HL Deb 06 July 1857 vol 146 cc954-65
THE EARL OF DERBY

presented Petitions from the Llanelly Railway and Dock Company, under their common seal, and from David Lewis, of Shadey, Carmarthenshire, complaining of the Enforcement of the Rights of the Crown between High and Low Water-Mark. He was very much afraid that he should very imperfectly do justice to the merits of the petitions which he had been requested to present to their Lordships, because those documents involved many serious and complicated questions of law, which he felt his utter incompetency to deal with. At the same time, if the House allowed him, he would draw their Lordships' attention for a few minutes to some matters of detail; and he hoped he should, at all events, be able to satisfy their Lordships that the subject-matter of these petitions was one deserving of their consideration, as involving the general rights of subjects of the Crown. The documents had reference to the rights of the Crown to the land between high and low water-mark, round the whole kingdom, and not only to the nature of those rights themselves, but to the manner in which of late years it had been sought to enforce them. The two petitions were from different parties, and some of the allegations were different, but as they proceeded from the same locality, and were to some extent connected, it would he convenient that he should state their substance at the same time. The first was from Mr. Lewis, a gentleman who had considerable property on the coast of Carmarthenshire, and who was at one time the Member for the county; the other was from the same neighbourhood, from the Llanelly Railway and Dock Company, incorporated by Act of Parliament in 1828. It would first be necessary for him to state to their Lordships a few particulars connected with the locality to which these petitions referred. Mr. Lewis's property is on the side of an inlet from the British Channel, running nearly north and south, on the shores of which there is at low water a large expanse of sand uncovered by water. The land beyond the sand on both sides of the inlet consists of banks of mud, behind which, in some places, was a considerable extent on both sides of land which is occasionally flooded at high spring tides, but generally speaking partook of the character of salt marshes. The petitioner had retained possession of his property, partly consisting of salt marshes, on this inlet, undisturbed and undisputed, until 1845; he had exercised all the rights of ownership over it of which such property is capable, and had sunk a shaft in the salt marshes in order to work the coal which lay beneath, and this had been leased to a copper smelting company. Even so long ago as 1807 and 1812 these marshes had been expressly excluded from the enclosure Acts which applied to the neighbourhood, as the property of Mr. Lewis and his predecessors. It was under these circumstances that in 1845 Mr. Lewis found that an information had been filed against him, which recited that the sea shore BO far inland as the tide flowed belonged to Her Majesty, and claimed for the Queen the property up to the highest point reached by the tide, including the shaft which had been sunk. Mr. Lewis lost no time in filing an answer to that information, and he availed himself of the valuable assistance of Mr. Bethell; but it was not until 1851 that the Master of the Bolls pronounced a decree directing that the Crown should proceed against other parties before Mr. Lewis, by a trial at bar. The cause of this was a claim on the part of Lord Cawdor to manorial rights. This claim after some time was compromised between Lord Cawdor and the Crown; who, having got rid of this opponent, proceeded once more against Mr. Lewis. He could not but express his regret that this compromise had taken place between Lord Cawdor and the Crown, for if Lord Cawdor had turned out to be entitled to manorial rights, of course these proceedings could not have been taken against Mr. Lewis. When the case next came on that gentleman laboured under two disadvantages. One was, that Mr. Bethell, who had in the first instance been his counsel, had now become Solicitor General; and his services being now required by the Crown, he argued against him, with the advantage of all the information which he had derived while he was on his side. The next disadvantage was, that in 1847 the South Wales Railway had obtained an Act for the construction of a line along the sea coast, on a line pointed out by the Admiralty, and the embankment of this had much improved the character and the value of the salt marshes. The Lord Chancellor ultimately decided that the landward boundary between the property of the Crown and the subject was the medium line of all the tides occurring in the course of nature throughout the year. This definition, he thought, left matters much where they were before. He was aware that it had been entrusted to a civil engineer of great eminence to lay down that medium line; but Mr. Rendel having unfortunately since died without having determined the boundary; another person had been appointed to perform the duty, the suit