Barton v The Church Commissioners for England

A several fishery in gross may be acquired by prescription or lost modern grant where long, open and uninterrupted user is referable to a possible lawful grant. For an exclusive fishery, the claimant need show exclusion of the person otherwise entitled and those claiming under that person; exclusion of the whole world is unnecessary. Acts of ownership, including leases and receipt of rent, may evidence enjoyment of the right. User over part of a river may, as a matter of fact and degree, establish user of the whole claimed fishery. A public right of navigation, including its necessary ancillary right of mooring, takes precedence over a several fishery.

Mr Barton sought to challenge the Church Commissioners’ claim to an exclusive fishery in the River Wye between Wye Bridge and Victoria Bridge. The Church Commissioners relied on prescription and lost modern grant, based on leases, acts of ownership and fishing user by their predecessors and lessees from the eighteenth century onwards.

The issue was tried as a preliminary issue. The court was not asked to determine ownership of the riverbed or banks, or the extent of Mr Barton’s mooring rights. The central questions were whether the evidence established a several fishery in gross, whether the right was without stint, and whether it remained subject to superior navigation rights.

1. Preliminary issue determined. The Church Commissioners established a right to a several fishery, in gross and without stint, in the disputed waters.
2. A profit à prendre such as a several fishery in gross may be acquired by prescription at common law or under the doctrine of lost modern grant. The Prescription Act 1832 does not apply to a profit à prendre in gross.
3. The evidence established acts of ownership from 1759 onwards. These included successive leases, surrenders of leases and receipt of rent. The 1839 terrier showed that the fishery described in the leases included the disputed waters.
4. The court applied the principle that user of part of a river may, depending on fact and degree, amount to user of the whole claimed fishery. It was unnecessary to prove fishing in every separate part of the river.
5. The user was sufficiently open to give the owner a reasonable opportunity to become aware of it. The City Council had actual knowledge of the Bishop’s claim by 1847 and its continuing inactivity amounted to acquiescence.
6. For an exclusive fishery, the relevant exclusivity was exclusion of the person otherwise entitled to the right and persons claiming under that person. Fishing by members of the public did not prevent the finding of exclusive user and did not establish abandonment of an existing several fishery.
7. The fact that later user was by the Hereford and District Angling Association, an unincorporated association, did not prevent prescription. The presumed grantee was the Bishop of Hereford, a corporation sole, and the association’s user was under leases granted by the Bishop or his successors.
8. The right was without stint. The court also recognised the superior public right of navigation, including the ancillary right to moor where necessary in the ordinary course of navigation.

The Church Commissioners could lease the fishing rights. Part of the fishery had been transferred to the District Council.

The judgment was a first-instance determination of a preliminary issue in proceedings commenced by Mr Barton. Earlier proceedings between Mr Barton and the Hereford and District Angling Association were described as background but were not decisions under appeal.