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Cite as: [2008] EWHC 3091 (Ch)

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		Neutral Citation Number: [2008] EWHC 3091 (Ch)
		Case No: HC02C00653

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

15/12/2008

B e f o r e :

MR JUSTICE MORGAN
____________________

Between:

	FRANK OLIVER BARTON	Claimant
	- and -
	THE CHURCH COMMISSIONERS FOR ENGLAND	Defendants

____________________

Mr Lawrence Jones (instructed by Stockinger) for the Claimant
Mr Nicholas Taggart (instructed by Lee Bolton Monier-Williams) for the Defendants
Hearing dates: 19th, 20th, 21st, 24th 25th and 26th November 2008
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Morgan:

Heading	Paragraph
Introduction	1
Previous proceedings	8
The procedural history of this action	16
The legal principles: a summary	25
The material before the court	47
The evidence as to acts of ownership, user and enjoyment	58
Discussion and analysis	140
The answer to the preliminary issue	171

Introduction

The issue in this case is: have the Church Commissioners for England ("the Church Commissioners") established, on the evidence before the Court, that they and/or their predecessors in title (the Bishop of Hereford and the Ecclesiastical Commissioners for England) have acquired by prescription, whether at common law or by virtue of the doctrine of lost modern grant, a right to a several fishery (or a right of piscary) without stint, in gross, in the stretch of the River Wye between Wye Bridge and Victoria Bridge, at Hereford. I will refer to this stretch of the river as the river "between the bridges" or as "the disputed waters". I will use both descriptions because I need to consider evidence as to user and enjoyment of the right from around 1759 and Victoria Bridge was not constructed until around 1898.

Putting this issue into less technical language, it is whether the Church Commissioners have an exclusive right to take all the fish in the stretch of the River Wye between the bridges, as described above.

The above issue has been ordered to be tried as a preliminary issue in this action. The action was brought by Mr Barton against the Church Commissioners. Mr Barton is the owner of a large barge and wishes to moor that barge on the River Wye between the bridges. He either has, or believes he will have, an appropriate right to moor, granted by a riparian owner. Mr Barton's difficulty in the past has been that the Hereford & District Angling Association ("H&DAA"), which has taken a lease from the Church Commissioners of the fishing rights which the Church Commissioners say that they have in the stretch of the River Wye between the bridges, assert that Mr Barton's mooring of his barge in that part of the river will be an actionable interference with the rights of the Association.

The only parties to these proceedings, and therefore the only persons who will be bound by my decision, are Mr Barton and the Church Commissioners. Mr Barton claims standing to bring these proceedings by virtue of the mooring rights which he has, or may be able to obtain, granted or to be granted by a riparian owner in relation to the relevant stretch of water. He challenges the Church Commissioners' claimed right not because the Church Commissioners are actively seeking to prevent Mr Barton mooring between the bridges but because the persons who are seeking to prevent Mr Barton mooring between the bridges are the H&DAA and they claim that their rights are derived from the Church Commissioners. However, Mr Barton has not made the H&DAA a party to these proceedings and the H&DAA, who are fully aware of these proceedings, and who provided members of the Association to give evidence at the trial, have not sought to intervene in these proceedings.

The position of the Church Commissioners is that they claim the rights identified above. They do not however claim title to the bed of the River Wye between the bridges. Nor do they assert at this trial that they have title to the riparian land at this part of the river. They do own the Bishop's Palace on the north, or left, bank of the River Wye but there is an issue between the parties whether that is riparian land or whether it is separated from the river by a towpath, so that it is not riparian land. That issue has not been explored in detail before me and I am not asked to make any decision on it. For the purpose of the trial of the preliminary issue, the Church Commissioners do not positively assert that they have rights over the banks of the River Wye between the bridges which would enable them, and persons authorised by them, to access the right of fishery which they claim in the river at that point. The Church Commissioners do not admit that they have no such rights but they do not ask the Court to determine those rights, at any rate at this stage. I consider that this may turn out to be unfortunate because, as I will later describe, previous disputes between Mr Barton and the H&DAA as to whether the mooring of Mr Barton's barge interfered with the H&DAA's rights of fishing (if any) have attached significance to the question whether the H&DAA had a right to use the bank for the purpose of fishing in the river, which right to use the bank was said to be interfered with by the moored barge.

Because the only parties are Mr Barton and the Church Commissioners, I am not asked to decide anything as to the ownership of the bed of the river (save that the Church Commissioners do not claim it), nor as to the ownership of the banks, nor as to the rights of the Church Commissioners or the H&DAA to use those banks to gain access to the relevant part of the river.

Despite my misgivings, which I expressed at the trial, as to the non-joinder of relevant parties to this action and the matters which are not being investigated at the trial of this preliminary issue, I have been asked to, and I will, determine the preliminary issue. However, I stress for the sake of clarity that I will not decide who owns the bed of the river, nor who owns the banks of the river, nor whether the Church Commissioners and/or the H&DAA have rights over the banks of the river. Similarly, I will not decide what specific rights Mr Barton has to moor in this stretch of the river nor will I decide whether any such mooring by him would interfere with any rights which the H&DAA may have to fish in the river, or to use the banks of the river.

Previous proceedings

Before describing the procedural history of the present action, I will refer as briefly as I can to other proceedings which are relevant as background to the present proceedings.

There have been two previous actions between Mr Barton and the H&DAA. I will refer to the first of these as the "1992 proceedings" and the second as the "1995 proceedings". The 1992 proceedings have been concluded and the 1995 proceedings are still unresolved. The history of the 1992 proceedings and the 1995 proceedings is described in a judgment in the Court of Appeal in the 1995 proceedings. The 1995 proceedings had the title Bryan, Astley and Taylor v Barton and judgment in the Court of Appeal was given on 11^th February 1997. There is a report of that judgment in The Times of 20^th March 1997.

Prior to the 1992 proceedings, Mr Barton had moored his barge, known as the Wye Invader, upstream from the waters which are disputed in the present case. The place where Mr Barton had then moored his barge was said by the H&DAA to be subject to fishing rights vested in H&DAA and they asserted that the mooring of the barge interfered with those rights. Accordingly, the H&DAA or, more accurately, the Trustees of the H&DAA in whom it was said the relevant rights were vested, commenced an action against Mr Barton seeking orders that he remove the Wye Invader from a part of the River Wye over which the H&DAA claimed rights, but the identified part did not extend to the disputed waters in the present case. In the 1992 proceedings, the H&DAA sought a summary judgment and after a hearing of four days, H. H. Judge Moseley QC found for the H&DAA and granted an injunction requiring Mr Barton to move his barge from a specified part of the river, which part did not include the disputed waters in this case. Judge Moseley's reasoning was that the H&DAA had proved their title to the fishery over the stretch of river in question, that the mooring of the barge was a substantial interference with those rights, that the right of navigation on which Mr Barton relied under certain Wye River Navigation Acts did not avail him because, although the right of navigation carried with it an ancillary right of mooring, that right to moor was restricted to mooring in pursuit of navigation and Mr Barton was seeking to moor in other, wider, circumstances.

