Richard Eaton Pearson v Lillie Eileen Julia Foster
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWHC 107 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-000782 |
| Date | 27 January 2017 |
[2017] EWHC 107 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building, Royal Courts of Justice
7 Rolls Buildings, Fetter Lane
London, EC4A 1NL
Mr Justice Newey
Case No: HC-2016-000782
Mr Stephen Jones (instructed by Scott Rowe, Axminster) for the Claimant
Mr Nathan Wells (instructed by Beviss & Beckingsale, Honiton) for the Defendant
Hearing dates: 1–4, 7 & 8 November 2016 (Winchester Law Courts) & 11 November 2016 (Rolls Building)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimant, Dr Richard Pearson, and the defendant, Mrs Lillie Foster, own adjacent properties in Maiden Newton, Dorset, which stands on the River Frome. A channel carrying water from the river passes through Dr Pearson's property, Maiden Newton House, and on to Mrs Foster's, Maiden Newton Mill ("the Mill"). This case concerns the relationship between Mrs Foster's rights as the owner of the Mill and fishing rights that Dr Pearson enjoys.
Some geography
As it approaches Maiden Newton from the north, the River Frome passes under an embankment carrying a railway line. On the southern side of the embankment are to be found some sluice gates. A little way further to the south, the river bifurcates. One channel turns sharply to the west before swinging back to the south and meandering southwards through meadows. This channel ("the Western Channel") is fed by various springs as well as by water from the main river. The other channel ("the Eastern Channel") continues to the south past an open area between it and the town called "The Quarr" and then (also to its east) the church and, beyond that, Maiden Newton House before arriving at the Mill. For most of its length, the Western Channel is broadly parallel to the Eastern Channel, but the latter is a good deal straighter.
As the Eastern Channel nears the Mill, it divides into two parts, referred to in these proceedings as the " East Leat" and the "West Leat". The East Leat leads to a set of three vertical-lift sluice gates immediately to the north of the Mill building. These are operated by winding gear from a wooden bridge on their southern side. When the gates are open, water flows under them and then through a pair of brick-lined bypass tunnels beneath the Mill building.
The West Leat leads to a large breast-shot water wheel at the western end of the Mill building. Adjacent to the wheel, there is a mill wheel control gate which is operated from within the Mill building. Northwards of the wheel and control gate, the West Leat is separated from the East Leat by a narrowing area of grass and then, to the point at which the Eastern Channel splits into the two branches, a spillway. When the water level in the West and East Leats rises above the top of the spillway, water overflows into a narrow channel that meets water from the sluice gates just north of the bypass tunnels. There is a bridge from the grassed area to the eastern side of the spillway, from which can be reached the bridge with the winding gear for the sluice gates.
Three further features of the West Leat should be noted. First, there is a small sluice gate between the spillway and the northern end of the grass. Water entering this would continue into the channel within the spillway and thence through the bypass tunnels under the Mill building. Secondly, on the western side of the West Leat is to be found the inlet to a hydraulic "Ram" which, I gather, has served to supply water to a farm some distance away. Thirdly, there was formerly something described as a "weir" running diagonally across the West Leat. 1887 and 1902 Ordnance Survey maps of Maiden Newton both show a "Weir" in this position, and it also appears in plans included in sales particulars in 1931 and 1936. The feature in question is marked on each of the maps with a single line, and Oliver, "Ordnance Survey Maps", 3 rd ed., explains (at page 130) as regards the treatment of weirs on Ordnance Survey maps:
"On single streams a single line is used if less than 1 metre in length vertical or horizontal at 1:1250, or 2 metres at 1:2500: for a greater horizontal distance two lines are used."
That there was a "Weir" where shown in the maps is borne out by the fact that, when clearing the West Leat, Mr Ken Hughes, who has worked extensively on the Mill and Leats since the property was purchased by Mrs Foster, found the remains of 10–15 "crystallised" wooden posts in a straight line and at an angle across the bed of the Leat in the position in which a "Weir" can be seen in the Ordnance Survey maps. These, it is fair to infer, will relate to the "Weir".
If allowed to do so, water from the West Leat would flow southwards under the mill wheel to the mill race before rejoining water from the bypass tunnels a little to the south of the Mill building. Water then proceeds under the A356 road to meet the River Hooke, which reaches Maiden Newton from the west. Water from the Western Channel has already joined the River Hooke after passing under another road bridge slightly to the west. The combined river continues to the south- east as the River Frome.
