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Barton v. The Church Commissioners for England and Wales

DATE: 15 Dec 2008

A case - historic in every sense of the word - regarding fishing rights in the River Wye in the centre of Hereford has finally been resolved by the High Court. The Church Commissioners claimed that the right fish the Wye had been granted to the Bishops of Hereford by Royal Charters made between 1121 and 1135. In the alternative, they claimed the rights had been acquired by the law of prescription, through consistent fishing of the river by the Bishops’ tenants since 1759. The Claimant, who wished to moor a floating restaurant in the city centre, contested these rights, relying on events during the English Civil War and Restoration to show that the City Council had a better title to the fishing.

After seven years of litigation in Barton v. The Church Commissioners for England and Wales, Morgan J found for the Church Commissioners on a preliminary issue, which has disposed of the whole case. He held that the evidence of acts of ownership by the Bishops of Hereford, and their tenants, since 1759 established the Commissioners‘ prescriptive right to take as many fish as they pleased from the Wye, without having to own either the banks or the bed of the river: an “unstinted right of piscary in gross”.

The existence of such rights is rare indeed: the last reported case where a claim of this nature has succeeded was in 1863.

Nicholas Taggart acted for The Church Commissioners.