|The extent of an exclusive prescriptive right to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of Norfolk, was to be determined, on its western, seaward boundary, by reference to the lowest astronomical tide. The right did not extend to sandbanks which were not previously joined to the foreshore, as and when they became so attached.
|The appellant fishermen (X) appealed against a decision ( EWCA Civ 846) that they had unlawfully interfered with a private fishery let to the first respondent (L).
The second respondent’s family (the Estate) was the owner of a substantial amount of land adjoining the east side of the foreshore on the east side of the Wash, in Norfolk. It was also the owner by prescription of the exclusive right to take shellfish over part of the foreshore. L leased the fishery from the Estate. X were individuals and companies who operated fishing boats out of Kings Lynn and had, during the summer of 2007, fished for cockles in locations claimed by the respondents to be within the area of the exclusive fishery. Although the parties accepted that the Estate was the owner by prescription of the right, they were divided on the extent of the area over which the respondents could claim the right. The issues were as to which of the low water measurements (mean low tide, mean spring low tide, mean neap low tide, and the lowest astronomical tide occurring every 18.6 years) should determine the location of the western, seaward boundary of the fishery; and whether the prescriptive right extended to sandbanks, formerly separated from the foreshore but now attached to it as a result of the gradual silting up of channels, near the eastern, landward boundary. The Court of Appeal determined that the seaward boundary of the fishery area was the lowest astronomical tide mark, and that the former sandbanks were included in the area.
HELD: (1) It was clear that the seaward, western extent of the boundary of the area had to be a low water mark. It fluctuated with the passage of time as the low water mark moved. The Estate had 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 established that the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out. In the circumstances, it was very likely that the right would have been exercised over an area which was defined, or limited, by a shifting low tide mark. Accordingly, the boundary of the area would have been low water as it was from time to time. The most satisfactory low water mark to select was the lowest astronomical tide. That conclusion appeared to produce the least arbitrary result and to be consistent with the unum quid principle, Neill v Duke of Devonshire (1882) 8 App. Cas. 135 considered. Selecting the most extreme low water mark meant that all parts of the foreshore which were at any time uncovered by the sea were included in the area, whereas any other selection involved some of those parts being excluded from the area (see paras 57-58, 63-64 of judgment).
(2) The evidence did not establish that the Estate’s prescriptive right extended to sandbanks which were not previously joined to the foreshore, as and when they became so attached. There were two significant distinctions between the notion that the low tide mark boundary of the foreshore fluctuated and the notion that attaching sandbanks became part of the foreshore. First, the low tide mark would shift relatively gradually, whereas, although the silting up of the channels concerned would be gradual, the attachment of the sandbank to the foreshore would happen at one moment. Secondly, and importantly, the public would have the right to take fish from a sandbank, at least until it became attached to the foreshore. Unlike the position with the fluctuating low tide mark, it was not plain or obvious that, once a sandbank became attached to the foreshore, the Estate would have exercised an exclusive right to take shellfish from that former sandbank. It seemed unlikely that local fishermen would have been prepared to accept the Estate maintaining or, as they saw it, extending its exclusive right to fish over former sandbanks which were previously subject to a public right to fish just because they had become attached to the foreshore. The existence of the public right to fish was a highly relevant circumstance and, in the absence of further evidence, negated the contention that the sandbanks should be treated as part of the area in accordance with the notion that the foreshore was a shifting piece of property (paras 70-73, 75).
(3) The sandbanks were not added to the area as a result of the doctrine of accretion. Accretion relied on the gradual and imperceptible change in a boundary. Since there was a specific moment in time when the whole of a sandbank became attached to the foreshore, the addition of a sandbank was not gradual or imperceptible, Southern Centre of Theosophy Inc v South Australia  A.C. 706 considered (paras 76-80).
Appeal allowed in part