was still lis pendens, and. Mr. Lewis was debarred from the free exercise and control of his own property. Now, it appeared to him that the judgment did not at all satisfactorily conclude the question. Besides, was it in the competency of the Crown to lay down a line which should at all times be the line of demarcation between the Crown and the landed proprietor? That seemed a very doubtful point, and one on which the course pursued was contrary to the authorities, both ancient and modern, on this subject. In Scratton v. Brown, Mr. Justice Bayley laid it down— That the Crown by a grant of the sea shore could convey not that which at the time of the grant is between the high and low water-marks, but that which from time to time shall be between the two termini. Where the grantee has a freehold in that which the Crown grants, his freehold shifts as the sea recedes or encroaches. But if the doctrine was to be laid down that the medium line of all the tides of the year was to be the boundary between the Crown and the proprietor, it set aside the doctrine of the possibility of gain to the proprietor by accretion. And if the Crown could dispose of that which lay between him and low-water mark, it was possible for it to interpose another proprietor between him and the sea, and thus do him very serious injury. To return, however, to the case of the petitioner. While the matter was still under adjournment, a notice, dated August, 1856, was served on the tenants of a farm of Mr. Lewis, three or four miles up the inlet, stating that slag and rubbish had been deposited on the foreshore belonging to the Crown, and asking them if they were willing to take a lease of the foreshore. Mr. Lewis said that his tenants were bound to do nothing contrary to his interests; that he himself could not, while the question between him and the Crown was pending, do anything to recognise those rights on its part which he disputed, The Crown replied that in that case they should take what steps they thought fit without regarding his interests. What he now complained of was in the first instance the great delay that had taken place, and the great uncertainty to which he was subjected as to the rights which he had exercised without contest for so long a time. And in the second place he complained that while he denied the right of the Crown altogether, and claimed a right himself by prescription, he was compelled—having no interest in this question—to fight on the part of the public as to how far the right of the Crown, when they had a right to the foreshore, should go, and where the medium line should be drawn. The case of the Llanelly Dock and Railway Company was even, he thought, still stronger than that of Mr. Lewis. That company was authorized by an Act of Parliament which received the sanction of the Crown in 1828, to form a railway and dock. They consequently formed a dock, and had taken and held lands, expended money, executed works, and carried on the railway in conjunction with the docks for thirty years; and it was at the end of that period they received notice from the Woods and Forests stating that they had taken for the construction of their railway land the property of the Crown, between high and low water mark, and they must enter into a composition with the Crown or take a lease of their own works. In reply the Directors expressed their surprise and stated that there was no ground for the claim made. Some time after this another letter was received from the Woods and Forests, which, while abandoning the claim first made, they stated that Mr. Rendel was then engaged in making a fresh map of the shore, and that when that was finished the Company would be again communicated with. Here, then, were the Woods and Forests first setting up one map and then telling the Company that if they did not compromise the matter they would be proceeded against, and at a subsequent period admitting that their map could not be relied upon, but that when another map was completed the claim would be renewed. He ventured to call their Lordships' attention to this case, because it was clear that if a period of sixty years' prescription was required for the security of the subject against the Crown, notwithstanding an Act of Parliament, there was no one dock or harbour which had been made for the last sixty years, under an Act, and which might have had an indefinite amount of money expended upon it, which might not be liable to be taken by the Crown. This claim, which was, he believed, entirely of a novel character, and utterly unknown to the law of England, affected not one individual, but the whole country, and proprietors of land all round the country. No one disputed that, within certain limits, the Crown had the dominion between high and low water mark—what he did not believe was, that the Crown had such a right as it could lease, sell, or make the means of profitable transactions by way of lease, or by forcing compositions. He believed that the right in the Crown was one to be exercised for the public interests, for the protection of public property, and to prevent the sea coast—the great highway