Where a public fishery in tidal waters exists no person – including the Crown – has the right to exclude the public or substantially to interfere with fishery.
Wiles J said: ‘It is quite true that the oyster-laying may interfere with the uninterrupted user of the foreshore by the owner; but a like interference with territorial rights takes place in many instances which present no legal difficulty. The rights of inhabitants to recreate themselves on a village green have been repeatedly established by evidence and upheld by the Courts, and yet they may absolutely destroy all chance of the owner making any, or any but the slightest, beneficial use of land which is undoubtedly his. The custom here alleged is not open to the objection that it is in substance a claim to a profit a prendre, nor in my judgment to any other legal objection to its validity. Apart from custom, the owner of the foreshore owns and enjoys the foreshore subject to the common rights of all members of the public, which are such as to reduce the value of the foreshore in nine cases out of ten to something of very small pecuniary value. The owner cannot build on it, because the public have rights of passage over it everywhere per mare et per terram. In all but some exceptional cases he cannot graze it, because no herbage will grow upon it. Where herbage will grow upon it, as in the fens, I do not think oysters will be found to be composite factors. At all events, the enjoyment of the foreshore is subject to the common rights of fishing, and if oysters constitute a part of the fish to be taken, the right of fishing must include the necessary and practical incidentals, and if they involve the consequences that in some places the owner cannot dig ballast or sand for sale, as he can generally, he suffers no inconvenience or loss which is not common to him and the owner – for example, – of the village green, who cannot dig pits or do other acts of ownership which would interfere with the rights of recreation of the inhabitants.’
Judges:
Wills J
Citations:
[1901] 2 KB 870
Land, Agriculture
Updated: 04 May 2022; Ref: scu.526742