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 Norfolk. Over time the various water marks had moved with the sands.
Held: ‘ the assumption which was made below was correct, and that the seaward boundary of the Area the subject of the exclusive Right to take shellfish fluctuates with the passage of time as the low water mark moves. The Estate has exercised a prescriptive exclusive Right to take shellfish from the foreshore for a substantial period, during which the low water mark fluctuated to a significant extent over time, in circumstances where the evidence clearly establishes that the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out. It is in those circumstances inherently very likely, indeed inevitable in terms of practical reality, that the putative Right would have been exercised over an area which was defined, or limited, by a shifting low tide mark. Thus, based on the inherently probable nature and extent of the actual exercise of the putative Right to fish by or on behalf of the Estate, we conclude that the boundary of the Area would have been low water as it was from time to time.’
‘If a right over land, the identity of which shifts, can be the subject of an express grant, then it appears to us to follow that, as has been assumed on all sides below, there is no reason why that should not apply equally to a right over land obtained by prescription.’
Unlike other instruments, grants by the Crown are not construed against the grantor (contra proferentem), and ‘the principle upon which the rule is based can, for what it is worth, properly be prayed in aid by the Crown in relation to a claim based on prescription, and therefore by the appellants in this case. It appears to us that that basic principle is that a court should not be too easily persuaded that the Crown has been deprived of a property or a right, given that the property or right is held for the public good. Therefore, in cases where it would otherwise be quite unclear whether a prescriptive right obtained against the Crown extended to certain property or certain rights, the principle may properly be invoked to justify the conclusion that it does not so extend. In the great majority of cases of prescription, as in most cases of express grant, this principle will take matters no further, as it is only where the extent of the right would otherwise be really unclear that the principle can come into play.’
Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
 UKSC 14,  WLR(D) 181,  2 WLR 1126, UKSC 2014/0191,  2 WLR 1126,  AC 599,  2 WLR 1148
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England and Wales
At ChD – Loose v Lynn Shellfish Ltd and Others ChD 18-Apr-2013
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 . .
At CA – 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, . .
Cited – Le Strange v Rowe 1866
The court considered a claim for the right to take mussels from the foreshore.
Held: Erle CJ directed the jury that ‘there is evidence of what to my mind was a very strong act of ownership in respect to the taking of mussels’. . .
Cited – Le Strange v Lynn Corporation QBD 1868
(Extensive newspaper Report) (i) the Estate claimed its exclusive Right extended over Stubborn Sand but not over Ferrier Sand or other unconnected sandbanks, (ii) the decision effectively established the northern and southern boundaries of the Area . .
Cited – Malcolmson v O’Dea HL 1863
A private fishery may be established by prescription.
Willes J said: ‘The soil of ‘navigable tidal rivers,’ like the Shannon, so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery prima facie in the . .
Cited – 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 – The Attorney General for The Provinces British Columbia v The Attorney General for The Dominion of Canada and Another PC 2-Dec-1913
Canada – Lord Haldane set out the principles under which fishery rights might be acquired by prescription.
Fish stocks are a public resource, and there is no property in fish until they are caught. The right to fish in tidal waters or in the . .
Cited – Loose v Castleton CA 1978
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 . .
Cited – Bury v Pope 1587
The owner of land was held entitled to erect a house against his neighbour’s windows even though they had enjoyed light for over 30 years. ‘And lastly, the earth hath in law a great extent upwards, not only of water as hath been said, but of aire, . .
Cited – Bryant v Foot 1867
It is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in . .
Cited – Aynsley v Glover ChD 1875
An original use of land for agricultural purposes does not accommodate a use of a supporting right of way to support use of dominant land for a caravan park or camping site. Such would be an unjustifiable increase in the burden.
Where the . .
Cited – Scratton v Brown 1825
When construing a conveyance of (or indeed a deed of grant over) the foreshore, it is a matter of interpretation whether what is conveyed (or granted) is the foreshore (or a right over the foreshore) at the time of the document or the foreshore as . .
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
Cited – The Rebeckah 26-Feb-1799
Lord Stowell discussed the rationale behind the inversion in cases involving the Crown of the principle that a clause is to be construed against the proposer saying that: ‘the prerogatives and rights and emoluments of the Crown being conferred upon . .
Cited – Lord Blantyre and Others v The Clyde Navigation Trustees SCS 3-Mar-1871
Where trustees were appointed by statute for the purpose of improving the navigation of a river, by deepening and widening and artificially confining its channel, and by other operations; and they and their predecessors had prosecuted this work for . .
Cited – Lord Blantyre and Master of Blantyre v Lord Advocate and Clyde Navigation Trustees SCS 12-Feb-1878
Property – Possession – Right to Foreshore of a Public Navigable River – Where a Barony Title is followed by Possession. . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Neill v Duke of Devonshire HL 1882
The House considered the right to a several fishery in the river Blackwater. There were letters patent granted by James I and Charles I. Held; Lord Selborne LC said: ‘These written titles (if the possession and enjoyment has been consistent with . .
Cited – Viscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .
Cited – RPC Holdings Limited v Rogers 1953
A prescriptive right of way had been enjoyed in connection only with agricultural use of the dominant land, which was a field.
Held: The way could not be used in connection with the use of the field as a caravan and camping site. Harman J . .
Cited – Tehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
Cited – Baxendale v Instow Parish Council ChD 1982
Sir Robert Megarry V-C said: ‘Another instance of movable freeholds, and one that is very much in print in this case, may arise on a grant of foreshore; for such a grant may convey an estate in the foreshore in whatever position it is from time to . .
Cited – Bowring Services Ltd v Scottish Widows Fund and Life Assurance Society 1995
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Cited – Attorney-General v Chambers 8-Jul-1854
Lord Cranworth LC said that ‘Lord Hale gives as his reason for thinking that lands only covered by high spring tides do not belong to the Crown, that such lands are for the most part dry and manorable’, and that ‘the reasonable conclusion is, that . .
Cited – Southern Centre of Theosophy Incorporated v The State of South Australia PC 15-Dec-1981
(Australia) Lord Wilberforce described accretion as: ‘a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these . .
Cited – Williams v Booth 14-Apr-1910
High Court of Australia – Griffith CJ said: ‘I do not think that any case of accretion is made out. The law as stated by Blackstone (2 Bl Com, p 262), is that ‘if this gain be by little and little, by small and imperceptible degrees, it shall go to . .
Cited – Mercer v Denne CA 1905
The court was asked whether the custom for fishermen to spread their nets to dry upon a privately owned beach, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed.
Updated: 13 January 2022; Ref: scu.562186