COASTAL ACCESS: BLUNDELL V. CATTERALL

COASTAL ACCESS FOR HORSE RIDERS

Are there really no common law rights in England?

The government’s approach to the drafting of the Coastal Access provisions in Marine Bill is underpinned by an assumption that there is no public right of access, for the air and exercise, to the foreshore and beaches which surround England. The case of Blundell v. Catterall is cited as the justification for this. See for example the Countryside Agency’s Board Paper, ‘Improving Coastal Access an Update, 2005[i]. (APO5/25), and Dr. Helen Phillips’ speech on Coastal Access at the Cambridge University Land Society Debate[ii].

This paper looks critically at the basis for that assumption.

The validity of the Blundell v. Catterall judgment is not in question. What is in question is the government’s response to it. Upon discovery that the case raises an element of uncertainty about the legality of public access to the foreshores, beaches and dunes around the English coast, their chosen remedy, has been to propose statutory protection to those areas for persons on foot only.

No one reading the full report of the case could fail to notice that in the early 1820s it was generally understood that the public had from time immemorial enjoyed unchallenged access to the sea-shore and foreshore not only on foot, but also on horse back and even with carriages. Public access was certainly not confined to persons on foot only.

Based on the evidence of this case, it is difficult to justify the government’s decision to grant statutory protection solely for pedestrians. If there is a possibility that existing ‘de facto’ access on foot is in some way under threat and requires new legislation to clarify matters; why is the same not true of access for horse riders?

(The underlining represents my emphasis in the extracts quoted below.)


Blundell v. Catterall. 1821[iii].

(5.B.& Ald. R. 268; SC 7. ENG. C. Law R 91.)

Briefly, the case brought before the court was an action for trespass over the beach and fore shore of Great Crosby in Lancashire. The defendant had been operating a business, charging money for transporting visitors in bathing machines over the beach and foreshore in order to bathe in the sea. It was also alleged that this activity caused damage to the land. The lord of the manor of Great Crosby, (the plaintiff) was the acknowledged owner of the land and had an exclusive right of erecting stake nets for fishing there; he maintained that the defendant had no right to carry on this commercial activity on his private property.

The general question to be decided was, whether there was a common law right for all the king’s subjects to bathe upon the sea shore, and to pass over it for that purpose, on foot, and with horses and carriages. But because the land was proven to have been private property from time immemorial the judges were obliged to also consider a further question:

“the question really is, whether there is a common law right in all his subjects to do so in locus quo, though the soil of the sea-shore, and an exclusive right of fishing there in a particular manner (namely with stake nets), are private property belonging to a subject, and though the same have been a special peculiar property from time immemorial”.
Pages xvii. Holroyd J.

The judge Abbott C. J., decided that there was no such common law right to bathe in this case. The defendant had endeavored to make a special profit by conveying persons over the land belonging to the plaintiff, and it doing so had caused damage. In addition, the plaintiff had been denied any interest in the profit made by the defendant as a result of his claim that he had a common law right of passage.

The judge also chose to consider the wider national implications of this judgment and he clearly did not believe that it would make a material difference to public access elsewhere, particularly on Crown land.

“In some parts, the King is the owner of the shore; and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claims or opposition; others may have had too much discretion to put their title to the soil to the hazard of a trial by an unpopular claim to a matter of little value.” Page xxxix Abbott C. J.

He also noted that public access to the sea shore was analogous to that on inland wastes and commons, although differing slightly.

“But, further, the practice, as far at least as I am acquainted with it, differs in degree only, and not in kind or quality, from that which prevails as to some inland wastes and commons; and even the difference in degree is not in some instances very great. Many of those persons who reside in the vicinity of wastes and commons, walk or ride on horseback, in all directions, over them, for their health and recreation; and sometimes even in carriages, deviate from public paths into those paths which may be so traversed safely.” Page xxxix. Abbott C.J.

In considering whether his judgment was likely to result in widespread actions for trespass being brought before the courts, he concluded that it would not. The reason he gave for this was, that where there was no injury to the owner, the existing law provided suitable checks against such actions.

“But, shall the owner of the soil be allowed to bring an action against any person who may drive his carriage along these parts of the sea shore, whereby not the smallest injury is done to the owner? The law has provided suitable checks to frivolous and vexatious suits: and, in general, experience shows that the owners of the shore do not trouble themselves or others for such matters”. Page xl. Abbott C. J.

