Barton v The Church Commissioners for England, Court of Appeal - Chancery Division, December 15, 2008, [2008] EWHC 3091 (Ch)

Resolution Date:December 15, 2008
Issuing Organization:Chancery Division
Actores:Barton v The Church Commissioners for England

Neutral Citation Number: [2008] EWHC 3091 (Ch)Case No: HC02C00653IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 15/12/2008Before :MR JUSTICE MORGAN- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Lawrence Jones (instructed by Stockinger) for the ClaimantMr Nicholas Taggart (instructed by Lee Bolton Monier-Williams) for the DefendantsHearing dates: 19th, 20th, 21st, 24th 25th and 26th November 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Morgan: Introduction1. 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. 2. 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. 3. 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. 4. 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. 5. 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.6. 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. 7. 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 proceedings8. 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. 9. 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 11th February 1997. There is a report of that judgment in The Times of 20th March 1997.10. 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. 11. 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...

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