The court said that absent any reservation of such rights in the transfer of the land in question, the seller did not have any legal right to enter the land and do anything with or in respect of the fish after it had sold it on.
In Borwick Development Solutions Ltd v Clear Water Fisheries Ltd  EWCA Civ 578, the Court of Appeal had to consider specifically – and unusually - the issue of fishing rights. The law relating to proprietary rights in respect of fish has ancient origins and dates back to before Roman times.
Nine enclosed lakes in Lancashire belonging to a commercial fishery contained valuable fish from which they cannot escape. The fish provide sport for anglers who try to catch prized specimens. If they manage to catch one, they then weigh and photograph them before returning them to the lake.
The fishery was sold by its receivers but the actual sale documentation made no express mention of the fish stocks either by way of rights granted or reserved. After completion, the claimant company (the commercial fishery) argued that it had retained the ownership and proprietary rights of the fish, notwithstanding the sale of the land. The fish are considered highly valuable, with the claimant asking for damages in excess of £1.1 million.
The judge allowed the claim.
The buyer successfully appealed and the claimant’s claim over the fish was dismissed. Giving judgment, Sir Timothy Lloyd found that the judge was wrong to decide that the fishery retained proprietary rights over the fish after the transfer of the land was completed.
This issue has never before been decided in a reported case in England and Wales, so the appeal judges’ approach to the issue deserve considering by commercial property lawyers, in particular those where they are instructed in relation to land that is affected by sporting or similar rights.
First, the legal classification of animals was considered. It was established back in 1925 that animals are classified in law either wild or domestic and it was not open to the Court of Appeal to alter the long established classification of animals in this respect and to regard certain fish as ‘domestic’.
“Whatever their individual characteristics, propensity and circumstances, all fish are and must continue to be treated as animals ferae naturae as a matter of law”, said Sir Lloyd. Any change to that would have to be a matter for legislation, he added.
There was then the issue of the nature of proprietary rights in relation to animals. Wild (ferae naturae) animals, cannot be the subject of absolute ownership in the same way as an inanimate chattel can be (and domestic animals).
However, they can be the subject of qualified property rights. Sir Lloyd explained that those qualified rights of property per industriam arise when an animal is in someone's possession. Those rights last for so long as the animal remains in their possession (though there’s the exception that some animals such as bees have a habit of going away and coming back – in which case the qualified rights continue so long as they the intend to return).
So what of the fish in circumstances of this case? A further question for the court was, what amounts to sufficient possession in circumstances such as those with which we are concerned? The court found that the relevant qualified property rights were rights per industriam, which is to say - the right of the person who takes and keeps possession of an animal ferae naturae; and rights ratione soli – that is to say, the exclusive right to hunt, take, keep and kill animals ferae naturae while they are on his land.
The appeal judges concluded that whether the claimant held a qualified property right in the fish per industriam or rights ratione soli, those rights were lost on the sale. The judge had been wrong to rule that this qualified property did not pass when the land was conveyed. At the point of completion, the claimant lost the right to go onto the land and do something in relation to the fish on the land.
The rights ratione soli therefore passed automatically to the buyer on its purchase of the land – and the claimant retained nothing in respect of the fish in the fishing lakes.
Sir Timothy helpfully elucidated it thus: “The real issue, except in the case of roaming animals, is whether they are sufficiently in possession or not as a matter of fact. Where rights acquired per industriam depend on the ownership of the land, or of some rights derived from the landowner, with the result that it is not necessary to prove close control of the animals, the rights cease to exist when the ownership of the land (or of the derived rights) itself comes to an end, because from that moment on the possession which is essential to the continuance of the rights no longer exists.”
However, he conceded that the result in the claimant’s case could be seen as “unsatisfactory”, given that it “had expended substantial sums on acquiring the fish so as to stock the lakes and on their husbandry thereafter”.
What are the implications?
Sporting rights, ie the rights to shoot, hunt or fish, need to be expressly reserved by a transfer of land if the seller wishes to retain them, otherwise they lose those rights on completion.
Any business, particularly those in the agricultural sector, those selling fisheries etc. need to exercise particular caution if they intend retaining such rights. They cannot afford to make assumptions about any rights they might retain after completion.
Similarly, buyers of such types of commercial land and property need to ensure they will have full property/sporting rights over any fish and other animals on the land they are buying – if, indeed, that is what they are intending.