Lovett v Fairclough (1991) 61 P & CR 385
The dispute concerned salmon fishing in the River Tweed. The defendants failed to establish the claimed fishing right by prescription. Long use by different individuals could not simply be combined where rights had not passed from an earlier user to a later one.
The fishing dispute
The plaintiffs held the Wark estate on the English, southern side of the river and claimed exclusive fishing rights from that bank to the centre line. The defendants derived title from the estate on the Scottish, northern side. Their rights on that side were not disputed.
The disagreement concerned fishing in Jeffreys Pool on the southern side of the centre line. The plaintiffs sought to stop the defendants entering their fishery. The defendants asserted a prescriptive right to fish there in common with the plaintiffs and also advanced estoppel arguments.
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The prescription claim
The claimed right was a profit in gross. Mummery J held that the evidence did not establish the necessary prescriptive title. It was not enough to point to successive people who had fished there without establishing the required connection between their rights.
This aspect was subsequently explained in Barton v Church Commissioners for England [2008] EWHC 3091 (Ch), paragraph 168. Morgan J distinguished Lovett because, there, a later user could not add an earlier person’s period of use where that person had not transferred the rights. Barton illustrates that a fishery in gross can be established by prescription where the necessary evidence and continuity of title exist.
What “in gross” means
A profit à prendre is a right to take something from another person’s land, including fish. It can be attached to the ownership of particular land, when it is called appurtenant, or held independently of any such land, when it is called a profit in gross.
A profit in gross is therefore a type of profit à prendre, not its opposite. Nor does “in gross” mean that it is merely a personal permission to fish. It can be a proprietary right capable of separate transfer. HM Land Registry’s guidance confirms that its holder may own no land at all and may dispose of the profit independently of any land they do own.
Outcome
The contemporary report records an injunction restraining the defendants from trespassing across the river’s centre line, nominal damages for the plaintiffs, and dismissal of the defendants’ counterclaim. The injunction was expressed to operate until the hearing of an appeal.
Sources: Contemporary Times report; Barton, paragraph 168; HM Land Registry Practice Guide 16, sections 1.2–1.4.
