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 and without interruption, and not only for sport or pleasure, but commercially, in order to sell the fish and make a living by it. The riparian owners, the now respondent Lord Chesterfield and a Mrs Foster asserting ownership of the bed of the river brought an action of trespass against the freeholders for fishing. Mr Harris, one of them, now appealed.
Held: The appeal failed (Majority, Earl Loreburn LC, Shaw of Dunfermline, and Ashbourne LL dissenting). S legal origin for the right claimed by the freeholders could not be presumed, and the action lay at the suit of the riparian proprietors. A prescription in a que estate for a profit a prendre in alieno solo without stint and for commercial purposes is unknown to the law.
Earl Loreburn LC did not find it necessary to address whether, inter alia, an appurtenant right of fishery could be for more than was needed for consumption on the land, or whether it could be without stint.
He said: ‘To begin with, it is common ground that at one time this hundred, or manor, was terra regis, and most probable that the manor, or hundred, included all the stretch which is now in question. We know that in quite early times the King alienated the riparian land; whether with or without the bed of the river usque ad medium filum is left in doubt by the terms of such of his grants as are extant and have been produced. We know that his grantees, in fact, suffered (and I cannot suppose this was out of mere good nature for so many hundred years) a continuous fishing by the freeholders under claim of right. A legitimate inference is that before he granted the land he had previously granted his right of fishery. Nor is it strange if he did so. At the time of Domesday Book this was border land contiguous to Wales, a country still the scene of fighting, or in which the King was obliged to have fighting men ready for action, and among them the men of Irchenfield, whose privilege it was to form the vanguard in attack and the rearguard in retreat, as Domesday informs us. It would be natural enough that he should give them a right of fishery, and that they should repay him by a promise of service . . All this is far beyond human ken; but that in some way the King made a grant of this fishery seems a very natural supposition, and it is our duty, as I understand the law, to presume it was granted lawfully if it could be granted at all. The alternative is that the freeholders have been poachers for all these centuries. That would be the most violent presumption I ever heard of.’
Lord Ashbourne (dissenting) said: ‘I have come to the conclusion that it is reasonably possible and probable that the right claimed had a legal origin. The King may have made a grant to freeholders of the area of fishing in gross, and this may have made them a corporation; or the King may have made a grant to an existing corporation upon trust for the freeholders.’
Lord Shaw (dissenting) said: ‘I think, accordingly, that this is pre-eminently a case for the application of the principles of the case of Goodman v. Saltash Corporation. I do not see my way to hold that the right thus asserted and enjoyed for centuries must now be declared to be void and of no effect because it is inconsistent with legal concepts. It appears to me, on the contrary, that the rights of fishing as asserted and enjoyed by these freeholders may, on the principles of Goodman’s Case, with perfect propriety be presumed to have had a legal origin.’
Judges:
Earl Loreburn LC, Shaw of Dunfermline, Ashbourne LL
Citations:
[1911] AC 623
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 . .
At CA – Lord Chesterfield v Harris CA 27-Jun-1908
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 . .
Cited – Goodman v Mayor of Saltash HL 1882
A gift was made of a right to fish to the freemen of the Borough of Saltash.
Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. When long and continuous enjoyment is established, . .
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 . .
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 – 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: 15 May 2022; Ref: scu.279921
