The foreshore owner, and owner of fisheries rights sought damages from fishermen who had come from the sea to take mussels.
Held: The defendants’ appeals failed.
Bridge LJ stated: ‘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.’
Judges:
Bridge, Megaw and Ormrod LJJ
Citations:
(1978) 41 P and CR 19
Jurisdiction:
England and Wales
Cited by:
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to 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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 06 April 2022; Ref: scu.606892