of the couutry—being monopolized by individual proprietors, or the public being debarred from the use of it. A great authority who wrote in the time of Queen Elizabeth (Callis), said—"Rex habet proptietatem, sed populus habet nsum ibidem necessariam." Mr. Justice Bayley laid down that— "Primâ facie the Lord of the Manor is entitled up to high water-mark; but between, high and low water-mark, the ordinary high and low water-mark, the right is primâ facie in the Crown. The right of the Crown is not in general for any beneficial interest to the Crown itself, but for securing to the public certain privileges in the spot between high and low water-mark; and if any nuisance is committed on that spot, then the Crown has the power of proceeding to rectify such nuisance. Woolrych commenting on this, said:— If the King were to make the seashores of the realm a source of private sale and profit, he would, according to what is said before by the Judges, be acting contrary to the trusts for which the ownership of the shore was vested in the Crown by the common law. And yet the Crown is now applying this right in dozens and hundreds of cases, not for the benefit but to the injury of the public, and to the aggrandisement of the Crown property by compelling the adjacent proprietors to pay a sum by way of compromise, or to accept a lease under the Crown, paying a sum for it. This seemed making such a use of the Crown property as, by the authority he had just quoted, was contrary to the common law. There were two cases to which he wished to call their Lordships' attention, as illustrating the restrictions which the law imposed upon the exercise of this power by the Crown. In the Attorney General v. Burridge, it was laid down "that the Crown could grant by letters patent all the land between high and low water-mark, but subject to the public right of passage, and that the restriction of such right was a nuisance, and a matter of fact to be inquired into." In the second case buildings had been erected by the corporation of Portsmouth, between high and low water-mark, which were ordered to be abated by a decree, inasmuch as they intercepted the flux and reflux of the tide, and it was held to be no defence that the buildings were placed there by grant of the Crown by charter to the corporation. No general order could be allowed to prevail against the public rights. Therefore, according to the law, the Crown was entitled to certain rights on this portion of the soil, but only for useful public purposes, and for the prevention of encroachments; but, beyond that, the Crown had no rights. There were involved in these petitions two important points—first, as to the nature and extent of the rights of the Crown, whether they were absolute possessory rights, or mere fiduciary rights, to be exercised in trust for the benefit and protection of the public; and next, the manner in which the rights of the Crown had in fact been exercised. He could not see, even setting aside prescription and all rights founded on enjoyment for periods of a shorter duration than sixty years, how it could be contended that those rights could be valid against the provisions and powers of an Act of Parliament, sanctioned by the Crown itself. If this principle were admitted no dock or harbour in the kingdom would be safe. It followed almost as a matter of coarse that almost every wet dock must be made on that part of the Crown lands between high and low water-mark. It is the natural place for a dock; and therefore, every dock constructed within the last sixty years, even under Act of Parliament, would be liable to be seized if it infringed on the alleged rights of the Crown between high and low water-mark. He thought this could not be sanctioned by Parliament. It was plain that the mode in which individuals were called on one after another to uphold a public principle was most vexatious. Every individual who now submitted to aggression, or compromised the claim, or took a lease, strengthened the case against his neighbour, and the Crown might thus gradually acquire against the subject powers that it was never intended it should possess. The second case not only set aside the rights of the subject—it went the further length, that for sixty years the provisions of an Act of Parliament should be no security. He thought these were subjects well worthy the attention the House and of the Government. The petitioners prayed the appointment of a Select Committee to inquire into the rights of the Crown, and the manner in which they had been exercised. He did not intend to press that upon their Lordships at present, but he did hope that the Government would take some steps to quiet the apprehensions that prevailed from one end of the kingdom to the other with respect to the new and unheard-of claims of the Crown; and that they would set at rest matters which appeared to be involved in some doubt. It should be declared distinctly by Act of Parliament what was between the Crown and the subject; what were the rights of the Crown to land between high and low water-mark; and what was the extent to which those rights should go.

