Pearson v Foster

A grant of fishing rights and ancillary rights to maintain weirs does not ordinarily confer a right to operate or control sluice gates forming part of a mill. An implied right will arise only where it is necessary to give effect to the parties’ common intention and is reasonable in the circumstances. Owners of land adjoining a long-established artificial channel may have riparian rights where the channel functions as a permanent watercourse, rather than a temporary diversion. Non-use alone does not establish abandonment of milling rights. A fishery is extinguished only where there is no practical possibility of it benefiting its owner again. Interference with fishing rights is actionable where it is wilful or malicious, but no such interference was proved.

The claimant and defendant owned adjoining properties containing a historic mill and associated channels. The claimant enjoyed registered fishing rights derived from nineteenth- and twentieth-century conveyances. The defendant restored the mill, cleared the channels and operated sluice gates. The claimant contended that his fishing rights entitled him to control the gates and sought injunctive relief and damages.

The defendant claimed riparian and prescriptive milling rights, disputed the extent and continuing existence of the fishery, challenged part of the Land Registry entry, and sought injunctions against the claimant. The issues concerned construction and implication of the fishing rights, riparian and milling rights, extinguishment, registration, ownership of the channel bed and actionable interference.

1. Construction of the fishing rights. The right to maintain weirs and execute proper works did not entitle the claimant to operate or control the sluice gates. A weir ordinarily differed from a sluice, and maintaining structures referred naturally to repair rather than operation. The historical function of the mill and the intrusive nature of the proposed control reinforced that conclusion (paras 45–49).
2. Implication. No such right arose by implication. Fishing could be enjoyed without controlling the gates, and the asserted implication was neither necessary nor reasonable. The authorities concerning grants of fishing or shooting rights supported the owner’s continued ordinary use of retained land, subject to a prohibition on wilful or malicious interference (paras 50–54).
3. Riparian and milling rights. Although the Eastern Channel was artificial, its centuries-long existence and use to supply a mill justified inferring rights equivalent to those of riparian owners on a natural stream. The channel represented a permanent alteration rather than a temporary diversion. Prescriptive milling rights had not been abandoned: non-use was insufficient and there was no firm intention never to resume use (paras 59–77).
4. Fishery and registration. The fishing rights over the West Leat had not been extinguished because restoration remained practically possible. The Land Registry had made a mistake by extending the registered fishery to the south-eastern corner of the East Leat, and the register was ordered to be altered under Schedule 4 to the Land Registration Act 2002 (paras 78–89).
5. Extent, interference and relief. The claimant neither owned the eastern half of the East Leat nor had fishing rights in the waters beyond its centre line. He failed to prove wilful or malicious interference. No injunction or damages were awarded to him, and the defendant’s counterclaim for injunctions was also refused because future interference by the claimant was not anticipated (paras 90–106).

First-instance decision of the High Court (Chancery Division). The judgment records earlier interim injunctions made by the County Court, but no appeal from a lower merits decision.