an instructive
judgment, Sir William concluded that (i) mean spring low water marked the
boundary of the Area, on “pragmatic grounds” but also following Loose v
Castleton, and (ii) sandbanks, which were formally separated from the
Foreshore, became part of the Area when they became joined to the Foreshore, on
the alternative grounds that (a) the prescriptive right extended to the
Foreshore as it was physically constituted from time to time, or (b) if the
prescriptive right was limited to the foreshore in its original state, it
nonetheless extended to previously separated sandbanks as they joined to the
foreshore, pursuant to the doctrine of accretion - [2013] EWHC 901 (Ch).
28.
On the appellants’ appeal and the respondents’ cross-appeal, the Court
of Appeal held, for reasons given in a clear judgment by Moore-Bick LJ, that
(i) allowing the cross-appeal, the seaward boundary of the Area was the lowest
astronomical tide mark, and (ii) dismissing the appeal, Sir William was right
about the former sandbanks being included in the Area for the reasons which he
gave - [2015] Ch 547.
29.
On this appeal, the respondents adhere to their position below and
contend that the Court of Appeal was right on both aspects, essentially for the
reasons given by Moore-Bick LJ. The appellants, on the other hand, have changed
their position, albeit only slightly. As to the seaward boundary, the
appellants contend that it should be as marked on the chart attached to the
1872 Order, or alternatively that it should be mean low water. So far as the
formerly separated sandbanks are concerned, while the appellants’ basic case
remains as it was (namely that neither ground for accepting the respondents’
case is sustainable), they now accept that Stubborn Sand is included in the
Area the subject of the Estate’s exclusive fishery, although they maintain their
contention that Ferrier Sand, Blackguard Sand and any other sandbanks which
have become joined to the foreshore within living memory, are not.
30.
The Crown Estate Commissioners have since 1961 been responsible for
managing the Crown Estate, and therefore have an obvious interest in the
outcome of this case. They intervene in this appeal, and support the
appellants’ case on the issue of whether previously separated sandbanks, which
have now attached to the foreshore, should be treated as subject to the Estate’s
right, contending that they should not be so treated.
Prescription: the applicable legal principles
The right to fish on the
foreshore
31.
Piscary is the legal name of a right to catch and take away fish, and it
is an example of a right over land known as a profit à
prendre (or, more simply, a profit), which is a right to go on to the land of
another to remove items (eg gravel, timber, game). Profits, like easements (a
different category of rights over land, which include rights of way, rights of
light and rights of water), are recognised in common law and statute as legal
rights known as incorporeal hereditaments. A right of piscary which does not
limit the quantity of fish which can be taken to the requirements or benefit of
neighbouring land, is in law known as a profit in gross, and, unlike a right of
piscary which is so limited (or a right of way or a right to light), it is
capable of surviving independently of any land owned by the grantee - see Harris
v Earl of Chesterfield [1911] AC 623.
32.
Historically, it has long been accepted that the Crown is prima facie
the owner of the bed of the sea, and of the foreshore so far as the tide flows
and reflows. “Prima facie” because there is nothing to prevent the Crown from
alienating (ie transferring away its ownership of) any part of the foreshore or
seabed, and it has done so in respect of much of the coast of England and
Wales. However, as Sir Matthew Hale wrote in De Jure Maris et brachiorum
ejusdem (1888 ed), p 11, “the common people of England have regularly a
liberty of fishing in the sea or creeks or arms thereof, as a public common of
piscary”. This is because, since time immemorial, the public has fished for
fish and shellfish by right in those areas, but not in non-tidal waters.
33.
Nonetheless, as Hale went on to explain, the Crown could, by its
prerogative, exclude the public from exercising that right, and grant the right
of fishery to an individual or individuals “exclusive of that common liberty”.
It has been said on a number of occasions that this prerogative power was
irrevocably lost in 1215 following the sealing of Magna Carta - see per Blackstone,
2 Bl (Comm), p 59, and, more recently, per Willes J giving the unanimous advice
of the judges in Malcolmson v O’Dea (1863) 10 HL Cas 593, 618, where he
added that this did not affect rights “which were made … by Act of the Crown
not later than the reign of Henry II”, ie not later than 1189, when Richard I
succeeded him.
34.