LORD STANLEY OF ALDERLEY

said, that many years ago, the attention of the Government was called to the encroachments taking place on the coast of Carmarthenshire, on that portion of the soil comprised between high and low water-mark. The opinion of the law officers of the Crown was taken on the point in 1839. In 1845 an information was filed against the petitioner and others, to assert the right of the Crown, and so matters continued for some time, until the verdict was found for the Crown against Lord Cawdor. Some of the persons against whom informations had been filed took leases from the Crown for the land they had occupied between high and low water-mark. And in 1855 the question between the Crown and Mr. Lewis was referred to Mr. Rendel, to decide as to what should be the high and the low water-mark on the property of that gentleman, according to the principle of the decision of the Lord Chancellor, Mr. Justice Maule, and Mr. Baron Alderson, that that line should be the medium of the tides of the whole year. The carrying out of this arrangement had been interrupted by the death of Mr. Rendel; but, in May last, Mr. Bidder—who had been named by Mr. Lewis as the person he wished to have as arbitrator—was named as his successor. The present position of the matter was this:—that Mr. Lewis did not deny the right of the Crown; on the contrary, he acquiesced in it, be cause the verdict in the case of Lord Cawdor, which involved the same question, was not appealed against. He had accepted an arbitration, not to decide on the rights of the Crown, but within what limits the Crown should exercise those rights.

THE EARL OF DERBY

That agreement was without prejudice to the right by prescription.

LORD STANLEY OF ALDERLEY

said, the verdict to which he had referred was not subject to any exception, and had not been appealed against. Although a railway might be carried over a portion of the shore, the rights of the Crown remained the same as they were before. Therefore, as far as Mr. Lewis was concerned, there could be no ground whatever of complaint. The Government had never treated the party with harshness in seeking to enforce the claims of the Crown, As to the Llanelly Docks, although twenty years might have passed by, the rights of the Crown were not thereby given up. Surely it was the duty of the parties constructing the docks to ascertain, before doing so, that the title to the ground was a good one. He thought that the noble Earl opposite would be the last person to allow the opposite doctrine to prevail. The noble Earl said that there was no beneficial interest in the Crown. Now, how would the noble Earl like to have such an argument turned against his own claims to a portion of the shore near Liverpool. The right of the noble Earl to the foreshore was a grant from the Crown, and, of course, the Crown could give to the noble Earl, or to his ancestors, no rights that it did not itself possess. If, then, the Crown had no beneficial interest in the foreshore, the noble Earl could have no beneficial interest in the foreshore of Liverpool. If the claim of the Crown be unjust, and if it ought to be upset, he hoped that the noble Earl would be prepared to return the very considerable sum he had received from the Birkenhead Dock Company. The legal question he would leave to those who were more qualified than himself to speak upon it; but, after what he had said, he trusted that their Lordships did not suppose that those claims of the Crown were unfounded, or that the Government had used any harshness in enforcing them. The Government would have abandoned their duty if they did not enforce them.

LORD WYNFORD

said, that it might be recollected that, last Session, he warned certain Scotch proprietors not to attempt to improve the docks and ports of Scotland before they had satisfied themselves that no demand of this kind could be made on them by the Crown, He had then in his eye, not only the subject matter of these petitions, but a number of other cases in which the department of Woods and Forests had cruelly pressed on proprietors, and there were numbers of instances in which the proprietors of land on the sea-shore, and on the banks of navigable rivers, were not able to deal with their property in consequence of the vexatious course taken by the Woods and Forests. He would not go further into the matter, but would merely say that he was surprised to hear the noble Lord say that a verdict had been given for the Crown in one case, when, in point of fact, the case was settled by a compromise. He was also surprised to hear that Mr. Lewis had submitted his claim to arbitration since Mr. Rendel's death; for it was stated in the petition presented that day, that no other arbitrator had been appointed. The property in question, to his knowledge, lay far above high-water mark.