Following the order made against him in the 1992 proceedings, Mr Barton moved his barge to a place on the bank between the bridges. That led to the 1995 proceedings in which Messrs Bryan, Astley and Taylor, as the Trustees of the H&DAA, claimed that the new position of the barge interfered with their fishing rights in the river between the bridges. The H&DAA initially obtained judgment as claimed, in default of defence. Mr Barton then applied for an order setting aside that default judgment and his application came before Judge Moseley. The Judge dismissed the application to set aside the default judgment. The Judge referred to the title to the fishing rights claimed by the H&DAA in the 1995 proceedings. This was different from the title they had successfully asserted in the 1992 proceedings. In the 1995 proceedings, the H&DAA relied upon rights granted to them by a lease from the Church Commissioners. Judge Moseley concluded that the H&DAA did have the rights claimed in the 1995 proceedings and that the mooring of the barge was a substantial interference with those rights. Following his failure to have the default judgment set aside, Mr Barton moved his barge to another part of the river but he also appealed to the Court of Appeal against Judge Moseley's refusal to set aside the default judgment. The appeal came before Nourse and Morritt LJJ and Sir Iain Glidewell. There was a single judgment on the appeal, given by Morritt LJ, and the other two members of the court agreed. Morritt LJ summarised the history of the 1992 proceedings and the procedural history to that date of the 1995 proceedings. He pointed out that for the H&DAA to establish an actionable interference with their right they had to prove first, that they were entitled to the rights claimed, secondly, that the defendant had substantially interfered with those rights and, thirdly, that the defendant had no legal right to do so. He noted that Mr Barton claimed to have substantial merit on each of these three grounds. Morritt LJ appears to have proceeded on the basis that the Church Commissioners did indeed own the fishing rights in the disputed waters and that they had been leased to the H&DAA. He focused in particular on the question whether the Church Commissioners (and their lessees, the H&DAA) had established a right to use the bank for the purposes of enjoying the fishing rights. That seemed to be material because a way, or at any rate the most obvious way, in which the H&DAA could assert that their rights were being interfered with would be if the mooring of the barge interfered with their rights, if any, to use the bank. Morritt LJ concluded that Mr Barton had an arguable case that the H&DAA did not have a right to use the bank for the purpose of enjoying their right of fishing and in the absence of a right to use the bank there was a very real question whether the mooring of the barge did constitute a substantial interference with the right to fish. Further, the question of substantial interference being essentially one of fact, that question should be determined after a full trial. These remarks were made with reference to one particular part of the river but in view of the fact that there would be a full trial in relation to that part, it was concluded that the proper course was to permit a trial not only as to the river between the bridges but also elsewhere, where the H&DAA claimed fishing rights. In the course of the hearing of the appeal, Mr Barton had offered an undertaking to the court not to move the barge from its present position, which was elsewhere and not between the bridges. The result of the appeal was that the Court of Appeal accepted Mr Barton's undertaking and the appeals were allowed with the default judgment being set aside.

The decision of the Court of Appeal was 11^th February 1997 but I was told, without any real particulars, that the 1995 proceedings had been stayed and were in limbo awaiting my decision in the present case.

In 1995 and 1996, there was a pair of actions between the National Rivers Authority and Mr Stockinger. Mr Stockinger is a solicitor. At the time of the actions in 1995 and 1996 he was, apparently, not in practice as a solicitor but in the proceedings before me he acts as the solicitor for Mr Barton. Mr Stockinger is also the author of a book on the River Wye published in 1996 with the title "The Rivers Wye and Lugg Navigation, a Documentary History 1555–1951". The proceedings concerning the National Rivers Authority were determined by Laddie J in a judgment given on the 15^th February 1996. The dispute in those proceedings concerned the existence of, and the control of, the Company of Proprietors of The Rivers Wye and Lugg Navigation and Horse-Towing Path and concerned the Rivers Wye and Lugg Navigation Acts 1662 to 1809. The position of the National Rivers Authority in that litigation was that Mr Stockinger and others were "making a considerable nuisance of themselves" (I quote from Laddie J's judgment) and posturing as being in control of the Company of Proprietors. The National Rivers Authority established their claim in those proceedings and Laddie J was very critical of Mr Stockinger's behaviour. Mr Stockinger sought leave to appeal to the Court of Appeal against Laddie J's judgment. His application for leave to appeal was heard by Nourse LJ and Sir Iain Glidewell on 11^th February 1997 (the same day as the Court of Appeal gave judgment in Mr Barton's appeal in the 1995 proceedings). The Court of Appeal refused leave to appeal and commented that Mr Stockinger's submissions and certain documents put before the court were with "the clear purpose of inconveniencing both the court and the Environment Agency in order further to cloud matters." Beyond stating that many of the ways in which Mr Barton's case has been presented to me have also produced a result which is both inconvenient and clouds the real matters in dispute, I will refrain from further comment on the way in which his case has been conducted, as such comment will serve no useful purpose at this stage.

Mr Barton also asked me to be aware of proceedings he had brought in the Admiralty Court in 1998. In those proceedings, Mr Barton was the Plaintiff and the Defendants were Hereford City Council and the Company of Proprietors of the Rivers Wye and Lugg Navigation and Horse-towing Path. The proceedings were determined by Rix J (as he then was) by a judgment given on 20^th March 1998. By his order, made to give effect to his judgment, Rix J declared that Hereford City Council had good title to grant to Mr Barton a lease for years of the mooring from the bank to the mid-line of the River Wye, adjacent to Hereford Castle in the City of Hereford, at a site known as Corporation Wharf and that, similarly, the City Council had good title to grant to Mr Barton a lease for years of the fishing (save for public use) in the same part of the river. Rix J's order also dealt with the question whether the River Wye at Hereford was a harbour, as to the identity of the Harbour Authority and as to the power of a Harbour Master appointed by the Company of Proprietors to give directions as to navigation. The Church Commissioners were not a party to these proceedings. The City Council and the Company of Proprietors did not oppose the declarations which were sought. Rix J, in his judgment, stated that he had concerns about making declarations in matters which were essentially agreed and where no issues arose and where his order would not bind third parties who were not privy to the litigation. The consensual nature of the litigation was emphasised by the fact that the parties agreed that there should be no order as to the costs of the litigation. In the proceedings before me, no one suggests that I am bound in any way by the decision of Rix J but, equally, as I understand it, it is not suggested that the decision in that case is of particular relevance to the issues I am asked to decide as between the parties to the action before me.

In the course of the hearing, I was informed of various other disputes and/or litigation involving the City Council, the H&DAA and various riparian owners but the detail of those matters was not investigated and as I have already stressed my decision in this action does not bind persons who are not privy to the parties in this action.

