Loose v Lynn Shellfish
 EWHC 901 (Ch)
The doctrine of accretion is the process whereby the boundary of land bounded by tidal waters is liable to change as a result of natural forces, which may result in a gradual increase or decrease of the land in question. The doctrine operates to adjust the legal boundary of the land so affected.
The rationale for the rule is that if part of an owner’s land was taken from him by erosion it would be most inconvenient to regard the boundary as extending into the water. The landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner’s title should extend to it. The doctrine of accretion is one that arises from the nature of land ownership; from the fact that the long-term ownership of property is inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions as may take place over the years. The doctrine may be excluded by the parties but only with express intention.
C was the tenant of fishery rights leased by D who owned the fishery according to ancient fishery rights that were granted by the Crown. As a private fishery it carried the right to exclude the public from exercising any public right of fishery within its area, which otherwise they would have had. The claim was brought against a number of local fishermen who had collected cockles from an area, which C said was within his private fishery. C argued that this had arisen because the original seaward boundary had changed due to the fact that over time sandbanks that were previously separated from the land by the water had now become part of the land so that it was possible to walk to them at low tide. This had occurred by the 19th century. The fishermen disputed this and argued that the original seaward boundary of the fishery should remain the same.
What was the physical extent of the private fishery? Where was the seaward boundary of the private fishery?
To come to a conclusion on this point, the court had to decide how the boundaries of fisheries should be determined when there was accretion or erosion of the land-side boundary of the fishery. This involved three sub-issues:
- How the doctrine of accretion applies where the foreshore has increased over time by the process of siltation;
- Whether the prescriptive basis on which this private fishery was established applies to any area which came into existence through accretion;
- Where the outer seaward boundary of the fishery was and how it was to be measured.
It was argued by the fishermen that the doctrine only applied where the process was gradual and imperceptible. They argued that that was not the case here because there must have been one point when it was suddenly possible to walk to the sand bank for the first time.
The court held that the boundary had moved and that the fishermen had trespassed on the private fishery. The judge, Sir William Blackburne, refused to limit the doctrine to such a specific type of alteration as was argued by the fisherman and held that the doctrine of accretion applied in this case.
Further, fishery rights acquired by prescription were also subject to the doctrine of accretion. C’s private fishery therefore extended to the land including the sandbanks, which had become accessible on foot at low water from the estate’s coast line.
The court heard argument on the correct measure for determining the fishery’s seaward boundary. The judge held that the decision in Loose v Castleton (1981) 41 P. & C.R. 19 (CA), (which was concerned with the same fishery) had determined that the boundary was “as far as [it] can be worked without boats from the shore at extreme low water” and he was bound by that decision. The court rejected the argument that this measure was too uncertain and reasoned that another measure would provide no greater certainty.
Consideration of the doctrine of accretion does not happen very often. This case contains a useful exposition of the history of the ancient fishery rights and how they interrelate to statutory fishing rights.
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