Crown Estate Commissioners v Roberts & Anor

A Lord Marcher’s status was jurisdictional and did not itself confer proprietary rights. Ancient Crown grants were construed strictly against the grantee. General references to fisheries did not confer a several fishery, and no exclusive sea fishery or treasure franchise was proved.

A franchise could be lost by prolonged non-use where the circumstances supported surrender, but non-use alone was insufficient where no occasion to exercise the right had arisen. A manor conveyance carried only rights appurtenant to the manor. A franchise of wreck, as an incorporeal hereditament, survived extinguishment of title to the foreshore.

The Crown Estate Commissioners sought declarations of title to parts of the Pembrokeshire foreshore and removal of a caution against first registration. Mr Roberts claimed to be successor to the Lord Marcher of St Davids and asserted rights including wreck, a several fishery, treasure, sporting rights and estrays.

The Commissioners relied on Crown demesne title or adverse possession. Mr Roberts conceded the adverse-possession claim in light of Roberts v Swangrove Estates Ltd [2008] 2 WLR 1111, but maintained that various rights survived and had been conveyed to him through purchases of manors. The central issues concerned the nature and survival of the claimed franchises, construction of the conveyances, and whether the rights were exercisable over the foreshore.

1. Lord Marcher status. The status of a Lord Marcher was a jurisdictional franchise. It did not itself confer ownership of land or proprietary rights. The Act of Union 1535 abolished the political and jurisdictional status of the Lords Marcher; the franchises preserved by section 30 were existing franchises, not new grants. Privileges attached to tenure in chief were removed by section 1 of the Tenures Abolition Act 1660. Any privileges of the Bishops of St Davids in that capacity had therefore been abolished by 1542, or at latest by 1660.
2. Franchises. Ancient Crown grants were construed strictly against the grantee. The 1115 charter did not expressly or by necessary implication grant a several fishery or treasure trove. Welsh customary law did not establish an exclusive right to fish in the sea. A franchise could be lost by non-use where the circumstances supported surrender, although non-use was insufficient where no occasion to exercise the franchise had arisen. A moiety of wreck was established for the manors of Trevine and the City and Suburbs of St David’s, and estrays for Trevine.
3. Conveyance and foreshore. The phrase Lordship Marcher of St Davids was construed by reference to the auction memorandum as referring to the reputed Manor of the City and Suburbs of St David’s. Under sections 62(3) and 205(1) of the Law of Property Act 1925, the conveyance carried rights appurtenant to that manor. The presumption that the foreshore belonged to the Crown was not rebutted. Only the right of wreck extended to adjoining foreshore.
4. Alternative analysis. If the foreshore had once belonged to the Bishops, extinguishment of title to land under section 17 of the Limitation Act 1980 would have severed land-specific manorial rights, including sporting rights and estrays. It would not have extinguished the incorporeal franchise of wreck.

First-instance decision of the High Court (Chancery Division). No appellate history is stated in the judgment.