The court was asked whether the defendants had infringed the claimant’s fishery rights in an area of the Wash.
Held: The private fishery extended seawards as far as the mean low-water mark of spring tides and the fishermen had been fishing in the area of the private fishery.
Held: The private fishery extended seawards as far as the mean low-water mark of spring tides (‘MLWS’) and that the fishermen had been fishing in the area of the private fishery, as Mr. Loose alleged.
Sir William Blackburne said: ‘The nature of the claims of the estate, and therefore of Mr Loose whose leased fishing rights are said to be co-extensive with those of the estate, is very much bound up with the shifting nature of the sandbanks and channels which are so much a feature of the eastern side of the Wash. I was taken in this regard to a series of charts going back over four centuries. The earliest was from 1588, the year of the Spanish Armada, and the next (and rather more informative) Henry Bell Chart (so-named after the person during whose mayoralty of King’s Lynn the chart was drawn) was from 1693. In those days King’s Lynn exercised an admiralty jurisdiction in its area of the Wash. Those and later charts show that whereas in earlier times tidal waters ran close to the shoreline of the area bordered by the relevant lordships, with clearly marked sandbanks separated from the foreshore at low tide, nevertheless with the passage of time and the effect of siltation and other natural phenomena the fresh water and tidal channels altered, both in terms of width and of direction, so that what were once distinct sandbanks became, when exposed at low water, part of the foreshore and thus accessible on foot from the shoreline. A striking example of this process is provided by the so-called Stubborn Sand. In the 16th and 17th centuries, this appears on the charts as an island at low tide, separated from the shore on its eastern side by a distinct channel of water and on its western side by what was known as the Old Channel. It was not then accessible on foot from dry land. The Old Channel led to King’s Lynn which lies to the immediate south and served as a navigable means of access to that port. By the 19th century Stubborn Sand had become and has since remained, when exposed at low water, a part of the foreshore. In effect it has ceased to be distinguishable as a distinct sand bank although it continues to bear that name. Indeed, as the later charts show, the Old Channel has long ceased to be a navigable channel and is nowadays really no more than a tongue of water when exposed at low tide: access by boat to King’s Lynn must now be by a channel lying further to the west.
Another example of the process of change in this part of the Wash concerns the line of what is known as Wolferton Creek. This is a fresh water outlet draining the land between Wolferton and Sandringham on the Norfolk coast to the east. In the earlier charts and maps this stream is shown as flowing into the Wash at low water in roughly an east/west direction. Later charts show the flow of the stream at low water as following a more northerly course. Its gradual shift to the north gave rise to a dispute as to the precise position of the fishery’s southern boundary. The details do not matter. In Le Strange v Lynn Corporation , to which I have already referred, the issue was settled by a determination that the boundary was the east/west line followed by the stream in earlier days.
Other sandbanks, notably the Sunk and Ferrier Sands, have ceased to be distinct ‘islands’ at low tide. Both are now accessible on foot from the shoreline where it is bordered by the estate lordships. Although once it did not, the estate, and through it Mr Loose, now claims that its fishery extends seaward over sands which are now identified on contemporary charts (moving from north to south) as the South Sunk Sand, the Outer Ferrier Sand, the Ferrier Sand and (as to its northern part) the Peter Black Sand. These were formerly inaccessible at low water from dry land but with the silting up of the channels that once separated them from the dry land are now accessible on foot at low water from the eastern shoreline . .’
Judges:
Sir William Blackburne
Citations:
[2013] EWHC 901 (Ch)
Links:
Jurisdiction:
England and Wales
Cited by:
At ChD – Loose v Lynn Shellfish Ltd and Others CA 19-Jun-2014
The parties disputed the rights to take shellfish from the foreshore. Fishermen now appealed against a finding as to the extent of a private fishery from which they were excluded, in particular as to the rights overfomer sandbanks, at the western, . .
At ChD – 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.
Agriculture, Land
Updated: 17 November 2022; Ref: scu.472688