Profits a Prendre
Cases
Caldwell v Hazley and Nicholl
Circuit Cases.
18 March 1911
[1911] 45 I.L.T.R 137
Cherry L.J.
Cherry, L.J.
My opinion agrees with that of the learned County Court Judge. The first question in the case is whether the rights of the parties—that is, as successors in title to Lord O’Neill and the Moravian Trustees, are determined by the fee-farm grant of 1851 alone, or whether the renewals of the lease which preceded it are to be looked at in deciding the rights of the parties. I have no doubt on that point. When a fee-farm grant succeeds a series of renewable leases, it supersedes them for all purposes, and the rights of the parties are regulated by the fee-farm grant alone. The leases are gone for all purposes; otherwise one might have to go back hundreds of years behind the fee-farm grant. Accordingly, whatever has been done in this case is presumably done under the fee-farm grant, and should be referred to it. It might perhaps be different if the defendants could have proved user of these banks before 1851, but I do not think it would have made much difference. “Appropriated,” as used in the renewals, means appropriated from time to time. The terms of the fee-farm grant dealing with the rights of turbary given to the grantees are as follow. [His Lordship reads the fee-farm grant.] Under that clause it is clear that the landlord is not bound to give any particular acre or quarter acre, or plot, but only to give each year a reasonable quantity of turf, and he could move the tenant about much as he pleased. For convenience indeed the tenant was allowed to remain on one plot, but he got no additional rights thereby. The only right he had was to get a reasonable quantity of turf contiguous to the demised premises. In 1894 the Moravian Trustees sold, but the rights of turbary are not described in the vesting order effecting the sale as a profit à prendre to any particular lands, and it would in fact have been narrowing the defendants’ rights if they had been restricted to a particular bank at the time of the sale. On the contrary, the defendants have no right in rem, but only a contractual right to be given firing so long as the estate has it, and if Lord O’Neill now or hereafter deprives himself of the power of supplying bog to the former tenants of the Moravian Trustees, he will be liable to an action upon his covenant in the grant. But Lord O’Neill cannot any longer touch Caldwell’s land for that purpose. Caldwell is not liable to supply the Moravian Trustees’ former tenants or any one else with turf, and their only right is to ask Lord O’Neill to give them turf in accordance with the covenant. He has already offered them turf, and if that offer is reasonable no action will lie against him. If not, the tenants can recover damages. But Caldwell is no party to that, and the vesting order does not touch his lands. I affirm both cases with costs.
Fitzpatrick v Verschoyle
Chancery Division.
15 May 1912
[1913] 47 I.L.T.R 9
Barton J.
Barton, J. [after referring to the facts].—The right which was given to these tenants was “the right of turbary.” Was it gratuitous? Ross, J., thought so, and I agree. At the close of the trial the contrary view was not pressed, but it was pressed before action brought and in the statement of defence, and to that extent it must be admitted that the plaintiffs’ action was necessary. The next question is as to the way in which the right of turbary is to be exercised. Both sides admit that the selection and exercise of that right must be reasonable. But how is the turbary to be selected, and on what principle? As to the authorities which have been cited, the case differs from Caldwell v. Hazley & Nicholl (ubi sup.) in this, that in that case there was no profit à prendre in any particular lands, but only a contractual right to be given firing. Here there is, I think, a profit à prendre on a specified bog given for valuable consideration as part of the bargain of sale of the estate under the Land Purchase Acts. A passage in Dawson v. M’Groggan (ubi sup.) was relied on where Porter, M.R., referring to certain tenants exercising a right of turbary on the landlord’s bog, observed (at p. 97) that there was “no interference with those cutting turf, save such as is always exercised by an owner in fee over whose land there is a right of turbary—that is, the power to point out the place where those who have the right may reasonably exercise it.” That observation was applied to a case of landlord and tenant, and of an estate bog which was managed by an agent. But this bog has passed out of that stage; and the relative situation is not the same as that of landlord and tenant with rights over the landlord’s bog. Here the owner has sold his interest in the holding to the tenants, and as part of the bargain has given a right of turbary in a bog which he retained, and subsequently sold subject to their rights. Nor is the case quite like Hargrove v. Lord Congleton (ubi sup.), where an old lease of 1735 contained a covenant by the lessor that the tenant might carry and cut away from the bog of A. and B. (the landlord’s property) turf sufficient to be expended on the premises demised, and it was held that the landlord was not at liberty to confine the tenant to a particular part of the bog allocated to him, though it was sufficient and convenient. The Court proceeded upon the words of the grant, which were to take turf and not to have turbary assigned or allotted, and also to some extent on the date of the lease which was prior to the time when the modern practice of allotting turf banks became prevalent. In the present case the words are “the right of turbary.” Does that mean a right to be assigned or allotted turbary, or a right to enter and cut and carry away? I think it means both, and that both must be reconciled. There were ten persons (including the plaintiffs) who got agreements signed on the same day. If they were intended to select, how was the selection intended to be carried out? They had no fixed turf banks which they could call or claim as their own. In what order were they to select? I heard no suggestion. Does not this feature of the contract—that it was part of a sale to ten tenants on the same day—involve of necessity that it cannot be carried out on the basis of an unrestricted concurrent right of selection on the part of the ten tenants? Again, are the tenants at liberty to cut where they like whether or not it may injure the bog, and destroy the property in which they and the owner are alike interested? If they admit they are not, who is to have the first voice in saying where cutting is reasonable and where not? On the other hand, is the purchaser of the bog at liberty to move them about solely according to his own interest in working the bog to the best advantage from a commercial point of view? Nothing in the history of the bog or circumstances of the case indicates anything of the kind. The plaintiffs have, in my opinion, the right to enter on the bog and cut and carry away sufficient turf for the use of their holdings from convenient turf banks to be allotted to them. For that purpose some control and regulation by the owner of the bog is necessary for them as well as for him. Having regard—(1) to their numbers, (2) to the circumstance that the bog would be injured and destroyed by irregular and indiscriminate cutting, and (3) to the fact that the same rights were given to ten of them on the same day, I infer that it was contemplated that the owner of the bog should allot the turf banks, having regard to the convenience of the tenants, which must, however, yield to the necessary preservation of the bog. But having regard to the previous history of the bog, and the giving of these rights to the tenants for valuable consideration, subject to which the defendant bought, I am of opinion that the *10 reasonable convenience of the tenants is a prior consideration to the commercial profits to the defendant. After the tenants have been provided with reasonably convenient banks for the season in places not injurious to the bog, the owner can make what profit he likes out of the rest, so long as he does not do any act or sell to such an extent as may be inconsistent with or may derogate from the prior grant to the tenants. It follows that the plaintiffs’ banks must be allotted at or before the usual and proper season for letting turf. There should be a reasonable notice given to the tenants, not a notice posted up to the public generally, as was done in this case, but a notice to them. If it is reasonable notice, and they disregard it, the owner may allot without consulting them. If they comply with the notice, he may have regard to their wishes, if bona fide expressed, as the best but not necessarily the only evidence of what is convenient.
Declare that the plaintiffs are entitled to enter upon the bog and cut and carry away free turf for the use of their holdings, and for that purpose are entitled to have allotted to them annually at a reasonable time of each year sufficient turf banks in such parts of the bog reasonably convenient to them as shall not be prejudicial to the due preservation of the bog, or be likely to cause waste or bog-slides thereon, and are entitled to reasonable notice of the time and place of such allotment. Injunction to restrain the defendant from hindering or interfering with the plaintiffs in the exercise and enjoyment of their rights under the aforesaid declaration:
Declare that the defendant is entitled, upon giving reasonable notice to the plaintiffs, at a reasonable time of the year to allot to the plaintiffs turf banks at such places on the bog reasonably convenient to the plaintiffs as shall not be prejudicial to the preservation of the bog, or be likely to cause waste or bog-slides thereon. Injunction to restrain the plaintiffs from hindering or interfering with the defendant in the exercise and enjoyment of his rights under the aforesaid declaration, or the defendant’s lawful lessees of turbary or purchasers of turf upon the bog.
Staples v Young
Supreme Court of Judicature.
Court of Appeal.
20 January 1908
[1908] 42 I.L.T.R 17
Sir S. Walker, Bart. L.C., FitzGibbon Walker L.JJ.
Sir S. Walker, L.C.
The question in this action is whether the plaintiff, who is the owner of certain reservations of the benefit of all mines and minerals contained in a deed of 1672, is entitled to restrain the defendant from removing sand from the lands in respect of which the reservation was made. [His lordship stated the facts, laying stress on the point that the lands were held as an ordinary agricultural holding in respect of which a fair rent had been fixed.] The arguments addressed to us covered a wide range of cases, some of which are of a conflicting character, but there are principles to be deduced from them by which we should be guided. In Hext v. Gill, Mellish, L.J., sums up the previous authorities thus: “A reservation of ‘minerals’ includes every substance which can be got from underneath the surface of the earth for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the Court to give it a more limited meaning.” In other words, the question must be determined upon the construction of the words used in the grant, taking into account all the circumstances of the case, and in the case now before us I think we are driven to base our decision on the special facts. In Att.-Gen. of Isle of Man v. Mylchreest the law is clearly stated by Sir. Montague Smith— “It was contended for the Crown that the word ‘minerals’ used in the clause comprehended clay and sand. Doubtless, the word in its scientific and widest sense may include substances of this nature, and, when unexplained by the context or by the nature and circumstances of the transaction, or by usage (where evidence of usage is admissible), would, in most cases, do so. But the word has also a more limited and popular meaning which would not embrace such substances, and it may be shown by any of the above-mentioned modes of explanation that in the particular instrument to be construed it was employed in this narrower sense.” [His lordship referred to the long series of cases cited, particularly to Provost of Glasgow v. Farie, Earl of Jersey v. Neath Union, Great Western Railway v. Blades, and Todd v. North Eastern Railway, and said that all these cases should be considered together for the purpose of applying the decisions therein to the present case.] As to Earl of Jersey v. Neath Union, the case is valuable for the observations of Bowen, L.J. He adopts the words of Mellish, L.J., in Hext v. Gill, and says: “The rule there laid down is a rule which arises directly from the character of the transaction, and is a sound rule of construction, unless there is something in the context to throw light upon and alter it.” In Great Western Railway v. Blades, Buckley, J., points out at p. 632 that in cases depending upon the Railways Clauses Act, 1845, different considera *18 tions apply from those which arise in a case where the relations between the parties exist by contract or grant. Having referred to Earl of Jersey v. Neath Union, he says, “the judgments in that case show me, as I think, that the true principle to apply is that accepting the decision in Hext v. Gill as being good law, and assuming that a mineral primâ facie includes anything lying in the land which has a value of its own as being capable of being used independently of the land, yet that that rule must bend, as Bowen, L.J., said, or may be modified as Fry, L.J., said, by the circumstances of the case, and that what I must look to is to see whether in the nature of this transaction, and having regard to all the circumstances of this case, the word ‘minerals’ does in the case now before me extend to include the clay in question.” And upon examination of the facts in that case he comes to the conclusion that the clay which was alleged to be a mineral within the meaning of the Act was the soil, and, treating it as the soil, he held that it was not a “mineral” within the meaning of the Act. “The six inches or so of decomposed vegetable matter on the surface is not in this place the soil any more than in a room the carpet can be said to be the floor.” In the later case of Todd v. North Eastern Railway Co., Halsbury, L.C., treated the case as governed by Provost of Glasgow v. Farie. The value of the decision is that it adopts the judgment of Buckley, J., in Great Western Railway Co. v. Blades, and I think that is sufficient to dispose of the point we have before us. [His lordship dealt in detail with the expert evidence that had been given as to the nature of the soil in the present case, which was described as “a sandy soil.”] In my opinion there would be nothing left for the grant to operate upon if it were held that this sandy soil or sub-soil was captured by the reservation of the benefit of all mines and minerals. The real object of the parties to the grant is best attained by holding that in this case sand is not a mineral. While admitting that in some cases sand may be a mineral, we hold that, on the special facts of this particular case, it is not. The appeal will, therefore, be allowed and the action dismissed.
FitzGibbon and Holmes, L.JJ., gave judgments to the same effect.
Brew v Haren
Court of Exchequer Chamber.
30 April 1877
[1877] 11 I.L.T.R 66
May C.J., Morris C.J., Keogh, O’Brien, Fitzgerald, Lawson JJ.
Lawson, J.
