The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye.
Held: Lord Chesterfield’a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that limit is assessed by the ‘needs of the estate’.
Buckley LJ considered that ‘At this point I emphasize again that the defendants make no claim in gross. It may well be that there can exist in law a right in gross to enter and take without limitation – without stint – the profits or proceeds of another’s land commercially for the purposes of sale. But prescription in a que estate, being a prescriptive right in respect of particular land to a profit a prendre in alieno solo, is, I think, necessarily measured by the size or nature or wants of the estate in respect of which the prescription is made. Thus if it be for common of pasture it must be for cattle levant and couchant; that is to say, it must be limited by the number of cattle capable of being supported during the winter upon the estate in respect of which the prescription is made.’ or ‘[prescription] must be for a profit a prendre measured by the nature, size and necessities of the estate’.
He rejected an argument that a ‘common of piscary’ stood in a different position to other rights of common, for example, the right to pasture which is referred to in the above quotation, the right to turbary and suchlike.
Judges:
Cozens-Hardy MR, Buckley LJ
Citations:
[1908] 2 Ch 397
Jurisdiction:
England and Wales
Citing:
At ChD – Lord Chesterfield v Harris ChD 18-Nov-1906
A claim was made to an unlimited right of fishing on the River Wye, said to be vested in the freehold tenants of the manor and to have been acquired by prescription.
Held: The claim was to a right in the nature of a profit a prendre, and was . .
Cited by:
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
At CA – Lord Chesterfield v Harris HL 17-Jul-1911
The House considered the nature and ownership of fishing rights on the River Wye. Freeholders in adjoining parishes had been fishing a non-tidal portion of the river for centuries, not by stealth or indulgence, but openly, continuously, as of right . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 15 May 2022; Ref: scu.279920