Beckett (Alfred F.) Ltd v Lyons

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE HARMAN,LORD JUSTICE WINN
Judgment Date29 November 1966
Judgment citation (vLex)[1966] EWCA Civ J1129-3
Date29 November 1966

[1966] EWCA Civ J1129-3

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(From: His Honor Henry Salt, Q.C. Chancellor, County Palatine of Durham)

Before:

Lord Justice Harman

Lord Justice Russell and

Lord Justice Winn

Alfred F. Beckett Limited and The Rural District Council of Easington
and
R. Lyons (male) G. Robins (male) J. Smith (male) and Andrew Sanderson Softlky

Mr. C.A. SETTLE, Q.C. and Mr. R.A. PERCY (instructed by Messrs. Lewin, Gregory, Mead & Sons, Agents for Messrs. Keenlyside & Forster, Newcastle-upon-Tyne) appeared on behalf of the Appellants (Plaintiffs).

Mr. E.I. GOULDING, Q.C. and Mr. F. HUMPHREY POTTS (instructed by Messrs. Ward, Bowie & Co., Agents for Messrs. Richard Reed & Co., Sunderland) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE HARMAN
1

The plaintiffs sue the defendants in trespass seeking injunctions to restrain their entry upon parts of the foreshore in the County Palatine of Durham and from collecting thereon or from carrying away there from sea-washed coal. Her strip of foreshore in question lies between Seaham and Hartlepool, both in the County, and extends for about nine miles. As a matter of title it is divided into a northern section A to B on the map and a southern section marked C to D. between these is a strip marked B to C held under a different title. The whole of the foreshore in the County was formerly part of the property of the Prince Bishop of Durham held by that prelate by a supposed grant from the Crown before the time of living memory. The foreshore in the County was retested in the Crown by the Act of Parliament 21 & 22 Victoria chapter 45.

2

The intervening strip B - C was purchased of the Crown by a deed made in 1914 containing a grant of the foreshore saving to the Crown mines and so forth within or under the foreshore. The first plaintiff traces his equitable title under that deed having purchased from certain personal representatives, which purchase will not be completed by the transfer of the legal estate until the year 1969t though the equitable estate entitles the first plaintiff to possession.

3

At the time when the writ was issued in this action the foreshore from A - B and C - D was held by the second plaintiff under a Crown lease from year to year made on the 18th August, 1934. That lease accepted from the demise the mines and substrata and the right for licensees of the lesson to ride, drive, walk or pass over and fish and bathe and gather seaweed or ware (a species of seaweed) and to land goods and embark them; also the right to lay sewers and to maintain two aerial roadways. The agendum of this deed was made "subject to easements or quae. Easements now exercisable" and the credendum consisted of a rent of £30 a year and a royalty per ton of sand, stone, beach shingle "or other materials" taken off the demised premises.There were covenants by the lessees not to remove or permit to he removed such other materials without the consent of the Crown, to use their best endeavors to prevent unlawful acts, and not to sublet.

4

The second plaintiff held over under this lease until the 7th July, 1960, when a new lease was executed containing a demise by the Crop to the second plaintiff of the are shore between A and B, and C and 2), mines and minerals being excepted, for a term of 14 years subject to public rights of navigation and fishing "and all other rights or easements or quasi-easements and privileges now exercisable". The rent was £85 a year plus a royalty on sand, stone, beach shingle or other materials removed, and there were lessees' covenants not to remove such materials without consent and to prevent unauthorized removal and to permit the public to resort on foot for private recreational purposes but not to allow anyone to drive mechanical vehicles on the foreshore.

5

The defendants do not rely on any of the exceptions in the instruments above referred to but deny that they are trespassers and allege that as members of the public or alternatively as inhabitants of the County of Durham they are entitled to enter on the foreshore with or without animals or vehicles and to collect and remove there from sea-coal. They justify this right by a prescription from time immemorial either by common law or by custom or by lost grant or declaration of trust.