This is an appeal from the decision of the Court of Exchequer. I need not recapitulate the facts Two points were argued before us. First—Whether the finding of the jury, that the shore, between high and low water-mark, belongs to the plaintiff, was to be upheld. Secondly—Assuming that it was shown to be the plaintiff’s exclusive property, whether he could maintain trespass de bonis asportatis, or trover, for seaweed drifted in by the tide, and which was lying upon the land. As to the 1st point, there was no difference of opinion in the Court below, and, I believe, there is none here. The evidence of exclusive ownership was clear, and such as, if no patent had been produced, would have required a judge to leave it to the jury to presume a grant from the Crown; or, if a patent were produced, to construe its language, if its terms were general, by the usage proved. This patent grants, inter alia, the lands of Barnagrosse, and I think the evidence of usage was admissible to show that by the lands of Barnagrosse must be understood the lands of Barnagrosse extending down to low water-mark. The late Master of the Rolls, in the Belfast Dock Act case, held rightly that even if the patent produced was, by reason of its terms, incapable of including the shore, a distinct grant of the sea shore might, and must be presumed from clear evidence of usage; which is quite right, as it is admitted that a subject may hold the sea shore opposite to lands not belonging to himself, in gross, by a grant from the Crown. The learned judge in this case directed the jury, in the very language of the authorities—“That the words used in the patent were capable, if accompanied and explained by clear evidence of user and enjoyment, of passing the sea shore to low water-mark,” and he left to the jury to say whether the evidence established the plaintiff’s claim, and they found that it did. There is, therefore, no misdirection; and the verdict is in accordance with the evidence. The second point argued arises upon the next direction of the learned judge: “That, if the jury arrived at the conclusion that the sea shore passed, the exclusive ownership of it, and the exclusive enjoyment of the right to take the seaweed cast upon the shore, would be evidence that the seaweed was the property of the plaintiff, though ungathered by him at the time when it was taken from the shore by the defendant.” The contention upon this was that the seaweed thrown up is not the property of any one, and that the first finder is entitled to take it. If this be correct, then the owner of the seashore is in no better position than any other person. If he appropriates it, it becomes his; but, if a marauder *66 comes down and appropriates it before him, he cannot re-claim it. The point certainly has the merit of novelty, for it never was contended for before in any case which I have been able to find, unless it were argued in The Queen v. Clinton, to which I shall presently advert. On the contrary, the books are full of cases in which plaintiffs, upon proof of their title to the shore, have obtained verdicts and damages for taking the seaweed, and have obtained injunctions to restrain marauders from taking it. In Howe v. Stawell (Al. & Nap., 348 & 355), the point was expressly decided that the public have not a right to enter upon the shore and take seaweed, whether the shore be vested in the king or in a subject. That is a decision by a Court of the highest authority, and the judgment of Mr. Justice Jebb lays down the law very clearly—“The matter intended to be insisted on by the plea is, that all the king’s subjects are entitled, on the sea shore, between high and low water-mark on the reflux of the tide, with servants, horses, and carriages to take and carry away whatever seaweed or oarweed may have been left on the shore by the flux and reflux of the tide. Now, we cannot find any authority or precedent for this, which is in effect a proposition amounting to this, that the right to enter upon the seashore, and to take seaweed thereon, is co-extensive with the right of fishing, where the shore is covered with water, or of entering on the shore when the water has left it, and taking fish that may have been left and remaining there. But there is not only no decision to this effect, but whatever is to be found upon the subject in books of authority seems against such a right. Lord Hale De Jure Maris , 27, states that ‘the constant and usual fetching gravel, and seaweed, and sea sand between high and low water mark, and the licensing others so to do,’ is evidence of the king’s right being vested in a subject, in gross, by grant. Here he puts seaweed on the same footing as sand or gravel.” Now, here is a decision made forty-four years ago, and never since questioned, but always followed; in every case in which actions have been brought by the owner of the shore there have been counts in trespass and trover for the seaweed, and whereon these verdicts have been upheld; all these are authorities against this novel proposition. Sea weed, as Mr. Justice Jebb says, is on the same footing as sand or gravel. Sand, and gravel, and stones are swept in by one tide, swept out by the next, and can it be argued that the owner of the shore has no property in the sand or gravel, and that every subject may carry it away, or so much of it as the owner does not anticipate him in appropriating. The principle on which the right rests is as old as the law of England; it is that the owner of land is entitled to all the natural advantages belonging to that land, and, therefore, to all things which, in the course of nature, may be deposited thereon. Quantities of alluvial soil or of gravel may be brought down by streams or floods. These become the property of the owner of the land, for they are found on his land. They are not artificial products, which, of course, if they had been previously private property, would not lose that quality by being found on another person’s land. We were referred to an American case in 2 Johnson’s reports, which I have since read in the King’s Inns Library, and the law is there clearly stated, and referred to the principle of the owner of the soil being entitled to all these natural advantages. In cases where the seashore remains in the King, seaweed driven by high tides above high water-mark, of course, belongs to the owner of the land. In an elementary text-book which we are all familiar with I find the law on this subject very well stated—“The right of the public to take it when floating, provided they can do so without trespassing on the soil of an individual, is as clear as their right to catch fish in the ocean; but when seaweed has once touched the shore, and can only be taken from it, the public right ceases, and that of the Crown or its grantee commences”—De Moleyns’s Land Owner’s Guide, 358. Lord Campbell in Baird v. Fortune, 7 Jur. N.S. 926, lays down the law in the same way. I am desirous to state that my judgment in no degree rests upon the case of Blades v. Higgs, 11 H. L. C. 631, which was relied on by the Court of Exchequer. I think that case only supplies a very remote and forced analogy to the present, and the law is too well settled to require aid from this analogy of hares. I have only now to advert to The Queen v. Clinton, which Baron Deasy seems to think disposes of this question. I was one of the judges who reserved that case, but I was not present in the Court for Crown Cases Reserved. I am, of course, bound by that decision, that ungathered seaweed is not the subject of larceny; but that decision can be supported on the ground that many things for which trover would lie, yet would not support an indictment for larceny. Seaweed may have been rightly considered to be one of these, a thing originally so valueless that vilius alga was a proverb. It did not decide that the owner of the soil could have no property in the seaweed. I cannot assume that it did, as it would be in opposition to all the decisions I have referred to, and we are bound, if we can, to reconcile them all. I can do this as far as R. v. Clinton is concerned, by explaining the grounds of the decision, being the only legal ones on which it could rest. I have not referred to the cases of Healy v. Thorne and Wyse v. Leahy in my own Court, as, of course, this Court can review them. But the case of Mulholland v. Killen, appears to me to have decided all the points raised in this case against the defendant. It was a case very fully considered, and a very full and careful judgment given, which, I think, must be taken to have settled the law.
Fitzgerald, J.
As to the main question, the direction of the judge at the trial is reported thus:—“I charged the jury, and informed them that, in my opinion, the words used in the patent were capable (if accompanied and explained by clear evidence of user and enjoyment) of passing the seashore to low water-mark, and left the question to them whether the evidence established the plaintiff’s claim in that respect.” Counsel for the defendant “objected, and asked his lordship to rule, and inform the jury that the words of the patent were not capable to pass the foreshore, and to direct a verdict for the defendant.” I have come to the conclusion that the objection is not well founded, but I express my opinion with doubt and hesitation. The direction of the learned judge seems to rest on a class of authorities commencing with Chad v. Tilsed, 2 Bro. & B. 406, where Dallas, C.J., says, “When a grant of remote antiquity contains general words, the best exposition of such a grant is long usage under it. Unless, therefore, the usage of forty years can be proved to have originated in usurpation, it is evidence whence usage anterior to that time may be presumed; and such a length of modern usage, connected with the ancient usage, affords the strongest exposition of the meaning of the original grant. The rule laid down in a book of authority on the subject is, ‘If the language of an ancient grant be obscure or doubtful, constant usage may be resorted to, to expound though not to control the deed.’” In Dickens v. Shaw (Hall on Seashores, App. 64), Bayley, J., says:—“And in forming a judgment whether in any particular spot there has been a grant to any and what particular extent, the proper thing is to look to the exercise and see how the lord of the manor has from time to time acted.” It was not denied on the part of defendant that the long usage of an ancient grant, if obscure and doubtful, may be interpreted by constant usage under it; but it was urged for the defendant that, having regard to the nature and characteristics of the property in controversy, to which I shall presently advert, it could not pass under general words, but must be the subject of express grant. The words of the patent, however, are so comprehensive as to be equivalent to an express grant, if the seashore was either reputed to be parcel of the lands expressly granted, or was usually enjoyed with the lands. I am, therefore, of opinion that the objection taken to the charge of the learned judge has not been sustained; but this leaves untouched the rule that such rights as the public had could not be divested by modern grant (such as the patent in question), or otherwise than by immemorial custom. As to the evidence objected to, I do not propose to express any other opinion than that the objection was *67 not well taken, and was properly disallowed. The last question in the case, and which arises on the issue joined on the seventh count, is whether the plaintiff had such a property in the seaweed taken by the defendant as would entitle the plaintiff to maintain an action of trover for it. The seaweed in question was “floating weed” which, disengaged by the operations of nature from the place of its original growth, wherever that may have been, had been carried in by the force of the wind and waves, and left by the receding sea on that part of the shore which lies between the ordinary high and low water-mark of average medium tides, and which, if not gathered, would probably have again floated on the next tide and been carried elsewhere. It had been there gathered and taken by the defendant before the plaintiff or his servants had gathered or taken it, or done any other act of actual physical appropriation. The instruction of the learned judge to the jury on this point was as follows:—“I also informed them that, in my opinion, if they came to the conclusion and were satisfied that the seashore did pass, and was in plaintiff’s exclusive possession as the legal owner of it, that the exclusive ownership of it by plaintiff and his predecessors as tenants, and the exclusive enjoyment by him and them under the Casey and Conyngham families, to take the seaweed cast on his shore, would be evidence that it was his property, although not gathered by him or his servants at the time it was taken from the shore by defendant.” Was that direction accurate in point of law? In my opinion it was not; but I express that opinion with great hesitation. I concur with Mr. Baron Deasy in thinking that the point has been ruled by The Queen v. Clinton, and that the decision of the Court of Criminal Appeal in that case was right. I agree with Mr. Baron Deasy that the decision of R. v. Clinton rested on the broad ground “that the seaweed was not the property of any one when it was taken by the supposed wrongdoer;” and I may add for myself that I concurred in that decision solely on that ground. I, also, agree with Barons Fitzgerald and Dowse in thinking it to be a binding decision, and with the latter in his approval of it. I am wholly unable to appreciate the grounds on which the decision in R. v. Clinton has been attempted to be distinguished from the case before us. It would seem that the Crown to a certain extent in relation to property in the seashore was a trustee for the public, to secure to the whole public certain privileges and advantages, such as navigation, right to pass and re-pass, fishing, &c., to which the public had a paramount and indefeasible right. Thus in the case of Dickens v. Shaw, reported, Hall’s Rights of the Seashore, at p. 64, Bayley, J., in delivering judgment, said:—“The right of the Crown is not in general for any beneficial interest to the Crown itself, but for securing to the public certain privileges in the spot between high and low water mark.” The ownership which the Crown has conveyed to a private individual cannot be more extensive than that which the Crown possessed, and must be subject and subordinate to the interests of the public. So, in Blundell v. Catterall, Best, J., says, at p. 287:—“The seashore was holden by the King, like the sea and the highways, for all his subjects. The soil could only be transferred subject to this public trust.” Subject, however, to this public trust the grantee of the Crown would, no doubt, have certain exclusive rights, such as, amongst others, the right to erect weirs (as in Blundell v. Catterall), to erect piers, make harbours, &c.; and the exclusive rights also to all mines and minerals, and to the soil of the shore itself. It is remarkable that there is no instance to be found in the books of any exclusive claim of the Crown to floating seaweed cast on the shore and left there by the receding tide, nor of any assertion by the Crown to the property in such seaweed, either after or before it had touched the shore. There seems, also, to be an absence of any claim to the property in such weed before appropriation, on behalf of the grantee of the Crown, until very recent times. The grantee of the Crown usually asserted his rights, whatever they were, by excluding the public from going on or over his lands to the seashore, or by excluding them from the seashore, when he was in a position to assert his exclusive title to the soil of the seashore. Howe v. Stawell (Al. & Nap. 348) is the authority usually referred to as establishing the property of the grantee, and negativing any public right; but, on being more carefully examined it will be found to fall far short of either proposition. The question arose on the sufficiency of the second plea to the first and second counts. The first count is for trespassing with horses and carts on the plaintiff’s close, and there gathering and taking quantities of seaweed. The seaweed was not alleged to be the plaintiff’s. The second count was for trespass on plaintiff’s close, and taking seaweed collected by the plaintiff for his own use. The second plea relied on a prescriptive common law right in all subjects of the realm to enter on the sea shore with horses, carts, &c., and to take and carry away such seaweed as had been deposited there by the sea. The Court decided that, as against a grantee of the Crown, who had established by evidence an exclusive title to the soil of the shore, there was no such common law right as that asserted by plea, but the judgments seem to import that, if the property had remained in the Crown, the public would not have been excluded. Thus, in delivering judgment at p. 356., Jebb J., commenting on a passage in the treatise “De Jure Maris,” says, “ The evidence thus stated is of acts tending to show an exclusive exercise of right, and may possibly prove, by prescription, a right of excluding the King’s subjects in general from rights, which, so long as the shore remained vested in the King they would not have been excluded from. ” In the concluding portion of the judgment, Jebb, J., commenting on Bagot v. Orr, indicating that the reason for the public privilege of taking fish and shell fish is, that such products are for the immediate sustenance of man, adds:—“A reason that does not apply to the liberty of taking seaweed—a liberty which may in many situations, and under many circumstances, be very reasonable and beneficial, and which may be established by local custom, but can be legally claimed for all the King’s subjects, or any portion of them, by virtue of such local custom, and not as being part of the common law.” We thus see that in Howe v Stawell, where, on the second count, the plaintiff claimed the property in the seaweed, he rested it on the specific allegation of appropriation; that the decision is only that there is no common law right in the subjects of the Crown to enter on the sea shore being the property of a subject to take seaweed, although there may be a customary right to do so. The passage from the Jure Maris referred to by Jebb J., ‘That the constant and usual fetching gravel and seaweed, and sea sand, between high and low water-mark, and the licensing others to do so,” is evidence of the plaintiff’s right to the soil being in the King’s grantee, is also referred to by the American writer Angell, who says, “This passage would seem to indicate that the learned author of the treatise considered the public to be prima facie entitled to seaweed; for, if he had not so considered it, then the circumstance of its being exclusively taken by the lord of the manor could not be received as a proof of his adverse right of property in the shore.” If the judgment in Howe v. Stawell is to be taken to import that the grantee of the Crown may have rights more extensive than the Crown possessed, I desire to express my dissent from that proposition. The distinction taken in Howe v. Stawell between the common law right there claimed and a particular custom probably rests on a case referred to in Blundell v. Catterall, p. 295, citing 8 Ed. 4-19, where Choke, C. J. of C. P., is represented saying (p. 297)—“If I have land adjoining to the sea, so that the sea ebbs and flows on my land, when it flows every one may fish in the water which has flowed on my land, for then it is parcel of the sea, and in the sea every one may fish of common right, and, sir, when the sea is ebbed, then in this land which was flowed before, peradventure he may justify his digging, &c.; for this land if of no great profit to me.” And Holroyd, J., in his comment says—“It, therefore, clearly appears that this case proceeded entirely uuon a particular custom, and the doctrine laid down by Choke, C.J., may be true, where there is such a custom; and such a custom confined to the seashore, may perhaps be good; but if founded solely on the *68 common law, is inconsistent with many passages in Lord Hale.” It does not seem to be questioned, that whilst the weed was floating on the tide over the plaintiff’s shore the defendant might have taken it if he could get there without actually trespassing on plaintiff’s land, as, for instance, by going in a boat, or possibly by wading in the water. This was denied by counsel in R. v. Clinton, and it was asserted, that whilst floating in the sea over the shore, it was the property of the owner of the soil. That position is, however, wholly unsustainable, and there is a passage in the judgment of Bailey, J., in Blundell Catterall somewhat applicable. At p. 307, in commenting on what had taken place in Bagot v. Orr, he says—“The Court offered the defendant leave to amend by confining his claim to the sea fish, and that offer the defendant accepted. The claim, therefore, in that case was very different from the present; it was a claim for something serving to the sustenance of man; not a matter of recreation only—a claim to take, when left by the water, what every subject had an undoubted right to have taken whilst they remained in the water; and upon that claim there was no regular judgment. But it would by no means follow because all the King’s subjects have a right to pick up fish on the shore, that, therefore they have a right to pass over the seashore for the purpose of bathing.”Mulholland v Killen was said to decide the very question now before us, and if it did we ought to follow it; but, if the pleadings in that case be examined, I think it will be found that the injunction order is more extensive. The real controversy between the parties related to seaweed growing on the rocks on the seashore, which was the exclusive property of plaintiff, and not to floating seaweed. That cause was before us in the Queen’s Bench, and the questions before us did not relate to floating seaweed. I have had no opportunity of examining the American case of Emans v. Turnbull, which was relied on for the plaintiff, and therefore make no observation on it.
