Crown estate - Crown foreshore - Feudal tenure – Franchises - Incorporeal hereditaments - Manorial rights

Crown Estate Commissioners v (1) Mark Andrew Tudor Roberts (2) Trelleck Estate Ltd: ChD (Mr Justice Lewison): 13 June 2008

The claimant Crown Estate Commission (C) sought a declaration as to its title to part of the foreshore of the Pembrokeshire coastline and sought to remove a caution against first registration in respect of that land registered by the first defendant (R).

R had purchased at auction the manor of St Davids, which was on the Pembrokeshire coast. The conveyance provided that R was purchasing the ‘Lordship Marcher of St Davids’. Two years later, the local authority applied to register leasehold titles, granted to it by C, to part of the foreshore in that area. R objected to the registration on the basis that he was the lawful ­ successor of the Lord Marcher of St Davids, and that by grants, especially a charter of 1115 and a confirmation in 1384, and by ancient use and ­ reputation, the Lordship Marcher included a freehold estate in the land to which C claimed title.

R also claimed entitlement to the right to wreck washed ashore from the sea, an exclusive right to fish in the sea, plus treasure trove and ­ sporting rights. C submitted that the status of Lord Marcher was nothing more than a jurisdictional franchise empowering the incumbent title ­ holder to administer justice in their respective provinces. Furthermore, that the title of Lord Marcher did not carry with it any proprietary rights and, in any event, the jurisdictional ­ privileges of the Lords Marcher had been abolished by the Act of Union 1535. R contended that the bishops of St Davids, who had later become the Lords Marcher, had held their land under the spiritual tenure of free alms, as evidenced by a reference in an ecclesiastical survey of 1536, and that their historical privileges survived because the tenure of free arms had been excluded from abolition by section 7 of the Tenures Abolition Act 1660.

Held: (1) Any proprietary rights that had vested in the title Lords Marcher had been erased with the 1535 Act. In so far as any further privileges ­ survived, they were subsequently expunged when feudal tenure was ­ formally abolished by the enactment of section 1 of the 1660 Act, Berkeley Peerage 171 ER 128 KB applied. The singular reference to lands being owned under free alms in the survey of 1536 was a wholly insufficient ­foundation upon which to conclude, without more, that the bishops held lands by such tenure. Thus, R had failed to show that the prior rights of a Lord Marcher subsisted after the 1535 Act and subsequent legislation.

(2) The right of wreck and the exclusive right of fishing were franchises that derived from a Crown grant. They could only be created by express grant or ­ presumed grant from prescription at common law. The general principle of interpretation of contracts of grant between subjects was to resolve any ambiguity in favour of the grantee, but traditionally that principle was inverted in the case of grants by the Crown, Feather v The Queen 122 ER 1191 QB and Viscountess Rhondda’s Claim [1922] 2 AC 339 HL applied. Accordingly, the ancient charters should not be interpreted as ­ conferring rights on the bishops of St David unless they did so by express word or necessary implication. There was no express reference to the right of wreck in the charter of 1115. The evidence indicated that the right of wreck belonged to the Lords of the manor of St David, and that it had been shared with the Crown.

The description used in the auction memorandum and the conveyance indicated that what had been ­ conveyed to R had been the manor of St Davids, and so R did have the right of wreck as Lord of the Manor, and also the sporting rights under the Game Act 1831. The word ‘fisheries’ in the charter of 1115 was contained in a long list of general words and was not sufficient to convey a right as extravagant as an exclusive right to fish, Royal Fishery of the Banne Dav.149 applied. The ancient grant had to be ­ interpreted in the light of subsequent acts of possession and enjoyment, and there was no evidence that the bishops had exercised any such fishing right, Neill v Duke of Devonshire [1882-83] LR 8 App Cas 135 HL (UK-Irl) applied. There was a presumption that treasure belonged to the Crown, and the right to treasure could only be expressly granted, Attorney General v British Museum’s Trustees [1903] 2 Ch 598 Ch D applied. There was no evidence of any express grant.

(3) Whether R could exercise any rights over the foreshore depended on whether he could rebut the ­ presumption that the foreshore vested in the Crown.

The evidence showed that the foreshore had never been part of any manor of which the ­bishops had been Lords. Accordingly, R had no rights over the foreshore in dispute, save in relation to a shared right of wreck with the Crown.

Judgment for claimant in part.

Frank Hinks QC, Thomas Braithwaite (instructed by Farrer & Co) for the claimant; Stephanie Tozer (instructed by Darwin Gray) for the defendants.