This advice was held by Lord Blackburn in Neill v Duke of Devonshire (1882)
8 App Cas 135, 178 to “settle” the law, and it was described as “unquestioned
law” by Viscount Haldane LC in Attorney-General for the Province of British
Columbia v Attorney-General for the Dominion of Canada [1914] AC 153, 170.
It should also be mentioned that, while it is accepted that the Crown cannot
create an exclusive fishery, there is no reason why Parliament cannot do so or
authorise the executive to do so, and, as Sir William Blackburne explained at
[2013] EWHC 901 (Ch), paras 15-26, it has done so in relation to many areas
round the United Kingdom, including the Wash.
35.
The grant of an exclusive fishery (whose technical description is, as
already explained, somewhat confusingly, a several fishery) over a tidal area
is not really a grant of the right to take fish from that area, as the grantee
would presumably have that right in his capacity as a member of the public.
Rather, it is the grant of a right to exclude anyone else from fishing over
that area. Classically, such a right would be granted by deed, but, as with
many rights over property, it can be acquired by long use - ie by prescription.
Obtaining rights by
prescription
36.
As Lord Hoffmann said in R v Oxfordshire County Council, Ex p
Sunningwell Parish Council [2000] 1 AC 335, 349, “[a]ny legal system must
have rules of prescription which prevent the disturbance of long-established de
facto enjoyment”. Given that a prescriptive right is based on long use,
the nature and extent of a prescriptive right depends on the nature and extent
of the long-established use. As Bovill CJ put it in Williams v James (1867)
LR 2 CP 577, 580, “[i]n all cases of this kind which depend upon user the right
acquired must be measured by the extent of the enjoyment which is proved”.
37.
The quality of the use required in order to establish a prescriptive
right to a profit or an easement is embodied in the expressions, which have
been held to be synonymous in their meaning and effect, namely “as of right”
and nec vi, nec clam, nec precario (ie not secretly, not by force, and
not with permission). As Lord Walker put it in R (Lewis) v Redcar and
Cleveland Borough Council (No 2) [2010] 2 AC 70, para 30, persons claiming
to have acquired a right by prescription “must by their conduct bring home to
the landowner that a right is being asserted against him, so that the landowner
has to choose between warning the trespassers off, or eventually finding that
they have established the asserted right against him”.
38.
The period for which use must be enjoyed to establish a prescriptive
right to a profit or an easement depends on the nature of the right claimed.
The law in that connection is a mixture of inconsistent and archaic legal
fictions, practical if sometimes haphazard judge-made rules, and (in the case
of easements and some profits but not profits in gross) well-meaning but ineptly
drafted statutory provisions.
39.
The common law originally fixed the requisite prescription period as
being from “time immemorial”. In due course, this came to mean from before
1189, as discussed by Cockburn CJ in Bryant v Foot (1867) LR 2 QB 161,
179-182, and as explained by Lord Hoffmann in Sunningwell at pp 349-350.
Because of the impracticality of requiring evidence of use going back to the
end of the 12th century, the judges developed the rule that use which can be
shown to have been enjoyed as of right for 20 years continuously or else since
before the “time of living memory” (ie there is no living witness who can speak
to a period when it was not enjoyed) would suffice to establish a prescriptive
right - see eg Aynsley v Glover (1875) 10 Ch App 1023 and RCP
Holdings Ltd v Rogers [1953] 1 All ER 1029. However, such a claim could be
defeated where it could be proved that the origin of the enjoyment must have
been more recent than 1189 - see Bury v Pope (1586) Cro Eliz 118 and Bowring
Services Ltd v Scottish Widows Fund and Life Assurance Society [1995] 1
EGLR 158, 160.
40.
Because even this somewhat more relaxed approach to common law
prescription was regarded as imposing too rigid a test in some cases, the
judges then developed the more flexible doctrine of lost modern grant, which
can be relied on where there has been “upward of 20 years’ uninterrupted
enjoyment” even if there is “direct evidence that no such grant was in fact made”
- per Buckley LJ in Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 552.
However, as he also explained, the doctrine cannot be relied on if “for some
reason, such as incapacity on the part of [the putative grantor], the existence
of the grant is impossible”.
41.
Meanwhile, after the judiciary had developed common law prescription and
lost modern grant, the legislature intervened and enacted the notoriously
poorly drafted Prescription Act 1832 (2 & 3 Will 4 c71). The 1832 Act has
not replaced the common law, but has added a further basis for claiming a right
by prescription.
42.