6

"Sea coal" has not in this case what I should have taken to be its ordinary meaning, which was, coal transport by sea in Newcastle bottoms and landed in London, where Sea Goal Lane still exists. A proclamation was issued by Edward I against burning this sea coal, but it had become a common fuel by the time of Elizabeth I and it will be remembered that according to Mistress quickly when Falstaff promised to marry her he was "Sitting in my Dolphin-chamber, at the round table, by a sea-coal fire, when the prince broke thy head for liking his father to a singing-man of Windsor", The expression "sea coal" in this district meantuntil the present century snail coals washed fey the tide upon the beach front the submarine outcrops off the Durham coast. During the present century this supply has been largely augmented because the local collieries which come down to the sea have since, the year 1911 been in the habit of depositing their coal dirt into the sea by aerial railways or otherwise. This coal is washed by the tide en£ a great deal of it gets back upon the beach and drifts back and forth as the tides ebb and flow.

7

The action was heard by the Chancellor in the Palatine Court of Durham and evidence over the time of living memory satisfied him that it was right to assume the practice of entering on the foreshore and there gathering the sea coal whether above or below low water mark and carrying it away for use or salt to be Immemorial and one to which a legal origin ought if possible to be attributed. This he found himself able to do upon the authority of the well-known case of Goodman v. Mayor of Saltash (7 Appeal Cases 633). He supposed a presumed grant before 1189 to the Prince Bishop a corporation sole, subject to a trust or condition laid upon him and binding on his conscience and on that of his successor the Grown to allow to the inhabitants of the County the free right to take coal from this strip of foreshore. The main question in this action, in my judgment, is whether the evidence called before the Chancellor justifies the glittering structure so raised upon it.

8

Now there is no doubt that from time to time back to about 1895 people from the locality have from time to time gone down on to the beach and picked up and taken away coal for their own domestic use. The way down to the shore was steep and until fairly recently there was no road let alone a highway, down on to the foreshore. Wheeled vehicles used to wait at the top of the cliff and take bags of coal from people struggling up from the shore.

9

Of course the amount of coal on the shore increased very much after 1911 when the colliery tipping started. On the other hand people who lived in the vicinity were mostly minerswho got free coal as port of their wages and therefore did not worry about collection sea coal except when out of employment. Evidence was given of a great increase in coal-gathering over the strikes of 1921 and 1926, and some evidence of bags of coal having been sold as far afield as Seaham in the north and Hartlepool in the south around those times.

10

The beaches were shut during both ways, but after 1946 there was a resumption of the practice and it was now possible to get motor vehicles down on to the beach apparently by two roads one of which was closed by the local authority after a public enquiry and the other of which is still the subject matter of an action in the Durham Palatine Court.

11

It seems that after the last war the local authority at the instance of the Crown rediscovered the 1934 lease, which had been lost, and made an attempt to put its terms into effect by preventing unauthorized access to the foreshore. This culminated in an agreement made in 1962 with certain individuals representing what was called the Goal Traders' Association whereby the second plaintiffs licensed the Association "to take and carry away deposits of coal" on the A - B and C - D strips of the foreshore for a term of two years at a rent of no less than £6,000 a year. There was a covenant by the licensees to use only "the recognized road to the beach at Dane Holm". That is by point C on the map, the northern point of the C - D strips. The rent was far more than the Association could pay and the agreement was abortive. The second plaintiffs then, on the 1st February, 1964t relying on the 1934 lease and the promise of a further lease (which has in fact been granted as I have mentioned), licensed the first plaintiff for five years to collect coal on the foreshore at a rent of £3,500 a year, using as before only the recognized road.

12

The title, therefore, of the two plaintiffs to maintain the action is not in doubt, the first plaintiff being the owner of the B - C strip and licensee of the A - B and C - D strips, and the second plaintiff being the lessee from the Crown of thelast two strips.

13

The decision of the learned Chancellor really began and ended with the case of Goodman v. Mayor of Saltash (already mentioned). That case started on an entirely different footing to the present. There the House of Lords was confronted with an agreed set of facts and felt constrained to find an explanation of them in consonance with the law. The agreed facts were set out in a Special Case and included the following. First that the respondent the Mayor And Corporation of Saltash as a corporation by Royal Charter was the owner by prescriptive right of the bed and soil and a several oyster fishery in the estuary of the River Tamar; second, that the "free inhabitants of the ancient tenements of the Borough of Saltash have from time...

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