Had the true intention Abbot C. J.’s judgment been to prevent the people from roaming freely over beaches all around the coast one would expect there to have been a surge of actions for trespass. The fact is that did not happen; it was acknowledged to be a special case relating to particular circumstances.

Whether or not this important judgment had a significant impact on public access to the sea-shores throughout the country, can only be gauged by studying the aftermath.

An Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm,
compiled from the Text Writers and Decided Cases[iv];
by Robert Gream Hall, Esq. of Lincoln’s Inn, Barrister. 1830

Nine years later, writing on the subject of the rights of the Crown and the public in the shore; Hall maintained that where the Crown had granted the ownership of the shore to a private individual, it was not always the case that the grantee could exclude the public.

“It seems certain that the mere ownership of the soil will not exclude the public, or authorize the owner to exclude the public fishery; for no subject can take more than the King had to grant, out of the shore or the sea bottom, therefore the grantee must have taken his grant , subject to the public right of piscary, to which the sea and sea-shore were liable, even in the King’s hands.” Page 56.

Hall asserted that public rights to the sea shore were to be construed favourably.

“But although it may be deemed an object of no small importance to protect the right of the Crown to the sea shore, against encroachments by individuals; yet where a claim is made on behalf of the public, and the King’s right is opposed to the general right of the subject, Courts of Law, which favour liberty, and have an anxious regard for public rights, and presume the King himself to be personally interested in the public good, will protect the claims of the public to the utmost verge of the law. The ownership of the shore, as between the public and the King, has been settled in favour of the King; but as before observed, this ownership is and has been immemorially, liable to certain general rights of egress and regress, for fishing, trading, and other uses claimed and used by his subjects. These rights are variously modified, promoted, or restrained by the common law, and by numerous acts of parliament relating to fisheries, and the public safety, but a statement of which is not within the limit of our subject.” Page 120.

There is a separate, supplemental chapter on the public right to use the shore for bathing, in which he remarks on the case of Blundell v. Catterall.

“This was the first case in which the public right to use the sea shore for bathing, was ever judicially claimed or opposed, as was remarked by Mr. Justice Bayley.” Page 185.

Hall argued that the text of Bracton (which had been dismissed by the court) favoured the rights of the public.

“In the case before us it was argued, that although no express mention is made of bathing as a general common law right, yet the common right to frequent the shore, (littus,) without limitation of purpose, (so that it be legal,) is expressly asserted by Bracton.” Page 190.

According to Hall the text of Bracton had been misconstrued by the Court, firstly in their consideration of his text in relation to rivers rather than the sea shore and secondly by the learned judges conclusion that because the text is taken from Civil law, that the doctrine may not be good at Common law.

“The public in every parish, manor, &c. on the coasts, have a right to one or more convenient ways to reach the shore, according to the wants, extent and localities of the district, it is not to be denied, since without this fishing and navigation would be valueless. Nor is it sufficient to say such a way should be a mere footway; and if it be a way for horses and carriages, and I thus have the right to drive down to and along the shore in a machine or carriage, and float on the sea, why may I not do so to get into the sea itself? The right of way to the sea is never yet contended to be a mere footway; the same mode of approach to and from the sea as is allowed for fishing and embarkation, it is all that is desired on behalf of bathing.” Page 203.

“…and the true question all along is, whether the King’s ownership in the shore is not itself subject to this usage. The ownership of the Crown in the shore has always been subject to the rights of using it as a road for fishing and navigation. It is evidently not the sea alone, but the shore also which is subject to these common law rights. Thus, the frequenting of the shore is claimed and enjoyed as an accessory to these rights, which are the principals.” Page 203.

“It is difficult to regard the fishery as a public and general right, and the necessary way and passage for its exercise as a local and partial privilege. The public have a right to navigate the seas, and to fish therein, is not limited to particular places; it is not a local right, but pervades the whole coast of England. The right of way commensurate with these rights would seem to be commensurate.”

Further, the law did not compel goods (not customable) to be landed at a port, therefore, he reasoned, the public required latitude in order to the exercise their right of fishing.

“The Common Law does not control in such manner, the general rights of fishing in a navigating the seas. It does not compel the subject to embark or disembark his person or his goods (not custumable) at one place more than another; and it is conceived, that in order to the full, complete, and unimpeded exercise of these great public rights, a right of way, above and along the edge of the high water mark, is involved in the existence of those great public rights, and annexed to them; but subject (for the protection of private rights) to the control of a jury, as to what shall be deemed sufficient, in the place of exercise.” Page 212.

