Barton v The Church Commissioners for England

Factual and Procedural Background

The dispute concerns whether the Church Commissioners for England (the "Church Commissioners") and/or their predecessors in title (the Bishop of Hereford and the Ecclesiastical Commissioners for England) have acquired, by prescription or the doctrine of lost modern grant, a right to a several fishery (exclusive right to fish) without stint, in gross, in the stretch of the River Wye between Wye Bridge and Victoria Bridge in Hereford ("the disputed waters").

The action was initiated by the Plaintiff, who owns a large barge and wishes to moor it in the disputed waters, claiming mooring rights granted by a riparian owner. The Defendant, the Church Commissioners, claim exclusive fishing rights in this stretch of river and have leased those rights to a local angling association (not a party to this proceeding). The Plaintiff challenges the Church Commissioners' claimed fishing rights because the angling association asserts that mooring the barge interferes with their fishing rights derived from the Church Commissioners.

The only parties to the proceedings are the Plaintiff and the Church Commissioners. The court was asked to decide a preliminary issue on whether the Church Commissioners have acquired the claimed exclusive fishing rights by prescription or lost modern grant. The court was not asked to determine ownership of the riverbed or banks, nor the precise mooring rights of the Plaintiff or the rights of the angling association to use the riverbanks.

There is a complex procedural history involving prior litigation between the Plaintiff and the angling association regarding mooring and fishing rights in different parts of the river, including two sets of proceedings in 1992 and 1995. The 1995 proceedings remain unresolved and have been stayed pending the outcome of the present case. Other related litigation involving local authorities and other parties concerning navigation rights and property interests in the river has also been noted but is not determinative here.

The present action was commenced in April 2001. The parties agreed in 2008 to try the question of the Church Commissioners’ prescriptive claim as a preliminary issue, focusing on user and enjoyment of the claimed fishing rights since 1759, without investigating claims to express grants made centuries ago.

Legal Issues Presented

1. Whether the Church Commissioners and/or their predecessors have acquired, by prescription at common law or by virtue of the doctrine of lost modern grant, an exclusive right to a several fishery without stint, in gross, in the disputed waters of the River Wye;
2. Whether such right includes the ability to grant leases of fishing rights over the disputed waters not subject to any rights of fishing or mooring held by the Plaintiff;
3. Whether the Church Commissioners’ rights are subject to any adverse rights vested in the Plaintiff;
4. Whether the right claimed is without stint and in gross.

Arguments of the Parties

Plaintiff's Arguments

• The prescriptive claim fails on the evidence as it does not demonstrate open, continuous, and exclusive user of the disputed waters.
• The user by the angling association, an unincorporated and fluctuating body, cannot be relied upon to establish prescription.
• The Church Commissioners’ claim is contrary to the agreed fact that no express grant existed before 1759.
• The documentary evidence relied upon relates to other parts of the River Wye, not the disputed waters.
• The acts of user by the angling association were incidental, occasional, and done with permission from the City Council, a riparian owner, thus negating user “as of right.”
• There has been fishing by the public and local citizens without interference, suggesting no exclusive right held by the Church Commissioners.
• The Plaintiff relies on navigation rights under historic Wye River Navigation Acts, which take precedence over fishing rights, including ancillary mooring rights.

Defendant's Arguments (Church Commissioners)

• They claim an exclusive several fishery right acquired by prescription or lost modern grant, based on user and enjoyment since at least 1759.
• They rely on a series of historic leases granted by the Bishop of Hereford and successors evidencing acts of ownership and exclusive use.
• The angling association’s fishing and enforcement activities demonstrate exercise and enjoyment of the right.
• The City Council acquiesced in the Bishop’s claim to the fishery, including leasing and user, amounting to implied grant by prescription.
• The right claimed is a profit prendre in gross, without stint, capable of being leased and registered.
• They accept a superior public right of navigation and ancillary mooring rights but assert their exclusive fishing rights subject only to those.

Table of Precedents Cited

Court's Reasoning and Analysis

The court approached the matter by focusing on the preliminary issue of whether the Church Commissioners had acquired the exclusive several fishery right in the disputed waters by prescription or lost modern grant, based on user and enjoyment since 1759. The court did not address claims to express grants made before 1759, which were heavily disputed and complex.

The court examined extensive documentary evidence, including a 1759 lease from the Bishop of Hereford, subsequent leases, surveys, terriers, and correspondence, which demonstrated acts of ownership and user of the fishery rights over the disputed waters. The court found it more probable than not that the extent of the fishery in the 1759 lease was the same as that in later leases, including the disputed waters.

The court accepted that the Bishop and his successors had granted leases of the fishery, received rent, and that such acts amounted to acts of ownership. The court found that there was user and enjoyment of the fishery rights, including exclusive user from at least 1798 to 1838, as evidenced by Dr Symonds' terrier and other documents. The court also found that the City Council was aware of and acquiesced in the Bishop's claim and leasing of the fishery rights since 1847.

The court considered the legal principles governing prescription, lost modern grant, and fishery rights, including the need for user to be "as of right" (not by force, secrecy, or permission) and generally continuous. The court found that the user was sufficiently open, continuous, and exclusive to support a presumption of a lost grant of a several fishery right in gross.

The court rejected the Plaintiff's argument that the user was by an unincorporated association incapable of acquiring rights by prescription, noting that the presumption of grant was to the Bishop or his successors (corporation sole), not the association itself. The court also rejected the argument that public fishing or permission by the City Council negated exclusive user, finding that tolerated public fishing does not extinguish exclusive rights.

The court concluded that the Church Commissioners had established a right to a several fishery, in gross, without stint, in the disputed waters. The court noted that this right is subject to the superior public right of navigation and ancillary mooring rights, which the Church Commissioners accept.

Holding and Implications

The court's final decision is as follows:

The Church Commissioners have established, on the evidence, that they have acquired by prescription and/or the doctrine of lost modern grant a right to a several fishery, in gross, without stint, in the stretch of the River Wye between Wye Bridge and Victoria Bridge.

The court held that this right includes the ability to grant leases of fishing rights over the disputed waters, not subject to any adverse rights vested in the Plaintiff except the admitted superior public right of navigation and its ancillary mooring rights.

As a consequence, the Church Commissioners' claim to exclusive fishing rights is upheld, and the Plaintiff's challenge is dismissed on this preliminary issue. The decision does not determine ownership of the riverbed or banks, nor the Plaintiff's specific mooring rights, nor rights of third parties not joined in the proceedings.

No new legal precedent was established; the decision applies established principles of prescription, lost modern grant, and fishery rights to the facts of this case.