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.
Held:
Stirling LJ said: ‘It is next said that a considerable portion of the ‘beach ground’ consists of an accretion during the last fifty or sixty years, and that the custom cannot extend to that part. Custom, it is argued, is a local law, which must have existed from time immemorial – that is, from the beginning of the reign of Richard I – and cannot be applicable to land which can be shewn to have emerged from the sea in modern times. In Rex v. Lord Yarborough . . it was established that lands ‘formed by alluvion, that is by gradual and imperceptible deposit, on the shore of the sea,’ belonged, not to the Crown as owner of the foreshore, but to the owner of the demesne lands of a manor, which were formerly bounded by the sea, as parcel of those demesne lands. Every manor must have existed prior to the statute of Quia Emptores; but it was not suggested that the operation of the rule was excluded by reason of the accretions having taken place in modern times. The reason of that rule is stated by Alderson B. in In re Hull and Selby Ry. Co . . to be ‘that which cannot be perceived in its progress is taken to be as if it never had existed at all.’ This was approved by Lord Chelmsford in Attorney-General v. Chambers . . and has been applied in the present case by Farwell J., who held that this accretion is to be treated as though it had occurred in 1189.’
Cozens-Hardy LJ said: ‘It is contended that the ‘local law’ can only affect a definite close, which must have been available for the exercise of the customary right in the reign of Richard I., and that the evidence shews that a considerable part of the ‘beach ground,’ now eleven acres in extent, was at that time covered by the sea, and therefore could not have been used for drying nets. In my opinion this contention ought not to prevail. It appears certain, from the evidence of geologists and from the discovery of Roman remains immediately to the west of the ‘beach ground,’ that at least the western part of the ‘beach ground’ existed in and long prior to the reign of Richard I. in substantially the same condition as it does at present. Within living memory the sea has gradually receded on this part of the coast, but there is nothing improbable in the suggestion that the reverse process may have gone on since the reign of Richard I., with the result that the line of high water is now practically the same as at that date, in which case the point under discussion would not arise. Assuming, however, that the sea has gradually and continuously receded, I think the land which has been added by accretion to the defendant’s land must be subject to the customary right. The principle stated by Alderson B. in In re Hull and Selby Ry. Co . . that ‘that which cannot be perceived in its progress is taken to be as if it never had existed at all’ – a principle which is applied between two private owners, and between the Crown and a private owner – should be applied here. In the view of the law this is the same close as that which was affected by the local law in the time of Richard I. It is urged that this extension of area renders the custom uncertain, and, if the sea should still further recede, unreasonable. I cannot assent to that argument. It must not be forgotten that the persons claiming under the custom are bound to exercise their rights reasonably and with due regard to the interest of the owner of the soil.’
Judges:
Stirling, Cozens-Hardy, Vaughan-Williams LJ
Citations:
[1905] 2 Ch 538
Jurisdiction:
England and Wales
Citing:
Appeal from – Mercer v Denne 1904
Fishermen claimed a customary right to spread their nets out to dry on land owned by the plaintiff at all seasonable fishing times.
Held: The activity was a good and valid custom, even though it was not a right for recreational purposes but . .
Cited by:
Mentioned – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
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: 14 May 2022; Ref: scu.242337