The procedural history of this action

Against that background I can now turn to the procedural history of the present action. Mr Barton commenced this action on 23^rd April 2001. He served Particulars of Claim on 27^th June 2002. The action was brought essentially to challenge the claim of the Church Commissioners to have fishing rights in the River Wye between the bridges. Mr Barton was also concerned to establish the existence of his own right to moor and to fish. He pleaded that those rights had been granted to him by the City Council. Mr Barton's prayer for relief was for a declaration that the Church Commissioners did not have title to the fishing, in particular at a place he called Corporation Wharf. Corporation Wharf was the term used by Mr Barton to describe that part of the river running alongside Castle Green on the north or left bank of the River Wye, extending to some 200 metres in length, and extending in width to the mid-line of the river, which at that point was of the order of 70 metres wide.

On 26^th July 2002, the Church Commissioners served a Defence and Counter Claim. On the 7^th August 2002, the Church Commissioners amended their Defence and Counter Claim to bring a Part 20 Claim against the County of Herefordshire District Council. The Claim against the District Council was later settled on terms whereby the District Council essentially admitted the Church Commissioners' Claim. I will refer to the terms of this settlement later in this judgment when I deal with matters of fact in chronological order. By way of defence to Mr Barton's claim, the Church Commissioners asserted that they had title to what they described as a unstinted right of piscary over the College Hole. "The College Hole" was the phrase used by the Church Commissioners to describe the stretch of the River Wye between the bridges. The use of this phrase has proved controversial as Mr Barton asserts that the description "the College Hole" refers to a much more specific part of the disputed waters and not the entirety of the disputed waters. Accordingly, speaking generally, the phrase "the College Hole" was not used in the course of the evidence and submissions at the trial (save where those words of description were used in a document which falls to be considered). In paragraph 8.4 of their Defence, the Church Commissioners asserted a prescriptive claim to an exclusive right of fishery. They relied on user since at least 1839, without the permission of the City Council or any other person. The claim based on user was in general terms only and without any particulars. The Church Commissioners' counterclaimed declaratory relief to the effect that they had the rights which I have described.

Mr Barton did not serve a Reply or Defence to Counterclaim.

In the years after 2002, the parties to this action plainly did a great deal of research into the history of the River Wye at Hereford. In due course, the parties produced elaborate and extensive evidence from persons said to have the expertise to comment on local history and the ancient titles being claimed on each side in this case. I will refer to that evidence, briefly, later in this judgment. However, by October 2008, the parties appear to have agreed that the way forward was not for the court to determine the Claim and Counterclaim based on documentary grants but rather to determine, as a preliminary issue, the Church Commissioners' Counterclaim based on prescription or user and enjoyment of the right claimed. Accordingly, on 8^th October 2008, on the hearing of a Pre-Trial Review, the court made an order by consent that there be a preliminary issue tried.

The order of 8^th October 2008 is, so far as material, in these terms:

"That there be tried as a preliminary issue the following question: whether the acts of the Church Commissioners, their purported predecessors in title and those who purport to derive title from them, the Hereford City Council, the riparian landowners and the public since 1759 establish that:

1) the Church Commissioners have, by way of implied, prescriptive or presumed grant, title to fishing rights to that stretch of the River Wye which lies between Wye Bridge and Victoria Bridge; and

2) such right is an unstinted right of piscary in gross: and

3) the Church Commissioners' rights are not subject to any adverse rights vested in the Claimant; and that

4) the Church Commissioners have the ability to grant leases of fishing rights over the said stretch of the River Wye which are not subject to any rights of fishing or mooring vested in the Claimant."

The hearing before me was the trial of this preliminary issue. By an exchange of correspondence on 27^th October 2008, the parties' solicitors agreed, for the purposes of the preliminary issue (but only for that purpose), that the Court should assume that neither the Bishop of Hereford, nor any other ecclesiastical body, had an express grant of fishing rights in relation to the river between Wye and Victoria Bridges, prior to 1^st January 1759.

At an early point in the trial of the preliminary issue, I expressed concern that the pleaded case of the Church Commissioners in relation to prescription was unparticularised and that there had been no Reply or Defence to Counter Claim. I then directed that the Church Commissioners serve Particulars of their claim to have acquired a right by prescription and that Mr Barton serve a Reply and Defence to Counter Claim. These directions were duly complied with.

In their Particulars, the Church Commissioners claim a right to an exclusive fishery without stint and in gross acquired by prescription at common law or under the doctrine of lost modern grant, the lost grant being said to be on a date earlier than 1759. The Church Commissioners pleaded that they relied upon acts of ownership of the right to fish the disputed waters and actual enjoyment of the right to fish those waters, by those to whom the Church Commissioners had granted that right. The Church Commissioners then pleaded in detail a long list of documents in support of their allegation. They also specifically pleaded actual enjoyment of a right of fishing in the disputed waters by members of the H&DAA and that the H&DAA had erected signs claiming the right to fish and employed a water bailiff to enforce their rights.

In his Reply and Defence to Counter Claim, Mr Barton raised a large number of points. He contended that the claim to a right by prescription failed on the evidence, as the documentary and other evidence did not show open and notorious use of the disputed waters, any user was not continuous, any user was not exclusive and, further, the Church Commissioners could not rely upon the use of the fishery by the H&DAA because the members of the H&DAA, an unincorporated association, were a fluctuating body of persons unable to acquire rights themselves or to permit the Church Commissioners to acquire rights by prescription, by reason of the user by members of the association. Mr Barton also asserted that the claim to a right acquired by prescription was contrary to the agreed fact that there was no express grant to the predecessors of the Church Commissioners before 1759. In relation to the Church Commissioners' reliance on a series of documents since 1759, Mr Barton contended that those documents related to other parts of the River Wye and did not relate to the disputed waters. Mr Barton then pleaded that the acts of user by the H&DAA were incidental, occasional and transitory and in any event were done with the permission of the City Council as riparian landowner. It was then contended that the acts being relied on were done on a public open space rather than private land and hundreds of local people had regularly fished in the disputed waters. It was denied that the H&DAA had anyone who could be described as "a water bailiff". Mr Barton relied on the rights of navigation pursuant to the Rivers Wye and Lugg Navigation Acts 1662, 1695, 1727 and 1809. He contended that the right of navigation, including the right to moor, took precedence over any right to fish. He further pleaded that the City Council and others had not acquiesced in the user relied upon by the Church Commissioners.

The legal principles: a summary

Before dealing with the detailed evidence in this case, it is helpful to set out some legal principles in relation to the right claimed in this case, in relation to prescription at common law and under the doctrine of lost modern grant and in relation to the position of a Bishop in the Church of England as a corporation sole.

The law as to fisheries is well established. There was in the end no real disagreement between the parties as to the relevant legal principles. Those principles are expounded in specialist works such as Woolrych, the Law of Waters (2^nd ed.) (1851) and Moore and Moore, The History and Law of Fisheries (1903) and are usefully summarised in Halsbury's Laws, 4^th ed., 2007 Reissue, Vol 1(2), Agriculture and Fisheries.

The law distinguishes in various ways between rights of fishery in tidal waters and in non-tidal waters. The disputed waters in the present case are agreed to be non-tidal waters. Accordingly, in the following statement of the relevant legal principles, I will concentrate on rights of fishery in non-tidal waters.