A Treatise on the Rights of Water published in 1859, made it clear that Blundell v. Catterall was regarded as a ‘special case’, where, in that particular instance the public had been deprived by Act of Parliament of their rights over the ‘ locus in quo’.

A Treatise on Rights of Water including the Public and Private Rights to the Sea and to the Sea Shore[v].
J. B Phear Esq., of Inner Temple, Barrister at law, Senior Fellow of Clare College Cambridge. 1859.

Phear was of the opinion that where the shore had been granted out by the Crown the public still retained their rights over it.

“When the Crown conveys to private individuals the legal title to the shore, they become enabled to exercise such rights of ownership there, as the Crown itself could have done, and no more; the proprietary rights in the beach thus acquired by them are, therefore, subordinate to the general interests of the public.” Page 46.

He acknowledged that this view did not agree with the decision in Blundell v. Catterall, but also noted that :-

“..this case may be upheld without adopting the majority of reasons of the judges who decided it: the subject came before them in the form of a special case’.” Page 50.

Phear pointed to the fact that Mr. Justice Holroyd himself had observed that the sea-shore in question had been “a special peculiar property from time immemorial”. He went on to describe how in some places the public had been deprived of their rights locus in quo.

“..It is certain that in the early days of our history, the Crown did not always confine itself to its constitutional limits: many grants were made by to private individuals, in defeasance of public rights, and were so long enjoyed without interruption, that legislature in the time of Edward III., thought fit by a sort of saving clause in a penal statute to legalise all weirs, gorges, &c., i.e., fixed apparatus for exclusive fishing, which had been erected and exercised before the time of Edward I. many of these are consequently in full vigour at the present time, and it is clear from the finding of the special case, and the terms in which Holroyd, J., expressed the real issue before the Court, that the plaintiff’s right to the shore and to his stake fishery, must be classed among them, as being due to grant from the Crown before the statutable period. Page 51.

“Under these circumstances, the public had been deprived by Act of Parliament of their rights over the locus in quo, and it was not necessary to the decision to hold, that the rights claimed on their behalf had no existence elsewhere.” Page 51.

“The desire to protect well ascertained private interests, seems to have been the sole origin of a doctrine which, in saying that a subject cannot cross the beach, for the purpose of bathing without trespassing upon the rights of the crown, must by parity of reasoning deny the common right of the public to shrimping and gathering shell fish on the beach, and prevent owners of the land bordering the shore, from passing over the intervening sand to their boats. It is not probable that future decisions will go to the length of confirming this, unsupported as it is by analogy or authority; and description given above of the relations between the rights of the Crown and those of the public, as they subsist at common law, seems to be substantially correct.” Page 51.

“It is not probable that the owner of the soil will ever interfere in these matters, unless for the purpose of making some profit thereby.” Page 51.

“but is it considered that no book, or authority or custom whatsoever, denies a right of way, ad libitum, over the shore so long as it is the shore, whether the soil be the King’s or belong by some grant from the Crown. Such right of way is allowed for fishing, and, when the case was res integra, would allow the shore to be used as an highway as much for the one purpose as the other, instead of thus virtually declaring the same man a trespasser for bathing, who was no trespasser when up to his knees or neck in water, in search of a lobster a crab or a shrimp.” Page 51.

Under the Crown Lands Act.1866, (29 & 30 Victoria. c. 62.) section 7, responsibility for the management of the majority of the Foreshore was transferred from Her Majesty’s Woods and Forests to the Board of Trade. The existing rights of the public and of those of private individuals were preserved.

The Law Times. December 28th 1867[vi].

Real Property Lawyer and Conveyancer- Notes on New Decisions.

“FORESHORES – Until this year the management and interests of the rights in the Crown of the shore and bed of the sea and tidal parts of navigable rivers has been in the hands of the Department of Woods and Forests, Along with other Crown lands surrendered to the nation during the life of the Sovereign on settlement of the Civil List.