The Right in this case is based on the uncontested fact that the Estate
(and their lessees and agents) have excluded the public from at least part of
the area over which they claim to have established a right back to a period
before the time of living memory, and there is no evidence to suggest that the
Right could not have been granted before 1215. No specific reliance has been
placed by the respondents on the 1832 Act. This may be because it is assumed
that the present case involves a profit in gross (as, by virtue of the words
“the occupiers of the tenement in respect whereof the same is claimed” in
section 5, it appears that that statute does not extend to a profit in gross).
Or it may be because it is assumed that the 1832 Act does not take matters
further than common law prescription, in the light of the effect of Magna
Carta, as described in paras 33 and 34 above. Lost modern grant was not relied
on, presumably for this latter reason. Accordingly, it is contended by the
respondents (and not challenged by the appellants) that the Right is founded on
common law prescription.
43.
In the light of the arguments in this case, it is worth quoting another
passage in the advice of Willes J in Malcolmson. At p 618, he said that
once a prescriptive right is established “the result is, not that you say, this
is a 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”. In other words, because the several fishery
is treated today as having been the subject of a valid grant at some point
before living memory, the legal fiction that the right is treated as granted
before 1189 should not be treated as more than a metaphor. As Lord Mansfield
said in Jones v Randall [1774] Lofft 384, 385, “[t]he law would be a
strange science … if … we must go to the time of Richard I … and see what is law”.
The extent of a prescriptive
right
44.
When considering the arguments relating to both the seaward boundary and
the formerly separated sandbanks, it is vital to bear in mind that the basis
upon which the Estate claims to have obtained its right of exclusive fishing is
by prescription. It is therefore appropriate to consider the precise nature of
the inquiry involved in an exercise of establishing the nature and extent of a
prescriptive right.
45.
It is true that a prescriptive right can be said to be based on a
notional grant, but that grant is not merely notional: it is fictional. The
essential point is that such a right is based not on an imagined document, but
on actual use “as of right”, namely use which is such as to “bring home to the
landowner that a right is being asserted against him”, as Lord Walker said in
the Redcar and Cleveland Borough Council case at para 30. In other
words, in order to identify the nature and extent of the right obtained by
prescription, one has to examine the actual use as of right upon which it is
said to be based. The correct question is therefore not what the notional grant
would have been likely to be, let alone what would have been the intention of
the notional grantor; it is what is the extent of the user as of right for the
requisite period. (In many cases, of course, these questions will produce the
same answer).
46.
Thus, as is reflected by what was said by Bovill CJ in Williams v
James, the “general rule” is accurately set out in Gale on Easements
(19th ed (2012), para 9-03, discussing rights of way, but it is applicable
to any right), namely “where a right of way is acquired by user, the extent of
the right must be measured by the extent of the user”. Having said that, the
extent of the right obtained by prescription has to be established bearing in
mind practical reality. This is exemplified by the unum quid rule which
was explained by Lord Blackburn (who said that it was “as much the law in a
Scotch as in an English Court”) in Lord Advocate and the Trustees of the
Clyde Navigation v Lord Blantyre (1879) 4 App Cas 770, 791-792 in these
terms:
“[A]ll that tends to prove
possession as owners of parts of the tract tends to prove ownership of the
whole tract; provided that there is such common character of locality as would
raise a reasonable inference that if the barons possessed one part as owners
they possessed the whole, the weight depending on the nature of the tract, what
kind of possession could be had of it, and what kind of possession was proved.”
47.
This was said in connection with possession and ownership of land, but
it applies equally to rights over land. Thus, the rule was specifically applied
to a prescriptive claim for a several fishery in Neill v Duke of Devonshire,
where at p 151, Lord Selborne LC said that “[i]f the fishery of the whole river
… was what has sometimes been called a unum quid, there can be no doubt that
evidence of acts of ownership and
enjoyment in any part of it would be applicable to the whole”. As Lord O’Hagan
emphasised at p 165, reflecting what Lord Blackburn had said in Blantyre,
whether evidence of long enjoyment of fishing over one part of a river will
extend to another part, or to other parts, “must of course vary according to
circumstances”, and “[w]hat may demonstrate it, in one case, may be quite
inadequate for that purpose, in another”.
A shifting prescriptive right
48.
