HC Deb 05 August 1859 vol 155 cc1053-61
MR. AUGUSTUS SMITH

rose to call the attention of the House to the question relating to the right of the Crown to the foreshores of the United Kingdom, and the proceedings of the Commissioners of Woods and Forests in. dealing with this kind of property. These were to be found embodied in certain returns made to this House, and the Reports laid annually on the table by those Commissioners. He said that the claim of the Government to the foreshores as the dominion and here-ditament of the Crown rose first to any importance about fifteen years ago, before which time scarcely any more notice was taken of it than was necessary for the protection of the public. The voluminous return made on the Motion of Mr. Cheetham showed that in 1833 the first suit arose in connection with Chester. Ie 1839 there was a suit connected with the Humber; in 1844 the great suit about the conservancy of the Thames. In 1845 there were three suits of this nature; in 1851, one connected with the Mersey; in 1852 and 1854 there were suits connected with the Isle of Man; and in 1855 and 1857 there were several suits in connection with the coast of Scotland. Almost all these suits—though stated in the return to have ended in favour of the Crown—were in reality almost all, more or less, compromised; and he expressed his regret in concurrence with Lord Derby, that those of a more important character—particularly that with the city of London, in respect of the Thames—had been so terminated, preventing thereby any judicial decision upon the subject matter of litigation, from which much public benefit would have resulted. He had quoted the figures to show this notion of right to the shores as the freehold property of the Crown, and of appropriating it, had year by year waxed stronger and grown upon the Woods and Forests, and he would now proceed to show how those who had the management of the subject had dealt with this assumed right. Between 1830 and 1839, there were four sales and nine leases; 1840 and 1849, eighteen sales and twenty-two leases; 1850 and 1858, 117 sales and thirty leases—making in all 139 sales and sixty-one leases, within the limits of that return. These sales had realized the sum of £95,000, and the reserved rental on these leases was £958. So stood the account up to March, 1857, as detailed in the reports of the Woods and Forests; but in the year ending March, 1858, no less than twenty-three sales are recorded, and for a sum of £45,850, making a total with previous receipts of £141 obtained from this newly-claimed species of property. The sales of this one year also show the extent and universality of their operations—one in Carnarvonshire, three in Cheshire, one in Devon, one in Hants, two in Lincoln, two in Norfolk, two in Pembroke, one in York, one in Dumbarton, one in Forfarshire, two in Renfrew, one in Armagh, one in the Downs, one in Limerick, one in the Isle of Man, and one in the Thames. What the nature and extent of like proceedings may have been during the last year there are no means of tracing; the accounts up to March, 1859, having been but just laid on the table, and will probably not be printed and in the hands of Members for a year to come—a delay he much complained of, as it was impossible in consequence to take notice of the proceedings of these Commissioners till it was often too late to check and prevent their wrong doings. This loudly called for correction. The return contained notes stating once and again that this was property which had never been before in lease, or any previous acknowledgment received, or any hope of profit from it, or over which any lights of ownership had been exercised. The authorities who undertook the management of these matters even went so far as to prohibit people from erecting harriers against the inroads of the sea, unless they had acknowledged the right of the Crown by some payment under a lease. Of such, there are several instances recorded in these reports, and it may suffice to quote the reference to one at Dovor, where a lease was granted, it is stated, "for the purpose of empowering the owner of some adjacent premises to protect his property from injury by the inroads of the sea. A new feature is further disclosed in these transactions, namely, the sale of the fundur, or bed of the sea, that portion which is always covered with water, and is below low-water mark. Instances of such sales being included are to be found at Birkenhead and other parts of the coast. Rights of this nature have been very frequently asserted in Cornwall of late years. He wished particularly to call attention to the claims thus put forward by the Duchy on the estuary of the Tamar or Hamoase, which had been much too readily and unaccouutably admitted by the Government departments. Every one knew Keyham Docks, to form which many acres of land had been purchased, and immense sums laid out in the construction of the works and particularly in the basin. Now this basin stretched into and enclosed a large area of the deep water or bed of the estuary. For this the Duchy claimed to be paid as owner, and had been paid as much as £50 per acre for seventy acres, making a sum of £3,500, which the public have had to pay, for what is literally their own property. If such right of sale really exists, there is nothing to prevent the Duchy selling the whole of that great estuary, the Hamoase, where our fleets now ride at anchor. He particularly brought this to the notice of the Secretary of the Admiralty, as also of the Secretary for War, in reference to the powder magazine at Bull Point, the cost for which had figured so largely in both the Navy and Army Estimates, and where a similar payment had been submitted to for the bed of these waters. What he wished for was an explanation by the law officer of the Crown as to what was the right by which portions of the foreshores were sold. Those sales excluded the public from the exercise of their rights of navigation, fishery, &c. &c, without any compensation at all, the purchase-money being simply added to the capital of the Commission of Woods and Forests, a property we have been significantly told more than once, by those who sit on the Treasury bench, the country has but a life interest in. It was said that the Crown had a sort of manorial right over the shore, but if so still the public ought to be considered in the light of occupiers, and if excluded from their rights should have compensation. It frequently happened that the Crown came in and occupied the shore, thus cutting off the sea frontage of the owner of the adjoining land, and this was done without any legal form or process, such as manorial wastes and commons are subject to, by being brought under the direction of the Enclosure Commissioners, whose awards have to be confirmed by a general Act of Parliament. In the borough which he represented (Truro), it had always been supposed that the tidal water there belonged to the corporation, but they were too poor to fight the battle with the Crown, and consequently the other day they were obliged to pay £1,800 for some mud banks which were of no use to the Duchy of Cornwall, and adjoining which they had no property. He was himself trustee for some property in Cornwall, from which a valuable frontage, in the manner which he had described was threatened, might be cut off. If the Crown had this right to the shore, surely they ought to keep up the shore so as not to produce injury to the adjoining property. Assuming the Crown had certain rights over these foreshores, it was clear they had certain obligations also. There was an obligation upon the Crown, according to Lord Coke, to prevent the land adjoining the shore being flooded, but that obligation the Crown neglected. Lord Coke in his Report says—"The King ought of right to save and defend this realm as well against the sea as against enemies, that it should not be drowned or wasted." The obligation, then, rests on the Crown to defend the land round the whole of the coasts, and it is this obligation and not any claim to soil and possession that gives the Crown any jurisdiction in any sense over borders of the sea. His attention had been drawn to this subject by seeing for several successive weeks an advertisement in the Economist newspaper head, "Crown Lands—Hull Citadel." The advertisement went on to describe the property as freehold, comprising sixty acres; thirty-five of them being the Hull citadel and the remaining twenty-five acres were the foreshore of the river Humber, which was covered by the tide at high water, and left dry at low water. Now, he was informed that at certain states of the tide it was necessary for vessels navigating the river to pass over this foreshore, and the public rights would be materially affected by the proposed sale. It was curiously enough described as freehold property; but what he wanted to know was, what was the real nature of the freehold described in the advertisement, what were the obligations attached to it, and what were the public rights connected with it? He would trouble the House with but one instance more as peculiarly illustrative of the mode in which the Woods and Forests were dealing both with this and other public property. The case alluded to was that at Hull, respecting which certain papers had recently been laid before the House. The Hull Citadel had been held by the War Department for three or four hundred years past, and now the Woods and Forests came in and claimed the property, seeking to apply the proceeds of the sale for the benefit of the Crown lands. It was but the other day a noble Lord opposite brought under the consideration of the House, the defences of the Humber, and for which the country will be called on to vote large sums, first for the purchase of land, and next for the erection of fortifications. It is to be hoped the Chancellor of the Exchequer will take care to impound the £100,000 the Woods and Forests are attempting to lay hold of for this property which does not belong to them, and apply this sum towards the erection of the defences of the Humber, in which Hull itself is so deeply interested. He could assure the House very great interest was felt in this matter and very great dissatisfactioe was growing up all over the kingdom both as to the claims made on behalf of the Crown, and the mode in which those claims were dealt with.