O’Brien, J.
With respect to the patent of King James II. (1685), Chief Justice Morris told the jury that the words used in it (if accompanied and explained by clear evidence of user and enjoyment), were capable of passing the seashore to low water-mark; and, in my opinion, that direction was correct. The grant in the patent includes the lands of Barnagrosse (now in question), and various other denominations specified by name, with statements of their quantities, &c., &c.; and the patent, after enumerating those several denominations, states, as part of what was granted, not merely the rights, privileges, and appurtenances, &c., belonging to said premises so granted, but also “ all lands and tenements, accepted, reputed, or known as part, parcel, or member of the premises, or any part thereof, or with the said premises, or any part or parts thereof used, occupied, or enjoyed.” It is clear that those general words referred to all the denominations previously mentioned in the grant, including those lands of Barnagrosse, although (as was relied on by defendant’s counsel in the argument) most of those denominations were mentioned in the patent after the grant of the lands of Barnagrosse. It was, therefore, competent for the plaintiff to show what lands were, at the time of the grant, known, used, occupied, or enjoyed as part of the lands so mentioned by name, and to show in particular that the seashore in question (which immediately adjoins the lands of Barnagrosse) had been known, used, and occupied as part of Barnagrosse; and it is clear, from the decisions in The Duke of Beaufort v. The Mayor of Swansea (3 Ex. 413, 425), and some other cases referred to by plaintiff’s counsel in the argument, that subsequent user and acts of ownership within the time of living memory might be relied on as evidence to that effect. I am, also, of opinion that the objection to the reception in evidence of the award, convictions, &c., cannot now be sustained. It is clear, as a general rule, that convictions against parties for trespassing upon certain lands may be relied on as evidence of acts of ownership by the person obtaining those convictions, and are admissible for that purpose even in actions brought by that person against other parties. Such evidence has been repeatedly held to be admissible, and I see no difference in principle between the question of their admissibility and the admissibility of the award. It now appears that some of the convictions given in evidence (which were over one hundred in number) did not mention by name the lands of Barnagrosse as the lands on which the trespasses complained of were committed, or refer to the taking of the seaweed. It does not, however, appear that such ground of objection was relied on at the trial; if it had been then stated, the plaintiff’s counsel might have removed the objection or withdrawn the convictions to which it applied. The objection relied on was that all the convictions and the award were inadmissible as being res inter alios actæ, and we should not now disturb the verdict because some of them were objectionable on another grouud. With respect, however, to the question of plaintiff’s right to maintain trover for the seaweed gathered by defendant upon the shore (upon which question Baron Deasy dissented from the judgment of the Court below), I concur with my brother Fitzgerald in opinion that the case is governed by the decision of the Court of Criminal Appeal, in The Queen v. Clinton, that we are bound by that decision, and that the order of the Court below in the present case should, in that respect, be reversed. The decision in The Queen v. Clinton proceeded (as stated by Baron Deasy, in his judgment in the present case) upon the ground that seaweed lying on the shore, between high and low water-mark, ungathered and unappropriated, was not the property of the owner of the shore, or of any other person. In the present case when before the Court of Exchequer, Baron Fitzgerald stated that The Queen v. Clinton was a conclusive authority, for deciding “that seaweed east on the shore, before it had been or reduced into possession by the owner of the shore, was nullius in bonis, ” and could not, therefore, be the subject of larceny. Baron Dowse also stated that “the seaweed in this case was no person’s property as long as it lay in the state in which it had been cast by the sea on the plaintiff’s land.” Both the learned Barons, however, expressed their opinion that trover might be maintained for the conversion of articles the taking of which would not constitute larceny; and that, in the present case, the taking of the seaweed by the defendant had the effect of vesting the property in the seaweed in the plaintiff, so as to enable him to maintain an action of trover for its conversion. If, however (as decided by The Queen v. Clinton), the seaweed was not the property of plaintiff, or of any other person, at or immediately before the time it was taken, I do not see how we can hold that plaintiff acquired the property in it by the very act which removed it from his control, and appropriated it to defendant’s use, without the sanction or concurrence of the plaintiff, and thus precluded plaintiff from getting the possession of it. The decision in Blades v. Higgs (11 H. L. C. p. 621) was relied on in some of the judgments in the Court below as establishing that proposition; but, in my opinion, it has not that effect. In that case, it appeared that the rabbits were killed upon the land of the Marquis of Exeter, and it was held, accordingly, that they then became and were his absolute property before and when they were taken. In the present case, however, the seaweed (according to the decision in The Queen v. Clinton) was not the property of any person when it was taken. It is, also, to be observed that in Blades v. Higgs, the party who took the rabbits was, at the time he took them, a trespasser on the lands of the Marquis. That circumstance was relied on in the argument before the House of Lords, and most of the cases put by the law lords, in their judgments, were cases of game having been taken by persons who, when they took it, were trespassers on the lands. In the present case, however, the defendant, when he took the seaweed, was not a trespasser on the shore, as the verdict has established that he had a right of way over it;1 and the argument that he was a wrongdoer *69 or trespasser when he took the seaweed proceeds on the assumption of the very question in dispute, namely, that the seaweed lying on the shore, ungathered and unappropriated, was the property of the plaintiff, although, if left there, it might have been carried out by the next tide into the sea, below low water-mark. It appears to me, therefore, that Blades v. Higgs is no authority for holding that, defendant, being lawfully on the seashore by reason of his right of way, is liable to an action of trover for taking seaweed then lying on the shore, which, at the time of taking it, was not the property of the plaintiff or any other person. We have been referred to the case of Mulholland v. Killen, in which the decree declared that the owner of the seashore was entitled to the exclusive right to the seaweed, “growing thereon or deposited thereon by the actions of the wind and waves.” It does not, however, appear that in that case the question now before us was argued or raised, or that the decision in the previous case of The Queen v. Clinton was referred to. It has been urged that The Queen v. Clinton was wrongly decided; 2 but, in the absence of any previous decision to the contrary, I think we are bound by it. We were, also, referred in the argument to the case of The Bailiffs of Dunwich v. Sterry (1 B. & Ad. 831), in which it was held that the grantee of wreck may bring an action of trover or trespass for the taking of the wreck before seizure, although an indictment for larceny for taking the wreck could not be sustained; and it may be said that a similar doctrine would apply to the case of seaweed. But that doctrine applies to the case of wreck because, as observed by Mr. Justice Parke in his judgment (p. 841), “The grantee of wreck has a special property or title to the intermediate possession until the true owner appears and makes good his claim within the year;” and that such right of the grantee drew after it a constructive possession sufficient to support the action. And in a subsequent part of his judgment he says (p. 843), “That the grantee of the franchise of wreck must have the legal custody of the goods claimed by him as wreck, in the meantime, until the true owner makes good his claim, or the period required by the common law had elapsed without a claim being preferred; that in the former case the right of possession would revert to the owner; and that in the latter case the right of the grantee would become absolute.” It is clear that this reasoning does not apply to the case of seaweed. On these grounds I think the order of the Court of Exchequer should be reversed, and a new trial directed.
Keogh, J.
I am of opinion that the decision of the Exchequer was right and ought to be affirmed. The case is ruled expressly by Mulholland v. Killen. I do not think that decision is interfered with by The Queen v. Clinton. My brother Lawson has drawn a very clear distinction between that case and this. The Queen v. Clinton was a criminal case, which is governed by very different principles from a case like the present, which decides the rights of property. I wish to rest my judgment on the grounds expressed with such concise copiousness by my brother Lawson.
Morris, C. J.
I am of opinion that the judgment of the Court of Exchequer should be affirmed. As to the two questions—namely, the reception of illegal evidence, and whether the words of the patent were capable of passing the foreshore, I rest my judgment on the grounds advanced by the Court of Exchequer and the members of this Court. As to the third question, viz., the property in the seaweed, it appears that the Court of Exchequer, pressed with The Queen v. Clinton, held on the authority of Blades v. Higgs, 11 H. L. C. 621, that the seaweed, being gathered by a trespasser, became the property of the owner of the shore. If the case of Regina v. Clinton had decided the proposition contended for by the defendant in the Exchequer, I consider the Court properly decided on the authority of Blades v. Higgs; but as Regina v. Clinton decided no such proposition as that trover or trespass would not he in this Court, I am not bound by Regina v. Clinton, whatever it decided. I wish to base my judgment on much higher grounds, which do not require the authority of the case of Blades v. Higgs. I hold that the moment the seaweed touched the foreshore it became the property of the owner of the shore. It is curious that until the present case no person has been hardy enough to controvert that proposition, which was decided in the Queen’s Bench nearly half a century ago, in the case of Howe v. Stawell, and again in the case of Mulholland v. Killen. Sir Joseph Napier, who reported the case of Howe v. Stawell, lays down the law as follows:—“There is no common law right in the public at large to enter upon the sea shore to take away and carry away seaweed therefrom, whether growing on the rocks or deposited by the tide.” He then refers to Howe v. Stawell, and yet in the face of that exposition it is sought to fritter away Howe v. Stawell by some small criticism. There is no case reported in which the property in the seaweed did not follow the ownership of the soil; in fact, the ownership of the soil of the foreshore was generally established by proof of an exclusive right of taking away the seaweed. The plaintiff proved that he took it away, and prevented every one else from doing so. It would appear a contradiction in terms, while proof of exclusive use of the foreshore by the taking of the seaweed is accepted as proof of the ownership of the soil, that when the ownership of the soil is established, the owner of the foreshore had not the property in the seaweed. By the common law seaweed cast on the shore of the owner of the soil is an increment for his benefit. This will be seen from the observations of Chief Justice Kent in Emmens v. Turnbull. Yet we are told all these authorities are to be overruled by a criminal case decided on other considerations, such as the objection to create new felonies, &c. Are we to say that this criminal case can overrule the well-known law of property which existed up to that time? What does the reporter say in Regina v. Clinton in his marginal note? He says:—“Ungathered seaweed is not the subject of ‘ larceny. ’” That is all that is decided. If it decided that seaweed ungathered was not the property of the owner of the foreshore in this Court of Final Appeal, in this country we do not follow it. Mr. Justice Fitzgerald says he apprehends it is clear that persons could wade out and take seaweed floating. This Court lays down no such doctrine. I take the liberty of controverting it. If the person was walking on a foreshore established to be private property, I find that the question was raised before that very eminent Judge the late Baron Greene (see Casey, app. v. M’Guanne, resp., 1, Leg. Reporter 311), the inclination of whose opinion I take it was adverse to the claim, though it became unnecessary to decide it.3 It is satisfactory that this the final Court of Appeal in this country by its decision prevents any further misapprehension of the case of Regina v. Clinton, and authoritatively re-affirms the law unaffected by that criminal case whatever its ratio decidendi was; re-affirms the universal practice of the Courts of Equity in granting injunctions in fit cases against trespassers carrying away seaweed, whether gathered or ungathered, when the ownership of the foreshore had been satisfactorily established; and finally decides that a communism in property is not to be judicially created on *70 the shores of proprietors in this island in advance of American ideas.
May, C.J.