Another issue which should be mentioned in relation to both the seaward
boundary and the sandbanks in the present case is whether the property over
which a prescriptive right is established can change. The concept of a
conveyance of, or a grant of a right over, a shifting, or fluctuating, area of
land is not offensive to any principle of property law, provided that the land
in question can be ascertained at any time with reasonable precision.
49.
As Sir Robert Megarry V-C pointed out in Baxendale v Instow Parish
Council [1982] Ch 14, 22, the contention that there cannot be such a thing
as a shifting freehold is undermined by what is stated in no less an authority
than Coke on Littleton - see Co Litt 48b, p 494 - which plainly supports
the argument that what was conveyed by a particular deed was the foreshore as
it existed from time to time. As Sir Robert went on to hold, and as seems
supported by at least the majority of the court in Scratton v Brown (1825) 4 B & C 485, when it comes to construing a conveyance of (or indeed a deed
of grant over) the foreshore, it is a matter of interpretation whether what is
conveyed (or granted) is the foreshore (or a right over the foreshore) at the
time of the document or the foreshore as it exists from time to time.
50.
If a right over land, the identity of which shifts, can be the subject
of an express grant, then it appears to us to follow that, as has been assumed
on all sides below, there is no reason why that should not apply equally to a
right over land obtained by prescription.
Presumptions in the case of
prescriptive rights against the Crown
51.
It is well established that, unlike other instruments, grants by the
Crown are not construed against the grantor (contra proferentem). Crown
grants are “construed most strictly against the grantee and most beneficially
for the Crown, so that nothing will pass to the grantee but by clear and
express words” - per Lord Birkenhead LC in Viscountess Rhondda’s Claim [1922]
2 AC 339, 353. The reason for this is that “the prerogatives … of the Crown
being conferred upon it for great purposes, and for the public use, it shall
not be intended that such prerogatives … are diminished by any grant, beyond
what such grant by necessary and unavoidable construction shall take away” -
per Sir William Scott in The Rebeckah (1799) 1 Ch Rob 227, 230. This
principle has been more recently recognised by Lewison J in Crown Estate Comrs
v Roberts [2008] 2 P & CR 255, paras 78-80.
52.
As the Court of Appeal rightly said, this rule has no part to play in a
case such as this, where the right concerned was not granted by a document, but
arises as a result of long use. However, in our view, the principle upon which
the rule is based can, for what it is worth, properly be prayed in aid by the
Crown in relation to a claim based on prescription, and therefore by the
appellants in this case. It appears to us that that basic principle is that a
court should not be too easily persuaded that the Crown has been deprived of a
property or a right, given that the property or right is held for the public
good. Therefore, in cases where it would otherwise be quite unclear whether a
prescriptive right obtained against the Crown extended to certain property or
certain rights, the principle may properly be invoked to justify the conclusion
that it does not so extend. In the great majority of cases of prescription, as
in most cases of express grant, this principle will take matters no further, as
it is only where the extent of the right would otherwise be really unclear that
the principle can come into play.
53.
There is, we would add, some force in the point that this principle
should be given particular weight in relation to a prescriptive several
fishery, given the importance accorded to the public right to fish as long ago
as 1215. As Lewison J said in Roberts at para 115, “[g]iven the
importance of the fishing industry both in ancient times and also today several
fisheries were not popular”.
Conclusions on the issues in this appeal
Introductory
54.
The appellants have been realistic in accepting that the Estate has a
several fishery on the Foreshore, in the light of the findings and judgments in
the earlier cases, as well as the leases and the oral evidence before Sir
William Blackburne. Both parties have been realistic in accepting that the
location of the seaward boundary of the Area subject to the fishery has not
been determined in previous proceedings (in Loose v Castleton, Mr Loose
contended that it was “at least as far out as the line of low water mean
springs”, which Judge Moylan accepted). Equally, they have been realistic in
accepting that the issue whether the fishery extended to previously unattached
sandbanks was not decided in previous proceedings.
55.
So far as the two issues on this appeal, the seaward boundary and the
previously unattached sandbanks, are concerned, most of the relevant evidence
had already been agreed before, or found by, Judge Moylan in Loose v
Castleton. However, there was further and more detailed evidence adduced
before Sir William Blackburne, particularly relating to the location of the
Estate’s fishery at different times, fishing methods and tidal movements.
56.
