Saturday, 31 May 2008

Laws dissolve in estuarine waters

Ownership and administration of the waters and their harvest was complex, vexed and various and in a thousand years has never been wholly resolved.

A tangle of legalities governed the ‘ownership’ of the waters, estuaries, sea shores and submerged territories. Essex boats thought nothing of using their superior boat building to raid other estuaries in summer looking for spat, but they demanded protection for their own creeks from marauding Kentish men, French and Dutch boats.

Even in law, the oyster was different. Unlike other fish, it could not swim away, so when a new bank was discovered it might swiftly attract outsiders looking for a bonanza. But equally oysters do not always grow where they are expected so a landlord who had bought a land site productive in oysters at the time could find in a few years time that they had died out and moved down the river.

The slight adjustments to the laws over the centuries as vested interests fought for the harvest become increasingly farcical as lawyers wrestled with problems they did not understand. One decision said that a man could not steal an oyster unless it was labelled, so that he could be seen to know he was stealing. Another decree held up in court was stealing an oyster was not theft because the oyster was not harmed and was going to a better home. Even if the Crown or Parliament could prove exclusive domaine over the shores, it could hardly override the historic claims of fishermen on a particular stretch of water, who might in perpetuity have been awarded such rights by some long lost agreement. The sea was common ground in common law and so fishing was enshrined in law by Magna Carta. It was open to all. Eventually, many centuries later, a Royal Commission was set up in 1886 to consider the question of ownership of oyster spat that might drift out to sea and beyond the territory of the owners….Canute was proved right, his kingdom really stopped at the water’s edge and he could not, nor could his successors, control such a legal tide.

The situation is the same fudge today as is neatly summed up by this advice from the Crown estate – not regarding the oysterages but more prosaically the rights to moor a boat:

“Harbour legislation is therefore one factor complicating the legal position on mooring. The other is the issue of long usage. It is a broad principle of property law that, if something has gone on for a long time without objection, whether it be using a right of way or occupying land to which one has no title, the law will eventually recognise the fact and give the person doing it the legal right to continue. Unfortunately, it is very unclear how this principle would be applied by the courts in relation to moorings – the case law is hazy and sometimes contradictory.”

For boats and moorings today, read oysters for a thousand years and more. Laws, it seems, invariably dissolve in estuarine waters.