There is a distinction between a corporeal fishery and an incorporeal fishery. Fisheries are profits, in the sense of being an advantage, of the soil over which the water flows. The title to a fishery can arise from title to this soil. A fishery may be severed from the soil and it then becomes a profit à prendre in alieno solo and as such is an incorporeal hereditament. The term "corporeal fishery" is used to describe a corporeal hereditament such as, in non-tidal waters, the soil coupled with the right of fishing over it. A corporeal fishery may be owned by one who owns no land adjacent to it. The term "incorporeal fishery" is used to describe an incorporeal hereditament, that is, a right to take fish or a specified class of fish in a defined stretch of water without interference with the soil. An incorporeal fishery may be held freehold, or for a term of years absolute. An incorporeal fishery may be appurtenant to, or a parcel of, a manor.

A fishery which is vested in an individual is called a private fishery. A fishery vested in the public at large is called a public fishery. A public fishery can only exist in tidal waters.

A private fishery may be either a several fishery or a common of fishery. A several fishery is an exclusive right of fishing in a given place, either with or without the property in the soil. By "exclusive" is meant that no other person has a co-extensive right with the owner of the several fishery. The fact that some other person has a right to a particular class of fish in the fishery or has a right to fish in common with the owner of the several fishery does not destroy the severalty of the fishery. A common of fishery or a common of piscary is a liberty of fishing in another man's waters in common with certain other persons who might be the owners of the soil or other persons enjoying the same right. It may be held as appurtenant to land, or in gross. If the common of fisheries is appurtenant to land, it may not be "without stint" i.e. unlimited. An incorporeal fishery may be held in gross or appurtenant to, or parcel of, a manor or appurtenant to land. An incorporeal fishery in gross is a profit à prendre. Under the Land Registration Act 2002, section 3(1), a profit à prendre in gross, when the subject of an absolute grant or for a lease of more than seven years is capable of registration at the Land Registry. An incorporeal fishery can be only transferred by deed. A lease of an incorporeal fishery must be by deed.

There is a general presumption of law that the owner of land abutting on a non-tidal river is entitled to the soil of the river usque ad medium filum aquae. In the absence of any express reference, this presumption applies to all grants and leases of land described as bounded by a river, when the grant or lease is made by a person who is in a position to part with the soil of the river. There is a presumption that the owner of the soil of a river is the owner of the fishery over it. There is a presumption that the owner of a fishery is the owner of the soil of the river. This presumption will prevail over the presumption in favour of a riparian owner, in the event of a conflict as to the title to the soil which arises between the owner of a fishery and the owner of riparian land.

The owner of a fishery does not have, by reason of necessity, any right to land on, or go along, the banks of the river for the purpose of taking fish, in a case where the right of fishery may be carried on by boats or other means, without interfering with the bank. A right to a fishing path or other use of the banks may be acquired by grant or prescription and, in the ordinary way, evidence of enjoyment of such a right for twenty years may be sufficient to justify the court presuming a grant of the right, providing the other requirements for prescription are satisfied. Such a right may be prescribed for as appurtenant to a corporeal fishery and, it seems, also to an incorporeal fishery. The fact that a public highway abuts upon a river does not confer a right to fish from the highway into the river.

The right of navigation is a public right of way over tidal waters. A similar right may be acquired over non-tidal waters. The right is a right to pass and re-pass over the water and includes a right of anchoring, mooring, landing and grounding, where necessary in the ordinary course of navigation. Such a right takes precedence over a right of fishing and a navigator may place his ship in a fishery and stay there as long as is reasonably necessary for the purposes of navigation but he must not abuse this right. A fishery must not be carried on so as to be a nuisance to navigation.

The law as to prescription is also well established. There was in the end no real disagreement between the parties as to the relevant legal principles. Those principles are usefully summarised in Halsbury's Laws 4^th ed. Reissue Vol 16(2), Easements and Profits à Prendre

A profit à prendre such as a right of several fishery in gross, may be claimed by prescription at common law and under the doctrine of lost modern grant. The provisions of the Prescription Act 1832 do not apply to profits à prendre in gross: see Shuttleworth v Le Fleming (1865) 19 CBNS 687 at 709. Section 1 of the 1832 Act which governs prescription under that Act, in the case of an appurtenant profit, requires user for a period of 30 years.

The doctrine of prescription at common law, and as to lost modern grant, is based upon the presumption of a grant, in that prescription presupposes that a grant was once made and validly subsisting, but has since been lost or destroyed. The presumption of a grant is derived from proof of enjoyment of the right which is claimed. A right claimed by prescription must be such that it could have formed the subject matter of a grant. Nothing which cannot have had a lawful beginning can be claimed by prescription. Recourse should only be had to the doctrine of prescription in cases where a grant of the right is not forthcoming. Prescription has no place if a grant is proved and its terms are known.

The presumption of a grant is raised by proof of long enjoyment evidenced by acts of user on the part of the person claiming the right, or of his predecessors in title. The reason for the doctrine of prescription is that it is the policy of the law to do all that it can to quiet titles so as to avoid litigation and preserve the security of property. When open and uninterrupted enjoyment, of what appears to be an incorporeal right, has continued for a long time the court will, where such enjoyment is wholly unexplained, presume, if it is reasonably possible, that the enjoyment is referable to a right which had a lawful origin. Every presumption is made in favour of long user. Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that is reasonably possible to presume in favour of such a right. Where the user is equally consistent with two reasonable inferences, either of which would provide a lawful origin for the right enjoyed, the inference of a lost grant will not necessarily be drawn. The grant which is presumed is a grant by the owner of the land affected by the right. In the case of a several fishery which is an incorporeal fishery, the grant to be presumed is a grant by the owner of the soil of the river. The right claimed by prescription must be for an interest in fee, that is as a perpetual interest.

Prescription at common law is based upon a presumed grant which the law assumes to have been made prior to 1189, the first year of the reign of Richard I. Enjoyment of the right must be proved from a time "whereof the memory of man runneth not to the contrary" that is to say during legal memory and the period of legal memory runs from 1189. As it is usually impossible to prove user or enjoyment further back than the memory of living persons, proof of enjoyment as far back as living witnesses can speak raises a prima facie presumption of an enjoyment from an earlier time. Where evidence is given of the long enjoyment of a right to the exclusion of others, the enjoyment being as of right in a manner referable to a possible legal origin, it is presumed that the enjoyment in that manner was in pursuance of a legal origin and in the absence of proof that the commencement of the user was modern, the user is deemed to have arisen beyond legal memory. Unexplained user of an incorporeal right for a period of twenty years is held to be presumptive evidence of the existence of the right from time immemorial but the rule is not inflexible, the period of twenty years being fixed as a convenient guide. In a claim to prescription at common law, it is not necessary to prove user during the specific period of twenty years before the commencement of the proceedings in which the claim is made. The rule is different from that laid down by section 4 of the Prescription Act 1832 in relation to a claim to prescription under that statute. It was not submitted to me that a period of thirty years user was needed for prescription at common law (or under the doctrine of lost modern grant) in the case of a profit, as distinct from an easement, by analogy with section 1 of the Prescription Act 1832, but see Edgar v Special Commissioners for English Fisheries 23 L.T. 732 at 736 per Willes J.