The leases granted between 1857 and 1970 obviously support the Estate’s
contention that it owned a several fishery, but, when it comes to identifying
its eastern and western boundaries, they are imprecise and inconsistent. The
Fishery Orders are expressly not intended to determine private rights. The maps
and charts established facts described in paras 5 to 7 above, but are not of
much further help. As to the more recent factual evidence, there were occasions
when the appellants or other fishermen negotiated with representatives of the
Estate or Mr Loose to take cockles from Ferrier Sand. However, the negotiations
were quite insufficient in terms of frequency, period of time, and express
terms to give rise to any arguable inference of a public acceptance of the
existence of a several fishery over Ferrier Sand (and we doubt whether they
could give rise to a several fishery in any event).
The seaward boundary: a
fluctuating boundary?
57.
As mentioned above, it is rightly common ground that the Estate has a
prescriptive exclusive Right to take cockles and mussels within an Area of the
foreshore between Wolferton Creek to the south and Thornham Creek to the north.
It is clear that the seaward, western, extent of the boundary of that Area must
be a low water mark. The first question is, logically, whether that boundary is
a fixed boundary, or whether it is one which fluctuates with the relevant low
mark. The second question is which of the various suggested low water marks is
the appropriate boundary.
58.
So far as the first question is concerned, we consider that the
assumption which was made below was correct, and that the seaward boundary of
the Area the subject of the exclusive Right to take shellfish fluctuates with
the passage of time as the low water mark moves. The Estate has exercised a
prescriptive exclusive Right to take shellfish from the foreshore for a
substantial period, during which the low water mark fluctuated to a significant
extent over time, in circumstances where the evidence clearly establishes that
the only way in which the shellfish were gathered was by individuals walking
from the land when the tide was out. It is in those circumstances inherently
very likely, indeed inevitable in terms of practical reality, that the putative
Right would have been exercised over an area which was defined, or limited, by
a shifting low tide mark. Thus, based on the inherently probable nature and
extent of the actual exercise of the putative Right to fish by or on behalf of
the Estate, we conclude that the boundary of the Area would have been low water
as it was from time to time.
59.
This is not an application of the unum quid rule, but it involves
an approach roughly akin to it. The natural unit of property so far as the
exercise of the Right is concerned is the stretch of foreshore between high
water and low water, and, as the land comprised within that unit moves with the
shifting tides, one would expect, at least in the absence of good reason to the
contrary, the exercise of the putative right to move correspondingly. As Sir
Robert Megarry put it in Baxendale at p 25, “one would expect sea-grounds,
oyster-layings, shores and fisheries to follow the sea as it advances or
retreats”.
60.
Further, and importantly, it is not as if the existence of such a
fluctuating right would have detrimentally affected any other interests, and in
particular any public interests, of any significant value. We accept that the
public would have enjoyed the right to take shellfish seaward of a low water
mark boundary, and that right would be lost as, and to the extent that, the
boundary shifted seaward. However, such a right would have been of no value, as
nobody could have got access to the shellfish below the low water mark on foot,
and, as explained in para 9 above, access from the sea for that purpose is of
comparatively recent origin.
61.
In these circumstances, we cannot accept the appellants’ primary
contention that the boundary of the Area is the low tidemark shown on the chart
attached to 1872 Order, as this would mean a fixed seaward boundary to the
Area. In any event, as already mentioned, the 1872 Order was made under
legislation which provided in terms that it was not intended to delimit the
extent of private fisheries (even though it is fair to say that there is some
evidence which could be said to suggest that the tidemark shown on the chart
was understood by some people at the time to identify the boundary of the
Right).
The seaward boundary: which low
water mark?
62.
As to the second issue, namely the identity of the low water boundary of
the Area, it is well established that the landward limit of the foreshore is
the mean high water mark. In Attorney-General v Chambers (1854) 4 De G M & G 206, 218, Lord Cranworth LC (who was assisted by Alderson B and Maule
J) said that “Lord Hale gives as his reason for thinking that lands only
covered by high spring tides do not belong to the Crown, that such lands are
for the most part dry and maniorable”. Lord Cranworth then said that “the
reasonable conclusion is, that the Crown’s right is limited to land which is
for the most part not dry or maniorable”. However, as is common ground between
all parties to this appeal, there is no equivalent consensus as to where the
seaward limit of the foreshore is located. Further, the reasoning of Lord
Cranworth in the passage just cited does not cast much, if any, light so far as
the seaward limit of the foreshore is concerned.
63.