In this case I concur with the other members of the Court in thinking that the Judge was right in leaving to the jury, in the manner in which he did, the question as to the operation of the letters patent. It was, I think, competent for those claiming under that instrument to offer evidence of continuous user and enjoyment over the foreshore in question, in order to identify it with one of the parcels of land, at the date of the patent accepted or reputed as member of the denominations thereby expressly granted, or therewith used, occupied, or enjoyed; and I also think that the evidence adduced was properly admitted. It is to be observed that this evidence consisted principally, if not entirely, of acts of ownership over the drift seaweed cast on the shore, acts of exclusion of the general public; and, on the other hand, of the taking of such seaweed by the licensees of the plaintiff. The defendant objected to admission in evidence of convictions of trespassers on the foreshore; but the evidence of the taking of the seaweed by the licensees of the plaintiff was not objected to at the trial. The admissibility of such evidence seems inconsistent with the contention advanced by the defendant upon the second point in the case —namely, that seaweed cast upon the foreshore does not belong to the owner of the soil on which it is found, but is res nullius domini, and becomes the property of the first occupant. The exclusive enjoyment of such drift seaweed affords an inference of title to the foreshore only in case the property in the one flows from the property in the other. If such seaweed be the property of such occupant, the owner of lands adjacent to the foreshore, by showing continuous enjoyment of the seaweed, proves no fact that is not accounted for by his proximity to the spot where the seaweed is found. But I think when the title to the foreshore has come in question, it has always been usual to give evidence of the taking of seaweed as an act of ownership exercised upon the foreshore, nor do I remember to have heard of any case in which such evidence was objected to, nor in which a distinction was alleged to exist between seaweed growing upon the foreshore and drift seaweed cast upon it by the sea. In fact, this proposition that the drift seaweed does not belong to the owner of the foreshore, but is the property of the first occupant, struck me with surprise. An examination of the authorities seems to show that in these countries there is no positive decision upon the point, but any authorities that have been referred to, or that I have been able to find, seem to lead in the contrary direction. In Bagott v. Orr, 2 Bos. & Pul. 472, in answer to the declaration for trespass on the plaintiff’s seashore, and taking the plaintiff’s shell-fish and shells, the defendant pleaded a general right in the public to take shell fish and shells on the sea shore. The Court, however, observed that no authority had been cited to support the claim to take the shells, and upon this suggestion the defendant amended his plea, striking out the claim to take the shells. The Court would certainly seem not to have been aware of any right of the public to take shells, the exuviæ of shell-fish found upon the foreshore; and I see no distinction between such shells and drift seaweed cast upon the shore. In Patterson on English and Scotch Law, p. 8, it is stated that drift seaweed cast upon the shore belongs to the owner of the soil. Neither this passage, nor that in the work of Mr. De Moleyns, can be cited as an authority, but they serve to indicate the general feeling of the profession on the point. The case of Howe v. Stawell, in Alcock and Napier’s Reports, which decided that the public had no right to come upon the foreshore to take seaweed, contains no allusion to any right to the seaweed itself in the first occupant, and it would seem natural that such right, if it existed, would have been referred to in that case, either by the Bench or by counsel. The American case of Emans v. Turnbull, already referred to, closely resembles the present in its features. There a right of way was possessed by the inhabitants of a locality over the foreshore in question, and the doctrine of the title of the first occupant to drift seaweed was put forward. Chief Justice Kent, in giving judgment, negatives this alleged right, and decided that such seaweed belonged to the owner of the foreshore. He regarded it as a kind of compensation on the part of the sea for depredation made by it upon the land that formed its boundary. I, also, think that the decree in the case of Mulholland v. Killen is inconsistent with the proposition advanced by the defendant in the present case. The case of Blades v. Higgs has been referred to, but I do not think the case of seaweed cast by the action of the sea upon the foreshore, and that of animals feræ naturæ, are analagous. Wild animals, in a state of nature, have powers of motion and volition over which the owner of the land on which they are found can exercise no control or dominion; when they have lost those characteristics, and become inanimate, they belong to the owners of the land which nurtures them, and on which they are found when dead. Seaweed is an inanimate vegetable production. If the natural agency of the winds and waves cast it upon the foreshore, and it is there left, it seems to me that it should be regarded as an increment or accretion to the land on which it is found, and that it should follow the ownership of such land. I am not aware that the rule or principle of title by occupancy has ever been applied by the common law to a subject matter of this nature. That rule is stated by Blackstone, B. 2, chs. 1 and 26, to apply to such a thing as a jewel, which the owner has cast into the sea, or on the highway, thus indicating an intention to abandon all property in it, as to an animal feræ naturæ which has been caught and reclaimed. It does not seem that such a rule should be extended; on the contrary, we are told that it has been restrained and abridged by positive law, in order to maintain peace and harmony among mankind. In the case of seaweed, eagerly sought for as it is by the peasantry as a valuable manure. I think such a rule of property should not be applied, except upon the closest proof that the law affords no other principle by which property therein can be determined. I can find no such proof; on the contrary, such authorities as can be found seem to me to negative the proposition contended for. We have been pressed with the case of Regina v. Clinton. I cannot find in that case any indication of any such doctrine as is advanced here by the defendant. The late Lord Chief Justice, referring in his judgment to the instances in which a civil action might be maintained to recover chattels, the abstraction of which was, at the common law, not punishable as felonies, would seem to have entertained the opinion that trover or trespass might be maintained for seaweed, though from the meanness of its nature its removal did not amount to the crime of larceny. It may be, also, that defendant’s seaweed cast on the shore is not sufficiently in the possession of the owner of the foreshore to render the illegal taking of it a larceny. The case is binding on this Court upon the point thereby decided, but I do not think that the principles on which it appears to rest are applicable to the present case. On the whole, I think the judgment of the Court of Exchequer should be affirmed.
Judgment of Court below affirmed. 4
1. For greater accuracy it should be stated, that, the action being for trespass on the plaintiff’s lands, some of which were above high water-mark, and others between high and low water-mark, and for the taking and conversion of seaweed, the defendant (in addition to traverses of the trespases, and of plaintiff’s property in the lands and seaweed) justified the trespass to the land as done in the exercise of a public right of way, and pleaded, also, a prescriptive right to take the seaweed. The plaintiff replied, denying the right of way, and new assigning trespass on other parts of the seashore, between high and low water-mark not within the limits of said way. The defendant pleaded thereto, traversing the trespass, and alleging a public right of way over said parts of the shore. The jury found for the plaintiff that the seashore and the seaweed were both his property, and they found for the defendant as to the public right of way. The conditional order (discharged by the Court below) was that the verdict be set aside on the ground of misdirection and reception of illegal evidence.
2. As to the judgment of Christian, L. J., see 10 Ir. L. T. & S. J. 139, 145.—[Rep.]
3. See an opinion written by Mr. (afterwards Baron) Greene in reference to the very locus in quo in the present case, printed 11 Ir. L. T. & S. J. 239—[Rep.]
4. In Emans v. Turnbull (2 Johns. 312), after deciding that a certain neck of land belonged to B., Chief Justice Kent proceeded, in his judgment, as follows:—“The next point in the case is, whether the seaweed thrown by the sea upon the shore or beach of the neck, did thereby vest in the owner of the soil, or belong to the first occupant. The plaintiff’s right, if any, rested upon occupancy; for the liberty of egress and regress, and of fishing and fowling, reserved to the inhabitants of Gravesend by the agreement of 1670, gave them no other rights than those expressed. They could not take wood, grass, or anything appurtenant to the ownership of the soil. The plaintiff then had no right to the seaweed, because he was an inhabitant of Gravesend. Any stranger would have an equal right to take it. The seaweed thus thrown up by the sea may be considered as one of those marine increases arising by slow degrees; and according to the rule of the common law, it belongs to the owner of the soil. The rule is, that if the marine increase be by small and almost imperceptible degrees, it goes to the owner of the land, but if it be sudden and considerable, it belongs to the sovereign. (2 Blacks. Com. 261; Harg. Law Tracts, 28). The seaweed must be supposed to have accumulated gradually. The slow increase, and its usefulness as a manure, and as a protection to the bank, will, upon every just and equitable principle, vest the property of the weed in the owner of the land. It forms a reasonable compensation to him for the gradual encroachments of the sea, to which other parts of his estate may be exposed; this is one sound reason for vesting these marine increments in the proprietor of the shore. The jus alluvionis ought in this respect to receive a liberal encouragement in favour of private right.” In a subsequent case, Mather v. Chapman (40 Conn. 382, Oct., 1873), it was held that seaweed cast upon the shore between high and low water-mark belongs to the public, and may be lawfully appropriated by any person. That was an action of trespass for taking and carrying away a quantity of seaweed which had been thrown, by the action of the sea, upon the shore below high-water mark adjoining the defendant’s land. Seymour, C.J., in giving judgment (after observing that by the settled law of Connecticut the title of a riparian proprietor terminates at ordinary high-water mark), says:—“The plaintiffs claim that among the privileges of the riparian proprietor is also that of the exclusive right to the seaweed which is cast upon the shore, and left there by the receding tide. In respect to the weed cast by extraordinary floods upon the land of the proprietor, and there left above ordinary high-water mark, the law of this State is settled in conformity with what we understand to be the common law of England. The owner of the soil has it ratione soli. No other person can then take it without a trespass upon the owner’s land. And as owner of the land he is deemed to be constructively the first occupant. But, below high-water mark the soil does not belong to the owner of the upland. The seaweed in dispute was not taken from the plaintiffs’ land, and their title, if they have a title, is not ratione soli. No trespass on the plaintiffs’ land was committed by the defendant in taking the weed, for the taking of which recovery is sought in this court. Upon what ground then can the plaintiffs sustain the title which they claim to the weed? While it was floating on the tide it was publici juris. Why, when it is left on the shore by the receding tide, should it become their property? In Massachusetts and Maine, by virtue of the Colonial Ordinance of 1641, the individual title of proprietors adjoining navigable water extends to low-water mark. Seaweed left by the receding tides being then on private property, the owner of the soil has title ratione soli not only to seaweed but to other articles cast upon and left on the shore. Thus in Barker v. Bates, 13 Pick. 255, a stick of timber was thrown up, and had lodged on the shore, within the old colony of Plymouth. The question is largely discussed by Shaw, C.J., whether the Ordinance of 1641 extends to the colony of Plymouth. That being settled, the learned judge proceeds to say: ‘;Considering it as thus established that the land upon which this timber was thrown and had lodged, was the soil and freehold of the plaintiff, the defendants cannot justify their entry for the purpose of taking away or marking the timber. We are of opinion that such entry was a trespass, and that, as between the plaintiff and defendants, the plaintiff had, in virtue of his title to the soil, the preferable right of possession, and that the plaintiff has a right to recover the agreed value of the timber.’ The cases, therefore, in Massachusetts and Maine, which decide that seaweed left on the shore belongs to the riparian proprietor, have no application here. In New Hampshire the Massachussetts ordinance is adopted as law. In New York the common-law rule is adopted, as with us, in relation to the boundary line between the public and the riparian proprietor; and it is claimed that in Emans v. Turnbull, 2 Johns. 313, the question before us is decided in conformity with the plaintiffs’ claim. The judgment in that case is pronounced by a judge of profound learning, whose opinion upon the point now under discussion, if really given, would be entitled to great weight, but we are inclined to think that the seaweed, in that case, was cast upon the land of the plaintiff. The main argument at the bar and on the bench relates to the title to the locus in quo. Chief Justice Kent says: ‘If the marine increase be by small and imperceptible degrees, it goes to the owner of the land. The seaweed must be supposed to have accumulated gradually.’ In the case we are called on to decide, the seaweed would not be regarded as a marine increase of the plaintiffs’ land, for it had not reached their land, and was not attached to it, nor connected with it. To be a marine increase it must form part and parcel of the land itself. Being between high and low water mark, at each returning tide it would be afloat, and, even in Massachusetts, seaweed when afloat is publici juris, although floating over soil which is private property. The seaweed in this suit is not treated as part of the real estate, which by small and imperceptible degrees had become part of the plaintiffs’ land. It is treated as private property, and the defendant is sued for taking it as such, and converting it to his own use. In the case of Emans v. Turnbull the plaintiff’s title was held good upon a liberal construction of the jus alluvionis, which implies that the weed had then become part and parcel of the plaintiff’s land, and must, therefore, have been above or upon ordinary high-water mark. Title to personal property, jure alluvionis, would be a novelty in the law: 2 Blacks. Com. 262. Title by accretion is substantially the same as by alluvion. Both are modes of acquiring title to real property. Title, however, to personal property may be acquired by what, in law, is called accession; but to acquire title by accession the accessory thing must be united to the principal, so as to constitute part and parcel of it. ‘Accessis’ is defined by Bouvier, as a ‘manner of acquiring the property in a thing which becomes united with that which a person already possesses.’ The plaintiffs, therefore, seem to us to have no title by alluvion, or by accession, certainly none ratione soli, and they cannot be regarded as first occupants by construction merely because of the propinquity of their land to the property in dispute. The question under discussion does not seem to be fully settled in England. The soil of the sea-shore is there, as with us, prima facie in the public, but it may become private property, and frequently is so, where the adjoining lands are part of the manor. The authority of Bracton is clearly in favour (1st.) of the common right of all to the shores of the sea as part of the sea itself. (2nd.) In Liber 2, speaking of the right of first occupancy, he says, “ Item, locum habet eadem species occupationis in iis quce communia sunt, sicut in mare et littore maris, in lapillis et geminis et ceteris in littore maris inventis.” Sea-weed must be included within the et ceteris of Bracton in this passage, and upon his authority belongs to the first occupant. The opinion of Lord Hale in favour of the common right to take sea-weed on the shore is shown by the following passage in chapter 6 of Hale’s De Jure Maris. After speaking of three kinds of shore, he says, “This kind of shore, to wit, that which is covered by the ordinary flux of the ocean, may belong to a subject, and may be part of a manor, and the evidences to prove it parcel of a manor are commonly these, constant and usual fetching of gravel and sea-weed and sea-sand, between high and low water mark, and licensing others so to do. ” In the case, however, of Bagot v. Orr, 2 Bos. & Pul. 472, the court expressed doubts upon the right of the public to come upon the shore and take shells which had been thrown up and left there by the tide. In the case of Blundell v. Catterall, 5 B. &. Ald. 268, there occurs a very learned and interesting discussion upon the right of the public between high and low water-mark, but the precise question now under consideration is not made the subject of comment. The case of Church v. Meeker, 34 Conn. 421, is relied upon by both parties. We think the opinion of Judge Butler in that case must be construed as applicable solely to sea-weed found, as it there was, above high-water mark. In the case of Peck v. Lockwood, 5 Day, 52, the plaintiff owned a portion of the shore below ordinary high-water mark, and it was held that he could not maintain trespass against the defendant, who entered the premises when the tide was out and dug for shell-fish and carried the fish away. That is a strong case in favour of the common right of fishing. But, the right of taking sea-weed would seem to stand on the same ground as the right of taking fish. We see no reason for making a distinction between the vegetable and animal productions of the ocean. Neither, in the state of nature, is the property of any one; the title to both depends upon the first occupancy. It is agreed that while afloat both are alike common: why, when the tide recedes and leaves shell-fish and sea-weed on the shore, should the sea-weed belong to the riparian proprietor, when confessedly the shell-fish remains common property? We think the charge of the judge in regard to the first count was correct” [viz., that sea-weed cast and left upon shore, that is, between high and low-water mark, belongs to the public and may lawfully be appropriated by the first occupant.] Where an action was brought by the lord of the manor for taking shell-fish and shingle, sand and sea-weed, from the foreshore of the manor, between high and low-water mark, his title being under a royal grant of the manor with anchorage and groundage, but with no express mention of the shore, it was held that this grant afforded of itself presumption that it included the soil of the shore: Strange v. Rowe, 4 F. & F. 1,048. See, also, Healey v. Thorne, 4 Ir. C. L. R. 495; and Jerwood on Rights to the Seashores, &c., 1850. As to the weight to be attached to American adjudications, see 10 Ir. L. T. & S. J. 651; 11 ib. 15, 174, 188;
Crow v Wood
[1970] EWCA Civ 5 (09 June 1970)
[1970] 3 All ER 425, [1971] 1 QB 77, [1971] QB 77, (1970) 21 P & CR 929, [1970] EWCA Civ 5, [1970] 3 WLR 516
THE MASTER OF THE ROLLS: We are here concerned with Bilsdale West Moor in the North Riding of Yorkshire. It is a big tract of land which is grazed by sheep. There are several farms adjoining it. These farms had been enclosed from the moor many years ago. Stone walls had been erected dividing the farms from the moor. Until 30 years ago the whole of the moor and the adjoining farms were owned by the Earls of Feversham. The Earls had the rights of walking and depasturing sheep on the moor. They let off the farms to individual farmers and granted to each farmer a right to “stray” a certain number of sheep on the moor. In each tenancy agreement the farmer agreed to keep the fences and walls in good repair.
