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Pearson v Foster  EWHC 107 (Ch): fisheries, watermills and riparian rights
Nathan Wells, instructed by Beviss & Beckingsale (Honiton), acted for the successful Defendant in Pearson v Foster  EWHC 107 (Ch). The case gave rise to a number of unusual property law issues.
The Claimant was the registered owner of incorporeal fishing rights (a profit à prendre in gross) which affected, inter alia, certain waters in the Mill Leat serving the Defendant’s ancient Watermill. The Claimant also had the benefit of certain express rights which were ancillary to the profit of fishery, including “The right to maintain the weirs and execute all proper works thereto for the purpose of maintaining the rivers and backwaters in the best condition for the enjoyment of the said fishing rights”. The Claimant claimed that his rights entitled him to operate the sluice gates in the Leat in the interests of his fishery, notwithstanding the effect that this could have on the proposed operation of the Defendant’s recently restored Watermill. In the course of the dispute, a number of further issues arose between the parties.
Mr Justice Newey decided a number of issues following a 7 day hearing in Winchester and London. These included the following:
- As a matter of construction, the Claimant’s express rights did not include any right to control or interfere with the sluice gates serving the Watermill.
- No such right of control or interference arose as a matter of implied grant. The Court referred to Jeffryes v Evans (1865) 19 CB (NS) 246 and Gearns v Baker (1875) LR 10 Ch App 355 as “tend[ing] to confirm that the grant/reservation of fishing and ancillary rights should not be taken to have carried a right for the grantee to interfere in the ordinary operation of the sluice gates by the owner of the Mill”.
- The Court concluded, on the basis of the evidence, that the Mill Leat was an artificial watercourse. However, it went on to apply a line of authority including Nuttall v Bracewell (1866-67) LR 2 Ex 1, Holker v Porritt (1872-73) LR 8 Ex 107 and Baily & Co v Clark, Son & Morland  1 Ch 649, and concluded that on the facts it was to be inferred that the Leat was originally constructed on the basis that the owner of the Mill should have the same riparian rights as he would have had if the Leat had been a natural watercourse. Such rights include the right of a riparian owner to have the water come to their property in its natural state in flow, quality and quantity and the right to take water for reasonable purposes connected with the riparian tenement.
- It was held that the Defendant and her predecessors in title enjoyed prescriptive rights to impound and release the waters in the Leat for the purpose of, inter alia, operating the Watermill. The Mill had not been used for corn-milling for some years, but the mill wheel had been used to run a generator in the 1970s and the Defendant wished to operate a hydro-electric generator and, potentially, corn-milling equipment. Applying Gotobed v Pridmore (1971) 217 EG 759, the Court held that the prescriptive milling rights had not been abandoned.
- Part of the Mill Leat had previously dried out, such that there had been no possibility of fishing in it, although the waters had returned following the Defendant’s restoration of the site. The Defendant had argued that the profit of fishery in that part of the Leat had been extinguished. However, following an analysis of the authorities, the Court concluded that the profit of fishery had not been so extinguished. It was held that “extinguishment will not occur unless and until there is ‘no practical possibility of [the profit] ever again benefiting’ the person entitled to it and that…condition has never been satisfied in the present case”.
- The Court held that, in light of the relevant conveyancing history, a mistake had been made in the registration of the profit of fishery – the filed plan indicated that the Claimant’s fishing rights extended to certain waters which were not in fact subject to those rights. Applying Baxter v Mannion  1 WLR 1594, the Court held that a mistake had been made and directed the appropriate alteration of the registered title to the profit.
- The Claimant had claimed to own part of the bed of an area known as the “East Leat”, adjoining certain riparian land to which he had title. He relied on the presumption of ownership of the adjoining bed usque ad medium filum aquae. After a detailed study of the conveyancing history of the parties’ respective properties, the Court concluded that the presumption was rebutted and that the bed of the East Leat formed part of the Defendant’s registered title.
The official transcript of the judgment can be accessed here.