Accordingly, the selection of the relevant low water mark which provides
the boundary of the Area is a relatively open question.
64.
Not without some hesitation, we have come to the conclusion that the
most satisfactory low water mark to select as the appropriate seaward boundary
of the Area the subject of the Right is the lowest astronomical tide. That
conclusion appears to us to produce the least arbitrary result and to be
consistent with the unum quid principle (discussed in paras 46 and 47
above). Selecting the most extreme low water mark means that all parts of the
Foreshore which are at any time uncovered by the sea are included in the Area,
whereas any other selection involves some of those parts being excluded from
the Area. And, as we see it, the unum quid principle would at least tend
to suggest that one should assume, at least in the absence of good reasons to
the contrary, that the Right was being exercised in respect of the whole of the
Foreshore, as it was from time to time uncovered by the sea.
65.
Further, the alternative marks proposed (whether mean spring low water,
as the Judge selected, or mean low water as the appellants suggested) are mean
low water marks. As Moore-Bick LJ said, unlike lowest astronomical tide, which
is an actual (if rare) tide mark, they would therefore involve taking an
artificial mark, although it is fair to say that it could be seen from a chart.
In addition, it seems to us that the lowest astronomical tide is consistent
with the approach of Popham CJ in Sir John Constable’s Case and Sir
Henry Constable’s Case as translated and discussed by Moore in A History
of the Foreshore and the Law Relating Thereto (1888), pp 233-237. The
passage in the judgment, quoted at pp 235-237, suggests that the correct mark
is where “the sea does not ever ebb” or “the lowest ebb”. The two cases were
respectively concerned with the extent of a manor and the right to take a
wreck, so we would accept that they are only of indirect assistance.
66.
We were initially impressed with the appellants’ point that lowest
astronomical tide was an unattractive boundary to select, as it occurs only
once in every 18.6 years, which significantly exceeds the average life of a
cockle or mussel. At first sight, at any rate, that renders the lowest
astronomical tide a rather unrealistic mark to take. However, it is important
to bear in mind that, until recently, cockles and mussels could only be
gathered from the shore when the tide was out, and could not be gathered from a
ship. Accordingly, nobody would have been able to take the cockles and mussels which
were just on the shore side of lowest astronomical tide, except once every 18.6
years. It is only with the advent of suction dredging and other similar
techniques that anyone could gather such cockles and mussels.
67.
We do not agree with the reasoning of Moore-Bick LJ (which was
understandably based on the likely notional grant, following the wrong approach
in Loose v Castleton at p 33, rather than the probable actual use), but
we agree with his conclusion that the seaward boundary of the Area subject to the
Right is the lowest astronomical tide mark from time to time.
The previously separated
sandbanks: prescription
68.
We turn to the respondents’ contention that sandbanks, previously
separated from the foreshore, and thus not forming part of the Area subject to
the Right, nonetheless become part of the Area as a matter of prescription when
they become attached to the foreshore. In this connection, the respondents’
first argument is that, although the Estate did not gather cockles or mussels
from sandbanks such as Ferrier Sand and Blackguard Sand, when they were
separated from the Foreshore, the nature of the Estate’s prescriptive right is
such that it automatically extended to those sandbanks as soon as they became
attached to the Foreshore around 50 and 20 years ago respectively.
69.
Given that the Estate is claiming a prescriptive Right, this argument
must be based on the proposition that, over a long period, sandbanks which have
been close to, but detached from, the Foreshore have from time to time become
joined to the Foreshore as channels have become silted up, and, as and when
this happened, the Estate effectively extended the collecting of shellfish to
that former sandbank. The Court of Appeal accepted this argument, on the basis
of assessing the likely terms of the hypothetical grant which would have been
made (applying Bridge LJ’s faulty analysis in Loose v Castleton at p 33)
- see para 26 of Moore-Bick LJ’s judgment. However, as already explained the
proper basis for establishing the nature or extent of a prescriptive right is
not by assessing the likely terms of a fictional notional grant, but by
assessing the extent of the actual use of the putative right established by the
evidence.
70.
The respondents maintain that the Court of Appeal’s conclusion was
nonetheless correct and, at any rate at first sight, they can derive
substantial support for their argument from the reasoning in paras 58-60 above,
which justifies the conclusion that the seaward boundary of the Area
fluctuates. Although we acknowledge that that argument has some force in the
present context, we have reached the conclusion that the evidence does not
establish that the Estate’s prescriptive exclusive Right extends to sandbanks
which were not previously joined to the Foreshore, as and when they become so
attached.