The method of claiming easements under the doctrine of lost modern grant was the result of the ease with which claims under the common law doctrine of prescription were capable of being defeated by showing that the right did not, or could not, exist at a point of time later than the commencement of legal memory. The courts, following their approach in favour of a presumption that an alleged right had a legal origin when proof of long enjoyment was shown, adopted the fiction of a lost modern grant. The courts first laid down the rule that from the user of a lifetime the presumption arose that a similar user had existed from time immemorial. Then juries were told that from user during living memory, or even during twenty years, they might presume a lost modern grant, as distinct from a grant before 1189. Then they were told that they not only might presume a lost modern grant but that they were bound to presume the existence of a lost modern grant. The presumption of lost modern grant can be rebutted by evidence that the existence of such a grant was impossible but, conversely, a judge was not entitled to refuse to presume a grant merely because he was convinced that it had never in fact existed. The doctrine of lost modern grant may apply where the enjoyment cannot be otherwise reasonably accounted for but it is not reasonable to presume a lost grant in all circumstances. As with a claim to prescription at common law, it is not necessary to prove user during the specific period of twenty years before the commencement of the proceedings in which the claim is made. The position is therefore different from that required by section 4 of the Prescription Act 1832 in relation to a claim under that statute. Indeed, even in a case where the Prescription Act 1832 applies (and it does not apply to a profit à prendre in gross), the doctrine of lost modern grant can prove to be more flexible than the statutory provisions, because of this distinction.

For a claim to prescription at common law or under the doctrine of lost modern grant, the user must have been "as of right", having been enjoyed neither as the result of force, secrecy or permission, nec vi, nec clam, nec precario. Acquiescence on the part of the owner capable of making the grant lies at the root of prescription. A grant cannot be presumed from long user without the owner having had knowledge or the means of knowledge of the user. The owner cannot be said to acquiesce in an act enforced by violence or an act which fear on his part hinders him from preventing, or an act of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes or in return for recurrent consideration. An owner capable of making the grant claimed needs to have, at least, the means of knowledge of the user relied on in support of the grant. Some circumstances will put such an owner on inquiry and, if he neglects to make an inquiry, it may be that knowledge will be imputed to him. Where an ordinary owner of land, diligent in the protection of his interests, would have had a reasonable opportunity to become aware of the relevant user, the owner cannot allege that the user was secret.

In general, what must be shown is continuous user. Unless satisfactorily explained, long intervals between the acts of user will go some way to defeat the right claimed. The period of non user of an alleged right which will operate to defeat a prescriptive claim has no fixed length. The user need not be constant; where the user has not been constant the evidence should show that the gaps in the user were not due to interference by the owner against whom the prescriptive right is claimed. The degree of continuity required differs according to the character of the right claimed.

It has been said that as a general rule the evidence of user necessary to induce the court to presume a lost modern grant should be stronger than that upon which the court will presume a grant based on immemorial user: see Tilbury v Silva (1890) 45 Ch D 98 at 123 per Bowen LJ. This is said to be because the presumption of a modern grant is a more violent inference than the presumption of an ancient grant based upon immemorial user. Direct evidence that the grant was never made is not admissible to rebut the presumption of lost modern grant raised by uninterrupted user.

A party advancing a case of a presumed lost modern grant should plead a lost grant but need not state in his pleadings the date of, or the names of the parties to, the alleged grant. The court will not order particulars of an alleged lost grant.

A profit à prendre can only be claimed by prescription in favour of persons who are, or whose predecessors entitle were, capable of taking a grant. A profit à prendre by prescription cannot be claimed by an undefined and fluctuating body of persons, not incorporated for the purpose of taking the grant: see Goodman v Saltash Corporation (1882) 7 App Cas 633 at 648, 655.

The law as to the position of a Bishop of the Church of England, and the legal nature of a corporation sole, is also well established. The legal principles are conveniently summarised in Halsbury's Laws, 4^th ed., 2006 Reissue Vol. 9(2), Corporations and 4^th ed. Vol. 14, Ecclesiastical Law.

A Bishop of the Church of England is a corporation sole. A corporation sole is a body politic having perpetual succession, constituted in a single person, who in right of some office or function, has a capacity to take, purchase, hold and demise real property to him and his successors in such office for ever, the succession being perpetual but not necessarily continuous. There may be periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy or no one in existence in whom the corporation resides and is visibly represented. A corporation sole may acquire land by adverse possession: see Hayward v Chaloner [1968] 1 QB 107. A corporation may prescribe to have a common of pasture: see Mellor v Spateman (1669) 1 Saund 339 and 343. A corporation may prescribe to have an exclusive right of pasture: see Johnson v Barnes (1873) LR 8 CP 527; and a several fishery: see Goodman v Saltash Corporation (1882) 7 App Cas 633.

The material before the court

The preliminary issue in this case requires the court to investigate the evidence placed before it by the parties in relation to enjoyment or user of the claim to right of fishery. The Church Commissioners who make the relevant claim to have acquired a right of fishery by prescription rely upon user since the middle of the 18^th century. They do not seek to establish user before that time.

Before the court ordered the trial of a preliminary issue as to the claim based upon user of the alleged right, the parties had spent considerable time and effort in investigating the claims and cross-claims being made as to the existence of an express grant of a right of fishery in relation to the relevant part of the River Wye. Both the Church Commissioners and Mr Barton had assembled a considerable body of evidence including opinion evidence as to the existence at one time of an express grant of a right of fishery. The Church Commissioners asserted that the King had granted a several right of fishery to the Bishop of Hereford and that the right granted extended to the relevant part of the River Wye. Mr Barton contended that the right to fish in the relevant part of the River Wye had been granted to the City of Hereford.

For the purposes of determining the preliminary issue as to the user of the right claimed, the Church Commissioners do not ask me to investigate and determine their case that the right claimed was the subject of an express grant to the Bishop many centuries ago. Accordingly, it is not necessary for me to investigate the arguments put forward on behalf of Mr Barton designed to contradict that case. Nor is it necessary to investigate the case put forward by Mr Barton that a right of fishery was granted to the City Council.

The evidence presented on behalf of the Church Commissioners was principally in the form of documents which were created in the period beginning with the middle of the 18^th century. These documents were relied upon by the Church Commissioners as showing acts of ownership of the right claimed and/or user and enjoyment of the right claimed. The Church Commissioners also tendered oral evidence of more recent fishing in the relevant part of the River Wye.

The principal evidence given on behalf of Mr Barton was contained in Mr Barton's own witness statement. That witness statement had been prepared before the Court ordered the trial of the preliminary issue. Mr Barton's witness statement was therefore directed to the claims and cross-claims as to the existence of express grants of the right of fishery either to the Bishop of Hereford or to the City Council. Mr Barton's witness statement was several hundred pages long and annexed several thousand pages of exhibits. Very little, if any, of this material was directed to the preliminary issue. Before Mr Barton was called to give evidence, I asked Mr Barton's Counsel to provide the Court with a reduced version of Mr Barton's evidence so as to identify those part of Mr Barton's evidence, if any, which related to the preliminary issue. Notwithstanding my request, I was not given a reduced version of Mr Barton's evidence at any time during the trial and, indeed, when Mr Barton came to give his evidence he was asked to confirm the entirety of his witness statement. In the course of the closing submissions for Mr Barton, I again requested Mr Barton's Counsel to produce a reduced version of Mr Barton's evidence to identify those parts of the evidence, if any, which related to the preliminary issue. I have not since been provided with any such reduced version. There has been no explanation for this failure.