MR. PHILIPPS

thought the House was much indebted to the hon. Gentleman for bringing forward this subject. He could lay it down as a simple proposition which no one could dispute, that if the Crown had certain rights over the foreshore it had also reciprocal obligations. Now, if it claimed the foreshores, a reciprocal duty must clearly be to prevent trespassing upon the foreshore to the injury of the adjoining lands. He was himself the proprietor of lands adjoining the sea-shore. Persons were in the habit of trespassing upon the shore to obtain shingle and ballast, and although by carrying away this ballast they greatly imperilled his property, it was useless to proceed against the trespassers before the magistrates, as they declined to exercise their summary powers where the right to the property was in question. To obviate this difficulty, he had been compelled to pay several hundred pounds to the Woods and Forests for the foreshore, which, except for the purpose of preventing these trespasses, was perfectly worthless to him. One of the tenants of the adjoining proprietor came to him the other day in a state of great alarm, stating that he was afraid a large field of corn was in danger of being carried away by the sea, in consequence of the depredations committed by trespassers. If the Crown claimed the foreshores, it was clearly bound to protect the adjoining property, but the Woods and Forests had refused to maintain a police for the purpose. With a view of showing the absolute necessity of some decision being arrived at, the hon. Member mentioned that a short time ago a very eminent engineer told him that he had been employed by the Board of Admiralty against the Woods and Forests: it surely could not he for the good of the country that such a state of things should continue.

THE ATTORNEY GENERAL

was of opinion that when the matters referred to by the hon. Gentleman came to be considered it would be seen that the Commissioners, who were only trustees for the public, had been merely anxious to do their duty. The charge which had been brought against them by the hon. Member who spoke last was of the most singular description, and only proved that he had taken no pains to inform himself on the subject; for if the hon. Gentleman had reason to complain of any trepassers, and had preferred a complaint to the Woods and Forests Commissioners, it would have been immediately attended to. There was a remarkable case in point upon the records. In May, 1857, a complaint was made to the Commissioners, at the instance of certain landowners in Sussex, of the removal of stones and shingle from the beach, to the injury of their property. He, as Attorney General, recommended that a plaint should be brought by the Commissioners in the County Court; and the result was that the defendants were fined a certain sum in the way of damages, and the practice put a stop to without costing the country a single farthing. If the hon. Member, and any other parties aggrieved, had only followed the same course relief would have been afforded to them, and a recurrence of the inconvenience would have been prevented. But the hon. Gentleman spoke as if it were the duty of Commissioners of Woods and Forests to enclose the sea-shore, and to preserve it from trespassers; that showed how very little the powers of the Crown had been considered. By the law of the country, the whole of the foreshores, the beds of navigable rivers, and the beds and foreshores of estuaries, were vested in the Crown; and it was for the general public advantage that it should be so. It was vested in the Crown in a double sense—first, as regarded the right of property, and then as regarded a right of jurisdiction. It was commonly said that property was vested in the Crown for the good of the public, and that was true of all property given to the Crown; but it was in this sense true of property vested in the Crown, that the Crown could appropriate no part of the country to the prejudice of the subject. The public had a right to a free passage from the shore to the sea, to get into boats, to go out to sea to fish, and to use the shore for ordinary purposes; and the Crown had no right to appropriate any portion of the shore unless it were for the public interest and advantage. Unfortunately, in ancient times, improvident grants had been made of this description of property; and in other respects the rights of the Crown had been so much neglected that proprietors of land along the shore began by a series of encroachments to assume the right of property over the shore itself; and by the lapse of years, and by unrestrained acts of ownership, these rights were so far established that large tracts of property had been taken away from the Crown. And how had those rights been used? It was notorious to all who were acquainted with the subject that when this right of foreshores was vested in individuals, and there happened to be some public measure, such as the formation of a dock or railway, private individuals had the opportunity of pocketing large sums of money, which, if this property had remained in the hands of the Crown, would have gone into the public exchequer. The noble Earl to whom the hon. Gentleman had referred when he last brought forward this subject (the Earl of Derby) had received an amount of several hundreds of thousands of pounds for parting with his rights in this description of property to a public body; and in another case a sum of £90,000 had been claimed in respect of similar rights from the Birkenhead Dock Company. It had been said that disadvantage would result to the public if this property continued to be vested in private individuals who had it in their power to practise petty exactions. He agreed in that opinion, and a public document which he held in his hand afforded a signal example of its truth. The Duchy of Cornwall had granted a lease of the foreshore of the Scilly Islands to an hon. Gentleman who claimed in respect of that lease to be the owner of property which was held only pro bono publico. The ownership of this foreshore appeared to be attended with the most petty gains. For any piece of wreck cast upon the shore the owner obtained from the Receiver of Wrecks sums varying from 6d. up to larger amounts. From he paper to which he had referred it appeared that a topgallantmast belonging to some unfortunate vessel which had remained upon the sand for five or six days, was charged 4d, a wood-stocked anchor 3s., and a balk of timber ten feet long 7s.