71.
For present purposes, there are two distinctions of significance between
the notion that the low tide mark boundary of the Foreshore fluctuates and the
notion that attaching sandbanks become part of the Foreshore. First, the low
tide mark will, presumably, at least normally, shift relatively gradually,
whereas, although the silting up of the channel concerned will be gradual, the
attachment of the whole of a previously detached sandbank to the Foreshore will
happen at one moment. It is true that a channel between a sandbank and the
foreshore will silt up gradually, but the question whether a sandbank has
become joined to the foreshore must surely be tested by reference to a
particular point in time, and we would have thought that it would be when the
tide has receded past the point where the sandbank has or could become joined
to the foreshore - ie low tide. In that connection, it was implicitly accepted
by the respondents that there would be a specific point at which a former
sandbank would become joined to the foreshore: they did not suggest, for
instance, that the prescriptive right would attach to a sandbank at low tide
but not at high tide.
72.
Secondly, and particularly importantly in this context, the public will
have had the right to take fish (including shellfish) from such a sandbank, at
least until the moment when it becomes attached to the Foreshore. In those
circumstances, at least in the absence of any specific evidence that the Estate
in fact took shellfish and excluded the public from doing so, as of right from
sandbanks as they became attached to the Foreshore, we do not think that it
would be right to assume that the Estate did in fact behave in this way.
73.
Unlike the position in relation to the fluctuating low tide mark, it is
by no means plain or obvious that, once a sandbank became attached to the
Foreshore, the Estate would have exercised an exclusive Right to take shellfish
from that former sandbank. After all, up to that moment, the public had had a
right, and, at least in some cases, had exercised the right, to take shellfish
from that sandbank. In the absence of any evidence that such a thing had ever
happened, it appears to us wrong in principle to assume that what the Estate
contends might have happened would have happened, let alone that it did happen.
Indeed, given that, over at least the past 150 years or so, members of the
public took shellfish from the Area which was subject to the Right (at least on
the occasions giving rise to these and the earlier proceedings), it appears to
us unlikely that local fishermen would have been prepared to accept the Estate
maintaining (or, as they would have seen it, extending) its exclusive Right to
fish over former sandbanks which were previously subject to a public right to
fish just because they had become attached to the Foreshore. It is also
relevant to mention that in his case in Loose v Castleton Mr Loose did
not contend that Ferrier Sand was included within the Area.
74.
The respondents argue that the fact that it is common ground that the
Estate’s several fishery extends to Stubborn Sand is inconsistent with this
conclusion. We do not agree. For instance, it may be that, throughout the
period during which the Estate has been taking shellfish from the Area, that
activity extended to Stubborn Sand, even before it became attached to the
Foreshore. Over and above this, if, as seems to have been the case, Stubborn
Sand has been joined to the Foreshore since before the time of living memory,
it would, as we see it, appear to follow that the Estate would have acquired
the right to take cockles and mussels from Stubborn Sand by prescription in any
event.
75.
Thus, in summary, we consider that the courts below were wrong on this
point. We accept that there is force in the respondents’ contention that, as a
sandbank becomes attached to the Foreshore, it should be treated as part of the
Area subject to the Right in accordance with the notion that the foreshore is a
shifting piece of property - in effect a unum quid. However, it appears
to us that the existence of a public right to fish over that sandbank, a highly
relevant circumstance, serves to negative the respondents’ contention, at least
in the absence of further supportive evidence - and there is none.
The previously separated
sandbanks: accretion
76.
The alternative basis upon which the respondents rest their contention
that previously unattached sandbanks become incorporated within the Area the
subject of the Estate’s prescriptive exclusive Right is through the process of
accretion. Thus, given (as we have just indicated) that the nature of the
prescriptive Right is not such as to extend automatically to those sandbanks,
the argument is that they are, as a matter of law, nonetheless added to the
Area as a result of the doctrine of accretion.
77.
Whether one is concerned with the ownership of, or rights over, land,
the principle that land can increase (or indeed decrease) as a result of
accretion is well established. In the Privy Council, Lord Wilberforce described
accretion in Southern Centre of Theosophy Inc v State of South Australia
[1982] AC 706, 716 as:
“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 (ie 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.”