In addition to Mr Barton's witness statement which referred to a large number of documents which were said to be relevant to the claims and cross-claims as to express grants of a right of fishery, the parties had taken considerable time and trouble to carry out research into the relevant history and, indeed, each party had tendered experts' reports. I was not initially provided with copies of these reports. However, in view of the fact that I was asked to read the entirety of Mr Barton's witness statement and its exhibits dealing with the claims and cross-claims as to express grants as to a right of fishery, I felt that I needed to be provided with copies of the experts' reports so that I could understand more thoroughly the nature of the dispute as to the possibility of there being an express grant of a right of fishery to the Bishop of Hereford or to the City of Hereford.

I will now briefly refer to some of the matters which have been debated by the parties and their expert witnesses insofar as they relate to the claims and cross claims as to the express grant of a right of fishery. I stress that I do not make any finding or determination in relation to these claims and cross-claims. I refer to some of the material because of its intrinsic interest but more especially to demonstrate that the order for a preliminary issue in this case has turned out to be the right course to have adopted.

The Church Commissioners say that a right of fishery in the relevant part of the River Wye was granted to the then Bishop of Hereford by two charters of Henry I. Copies of these charters exist and can be consulted. The first was granted on an unspecified date between 1121 and 1127. The second was granted on an unspecified date between 1131 and 1135. The Church Commissioners point to the use of the words "in the waters" in the first charter and the words "in and outside the waters" in the second charter. These words are translated from the original Latin, in which the charters are expressed. It is also said that these charters were confirmed by a charter of King John on 21^st June 1203. King John's charter also uses the words "in the waters".

The expert evidence then takes the reader on a fascinating tour of English history since the 12^th century, referring to the Civil War between Stephen and Matilda, to a number of potentially relevant events in the reigns of Henry VIII, Mary Tudor and Elizabeth I, to the Civil War between 1642 and 1646, to the ordinance of 9^th October 1646, to the history of one Colonel John Birch who was, variously, a commander of the Parliamentarian forces which took the surrender of Hereford from the Royalists in December 1645, Governor of Hereford in 1646 and later an open supporter of a Stuart restoration and MP for Leominster in the Parliaments of 1660 and 1661. The experts then discuss the effect of the Restoration, the action of Charles II in reversing various matters carried out during the Commonwealth and negotiations between the Bishop of Hereford and John Birch.

The case for Mr Barton challenges most of the steps in the reasoning put forward by the Church Commissioners. Mr Barton relies upon a charter of Richard I in 1189 whereby he granted the City of Hereford to the citizens of Hereford. Mr Barton also relies on a grant and conveyances of Hereford Castle and its curtilage in 1629, 1646 and 1647. It seems to be accepted by the experts that this parcel of land was sold to John Birch in 1646 and he in turn sold it to Sir Robert Harley and others in 1647. The conveyance to John Birch specifically referred to "all those fisheries on the River called the Wye in County Hereford". It also seems to be common ground that the conveyance to John Birch in 1646 and the conveyance by him in 1647 were not matters which were liable to be reversed on the restoration of Charles II, as these transactions in 1646 and 1647 owed their legitimacy to the grant in 1629 by Charles I to Gilbert North, a member of his Privy Chamber. However, there seems to be an issue as to precisely what, if any, rights of fishery were conferred by the words in the 1646 conveyance and whether any such rights vested in the vendor in 1646. If they were so vested, there is an issue as to whether the rights transferred in 1646 were restricted to riparian rights so that they extended to the mid point of the river along the bank of the land conveyed, but no further.

It can be seen from the above account of the evidence as to express grants of a right of fishery, that the question of an express grant was heavily disputed and the evidence said to be relevant was very lengthy and would require to be considered with great care. Given that one of the functions of the law of prescription is to quiet disputes as to the title to the rights claimed, it seems to me that the present case is potentially a good example of the law of prescription achieving that purpose. Although the evidence from the documents and other sources as to enjoyment and user of the rights claimed is detailed and needs to be examined with great care the exercise which I have carried out appears to me to have been more straightforward than an exercise which involved resolving the dispute as to the existence of and the meaning of the express grants being relied on. Furthermore, I have found that I have been able to reach a confident answer based on the evidence as to user and enjoyment and I can only speculate whether I would have been able to reach an answer with the same confidence in relation to the dispute as to an express grant.

The evidence as to acts of ownership, user and enjoyment

In relation to the preliminary issue, neither party seeks to put forward evidence of acts of ownership of the right claimed, nor enjoyment and user of the right claimed, before 1759. The Church Commissioners' earliest piece of evidence is an indenture of lease dated 13^th July 1759. This lease was made between the Bishop of Hereford as lessor and a Mr Wood and a Mr Baynham as the lessee. The demise was of:

"All those his Lordship's Fisheries and liberty of Fishing in the River of Wye within the Manors of Barton and Eaton Bishop in the County of Hereford and also all profits, Benefits and Advantages whatsoever to the said Fisheries belonging or Appertaining".

The lease was for the period during which the then Bishop should continue as Bishop of Hereford. The lease reserved a yearly rent of three pounds three shillings.

The 1759 lease was an act by the Bishop of Hereford asserting a right to a fishery in the River Wye. There is an issue between the parties as to the location of the fishery which was the subject of the 1759 lease. The lease refers to the fishery in the River of Wye "within the manors of Barton and Eaton Bishop". I have some evidence as to the extent of the manors of Barton and Eaton Bishop in 1759. The main part of the manor of Barton was west of the City of Hereford. Mr Barton suggests that the eastern most boundary of the manor of Barton stopped at the western most boundary of the City of Hereford and some considerable distance from Wye Bridge. I am not certain that I could make a finding on the evidence as a whole as to how far east the manor of Barton extended in 1759. The position seems more clear in relation to the manor of Eaton Bishop which was further west of the City of Hereford so that no part of the River Wye now in dispute could have been described as being within the manor of Eaton Bishop. If the wording of 1759 lease stood alone, I do not think that I could reach the conclusion that the extent of the fishery the subject of that lease went so far as the disputed waters in this case. As will be seen, the wording in the 1759 lease does not stand alone. The Bishop who granted the 1759 lease remained Bishop until 1787 whereupon, pursuant to its terms, the 1759 lease would have come to an end.