In 1941 the Trustees of the then Earl of Feversham sold the moor and the sheep rights and the farms to an Insurance Company. The deed set out the various farms, together with the number of sheep which each farm had the right to “stray” on the moor. In 1944 the Insurance Company sold the whole, including the sheep rights, to a purchaser who in turn in 1947 sold the whole to another purchaser. In this latter sale the sheep rights were not expressly mentioned, but no doubt passed without mention.
The whole moor and the adjoining farms remained in common ownership (with the farms let off to tenants) until on 11th July, 1951 the common owner sold one of the farms called Stable Holme Farm to the farmer, Mr. Featherstone. The conveyance did not in terms convey sheep rights over the moor but it is conceded that it carried a right to stray 40 sheep on the moor in respect of Stable Holme Farm (which is the number the farmer always had been entitled to stray there under his tenancy agreement). Subsequently Mr. Featherstone agreed to let this sheep right to Mr. Robin Wood, a neighbouring farmer. He put 40 sheep on the moor in pursuance of it.
In February, 1956 the common owner sold to Mr. Crow another of the farms called Stone House Farm, together with a right to stray 50 sheep on the moor. In 1962 Mrs. Crow bought another farm called Fangdale Beck, which carried a right to stray 80 sheep on the moor. But Mrs. Crow did not exercise those sheep rights for her two farms* She used the farms for corn and hay and cows. She had no sheep on the moor. The neighbouring farmers told her that it was her duty to keep up the fences and walls on her farms so as to keep the sheep out: and for the first 10 years, from 1956 to 1966, she did so.
But then in 1966 Mrs. Crow fought a case in the County Court against another farmer, George Hull. She won it: and she assumed from it that she was not bound to fence her farms so as to keep out the sheep. This was not a correct assumption. That case turned on another point. Mr. Hull had no right to stray his sheep on the moor next to her farms. But Mrs. Crow thenceforward contended that she was under no duty to fence her farms so as to keep out the sheep; but that it was the duty of the farmers (who let their sheep run on the moor) to keep the sheep within the moor and not allow them to get into her farms. So from 1966 she no longer kept up the walls or fences against the sheep. The result was that sheep got in. In particular, Mr. Robin Wood’s sheep often got into Mrs. Crow’s farms. She kept a note of all the occasions.
Eventually, on 15th July, 1968, she sued Mr. Wood for damages for cattle trespass and an injunction. Mr. Wood put in a Defence in which he said that Mrs. Crow was under a duty to keep up the fences and walls separating her farms from Bilsdale West Moor for the benefit of the holders of grazing rights on the moor: and that his sheep only entered her land because of her failure to keep them up.
On 24th September, 1969; the County Court Judge found in favour of Mrs. Crow. He awarded her £205 damages and an injunction restraining Mr. Wood from causing or permitting his sheep to trespass on the Plaintiff’s farms.
The Judge did, however, find that there was a custom of Bilsdale West Moor by which each of the farmers adjoining the moor was bound to keep up the fences and walls of his own farm. Each farmer was bound to fence out sheep from the moor. The best statement of the custom was by Mr. Dicker who was the agent for Lord Feversham 30 years ago. He said:
“I know it was the practice for all farmers adjoining the moor to fence against the moorland sheep, and, so far as I was aware, this custom was in existence for many, many years before my time. It is possible that the custom arose as and when land was enclosed from the moor. The cost of fencing the whole moor would be prohibitive. Most of the farms adjoining the moor had a right to graze a certain number of sheep on the moor. These farmers would only be responsible for fencing their own property adjoining the moor, which would be equitable”.
Then Mr. Fawcett, the agent for Lord Ingleby, with 23 years farming practice, said that:
“Farmers having enclosed land are responsible for fencing out stock from moor”.
Mr. Garbutt, whose family had farmed there for three generations, said:
“Farmers always fence to keep out moor stock”.
One of the witnesses said of Stone House Farm, which was Mrs. Crow’s farm:
“The previous tenants kept up the walls. Strangers coming in have different views”.
No doubt Mrs. Crow was regarded as a stranger, although she had been there for 14 years.
The Judge held that the custom was established. But this is not sufficient by itself to put an obligation on Mrs. Crow to fence her land. It appears from the old books that a right to have fences kept up does not arise by custom: see Bolus v. Hinstocke, 1690, 2 Keble 680. It can arise by prescription at common law: see Lawrence v. Jenkins. 1873, L.R. 8 Q.B. 274: but this is only of avail as between adjoining owners. It does not avail when the lands have been in common ownership, as here, until recent years: see Kilgour v. Gaddes. 1904, 2 K.B. 457.
The custom is, however, of importance because of Section 62 of the Law of Property Act, 1925) to which I now turn. It follows Section 6 of the Conveyancing Act, 1881 in the selfsame words:
“(l) A conveyance of land shall be deemed to include and shall by this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages, whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof”.
Mr. Mills, who appears for Mr. Wood, says that that section is to be applied to the conveyance of 11th July, 1951, when the common owner sold Stable Holme Farm to Mr. Featherstone. He says that at that time the right to stray 40 sheep on the moor, and the right to have the other farmers maintain their fences and walls, was an easement right or advantage which was enjoyed with Stable Holme Farm and passed under the conveyance, although it was not expressly mentioned.
Section 62 has already been considered in this Court, notably in Wright v. Macadam, 1949, 2 K.B. 744: and Phipps v. Pears & Others, 1965: 1 Q.B. 76. It is clear from those cases that when land in common ownership is severed and one piece of it sold off (as in the present case) then by virtue of this section all rights and advantages enjoyed with that piece of land will pass to the purchaser provided that they are rights or advantages which are capable of being granted by law so as to run with the land and to be binding on successors. Thus a right to use a coal-shed is such a right. It is in the nature of an easement and passes under Section 62. But a right, given by contract to have a road kept in repair, is not such a right. It is a positive covenant which does not run with the land and is not binding on successors; see Austerberry v. Oldham Corporation, 1885, 29 Ch D 750.
The question is, therefore, whether a right to have a fence or wall kept in repair is a right which is capable of being granted by law. I think it is because it is in the nature of an easement. It is not an easement strictly so called, because it involves the servient owner in the expenditure of money. It was described by Gale as a “spurious easement”. But it has been treated in practice by the Courts as being an easement. Professor Glanville Williams says in his book on the Liability for Animals (at page 201):
“If we put aside these questions of theory and turn to the practice of the Courts, there seems to be little doubt that fencing is an easement”.
In Jones v. Price, 1965, 2 Q.B., at page 633 Lord Justice Willmer said:
“It is clear that a right to require the owner of adjoining land to keep the boundary fence in repair is a right which the law will recognise as a quasi-easement”.
Lord Justice Diplock at page 639 points out that it is a right of such a nature that it can be acquired by prescription, which imports that it lies in grant, for prescription rests on a presumed grant.
It seems to me that it is now sufficiently established — or at any rate, if not established hitherto, we should now declare — that a right to have your neighbour keep up the fences is a right in the nature of an easement which is capable of being granted by law so as to run with the land and to be binding on successors. It is a right which lies in grant and is of such a nature that it can pass under Section 62 of the Law of Property Act, 1925.
Being such a right, did it pass in this case? Was it “enjoyed” with Stable Holme Farm when Mr. Featherstone bought it in 1951 from the common owner? I think it was. All the tenants of the common owner had previously enjoyed this right. The custom of the moor was that each farmer enjoyed this right. It was obviously enjoyed with the land and reputed to appertain to it. The result is that, in my opinion, each farmer next to Bilsdale West Moor had, on the one hand, a right to put so many sheep on the moor to stray: and each farmer, on the other hand, was under a duty to keep up his own walls and fences so as to keep the sheep of the other owners out. Those were rights and advantages which passed in the conveyance of 11th July, 1951 when the common owner sold Stable Holme Farm to Mr. Featherstone. He (and Mr.- Wood under him) became entitled to keep 40 sheep on the moor and had the right to require the other farmers to keep up their fences.
I must mention, however, one suggestion made by Mr. Mills. He suggested that, whilst Mr. Featherstone acquired this right in 1951 against a common owner, and against Mr. Wood who claimed from him: nevertheless Mrs. Crow had no such right against Mr. Featherstone. He suggested that, inasmuch as in 1951 the common owner had not reserved any such right against Mr. Featherstone, there was no longer any right which could be enforced against him: and that, as Mrs. Crow bought in 1956 from the common owner, she was in no better position than he. It is not necessary to rule on this point, but I must say I should deplore any such result. I see that Professor Glanville Williams says at page 208 of his book: “There may be a valid obligation to repair ancillary to an easement”. Applying this, I would say that in every conveyance it is implied that every farmer who has a right to put sheep on the moor and to have his neighbour repair fences, is under an obligation, ancillary to it, to keep up his own fences. This right and obligation extends to all the farmers who buy their farms from the common
owner, no matter in what order they buy them. In this case therefore I hold that Mrs. Crow was under an obligation to fence her farms so as to keep out Mr. Wood’s sheep. The result is that, if Mr. Wood’s sheep get over the wall into her farm or knock the wall down, she cannot complain of cattle trespass: because she ought to have kept them out. Such is the custom of the moor. She abided by the custom for 10 years. It is a pity she ever departed from it.
I would allow the appeal and enter judgment for the Defendant.
LORD JUSTICE EDMUND DAVIES: It is beyond doubt that the tenancies granted by the trustees of the Earl of Feversham in respect of the farms abutting on Bilsdale West Moor on the one hand conferred on the tenants the right to pasture the specified number of sheep on the moor, and, on the other hand, imposed on each tenant the duty “to put maintain and keep all fences, gates, posts, stiles and walls ….. in good and sufficient repair”. It was on these terms that Stable Holme Farm and Stone House Farm were at all material times let.
When on 18th August, 1941 the trustees severed the common ownership by selling off part of the Feversham Estate, the rights of pasturing over the lands retained by the vendors remained “….. for the purchasers and their successors in title the respective owners and occupiers for the time being of the several farms and lands specified ….. in common with all persons having a like right ….. restricted to the number of sheep specified”.
The further severance, achieved on 18th August, 1944, conveyed property to J.W. Tunnicliffe and Hird & Gibson Ltd., together with the right for them and “their respective successors and assigns the respective owners and occupiers for the time being of the several farms and lands hereby transferred in common with all persons having a like right at all times hereafter to use and enjoy in respect of and as annexed to each of such farms and lands respectively sheep rights” as enumerated in the conveyance of 18th August, 1941.
Mr. J.H. Gill having acquired the title in October, 1947, it is of importance to note that, as far as the parties to this litigation are concerned, the first disposition thereafter was of Stable Holme Farm in 1951 to the Featherstones, who were then apparently its occupiers. It is common ground that with this conveyance went the right to graze 40 sheep on Bilsdale West Moor and that the Featherstones effectively authorised the Defendant to exercise that right by a licence granted to him on 1st September, 1962. It was not until 8th March, 1956, that Mrs. Crow acquired Stone House Farm from Mr. Gill, the conveyance expressly passing to her the right to graze 50 sheep provided for under the conveyance of 18th August, 1941. There is no doubt that at that time the farm was bounded by dry-stone walls and these were thereafter maintained (whether adequately or not is immaterial for present purposes) by Mrs. Crow. She claims that she continued to maintain them until 1966 in the belief that she was obliged to do this to keep out straying sheep; but the relevance or otherwise of this claim remains to be considered.
In the circumstances that I have outlined, was Mrs. Crow in fact and in law obliged to keep out straying sheep? The learned County Court Judge held that she was not and although her walls seemed to have been allowed to become very defective in places, the Defendant was in consequence obliged to compensate her for the damage done by his straying sheep.
That a duty to fence against trespassers can be created by express or implied grant seems clear. Whether, when such a duty exists, it is to be regarded as an easement (“spurious” or otherwise) or a quasi-easement has been much canvassed before us, but I am not satisfied that a final decision as to the exact legal nature of such a duty is presently called for.
I say that for this reason: Section 62(1) of the Law of Property Act, 1925, is so expansive in its terms that, in my judgment, when on 11th July, 1951 the Featherstones acquired Stable Holme Farm, there also passed to them by virtue of that statutory provision as an “advantage” appertaining thereto, the obligation imposed on the occupier of Stone House Farm and Fangdale Beck Farm to maintain their boundary walls. This aspect of the case was summarily dismissed by the learned County Court Judge, but in my judgment it constituted the kernel. Professor Glanville Williams hinted that a duty to fence might fall within the “general words” of Section 62(1) in his “Liability for Animals” at page 211. Writing in 1939, he rightly said that “upon this question there is no authority”, but since then there have been decided the cases already referred to by the Master of the Rolls.
The County Court Judge appears to have been strongly affected by the evidence, which satisfied him that (as he expressed it)
“….. the plaintiff has repaired her boundary walls voluntarily, not as a matter of obligation or agreement, or as a result of requests”, and by his finding that “the plaintiff has for years protested against the incursion of sheep”.
It may here be recalled that the Plaintiff herself said that for 10 years she maintained the walls because she believed that she was under a duty to do so. But the answer to all this seems to be that, whatever be the legal basis of a duty to fence, the balance of authorities for centuries favours the view that the obligation, when it exists, arises from proof that the land is accustomed to be fenced and that it is immaterial that a party has voluntarily fenced his premises simply for, it may be, his own protection — see the cases reviewed in Glanville Williams on pages 203 and 208.