78.
The respondents argue that accretion applies to the former sandbanks in
this case, because the channels formerly separating those sandbanks from the
Foreshore only gradually and imperceptibly became silted up, and it was as a
result of such gradual silting up that they became attached to the Foreshore.
Although that argument was accepted by Sir William Blackburne and the Court of
Appeal, we consider that it is wrong. In a nutshell, the argument relies on the
“gradual and imperceptible” process pursuant to which the boundary of the
further land allegedly changes, whereas the doctrine of accretion only applies
where the actual change to the boundary is “gradual and imperceptible”. As
explained in para 71 above, it seems to us clear that there is a specific
moment in time when the whole of a sandbank becomes attached to the foreshore,
and therefore the addition of the sandbank is not “gradual and imperceptible”
as that expression was used by Lord Wilberforce. We believe that this follows
from what he said in the passage quoted above, especially in his reference to
“changes in the boundary” which are “gradual and imperceptible”, and his
specific exclusion of cases where “a substantial and recognisable change in
boundary has suddenly taken place”.
79.
The issue was specifically addressed in the judgment of Griffith CJ in
the High Court of Australia in a passage in his judgment in Williams v Booth
(1910) 10 CLR 341, 350, with which we agree:
“I do not think that any case of
accretion is made out. The law as stated by Blackstone (2 Bl Com, p
262), is that ‘if this gain be by little and little, by small and imperceptible
degrees, it shall go to the owner of the land adjoining. For de minimis non
curat lex. ... But, if the alluvion or dereliction be sudden or
considerable, in this case it belongs to the King; for, as the King is Lord of
the sea, and so owner of the soil while it is covered with water, it is but
reasonable he should have the soil, when the water has left it dry.’ The word
‘imperceptible’ refers to the slowness of the additions to the soil. Assuming,
then, that a moment has arrived at which the mouth of the lagoon became
permanently closed, the suggested accretion is not an addition of an
imperceptible quantity of soil to the plaintiff’s land, but of an area of many
acres occurring at the moment of permanent closure, so that, according to the
plaintiff’s contention, on one day the land belonged to the King as Lord of the
sea and on the next to the plaintiff. This is a sudden and considerable
alluvion or dereliction, and does not operate to confer a title by accretion.”
80.
In other words, there is a difference in kind between the gradual
extension of one recognised bank and the joining up of two formerly distinct
banks. It is true that the two cases just referred to were concerned with
ownership of land rather than prescriptive rights over land, but we can see no
reason in principle or practice why the rules relating to accretion should not
apply equally to rights over land as they do to ownership of land: one would
expect them to march together. Such a view derives support from Mercer v
Denne [1905] 2 Ch 538, especially per Sterling LJ at p 582.
81.
We were pressed by the respondents with the argument that, if we held
that accretion did not apply to Ferrier Sand and other formerly separated
sandbanks, the corollary must be that land forming part of the original
Foreshore which becomes detached as a separate sandbank would nonetheless
remain part of the Area subject to the Estate’s Right of several fishery. We
accept that is indeed the corollary, but we see nothing surprising about it. As
Ladd J pithily said in an Iowan case Holman v Hodges 84 NW (1901) 950,
952 (a decision cited with approval in the Iowan Supreme Court in State v
Sorensen 436 NW 2d 358 (1989) and - albeit on a different point - by
Brennan J in the US Supreme Court decision in Nebraska v Iowa 406 US 117
(1972)):
“There is no more reason for
saying the state loses title to an island when connected by accretions to the
shore than to say title to an islet formed at one side of the thread in an
unnavigable stream is lost when connected with another’s land on the opposite
side.”
Conclusion
82.
In these circumstances, we would dismiss the appellants’ appeal in so
far as it relates to the seaward, western, boundary of the Area, but we would
allow their appeal in relation to previously detached sandbanks.
83.
It would be helpful if we were able to define the precise extent of the
Area over which the Estate’s several fishery should be enjoyed. However, we
suspect that that would only be possible if the parties were able to agree it
following receipt of this judgment. In the absence of agreement, there may be
issues such as the precise identification of the boundary between Stubborn Sand
and Ferrier Sand. Accordingly, if agreement cannot be reached, it appears to
us, at least as at present advised, that we should remit the proceedings to Sir
William Blackburne, or another judge of the Chancery Division, to enable the
precise extent of the Area to be identified.