On the 5^th June 1829, the Mayor and members of the Corporation of the City of Hereford carried out a survey of what was described as "their manorial right of fishery on the River Wye at Hunderton within the liberties of the said City". The documents include various maps showing the area surrounding the City of Hereford before and after 1829. A map which purports to show "the liberty of the City of Hereford" in 1800 marks a location for Hunderton which is just outside the liberty of the City of Hereford. The 1829 survey obviously assumes that part or all of Hunderton is inside the liberties of the City of Hereford. I also have a map which Mr Barton says dates from 1866, although there is no date on my copy of the map. The 1866 map shows Hunderton Farm in the same place as was marked Hunderton on the 1800 map. The 1866 map also shows Hunderton Villa and Hunderton Lane and Hunderton allotments. These areas are to the west of the Newport, Abergaveny and Hereford Railway Bridge crossing the River Wye and that bridge is some distance to the west of Wye Bridge. The 1829 survey refers to there being a draught of the river at Hunderton, "at the Friars" and "at the College". The reference to the Friars may be a reference to the site of Greyfriars Priory which is to the west of Wye Bridge. The 1929 Ordnance Survey map marks the left side of the river at that point as "the Friars". Mr Barton suggests that the reference to "the College" is a reference to a part of the river in front of the College of Vicars' Choral. The College of Vicars' Choral is on the left or north bank downstream from Wye Bridge and therefore on a part of the river which is now in dispute. No one identified any other college that might have been referred to in the 1829 survey. One of the members of the Corporation present at the 1829 survey was an Alderman William Symonds. This appears to be the same person as Dr William Symonds to whom I will later refer. As will be seen, Dr Symonds prepared a detailed statement of the fishing with which he was personally connected in the period from around 1798 to 1838. The 1829 survey came within this period. At any rate, taking the 1829 survey at face value and assuming that the reference to "the college" is to the water in front of the College of Vicars' Choral, the 1829 document is a statement by the City of Hereford that that part of the river was the subject of a manorial right of fishery vested in the City of Hereford. On the above assumption, this survey shows two things. The first is that the City Council believed that it had a right of fishery in a part (at least) of the disputed waters. (The possibility that the City Council had this belief in 1829 is supported by a Minute of the City Council in 1847, to which I will later refer.) The second is that on the occasion of the survey in 1829, the City Council took fish from a part of the disputed waters.

On 16^th April 1838, the then Bishop of Hereford granted a lease of a fishery to Dr Symonds. The lease described Dr Symonds as having been one of the Aldermen and a member of the Corporation of the City of Hereford. The lease recited:

"whereas the said William Symonds hath for the space of Forty years and upwards last past been Tenant from year to year by parol to the said Lord Bishop and his predecessors of the said Fisheries and Right of Fishing hereinafter mentioned and described at and under the yearly rent of Three Pounds three shillings …."

The lease then demised to Dr Symonds the following:

"all those his the said Lord Bishop's Fisheries and liberty of Fishing in the River Wye within the respective Manors of Barton and Tupsley and Eaton Bishop in the County of Hereford And also all liberties privileges and profits emoluments benefits and advantages rights members and appurtenants whatsoever to the said Fisheries belonging or in any wise appertaining or reputed to belong or appertain".

The demise was for a term of twenty one years, if Dr Symonds should so long live. The lease reserved a rent of three pounds three shillings per annum.

The 1838 lease contained a covenant by Dr Symonds to deliver to the Bishop:

"….a full true and perfect account or terrier in writing stating and setting forth the boundaries and abuttals of all such parts of the said River Wye within the several Manors aforesaid over which the said William Symonds shall solely freely and uninterruptedly exercise a right of fishing and landing of Netts (sic) in respect of this present demise and over which he is therefore during the whole of the said period of forty years solely and freely and uninterruptedly exercised in like manner such right of fishing and landing of Nets And also stating and setting forth in such account or terrier in writing the name or names of the parish Township or Vill or the respective parishes Townships or Vills within or through which the said fisheries and right of fishing shall or may be situate and the number and situations and names of the several places on the edges or Banks of the River Wye which the said William Symonds has during the whole of the said period of forty years last past and during which time he has rented the said fisherie under the See of Hereford as aforesaid freely and uninterruptedly used exercised and enjoyed for the purpose of the landing Netts and the taking of Fish which said account or terrier or respective accounts or terriers shall be certified to be correct by two or more credible witnesses …. "

The 1838 lease refers to the manors of Barton and Tupsley and Eaton Bishop. I have earlier referred to the evidence as to the location of the manor of Barton and the manor of Eaton Bishop. Mr Barton says that the manor of Tupsley is to the east of the City of Hereford and lies between the River Wye to the south and the River Lugg to the north. More information about the location of the fishery referred to in the 1838 lease is provided by the terrier which was prepared on 1^st October 1839 to which I will later refer at the appropriate place in the chronology.

In or around 1838, the then Bishop of Hereford bought riparian land on the south or right bank of the River Wye which, then or thereafter, became known as Bishop's Meadow. The land was acquired by the Bishop pursuant to two conveyances, the first being dated 9^th October 1838 and the second being dated 16^th June 1843. The conveyancing steps undertaken by these instruments were somewhat complex and not altogether familiar to the modern reader and I will not attempt to describe each of those conveyancing steps. It is possible to summarise the instruments by saying that the 1838 conveyance conveyed the relevant land to John Burden to hold on trust for the Bishop of Hereford and the 1843 conveyance conveyed the relevant land to the Bishop to hold absolutely. The 1843 conveyance contained a number of recitals as to the source of, and the expenditure of, money whereby the land was to belong to the See of Hereford.

The 1838 conveyance of Bishop's Meadow conveyed the land together with various profits such as a common of pasture and a common of turbary but also together with waters, watercourses, easements, profits, hereditaments and appurtenances belonging or in any wise appertaining to the land conveyed or demised held enjoyed reputed or known as parcel or member of the land conveyed. The 1843 conveyance also contained certain wording referring to rights transferred with the land. The 1843 wording referred to waters, watercourses, liberties, privileges, easements, profits, advantages, rights, members and appurtenances to the land conveyed or in any wise appertaining or accepted reputed or deemed taken or known or used occupied or enjoyed as part parcel or member of the land conveyed.

I now turn to the terrier dated 1^st October 1839 prepared by Dr Symonds pursuant to the covenant he gave in the 1838 lease. This document describes itself as:

"A full true and perfect Account or Terrier stating and setting forth the Boundaries and Abuttals of all such parts of the Rivers Wye and Lugg within the several manors of Barton and Tupsley, Eaton Bishop and Holmer and Shelwick belonging to the Lord Bishop of Hereford over which I the undersigned William Symonds (as Lessee of the Fishery and right of fishing of and belonging to the said Lord Bishop of Hereford have for the last forty years rented and held under the See of Hereford and which I now rent and hold of the said Lord Bishop under a certain Indenture of Lease for Twenty one years determinable as therein mentioned bearing date the Sixteenth day of April One thousand eight hundred and thirty eight, and agreed to be undersigned by me to Mr Thomas Jeffreys sic) have solely and freely and uninterruptedly exercised the right of fishing, and also stating and setting forth the number, situations and Names of the several Places on the Edges of the Banks of the said Rivers Wye and Lugg, which I the said William Symonds have during the whole of the said period for forty years last past and during which time I rented the said fishery under the See of Hereford solely and freely and uninterruptedly used exercised and enjoyed for the purpose of the landing of Nets and the taking of Fish, as follows…"

The 1839 terrier then referred to the River Wye, to the River Lugg and to 21 River Wye landing places and 3 River Lugg landing places. The text relating to the River Wye stated:

"the Right of Fishery in the River Wye includes the Lower part of Huff Pool above Eaton Bishop Church and also above the Weir Cliff, and from that point all the way down the River Wye through the manors of Eaton Bishop, Barton and Tupsley and the Palace Fee to Bullingham Ford."