THE LORD CHANCELLOR

said, that the doctrine laid down that evening was rather startling; for the noble Earl, setting out on the assumption that the Crown had the right to the disputed shore, said that the question was whether it had been properly asserted; and he gave, as one reason why the right should not be asserted, that the Crown held the shore, not for its own benefit, but for the use of the public. It seemed strange to say that the Crown, which held the land for the use of the public, should not assert its right: for the more strenuously it asserted it, the more it would seek to preserve the land for the use of the public. If the Crown allowed property of this kind to be encroached on year after year, and did not claim it for the use of the public, the Crown deserted its duty, and, in fact, gave up what belonged to the public to the neighbouring proprietors. The noble Earl said that the assertion of these rights was inconsistent with the making of docks, and of those in this case especially; but, if the dock company had a title which was good against the Crown, why was it not set up in answer to the information? When he (the Lord Chancellor) was one of the law officers of the Crown, he, in conjunction with his noble Friend the Lord Chief Justice (then Attorney General), was consulted with regard to the rights of the Crown with respect to this question, and they gave what, of course, they considered a sound and correct opinion, which, however, was not acted on until the Government of Sir Robert Peel, when Sir Wm Follett gave directions to have informations filed. What the Cause of the delay was he did not know, but the trial did not come on for several years afterwards; but at length it was decided that the Crown had the right to the littus maris. The matter came before him (the Lord Chancellor) by way of appeal, to decide what the littus maris was. The civil law carried the doctrine very much further than was ever recognised by the law of England; and, the matter being one involving a question of common law, he obtained the assistance of Mr. Justice Maule and Mr. Baron Alderson, who heard the case with him. It was most elaborately argued, and they came to the conclusion that the rights of the Crown were bounded by the middle line between the highest and lowest point to which the spring-tides reached. Then came the point, how was that line to be drawn? The matter came before him by petition, and it was arranged, with the consent of both parties, that an engineer should be named, who, with the decision of the court in his hand, should draw the required line; and Mr. Rendel was selected, If Mr. Rendel had been guilty of any delay, it was Mr. Lewis's fault, for not forcing him on; but no complaint was made of his proceedings. When Mr. Rendel died, it was necessary to appoint another arbitrator, and Mr. Bidder was appointed. With regard to Mr. Bidder's having been appointed with Mr. Lewis's approbation, he bad in his hand a letter from Mr. Lewis's solicitor, in which he stated that he was Willing to accept Mr. Bidder's arbitration. What had been the cause of the delay, he (the Lord Chancellor) did not know; but the matter stood thus:—that the Crown, on its own part, or rather on the part of the public, had asserted certain rights, in which it had been successful.

THE DUKE OF BUOCLEUOH

said, that as regarded the proceedings of the Woods and Forests, there were many complaints of the vexatious manner in which this part of the business of the department was conducted. He knew of a case in which a disputed right of this kind had been suspended over a proprietor and his father for years and years, and no decision had been come to. It would be a desirable thing for the public, if the Woods and Forests were compelled to bring these matters to a speedy trial.

LORD CAMPBELL

was understood to protest against the doctrine which had been laid down, and which was calculated to produce uncertainty where none existed, with regard to the rights of the Crown, which was unquestionably entitled to the soil of the sea-shore between high and low Water-mark.

LORD BROUGHAM

said, there was no doubt about the law; but there ought to be some limit between the rigorous and the capricious exercise of these rights of the Crown. This was not, however, a subject for legislation, as the rights of the Crown were undeniable; but the Crown could only deal with them so as to benefit the public.

LORD WENSLEYDALE

agreed with his noble and learned Friend on the woolsack and his noble and learned Friend (Lord Brougham) that it would be entirely useless to legislate oh this subject, as the law was perfectly clear, The sea-shore belonged to the Crown for the benefit of the public; but there was a difficulty in interpreting what was the foreshore, and the question came before the Lord Chancellor, who, with the assistance of two of the common law Judges, had laid down the proper line. There could be no doubt that the sea-shore was held by the Crown for the benefit of its subjects, and the Crown had a right to grant the land to any one it pleased, provided that the grant was net inconsistent with its rights.

Petitions read, and ordered to lie on the table.

House adjourned at Seven o'clock; till To-morrow, half-past Ten o'clock.