Since that learned work appeared in 1939, there have been at least two decisions of importance relating to the ambit of section 62. The first of these, Wright v. Macadam, (1949 2 K.B, 744) clearly laid down that, like its predecessor, section 6 of the Conveyancing Act, 1881, section 62 was not confined simply to rights which, as a matter of law, were so annexed or appurtenant to the property conveyed as to make them actually legally enforceable right (1913) 1 Chancery, page 571,
“….. ‘a right’ permissive at the date of the grant may become a legal right upon the grant by force of the general words in section 6 of the Conveyancing Act, 1881. From this point of view the circumstances under which the quasi-right was enjoyed become immaterial so long as it was actually enjoyed and was of a nature which could be granted, that is to say, a right known to the law”.
In Wright V. Macadam itself Lord Justice Jenkins said, at page 750:
“There is, therefore, ample authority for the proposition that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into it under section 62, even although down to the date of the conveyance the right was exercised by permission only, and therefore was in that sense precarious”.
In the circumstances of the present case it seems to me that a right to compel another to maintain fences is in the nature of an easement capable of arising from grant or implied grant and can pass under section 62. Furthermore, those same circumstances (which the Master of the Rolls has already described in detail) in my judgment give rise to a “right or advantage appurtenant to each farmer to call upon others to maintain their fences”, and one which passed on the conveyance of Stable Holme in 1951 to the Featherstones. It therefore follows that the Plaintiff, being in breach of her duty to fence, had no entitlement to complain that the Defendant’s sheep had strayed on her land, he being duly licensed to pasture them on the moor by the purchasers of Stable Holme Farm.
I would therefore concur in allowing this appeal.
LORD JUSTICE MEGAW: I agree.
Bakewell Management Ltd v. Brandwood & Ors
[2004] UKHL 14
LORD BINGHAM OF CORNHILL
My Lords,
I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Hope of Craighead. I am in full agreement with them, and for the reasons they give would allow the appeal and make the order which Lord Scott proposes.
LORD HOPE OF CRAIGHEAD
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Scott of Foscote and Lord Walker of Gestingthorpe. I agree with them, for all the reasons that they have given, that Hanning v Top Deck Travel Group Limited (1993) 68 P & CR 14 was wrongly decided and must be overruled, and I too would allow the appeal.
The result of this case will come as a welcome relief to many owners of dwellings whose only vehicular access to their properties is across common land. In Hanning the defendant was driving double-decker buses along a track through a wooded common from the public highway. The owners of the common could have granted the defendant a right of way for its commercial vehicles, but they did not do so. The claimant’s reason for seeking the injunction was to preserve the amenity of the common. There is no doubt that this is the broad public purpose which section 193(4) of the Law of Property Act 1925 was designed to serve.
The present action on the other hand has nothing to do with the preservation of the amenity of the common. As Ward LJ observed in the Court of Appeal [2003] 1 WLR 1429, 1432, para 8,
“Bakewell do not really wish to stop the defendants driving across the common. Their position is stated with admirable frankness in the skeleton argument submitted to the judge:
‘The purpose of this action is to make money for the claimant by requiring the defendants to pay for what they have taken free and for granted for many years – vehicular access to their residential properties across Newtown Common.'”
An unfortunate and, of course, unintended consequence of the decision in Hanning has been the encouragement that it gave to those who wish to make money out of the hitherto unobserved flaw which it appeared to have revealed in the system for obtaining easements of way through the presumption of a lost modern grant. The scale of the problem was highlighted during the debates on section 68 of the Countryside and Rights of Way Act 2000 in the House of Commons by Sir George Young and in your Lordships’ House by Lord Selborne: Hansard HC Vol 351, cols 949-960; HL Vol 617, cols 428-431. It is well known that opportunist companies have been buying up the freehold of common land in England and Wales for the sole purpose of extracting money from local residents, who had assumed that they had an established right of vehicular access across the common to their homes as they had been obtaining access in this way without interruption since time immemorial. Public authorities too had been exacting these charges, under pressure from the Treasury: see Christopher McNall, Righting Wrongs? Prescriptive Easements and Illegality [2004] 68 Conv 67, 69. Many of the residents were retired and could not easily find the sums that were being demanded from them.
Section 68 of the Act of 2000 was enacted in order to deal with this problem, but it did not provide a complete solution to it. An easement created in accordance with the regulations made under that section has to be paid for, albeit at lower rates than that demanded by the companies: see the Vehicular Access Across Common and Other Land (England) Regulations 2002 (SI 2002/1711). It is, as Stephen Tromans, Research Professor, Nottingham Law School, put it in his annotations to the section in Current Law Statutes, something of a compromise: see also Christopher McNall’s criticism of the legislative response: [2004] 68 Conv 67, 69. The section recognised that some owners of commons such as the National Trust and parish councils were entitled to seek to obtain a financial benefit from the law as laid down in Hanning, and it was not its purpose to deprive them of it. In their case, it has to be admitted, the financial benefit was in the nature of an unforeseen windfall.
While Kennedy LJ paid tribute in Hanning at p 23 to the long established and valuable principle of lost modern grant, he did not think that the fiction should be extended to enable the defendants to curtail public rights in the common by conduct which on each occasion when it was committed was criminal. But in my opinion, for the reasons Lord Scott has given, there is no need for the fiction of the lost modern grant to be extended to give the defendants the remedy they seek. All that is needed is to give to it the weight which it has always been given, despite the fact that the conduct relied on amounted on each occasion to a trespass which – assuming the use to be nec vi, nec clam, nec precario: not by force, by stealth or with permission – he could have objected to at any time.
As Cockburn CJ explained in Bryant v Foot (1867) LR 2 QB 161, 180-181, 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. Section 193(4) of the 1925 Act recognises that it is open to the owner of the land to grant the authority that is needed for the use of it not to constitute an offence. So too does section 34 of the Road Traffic Act 1988. The owner may wish to consider questions of amenity when he is deciding whether or not to grant the authority which these statutes require, but he is not obliged to do so. He may, as has been demonstrated in this case, wish simply to make money for himself. The important point is that the right to use the land without committing an offence is entirely within his grant. His liberty to grant authority is not fettered by the statutes in any way. So it does not require any extension of the fiction for it to be assumed that a use which could have been objected to at any time during the 20 year period either because it was tortious or because it was criminal, being a use for which in either case it was within the power of the owner to grant authority, has become established as a prescriptive right.
In R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349, Lord Hoffmann said that any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment. There is no doubt that, on the facts that Park J assumed to be true when he made the declaration that the various defendants referred to in his order had no private rights of way for vehicles across the common, there had been a de facto enjoyment of the common for this purpose and that in each case it was open, continuous and long established. It could have been the subject of an express grant by the owner of the common at any time. The law would have been shown to be defective if it were to have allowed that enjoyment to be disturbed, with the result that it now had to be paid for. It is satisfactory that it has been possible to arrive at a conclusion in this case which is consistent with the value which has always been attached to a user of land which is open, continuous and long-established in the law relating to property rights.
LORD SCOTT OF FOSCOTE
My Lords,
A residence with a garden bordering upon an ancient common on which commoners pasture their sheep and to which members of the public can resort for exercise, dog walking, picnics, kite flying and the like, sounds like an enviable possession affording amenities of view and tranquillity that would be highly prized by most people. The absence of any direct access to the house from a public road might give rise to a momentary doubt about its attractions and suitability in a modern motorized age; but information that ever since the house was built, well over 20 years ago, its successive owners, and their visitors, have enjoyed vehicular access to the house over a track across the common linking the house with a public road would have quieted most doubts. And all doubts would, I expect, have been quieted if the inquirer, on consulting a lawyer, had been told about section 2 of the Prescription Act 1832. He would have been told that twenty years open and uninterrupted user of the track as of right and without interruption would have entitled the householder to a right of way over the track.
I am referring, however, to the time before 5 May 1993 when the decision of the Court of Appeal in Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 was given. The Court of Appeal held that because it had been made an offence by section 193(4) of the Law of Property Act 1925 to drive without lawful authority on a common to which the section applied, and it applied to the Hanning common, and since no lawful authority for the defendant company to drive on the common had ever been given, a right of way could not have been acquired by the twenty or more years of uninterrupted use that the defendant company had enjoyed. An easement could not, it was held, be acquired by conduct which, at the time the conduct took place, was prohibited by statute.
The Hanning decision was followed by the trial judge, Park J, and by the Court of Appeal in the present case. They were bound by it but, in the Court of Appeal, the Lord Justices expressed the view that they would anyway have come to the same conclusion.
Each of the appellants in the present case is an owner of a house bordering on a 144 acre common, Newtown Common, near Newbury. Vehicular access to each of the houses from the nearest public road has, since each house was built, been obtained via one or other of a number of tracks over the common. The owner of the common, whether past or present, has given no permission authorising this use of the tracks. The present owner of the common, Bakewell Management Ltd (‘Bakewell’), the respondent company, has commenced proceedings to establish that the appellants have no vehicular rights over these tracks. Bakewell relies on the Hanning decision. The question for your Lordships is whether Hanning was rightly decided.
The Facts
The basic facts are not in dispute. Newtown Common is registered as a common under the Commons Registration Act 1965. It was owned by successive Earls of Carnarvon from early in the 19th century until 1986. Bakewell became the owner on 3 July 1997. Some of the tracks and roads across the common which connect appellants’ properties to local public roads have tarmac surfaces. Some do not but all are usable by vehicles. Save for two of the properties, the tracks and roads across the common are the only means of vehicular access to public roads.
The owners of twenty-eight properties, forty-seven defendants in all, were sued by Bakewell. Four of these did not file a defence. Against all the other defendants Bakewell made an application for summary judgment on the issue of liability. Seven of the defendants, the owners of four of the properties, were given leave to defend by Park J. Against all the others Park J made a declaration that they had no private rights of way for vehicles across Newtown Common.
The distinction between the seven and the others was based on the length of the period of vehicular access to their respective properties before 3 January 1928 (after which date section 193 of the 1925 Act applied to the common) that they could claim. Each of the seven could claim over 20 years vehicular access before 3 January 1928. So it was accepted that each had an arguable claim to have acquired an easement by prescription, or under the fiction of lost modern grant, that predated the application of the section 193(4) prohibition to Newtown Common. As to the others, three of them, the owners of two properties, could claim use that commenced before 1928 but was of less than twenty years duration before 1928. All of the defendants bar six, the owners of four properties, could claim use of more than forty years before the commencement of the proceedings. The six could claim twenty years’ use but not forty.
The appellants before the House include not only those against whom the declaration of no entitlement of a right of way was made but also the seven who were given leave to defend. The reason, no doubt, is that the seven have a common interest with their co-defendants in hoping to persuade your Lordships that Hanning was wrongly decided.
The appellants contend that their vehicular use of the tracks, and that of their respective predecessors in title, has been enjoyed openly and without any permission from the owner for the time being of the common. Bakewell accepts that that is so.
The status of the common as a common to which section 193 applies derives from subsection (2) which enabled the owner of a common to declare by deed that the section should apply to his common and enacted that “upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies”. On 31 December 1927 the then owner of the common, the 6th Earl of Carnarvon, declared by deed that section 193 should apply to Newtown Common. The deed was duly deposited with the Minister on 3 January 1928 and has not been revoked. It is accepted by the appellants that on 3 January 1928 Newtown Common became a common to which section 193 applied.
Bakewell made it clear in the course of the hearing before Park J, and its counsel, Miss Williamson QC, has made clear to your Lordships, that Bakewell’s purpose in instituting and pursuing the proceedings was not and is not to prevent the householders from using the tracks across the common for access to their respective properties but was and is to make the householders pay for the right to do so. It is agreed, rightly, that Bakewell’s motive is irrelevant to the issues before the House.
In any event, prompted by the Court of Appeal decision in Hanning, Parliament enacted section 68 of the Countryside and Rights of Way Act 2000 which instituted a statutory scheme under which an owner of property deprived of a prescriptive right of way over a common, or other land, by the unlawful conduct principle underlying the Hanning decision can require the right to be granted to him by the owner of the common in return for payment of an appropriate sum of money. But, of course, if the appellants can satisfy your Lordships that Hanning is wrong, they can establish their respective rights of access over the common without having to rely on section 68 or to pay Bakewell anything.
The statutory prohibition
The terms of the section 193(4) prohibition and its statutory context are important. The section is headed “Rights of the public over commons and waste lands”. Subsection (1) provides that
“Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common …., or manorial waste, or a common, which is wholly or partly situated within an area which immediately before 1st April 1974 was a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:
Provided that—
(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, for conserving flora, fauna or geological or physiographical features of the land, or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and
(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and
(d) ….”
Subsection (2) enabled “the lord of the manor or other person entitled to the soil of any land subject to rights of common” to apply section 193 to the land. I have described in paragraph 19 above how this is done. The only other subsection to which I need refer is subsection (4) which creates the statutory prohibition:
“(4) Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale for each offence.”
Subsection (1), combined with subsection (2), identified three categories of land to which section 193 was to apply, first, metropolitan commons (as defined), second, manorial waste or common land within the area of a pre 1 April 1974 borough or urban district, and, third, commons the owners of which had applied the section to the land. The rights of access for air and exercise over land falling into one or other of these three categories that subsection (1) conferred on the public were subject to important provisos. Proviso (b) allowed the Minister, on the application either of the owner of the land or of any person with rights of common, to impose limitations or conditions on the rights conferred on the public. The Minister could do so for one or other of the purposes specified in the proviso. The first of the specified purposes would enable the Minister to prevent the exercise of the newly conferred public rights from unreasonably interfering with the commoners’ rights of common or with the legitimate interests of the owner of the land. Proviso (c) was plainly directed to the same purpose. It imposed specific limitations on and conditions as to the exercise of the newly conferred public rights. The purpose of subsection (4) was, plainly, to enable the observance by members of the public of limitations and conditions imposed under proviso (b) or proviso (c) to be enforced by a criminal sanction.