The wording in relation to the River Lugg describes the relevant part of the River Lugg again using the phrase "all the way down" and referring to the manors of Holmer and Shelwick and Barton and Tupsley.

The wording of the terrier which relates to the River Wye landing places contains the following:

"the Landing Places for the Nets on either side of the River Wye from the commencement of the Wye Fishery at Huff Pool to the termination of the same Fishery at Bullingham Ford".

The terrier lists 21 River Wye landing places. The sixteenth landing place is described as:

"on the said Causeway Farm upon the second Meadow above Wye Bridge".

The seventeenth landing place is said to be "at the Friars". The eighteenth landing place was described as follows:

"opposite Bridewell and the Quay on the Timber Yard there late belonging to Thomas Bird, Esquire".

The nineteenth landing place refers to a location at the top of the "silver stream". The twentieth and twenty first landing places refer to locations on the Bartonsham Estate.

The 1839 terrier was signed by Dr Symonds in the presence of a number of named witnesses who described themselves as having been employed by Dr Symonds as fishermen and they appended their signature or mark to vouch for the correctness of the contents of the terrier.

In the course of the hearing, the many places on the River Wye referred to in the 1839 terrier were pointed out. It is not necessary for the purposes of this judgment to describe the precise location of each and every place mentioned in the terrier. I am satisfied by the various maps to which I have been taken, to help locate the places referred to in the terrier, that the part of the River Wye which is part of the river "all the way down" from Huff Pool "to the termination of the same fishery" at Bullingham Ford includes all of the disputed waters. The terrier refers to "the Palace Fee". Although there were various suggestions as to where the Palace Fee might be, I find that it is much more likely than not that the Palace Fee describes the land owned freehold by the Bishop of Hereford in the City of Hereford and includes, at the least, the land and curtilage of the Bishop's Palace. This reference to the Bishop's fee provides corroboration, if any were needed, that the part of the River Wye which is referred to in the terrier includes the disputed waters. I am also satisfied that the description of the sixteenth, seventeenth, eighteenth and nineteenth landing places on the River Wye refer to places to the west of the disputed waters, within the disputed waters and to the east of the disputed waters. It was submitted on behalf of Mr Barton that the fact that there might have been a landing place within the disputed waters did not say anything as to whether the Bishop had the fishery in those waters. It was thereby submitted that it was possible for the Bishop to have acquired a right to land on the bank of the disputed waters while at the same time the fishery in those waters was vested in someone other than the Bishop. Whilst that is a logical possibility, it is much more probable than not that the reason the Bishop and his lessee had a landing place at the eighteenth landing place on the bank of the disputed waters was that the Bishop and his lessee enjoyed the fishery in the disputed waters.

The fact that the terrier was witnessed by a number of fishermen employed by Dr Symonds shows that Dr Symonds had not taken the right to fish in the river for the purposes of recreational angling but as part of what must have been a considerable commercial activity.

In my judgment, the statements made by Dr Symonds in the terrier are of great significance for the purpose of the present dispute. The statements are admissible in evidence to prove the truth of the statements. The statements are to the effect that Dr Symonds has held, and exercised, an exclusive right of fishery, as lessee of the Bishop of Hereford, for the period from around 1798 to 1838, the date of the twenty one year lease to him, and that the extent of the river over which rights were granted by the 1838 lease is described in the terrier.

I referred earlier to the fact that the 1829 survey on behalf of the City of Hereford was attended by Dr Symonds as a member of the Corporation of the City of Hereford. I then referred to two matters which were shown by the 1829 survey, on the assumption that the survey referred to a part of the disputed waters. The first was that the City Council believed that it had a right of fishery in a part (at least) of the disputed waters. As to that, it was plainly possible for the City Council to have that belief and at the same time for Dr Symonds to take a grant of the right of fishery from the Bishop. The second thing shown by the 1829 survey is that, on the occasion of that survey, the City Council took fish from a part of the disputed waters. In the 1839 terrier, Dr Symonds stated that he had solely and freely and uninterruptedly exercised the right of fishing in the part of the river which was the subject of the letting from the Bishop. On the assumption that the 1829 survey did extend to a part of the disputed waters, then it follows that on one proven occasion (i.e. on the survey in 1829) the City Council had taken fish from a part of the disputed waters. This fact does not in the end justify me in rejecting what Dr Symonds stated in the 1839 terrier. At most, I ought to read the terrier as qualified to the extent that the evidence shows that there was an occasion in 1829 when the City Council took fish from the disputed waters.

The 1839 terrier suggested that Dr Symonds had agreed to "undersign" the 1830 lease to Mr Thomas Jeffreys (sic). Whether the reference to "undersigning" meant assigning or under-letting, neither of those events happened. What happened instead was that on 16^th April 1840, Dr Symonds surrendered the 1830 lease to the Bishop of Hereford and on 13^th April 1841, the Bishop of Hereford leased his fishery in the River Wye to Thomas Jeffries the elder and William Williams Bird. The 1841 lease recited the 1838 lease and the 1840 surrender and demised to Mr Jeffries and Mr Bird the same fishery as had been demised to Dr Symonds by the 1838 lease, as more particularly described in the 1839 terrier. The demise was for a term of seven years from the date of the surrender by Dr Symonds (16^th April 1840), if Mr Jeffries and Mr Bird or either of them should so long live. The lease reserved a rent of three pounds and three shillings per annum. The 1841 lease also contained a covenant by the lessee to prepare a further terrier essentially stating the same matters as were required to be stated by Dr Symonds under the 1838 lease, save that the period of user, which was to be the subject of the terrier, was the thirty year period before 1841. The documents before the court do not include a new terrier prepared by the lessees under the 1841 lease.

The term of seven years created by the 1841 lease was due to expire in around April 1847 (provided that either of the joint lessees survived for that period). The question of the Bishop's assertion of a right to the fishery was considered by the City of Hereford on two occasions in 1847. This consideration was minuted by the City Council on 5^th August 1847 and on 9^th November 1847. The 5^th August 1847 minute states:

"Wye Fishery Resolved that the Town Clerk apply to the Bishop's secretary on the subject of the Right of Fishery in that part of the River Wye which is within the Manor of the City of Hereford and now leased by the Lord Bishop of Hereford to Mr T W Bird and others. The Town Council being advised that such right of fishery belongs to the City."

The Council minute of 9^th November 1847 states:

"Wye Fishery Resolved, [six named persons] in a Committee to consider upon the claim of the Bishop of Hereford to the ffishery in that part of the River Wye which lies within the Liberties of the City of Hereford".