Some history and description
Maiden Newton House
Maiden Newton House is next door to Maiden Newton Church and was formerly a Rectory. It was at least largely built in the nineteenth century in a Victorian Gothic style, replacing an earlier house.
In 1938, Maiden Newton House, which was then still known as "The Rectory", was sold "pursuant to the Parsonages Measure 1930". It was re-sold in 1947 to a Major Otho Bullivant, who gave it to his wife Penelope in 1960. In turn, Mrs Bullivant gave the property to her son Andrew in 1968 and Mr Andrew Bullivant passed it on to his wife Penelope in 1970. Maiden Newton House was then sold to a Mr and Mrs Bryan Ferriss (in 1985) and on to Parafic Corporation (in 1994). In 2003, Parafic Corporation sold the property to Dr Pearson, who was registered at the Land Registry as its proprietor with effect from 12 March 2003.
The property of which Dr Pearson is the owner is substantial. It extends as far north as the point where the River Frome bifurcates south of the railway embankment and westwards to Chilfrome Lane, thus encompassing much of the Western Channel. From the point the river bifurcates to the southern edge of the church, Dr Pearson's land is bounded to its east by the Eastern Channel. On the river side of Maiden Newton House itself, there is a lawn running down to the Eastern Channel and, at the southern end of this, a footbridge across the Eastern Channel. The property continues southwards beside the East Leat until it meets the Mill.
The Mill
The Mill and Eastern Channel have clearly existed for centuries. An arbitration award dated 27 October 1608 records a dispute between a "tenant to the Mill in Maydon Newton" and the parson and farmer of the "parsonage of Maydon Newton" concerning "the repair of the bank of the watercourse running by one close of meadow parcel of the glebe of the said parsonage, to the said Mill". The present Mill building appears to date back to the late eighteenth century. An 1825 issue of the Dorset County Chronicle advertises the sale by auction of "All those capital FLOUR MILLS, called Maiden Newton Mills, with the dwelling-house, yard, garden, mill-house, stable for ten horses, bakehouse, Brewhouse, and other buildings thereto belonging, with an excellent meadow adjoining" and states that the "mills, dwelling-house, and buildings were erected about 30 years since"; a "very extensive trade" was said to have been carried on there for the last 23 years. 22 years on, in 1847, the Sherborne and Yeovil Mercury carried an advertisement relating to the Mill. Headed "A FLOUR MILL TO LET", it referred to "A LARGE and Commodious BUILDING, late a Spinning Factory, and well adapted in every respect for a Flour Mill". At much the same time, the Parliamentary Gazeteer of England and Wales noted a flax mill, which "in 1838 employed 55 persons".
In 1918, the Mill was leased to a Mr Victor Mearns by the tenant for life of the Frampton Court Estate for a term of 14 years. Exceptions and reservations provided for the landlord to have, among others, shooting rights and rights to use water from the river to irrigate meadows. Nothing was said about fishing.
In 1931, the Mill was marketed for sale as part of the Frampton Court Estate, which was explained in particulars to comprise "nearly the whole of the Parish of Frampton, together with portions of the Parishes of Bradford Peverell, Sydling St. Nicholas, Maiden Newton and Frome Vauchurch". Lot 71 comprised the Mill with "such water rights as at present exist". The sales particulars recorded the lease to Mr Mearns and that the "Mill Pond supplies a good head of water and affords exceptional driving power", that the "Mill Plant consists of an undershot water-wheel and connections" and that a "separate water-wheel and gear for electric plant is claimed to be the property of the tenant".
In the event, the Mill was sold to Mr Mearns. The conveyance, which was dated 29 June 1932, provided for there to be excepted and reserved "unto the said Edgar Creyke Fairweather and his successors in title", among other things, the Ram and the following rights:
"(1) All rights of fishing in that part of the river and Backwaters included in the hereditaments hereby conveyed (hereinafter called 'the said river').
(2) A right for the said Edgar Creyke Fairweather and his successors in title and his and their licensees and keepers:-
(a) to gain access over such part of the hereditaments hereby conveyed to the said river and...
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...Devon Angling Association v. Scottish Water [2018] SAC (Civ) 7 [9].53. Devon Angling (n56) [9].54. Mott (n1) [3].55. Pearson v. Foster [2017] EWHC 107 (Ch) at [53]. Compare Tummel Valley Leisure (n15) 56. Similar problems have been observed in relation to agricultural management practices. ......