The words in subsection (4) “without lawful authority” deserve careful attention. They have been taken, in cases like the present and like Hanning, to refer to an authority given by the owner of the common. They might also, if proviso (a) is applicable, refer to an authority given by some public official or public body pursuant to the Act, scheme, byelaw or regulation in question. But the ability of the owner of the common in question to give someone a “lawful authority” to do one or other of the things prohibited by subsection (4), or, indeed, to do one or other of those things himself, is subject, in my opinion, to an important qualification. The owner of a common cannot lawfully do anything on the common that would constitute an unreasonable interference with the rights of the commoners (see s. 30, Commons Act 1876). To do so would be a nuisance (see Clerk & Lindsell 18th Ed. para 31-27). Nor could the owner of a common lawfully authorize things to be done by others on the common that, if done, would constitute a nuisance. The reference to “lawful authority” in subsection (4) does not, therefore, mean that the owner of a common can authorize to be done whatever he pleases. Authority given to too many people to camp on the common and light too many fires could damage the sufficiency of grass on the common for the commoners’ grazing rights. If that were so, the authority would not, in my opinion, be a lawful one. Similarly, authority to too many people to drive too many cars or other vehicles over the tracks on the common might not be lawful. It would depend on the facts. But, subject to that qualification, subsection (4) allows the owner of a common to which section 193 applies to authorize the doing of an act that if done without that authority would be an offence under the subsection.
Section 193(4) is not the only statutory provision that creates an offence if motor vehicles are driven off-road “without lawful authority”. Section 14(1) of the Road Traffic Act 1930 said that
“If without lawful authority any person drives a motor vehicle on to or upon any common land, moorland or other land of whatsoever description (not being land forming part of a road), or on any road being a bridleway or footway, he shall be guilty of an offence ….”
There then followed two provisos one of which allowed parking on land within fifteen yards of a road and the other allowed a defence if the vehicle had been driven “for the purpose of saving life or extinguishing fire or meeting any other like emergency”. Section 14(1) of the 1930 Act was repealed by the Road Traffic Act 1960 and replaced by section 18(1) of that Act which was in the same terms. Section 18(1) of the 1960 Act was repealed by the Road Traffic Act 1972 and replaced by section 36(1) of that Act, also in the same terms. Section 36(1) has been repealed by the Road Traffic Act 1988 and replaced by section 34(1) of that Act which has slightly different wording but is to exactly the same effect as its statutory predecessors. My comments on “without lawful authority” in section 193(4) of the 1925 Act are equally applicable to those words in section 34(1) of the 1988 Act and its predecessors.
In a recent case in the Court of Appeal, Massey v Boulden [2003] 2 AER 87, the same point arose in relation to section 34(1) of the 1988 Act as had arisen in Hanning and in the present case in relation to section 193(4). Simon Brown LJ (as he then was), in a reference to Hanning and to Robinson v Adair, a Queen’s Bench Divisional Court case unreported save in the Times of 2 March 1995, said—
“That a prescriptive right of way cannot be acquired by a user in breach of a criminal statute is well established and …. not in dispute before us.”
If Hanning was wrongly decided in treating user in breach of section 193(4) as a bar to the acquisition of a right of way by prescription so too was Massey v Boulden wrongly decided in treating user in breach of section 34(1) as a similar bar.
Acquisition of easements by prescription
The acquisition of easements by long uninterrupted user that has been open, free from force and not dependent upon any precatory permission from the servient owner serves a well recognised public policy. In Davis v Whitby [1974] 1 Ch 186 Lord Denning MR said, at page 192, that
“…. the long user as of right should by our law be given a lawful origin if that can be done.”
and Stamp LJ, agreeing with Lord Denning, commented
“…. if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin.”
More recently Lord Hoffmann in R v Oxfordshire County Council Ex parte Sunningwell Parish Council [2000] 1 AC 335 said at page 349 that
“Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment.”
The rules of prescription developed by English law for the acquisition of easements by long de facto enjoyment were based on the establishing of a fiction, namely, that the long de facto enjoyment was attributable to the grant of the easement by a past owner of the servient land but that the grant had been lost. The opinion given by Lord Hoffmann in the Sunningwell Parish Council case contains a valuable exposition of the way in which this fiction developed and led to the enactment of the Prescription Act 1832 (see pages 349G to 351F). The terms of section 2 of the 1832 Act are important
“(2) No claim which may lawfully be made at the common law, by custom, prescription, or grant, to any way or other easement …. when such way or other matter …. shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.”
Section 4 of the 1832 Act said that the periods of 20 years and 40 years had to be periods
“…. next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question….”
Section 4 is the reason why lost modern grant as a means of claiming an easement by long use continued to exist alongside section 2 of the 1832 Act. In a case where the use relied on had ceased before the commencement of the action challenging the claim to the easement section 2 of the 1832 Act might not be applicable but the claimant might still get home by relying on lost modern grant. In Tehidy Minerals v Norman [1971] 2 QB 528 Buckley LJ explained, at p 552, that the great case of Angus v Dalton (1881) 6 App Cas 740 had decided that
“…. where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless , for some reason … the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.”
In the present case the appellants claim their respective rights of way over the tracks across the common both under section 2 of the 1832 Act and, alternatively, under the lost modern grant fiction. No reason has been advanced, other than the illegality point on which Hanning was based and which was approved in the present case, why these claims should not succeed on either of these two bases.
Hanning v Top Deck Travel Group Ltd
Horsell Common, the common with which the Hanning case was concerned, was a common to which section 193 applied. Vehicles belonging to the defendant, Top Deck Travel, had been using a track across the common for well over 20 years. No authority to do this had been given by any owner of the common. The trial judge, Mr John Lindsay QC (as he then was), had noted that this user was an offence under section 193(4) but that the illegality would have been cured “had a grant of the kind otherwise to be presumed been made”. He held that, in view of the illegality of the use on which Top Deck Travel was relying, the court could refuse to recognise the fiction that there had been a lost grant but that the court was not obliged to do so. In the event he did not do so and, accordingly, upheld the right of Top Deck Travel to the easement. Dillon LJ, who gave the leading judgment in the Court of Appeal, disagreed. He cited a number of cases which, he considered, had established the rule that “an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute”. Kennedy LJ gave a judgment to the same effect.
In my respectful opinion, the cases cited by Dillon LJ and Kennedy LJ do not establish that rule. What they establish is a rather different rule, namely, that an easement cannot be acquired to do something the doing of which is prohibited by a public statute. The first case cited by Dillon LJ was Neaverson v Peterborough Rural District Council [1902] 1 Ch 557. The first sentence of the headnote succinctly expresses what the case decides— “A lost grant cannot be presumed where such a grant would be in contravention of a statute.” Henn Collins MR explained at pages 563-564 that
“If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”
and, at page 573 that—
“such a grant as is here suggested would have been illegal, whoever is supposed to have made it.”
33.
Neaverson v Peterborough Rural District Council was cited by Eve J in Hulley v Silversprings Bleaching and Dyeing Co Ltd [1922] Ch 268 as authority for the proposition that—
“A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail.” (page 282)
The lost grant that Top Deck Travel sought to establish, like those that the appellants now before the House seek to establish, could have had a legal origin. The grants could lawfully have been made and would not have been illegal.
34.
Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947. The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12(5)(c) of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purpose for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was the context in which Salmon LJ made the statement cited by Dillon LJ, namely
“It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land.” (see p 5)
Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of the 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ’s statement out of context and treat the principle he expressed as applicable to prescriptive use.
The next case cited was George Legge & Son Ltd v Wenlock Corporation [1938] AC 204. The question in this case was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. Throughout the period of the discharge of sewage into the stream the discharge had been an offence under section 3 of the Rivers Pollution Prevention Act 1876. Their Lordships applied the decision of the House in Airdrie Magistrates v Lanark County Council [1910] AC 286 in which Lord Loreburn LC had commented:
“But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely asking leave to prove that they have …. committed in an aggravated degree the very offence with which they are charged.”
In George Legge Lord Macmillan, with whose opinion Lord Atkin and Lord Roche agreed, said, at page 216—
“…. it is sought to prove that what was in law a protected stream has become in law an unprotected sewer simply by reason of infringements of the law designed for its protection. Now that is what your Lordships’ House in effect held in the Airdrie case to be a legal impossibility.”
And Lord Maugham, at page 222, said
“…. there are certainly statutes imposing duties or prohibitions which can be waived …. There are also cases where by the doctrine of a lost grant or lost patent or by some similar presumption individuals have, notwithstanding the terms of a statute, acquired rights apparently in contradiction of it. There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable.”
My Lords, Bakewell naturally attaches considerable importance to the last sentence from the passage of Lord Maugham’s opinion that I have cited. I would respectfully suggest, however, that the George Legge case, and for that matter the Airdrie case, are no more than excellent examples of the proposition that a lawful grant to do an act or acts that if done would be illegal cannot be made. It would be the “legal impossibility” to which Lord Macmillan referred. To go further and say, as Lord Maugham did, that never in any circumstances can acts in breach of public law prohibitions lead to the acquisition of legal rights does not follow and was not necessary for the decision.
Kennedy LJ in Hanning referred to Cargill v Gotts [1981] 1 WLR 441. In Cargill v Gotts it was contended that a right to abstract water from a mill pond had been acquired by long use. Under section 23(1) of the Water Resources Act 1963 the abstraction of water from the mill pond as from 1 July 1965 required the grant of a licence from the water authority. The water authority was not the owner of the mill pond. The plaintiff, who had for some years prior to and after 30 June 1965 abstracted water from the pond for use on his neighbouring farm, contended that he had acquired by long use an easement to do so. He had never applied for or been granted a licence by the water authority. The Court of Appeal held that for the purpose of establishing his easement he was not entitled to rely on his illegal abstraction of water post 30 June 1965. Templeman LJ, with whom on this point Lawton LJ and Brandon LJ agreed, said, at page 446
“…. the plaintiff cannot rely on any abstraction of water carried out after June 30 1965, in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity.”
The last sentence of the cited passage from Templeman LJ’s judgment give Bakewell the same support as does the sentence from Lord Maugham’s opinion in the George Legge case to which I have referred. But here, too, the sentence went further than was necessary. It was not open to the owner of the mill pond to grant the plaintiff, post 30 June 1965, the right to abstract water from the mill pond unless the plaintiff had the requisite licence from the water authority, which he did not. The grant would have been an unlawful grant, as would have been the comparable grant in the George Legge case. Templeman LJ did not have in mind what the situation would have been had a grant, if made by the mill owner, been a lawful grant.
The feature of the Hanning case, and the present case, that distinguishes them from such cases as the George Legge case and Cargill v Gotts is that the servient owner was able, notwithstanding the statutory prohibition, indeed by the very terms of section 193(4), to make a lawful grant of the easement. A statutory prohibition forbidding some particular use of land that is expressed in terms that allows the landowner to authorise the prohibited use and exempts from criminality use of the land with that authority is an unusual type of prohibition. It allows a clear distinction to be drawn between cases where a grant by the landowner of the right to use the land in the prohibited way would be a lawful grant that would remove the criminality of the user and cases where a grant by the landowner of the right to use the land in the prohibited way would be an unlawful grant and incapable of vesting any right in the grantee. It is easy to see why, in the latter class of case, long and uninterrupted use of the land contrary to a statutory prohibition cannot give rise to the presumed grant of an easement that it would have been unlawful for the landowner to grant. It is difficult to see why, in the former class of case, the long and uninterrupted user should not be capable of supporting the presumed grant by the land owner of an easement that if granted would have been lawful and effective notwithstanding that the user was contrary to a statutory prohibition. I can see no requirement of public policy that would prevent the presumption of a grant that it would have been lawful to grant. On the contrary, the remarks of Lord Denning MR and Stamp LJ in Davis v Whitby and of Lord Hoffmann in the Sunningwell Parish Council case to which I have referred provide sound public policy reasons why, if a grant of the right could have been lawfully made, the grant should be presumed so that long de facto enjoyment should not be disturbed.
The post Hanning cases
I should refer also to some of the several cases post Hanning in which the principle on which that case was decided was applied. It is convenient to take them in chronological order. Robinson v Adair was reported in The Times of 2 March 1995. The case was not about private rights of way but raised the issue whether a particular road had become by presumed dedication a public highway. The Truro Crown Court had allowed Mr Adair’s appeal against his conviction for obstructing a highway (see s 137 of the Highways Act 1980). Mr Adair, presumably the owner of the road in question, denied that it was a public highway. Mr Robinson contended that dedication of the road as a public highway was to be presumed after twenty years uninterrupted use as of right by the public (s 31(1) of the 1980 Act). But the use relied on constituted an offence under section 34(1) of the Road Traffic Act 1988. Dyson J (as he then was), giving the judgment of the Divisional Court, referred to Hanning and said, according to The Times report, that he could see no rational distinction between acquisition of a private easement by presumed grant after long illegal user and the presumed dedication of a highway after long illegal user. However, it was, so I assume for there is nothing to suggest the contrary, open to Mr Adair or his predecessors in title to have dedicated the road as a public highway. Such a dedication would have constituted “lawful authority” for section 34(1) purposes. The dedication would have been effective. That being so, I can see no reason why public policy would prevent a presumption of dedication arising from long use.
41.
Hereford and Worcester County Council v Pick (1995) 71 P & CR 231 was another case in which the issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. As in Robinson v Adair a Queen’s Bench Divisional Court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed. Stuart-Smith LJ, after referring to Hanning and to Robinson v Adair said at page 239 that
“Public rights cannot be based on long use where the user is prohibited by statute.”
He said, also, that the user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and that, for that reason also, the user could not lead to a presumed dedication.
I agree with Stuart-Smith LJ’s remarks about nuisance. It would not, in my opinion, have been open to the land owner to have dedicated the footpath as a public vehicular highway if use by vehicles would have constituted a public nuisance to pedestrians using the footpath. But I respectfully disagree with the proposition derived from Hanning and Robinson v Adair. If it would have been lawful for the landowner to make the dedication in question I can see no reason why the dedication should not have been presumed from long use. Indeed, if Robinson v Adair and, on this point, the Pick case are correct, there could never be a presumed dedication under section 31(1) of the Highways Act 1980 after 20 years of public use. Whatever the intention behind section 34(1) of the Road Traffic Act 1988 may have been, the intention could hardly have been to repeal section 31(1) of the 1980 Act.