MR. AUGUSTUS SMITH

denied that this small charge had been made in the light of exaction, but simply with a view of securing the rights of private property from infringement.

THE ATTORNEY GENERAL

said, it was not only for the use of the foreshore but the pier that the charge was expressly made. He found, however, that the charge increased in proportion to the size of the waif. The temporary accommodation of a wood-stocked anchor was set down at 3s., while for a spar measuring 101 feet, as it took up a much greater quantity of the shore, 7s. was charged. This illustrated the necessity of having property vested in public bodies, or the Crown instead of private individuals, The Commissioners of Woods and Forest, were nothing more than trustees for the public, and they had used the right vested in them for the purpose of gaining back for the public property which had been unjustly taken away. An official Return showed that from 1830 to July, 1859, twenty-nine suits had been instituted by the Commissioners of Woods and Forests, under the advice of the Attorney General, including the small County Court case of which he had spoken—of these, twenty-two resulted in favour of the Crown, three suits were still pending, two were discontinued, and two resulted in adverse decisions. One of those adverse decisions was a mere opinion of the Court, taken by his own advice, as to the construction of a grant, which the Court considered to be in favour of the right of the individual. These suits had produced to the country a sum of £185,000, and this had resulted entirely from the management of the Commissioners of Woods and Forests and their care in exercising the public duties committed to them. The greater number of these suits were determined before the establishment of the Act which he had had the honour of bringing in to make the Crown amenable to costs in the ordinary way, previous to that period the rule having been for the Crown neither to receive nor to pay costs. The expenses of these twenty-nine suits had therefore been under £15,000; and looking to the magnitude of the suits, one of them having been a suit against the Corporation of London, he thought that an average of £500 each was extremely moderate. But it must not be supposed that if the rights of the Crown were given up for the benefit of the adjoining proprietors, the public would gain any advantage whatever by that. Therefore, in point of fact, although the Commissioners might suggest alterations, it remained with the responsible legal advisers of the Crown alone to decide, and he (the Attorney General) must say, he could not see how these matters could be better provided for than by the mode in which they were now arranged.

MR. DUNLOP

thanked the Attorney General for his very satisfactory statement. The Crown had not very long ago taken possession of a portion of the shore on the banks of the Clyde, on which old men past the time of active labour and others were in the habit of catching shell fish and digging for bait, and had let it to a fishmonger at Glasgow for the annual rent of £30, thus depriving these poor people of the means of getting their living. Such a mode of administering Crown property ought not to be encouraged, but he was convinced that if it were administered on the general principle laid down by the Attorney General, it would be most beneficial to the public interests.