The recent case of Loose v. Castleton 1 exemplifies the unsatisfactory state of the law relating to the coastal limits of the realm of England.

The plaintiff was a Norfolk fish merchant, who claimed a several fishery on the eastern shore of the Wash, under a lease from the lord of the manors of Heacham and Snettisham. No express grant was available to substantiate the lessor’s title, which was founded on the doctrine of prescription, and could only have originated before the date of Magna Carta. Nevertheless, the Court of Appeal accepted the presumptive evidence, and confirmed a declaration denying the right of a local fisherman to remove mussels and other shellfish above the mean low water mark of ordinary spring tides.

The significant aspect of this decision is that the seaward boundary of the fishery was held to exceed the legal limit of the foreshore, which, in modern usage, corresponds to the average low water mark of all tides occurring in one year.2 Their Lordships emphasised the artificiality of applying the criteria of contemporary surveying to the interpretation of mediæval tenure, and argued that the lost grant would logically have included the most productive areas of mussel scalps. Unfortunately, they neglected to consider the established doctrine that the proprietor of a several fishery is deemed, prima facie, to own the soil.3 Hence, it is arguable that the court inadvertently approved the extension of the manors beyond the normal border of the realm, while failing to consult the Crown, which claims property in the territorial sea bed adjacent to the foreshore.4

This case involves a departure from the orthodox principle previously observed in Stephens v. Snell,5 where Vaisey, J., ruled that a fishery, which was conterminous with the manor of Axemouth in the estuary of the River Axe, ceased at the mean low water mark of ordinary tides. Admittedly, a few exceptions have been judicially recognised in the narrow reaches of certain tidal waters. For example, the centre of the River Severn constitutes the boundary between the manors upstream from Berkeley,6 and a similar situation prevails in the River Tyne at Gateshead and Whickham.7 There are also places where ancient practice has been preserved by local custom, although the issue has not been tested. Thus, 9,800 acres of the bed of the River Crouch were recently purchased by the Crouch Harbour Authority from a private source, on the basis of a grant dating from the 11th century.

On the open coast, most manors appear to be confined by the mean low water mark, but there are certain doubtful instances in the Thames Estuary. Acts of 1840 and 1930