I have already referred briefly to Massey v Boulden [2003] 2 AER 87. The defendants were the owners of a village green crossed by a track which gave vehicular access from a public road to the claimants’ house. The successive occupiers of the house had used the track for vehicular access for over forty years. The defendants resisted the claimants’ entitlement to a prescriptive right of way on the ground that the user relied on had constituted an offence under section 34(1) of the 1988 Act. Hanning was relied on. The Court of Appeal agreed with the defendants and Simon Brown LJ made the remark that I have cited in paragraph 26 above and need not repeat. Sedley LJ agreed with Simon Brown LJ. Mansell LJ dissented on a point not material to the illegality issue. None of the members of the court addressed what to my mind is the critical question, namely, why public policy should preclude the obtaining by prescription, or by presumed grant, of an easement or right over land that it would have been lawful for the landowner to grant notwithstanding that the user was, absent the grant, unlawful and criminal.
Finally, I should refer to Hayling v Harper [2003] 39 EG 117. This case, too, raised the question whether vehicular user of a public footpath in breach of section 34(1) of the 1988 Act could lead to the acquisition by prescription of a public right of way. Ward LJ, who had a few months earlier given the leading judgment in the Court of Appeal in the case now before the House, was bound to follow Hanning and did so. The Hanning principle barred, he held, a claim to the easement under section 2 of the 1832 Act. The user relied on had been illegal since 1930 (see paragraph 25 above) and the claimants could not, therefore, rely on the user between 1930 and the commencement of the proceedings. But he held that the evidence of user pre 1930 enabled the claimants to establish the acquisition of an easement by lost modern grant before the advent of section 14 of the Road Traffic Act 1930. So the claimants won in the end.
In the present case both Ward LJ and Arden LJ, besides holding themselves bound by Hanning, as indeed they were, indicated that they thought the Hanning decision was correct. Ward LJ cited well known cases relating to the relevance of illegality in the general law. He cited such classics as Holman v Johnson (1775) 1 Cowp 341, Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 and Tinsley v Milligan [1994] 1 AC 340. These authorities, he said, established the principle that the Newtown Common householders—
“…. cannot succeed without proving that they drove without lawful authority of the owner. Their claim is, therefore, founded upon their criminal activity. And for that reason it founders. Secondly, they claim a lost modern grant. It brings them benefit but the benefit is gained by their illegal activity. Public policy does not permit this.” (para 53)
Arden LJ said that—
“…. no discretion exists in the present case to disregard the effect of section 193(4) of the Law of Property Act 1925.”
Conclusions
My Lords, in my opinion, the decision in Hanning and the subsequent justifications of that decision are wrong and ought not to be followed. I accept that, at the end of the day, the issue is one of public policy. It is accepted, however, that a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of bring tortious. That is how prescription operates. Public policy does not prevent conduct illegal in that sense from leading to the acquisition of property rights. The Hanning decision can only be justified on the footing that conduct illegal in a criminal sense is, for public policy purposes, different in kind from conduct illegal in a tortious sense. Why should that necessarily be so? Why, in particular, should it be so where the conduct in question is use of land that is not a criminal use of land against which the public law sets its face in all cases? It is criminal only because it is a user of land for which the landowner has given no “lawful authority”. In that respect, the use of land made criminal by section 193(4) of the 1925 Act, or by section 34(1) of the 1988 Act, has much more in common with use of land that is illegal because it is tortious than with use of land that is illegal because it is criminal.
In my opinion, if an easement over land can be lawfully granted by the landowner the easement can be acquired either by prescription under section 2 of the 1832 Act or by the fiction of lost modern grant whether the use relied on is illegal in the criminal sense or merely in the tortious sense. I can see no valid reason of public policy to bar that acquisition. We have been referred to no case, pre Hanning, that decided the contrary. The decision in Hanning took the law, in my opinion, in a wrong direction. It follows that, in my opinion, your Lordships should hold Hanning to have been wrongly decided and should overrule the various rulings in reliance on Hanning that have been made in the subsequent cases. I would allow this appeal and set aside the order of the Court of Appeal dated 30 January 2003 and the order of Park J dated 21 March 2002. The parties must apply to the High Court for any necessary directions as to the disposal or the further conduct of the action. Bakewell must pay the costs of the appellants here and below.
LORD WALKER OF GESTINGTHORPE
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. I gratefully adopt his summary of the facts and I agree that, for the reasons which he gives, this appeal should be allowed. But because we are differing from the courts below on a point of some general interest, I add some observations of my own.
The development of the law of prescription of easements has been considered by your Lordships’ House in two recent cases (both concerned with analogous public rights), R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335 and R (Beresford) v Sunderland City Council [2003] 3 WLR 1306. As the discussion in those cases shows, the basis of the law of prescription of easements and profits is that long-continued open and peaceful enjoyment of an apparent right should if possible be ascribed to a lawful origin. One of the requirements, if the presumption or inference of a lawful origin is to be made, is that the apparent right should lie in grant (that is, should be capable of being created by an express grant made by deed): see for instance the classic statement by Cockburn CJ in Bryant v Foot (1867) LR 2 QB 161, 179. Similarly Lord Lindley said in Gardner v Hodgson’s Kingston Brewery Company Ltd [1903] AC 229, 239,
“The common law doctrine is that all prescription presupposes a grant.”
Otherwise the fictional technique of presuming or inferring a lost modern grant would not meet the case.
In my opinion it is the requirement that there should have been a competent grantor, rather than any wider principle based on criminality, which best explains the well-known cases on which the respondent relied. The first was Rochdale Canal Proprietors v Radcliffe (1852) 18 QB 287. Riparian owners who operated steam engines had a statutory power (under the Act of Parliament incorporating the canal company and authorising and regulating the construction and use of the canal) to extract from the canal
“such quantities of water as shall be sufficient to supply the said engine or engines with cold water, for the sole purpose of condensing the steam used for working any such engines”.
Radcliffe, a riparian mill owner, had for upwards of 20 years extracted water and used it, not merely for condensing steam but for a variety of other purposes. His claim to a prescriptive right failed because the canal company could not lawfully have granted him larger rights. To do so would have been beyond its powers and (to the extent that it might interfere with public rights of navigation) against the public interest. Coleridge J put the point very clearly (at p 314),
“The foundation of the fourth plea is a supposed grant, the existence of which is to be shewn by acts of user. But, if the acts of user would not be legal, the grant cannot be inferred from them. The company here are not the owners of the water, but trustees for the public, under a very limited trust. They are bound to apply all the water that may be required to the purposes of the navigation; they are also bound to allow so much as is wanted for the particular use (specified in [the statute]), of the mill owners within a certain distance of the banks”.
The same point is clearly made in the judgment of Collins MR in Neaverson v Peterborough RDC [1902] 1 Ch 557. The Newborough Inclosure Act 1812 provided for draining, enclosing and improving a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of “sound and healthy sheep” but with an express prohibition of other animals. Nevertheless the land was in the event used, for over sixty years, for the pasturage of horses and cattle, despite the fact (see at pp 570-1) that this involved a danger of damage to the drainage system. Collins MR stated the issue at pp 563-4:
“There is evidence, no doubt, in this case of a long-continued practice of letting the herbage on the road for the pasturage, not of sheep exclusively, but also of a limited number of horses and cattle. The question is whether that ought to be treated as evidence of a lost grant, which might have had a legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period”.
The Master of the Rolls answered the question in a well-known passage (at p 573):
“Again, it is essential to consider who, if a grant is to be presumed, are to be the supposed grantors and grantee. The defendants’ counsel found themselves in considerable difficulties in this respect. I agree that the Court is endowed with a great power of imagination for the purpose of supporting ancient user. But, in inferring a legal origin for such user, it cannot infer one which would involve illegality. That was laid down in Rochdale Canal Company v Radcliffe”.
After discussing that case and difficulties as to the grantee he continued (also at p 573):
“But a much greater difficulty arises as to the supposed grantors. The learned judge appears to have been of opinion that the owners of the soil of the private roads might release the surveyor from the restriction as to the letting of the herbage. But, as I have already pointed out, the restriction not being intended merely for their benefit, they had no power to waive it, and, if they did so, they did what they had no power to do, and what the Legislature forbids”.
53.
Hulley v Silversprings Bleaching and Dyeing Co Ltd [1922] 2 Ch 268 was concerned with a statutory prohibition on the pollution of rivers and watercourses, the Rivers Pollution Prevention Act 1876, which created criminal offences. A lower riparian owner sued the Silversprings company for nuisance. The fact that the plaintiff’s predecessors had acquiesced in pollution for twenty years was held to be no defence, because the plaintiff was not the only person affected by the pollution. There was a wider public interest. But Eve J saw the significance of the criminality of the pollution as being that it excluded the possibility of a lawful grant (p 282):
“The evidence on both sides satisfies me that the defendants have continually, and down to very recent dates in this year, been committing offences against the Act—in other words, that the user on which they rely as establishing the easement is a user contrary to statute. A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail: Neaverson v Peterborough RDC”.
Apart from Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14, the last case relied on by the respondent was Cargill v Gotts [1981] 1 WLR 441. In that case a farmer had acquired an easement to take water from a mill pond on his neighbour’s land. He had acquired this right by prescription before the relevant provisions of the Water Resources Act 1963 came into force on 1 July 1965, with the effect that it would be a criminal offence for the farmer to continue to take water without an official licence. Templeman LJ said at p 446,
“I conclude that every abstraction of water by the plaintiff from the mill pond after June 30, 1965, was illegal. It follows, in my judgment, that the plaintiff cannot rely on any abstraction of water carried out after June 30, 1965, in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity”.
The last sentence of this quotation has often been cited, and it was referred to by Dillon LJ in Hanning’s case. After discussing the authorities Dillon LJ drew this conclusion (at p 20):
“I take all these cases to recognise what has always been the rule of the law; that an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute”.
Kennedy LJ (at p 23) also referred to Cargill v Gotts and reached a similar conclusion. These formulations of the principle will in almost every case produce the same result as is obtained by asking the question: Could the right claimed have been lawfully granted by deed? The canal company in Rochdale, the highway surveyor in Neaverson and the lower riparian owner (and his predecessors) in Hulley were not in a position to make a lawful grant because they had no power to authorise acts which affected not only their own private interests, but also wider public interests.
The present case is exceptional because of the unusual nature of the offence created by section 193(4) of the Law of Property Act 1925. It creates a criminal offence but it is, most unusually, an offence in respect of which the owner of the soil of the common has a dispensing power. It is common ground that that is the effect of the words “without lawful authority” in subsection (4). Moreover the landowner does not hold his dispensing power in any sort of fiduciary capacity. He is not bound to exercise it in the public interest. He can if he thinks fit exercise his dispensing power in his own private interest, by levying a charge for the grant of his authority. Miss Williamson QC (for the respondent) candidly agreed that from her client’s point of view the appeal is ultimately about money.
That extraordinary feature of the criminal liability created by section 193(4) was noted by the Court of Appeal in Hanning, since it was the ground on which the case had been decided (in favour of prescription) at first instance. But Dillon LJ equated the judge’s approach with that of the Court of Appeal (the so-called “public conscience” test) in Tinsley v Milligan [1992] Ch 310. Dillon LJ (who was giving judgment after this House had reserved judgment, but before it gave judgment in Tinsley v Milligan [1994] 1 AC 340) correctly anticipated the House’s disapproval of the “public conscience” test. He said at p 18:
“Parliament does not only enact statutory provisions in the public interest where the public conscience would be affronted if the provision were not made; there are very many more statutory provisions made for the public benefit where the public conscience is not stirred, but any restrictions or prohibitions in those provisions have to be observed.”
He then analysed some of the authorities which I have mentioned and reached the general conclusion set out above. Kennedy LJ (at p 23) did not regard this as an area in which the Court had any discretion. Sir Roger Parker agreed with both judgments.
Dillon LJ (at p 20) also cited a general statement by Lord Maugham in George Legge & Son Ltd v Wenlock Corporation [1938] AC 204, 222,
“There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable.”
I do not consider that that wide proposition has any application here, since a statutory prohibition in respect of which a private citizen has an unfettered dispensing power, exercisable if he thinks fit for his own private purposes, cannot easily be described as enacted in the public interest.
My Lords, in my view this House should not readily conclude that the decision of the Court of Appeal in Hanning was mistaken, especially as it has been followed, not only by the Court of Appeal in this case, but also on other occasions. Nevertheless I am satisfied that the wide formulations of the principle by Templeman LJ in Cargill v Gotts and by the Court of Appeal in Hanning, although producing the right result in the generality of cases, are too wide in a case like the present. That is not to say that the residents of houses near Newtown Common did not commit a criminal offence (of a fairly venial nature) when they drove across the common to and from their houses. The principle of legal certainty requires the criminality or lawfulness of an act to be determined at the time when it takes place, and not with the advantage (or disadvantage) of hindsight. Nevertheless the prior authority of the owner of the common would have provided a complete defence to any criminal charge. In the ordinary case of prescription of a private right of way, the prior authority of the landowner (in the solemn form of a grant by deed) is presumed or inferred from long user, even though every act of user during the prescription period takes place without his actual prior authority and is a tortious (though not a criminal) act. I cannot see that any public interest would be served by holding that the absence of the landowner’s actual prior authority should produce a completely different result in cases where section 193(4) is in play.
I do not see this as reintroducing the “public conscience” test which this House disapproved in Tinsley v Milligan. It is merely a recognition that the maxim ex turpi causa must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest (see for instance National Coal Board v England [1954] AC 403, 419). In my opinion it is the landowner’s unfettered power of dispensing from criminal liability, exercisable at his own discretion and if he thinks fit for his own private profit, which is the key to the disposal of this appeal. Since a dispensing power of that sort is very unusual, it is unlikely to apply to many other cases of criminal illegality.
I would therefore allow this appeal.
BARONESS HALE OF RICHMOND
My Lords,
I agree that this appeal should be allowed for the reasons given by my noble and learned friend Lord Scott of Foscote, with which I understand that my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Walker of Gestingthorpe also agree.