Loose v Lynn Shellfish Ltd & Ors

A prescriptive several fishery may extend over land added to the foreshore by gradual and imperceptible accretion, including sandbanks that become accessible from the shore as channels silt up. The accreted land takes the same character and becomes subject to the same rights as the land to which it is added.

The seaward limit of a private fishery is not necessarily fixed by mean low-water mark of ordinary tides. For this fishery, the practical boundary was the mean low-water mark of spring tides. Trespass and damages had to be assessed by identifying the vessels’ positions, determining whether they were fishing within the fishery, and making a reasonable assessment where the evidence of individual catches was incomplete.

The claimant, lessee of the Le Strange estate’s prescriptive private fishery on the eastern side of the Wash, alleged that vessels operated by the defendants had fished unlawfully for cockles between July and September 2007. The existence and ownership of the fishery were conceded, but its seaward extent remained disputed.

The defendants argued that accretion could not add formerly separate sandbanks to the fishery, that prescriptive rights could not extend over land formed after the prescriptive right arose, and that the boundary should be mean low-water mark of ordinary tides. The court also had to determine whether the defendants had trespassed and the resulting damages.

1. Accretion. The doctrine of accretion applies where the boundary between land and tidal water changes gradually and imperceptibly. There is no principled basis for excluding a sandbank which becomes joined or accessible to the foreshore through the slow silting of intervening channels. The accreted land takes the same character and becomes subject to the same rights as the land to which it is added. The fishery therefore extended over the relevant sandbanks, including Stubborn Sand and the Ferrier Sands.
2. Prescriptive rights. The fact that the fishery was established by prescription did not prevent it from extending over land subsequently added by accretion. The reasoning in Mercer v Denne supported treating gradual and imperceptible accretion as part of the original land for this purpose. A fishery for shellfish naturally follows the area where the shellfish are found.
3. Seaward boundary. The court was bound in practical terms by Loose v Castleton, which rejected an artificial fixed line and treated the fishery as extending to where the shellfish were exposed at low tide. Although the Court of Appeal had declined to define the boundary by modern tidal terminology, the most workable measure was mean low-water mark of spring tides. LAT was unsuitable because it occurred only approximately once every 18.6 years, while MLWS was based on frequently recurring spring tides.
4. Trespass and evidence. The defendants’ vessels were established, with limited exceptions, to have been observed fishing within the fishery. The claimant had proved trespass, but the evidence did not reliably establish the precise catch attributable to the private fishery. The court therefore assessed the recoverable quantity by attributing one third of the relevant landings, or one third of vessel capacity where reliable returns were unavailable, to the private fishery.
5. Value and disposal. Damages were to be calculated using the market prices actually achieved, rather than the higher prices claimed by the claimant. The evidence did not establish that the defendants’ landings caused the alleged price reduction. The claim succeeded to that extent, with an inquiry required to determine the precise value and damages. The undertaking in damages given on 20 September 2007 did not need to be pursued.