The annual reports of the department have stated from time to time the sales they have made of pieces of the foreshore. By and Act passed last year – the Crown Lands Act, property has been transferred to the Board of Trade, and a memoranda submitted by Mr. Farrer the secretary, on the course to be adopted by the Board in dealing with this property has been laid before the House of Commons. The doctrine proposed is that the Sovereign is, of common right, seized with the soil of the bottom of the sea and of the shore landwards up to the line of medium high tides. But in many places acts of private ownership are being done which continued for much less than the statutory sixty years are held to warrant a jury in presuming a grant from the Crown. Mr. Farrer proposes that the customs and coastguard officers be instructed to report all encroachments or acts of ownership, and any exclusion of the public from walking, bathing, landing, fishing and the like. Some claims of ownership may be injurious to navigation or other public rights, and others may have little or no effect except as establishing a title adverse to the Crown: but it is desirable that they should be made known in order that the Board of Trade may judge whether it is desirable for them to take steps to prevent or qualify them. It is generally a question whether it is worthwhile to go to the expense of legal proceedings by ‘information ‘or indictment for the Crown cannot bring an action of ejectment and an action of trespass brought by the Crown has fallen into disuse. It is probable that sooner or later Legislature will give more summary remedies than at present exist. The title of the Crown is not usually absolute title to the exclusive enjoyment of the soil; it is subject to various rights on the part of the public, such as rights of fishing and navigation. The public right of bathing has been denied by a court of law, but the decision has been questioned by high authorities, and is considered doubtful. In a country like England, where every open space may be needed for public health and enjoyment, and where facilities for navigation, fishing, beaching, landing, and shipping are of the highest importance, it is of great moment that the control of the public and of the Government over the bed of the sea and the strip of common which lies between land and open sea should be preserved. It desirable, with a view to useful public work that there should be power to grant a license of lease at a small nominal rent, preserving the title of the corn. The existing statutes relating to Crown property are framed to prevent sales and leases at less than real value; if the Board of Trade are to act on a different principle, it may be desirable, if not necessary, to have the distinct sanction of Parliament. In the Transfer Bill of 1866 clauses were inserted allowing the Board to makes sales or grant leases or licenses on such terms as they should think fit where parts of the foreshore are required for harbour, docks, piers, or other works of utility, and in other cases also, the Board then certifying their reasons; but in the House of Lords these clauses were opposed by certain Scottish landed proprietors, and in order to save the Bill at a late period of the Session the clauses were abandoned. It is considered that as far as England is concerned it is considered there would be no difficulty in getting the Act amended in this respect; but with regard to Scotland it would be necessary either to come to terms with the Scottish proprietors, or to ascertain by legal proceedings the exact nature and extent of the Crown’s rights to the foreshore in Scotland, and then propose legislation on that basis.” Page 157.


The Preservation of Open Spaces and of Footpaths and Other Rights of Way
A Practical Treatise on the Subject. – 1896.
By Sir Robert Hunter M.A.

Hunter described the situation with regard to public access to the foreshore as it had been left following the Blundell v. Catterall decision.

“In other words, where the fore-shore is the Crown’s, as in most places, the public, though not exercising a right that can be pleaded in law, will not practically be interfered with in passing over it; and this will doubtless be the same in most cases, where the foreshore is in private hands. But the enjoyment of the public cannot be set up to prevent some other use of the fore-shore inconsistent with such enjoyment; and such inconsistent use is more likely to arise where the fore-shore is in private hands. In fact the position of the public with regard to the fore-shore is very much that which it occupies with respect to a common. Practically, while a common is open to the public to wander over it at will, there will be no criminal procedure for trespass, and no damage upon which to found a civil action can be shown; but the public cannot set up a right of wandering to prevent inclosure. So it is with the fore-shore.” Page 320.

[i] ‘Improving Coastal Access an Update, 2005
http://www.countryside.gov.uk/Images/AP05_25%20Access%20to%20the%20Coast_tcm2-26590.doc

[ii] Dr. Helen Phillips speech on Coastal Access at the Cambridge University Land Society Debate http://www.naturalengland.org.uk/about/speeches/hp3.html

[iii] Blundell v. Catterall
http://books.google.co.uk/books?id=zDY9AAAAIAAJ&pg=RA1-PR1&dq=select+adjudged+cases+%22blundell+v+catterall%22&lr=&as_brr=3

[iv]Hall.
http://books.google.co.uk/books?id=0JgDAAAAQAAJ&pg=PA253&dq=sea-shore+%22blundell+v+caterall%22&lr=&as_brr=3#PPA1,M1

[v] Phear.
http://books.google.co.uk/books?id=E8gDAAAAQAAJ&printsec=frontcover&dq=sea-shore&lr=&as_brr=3

[vi] The Law Times 1867
http://books.google.co.uk/books?id=N5EDAAAAQAAJ&pg=PP9&dq=Foreshores+%2B+law+times+1867&lr=&as_brr=3#PPA157,M1