Case Analysis: Borwick Development Solutions Ltd v Clear Water Fisheries Ltd.

The case arose from a sale by receivers of a commercial fishery in Lancashire which belonged to the Respondent, Borwick Development Solutions Ltd (“BDSL”). The fishery included gravel lakes which were stocked with carp and other fish for angling. Under the terms of an agreement, the nine lakes were to be kept separate and isolated from each other, so that, in practice, the fish stock would be confined to the relevant lake and could not escape from it either to another of the lakes or to the outside world, nor could extraneous fish enter the closed system.

The sale documentation did not make express reference to the fish stocks and no rights or warranties were made in relation to them. Following sale of the land, BDSL claimed that it retained ‘ownership’ of the fish. It subsequently brought a £1.1 million conversion claim against Clear Water Fisheries Ltd (“CWFL”), the Appellant and the purchaser of the fishery. BDSL was successful at the liability trial, and CWFL appealed.

The case required the English Court of Appeal to analyse the nature and extent of the proprietary rights in the live fish. The point before it had never had to be decided in a reported case, and the judgments include a detailed consideration of authorities from England, Ireland, Canada and the US, principles of Roman Law and the commentaries of Bracton, Grotius and Blackstone.

The Court of Appeal first had to consider and reaffirm the established legal classifications of animals as either wild (ferae naturae) or domestic (domitae naturae). There may be some species of which some examples are classified as ferae naturae and other as domitae naturae, but all fish have always been categorised, in this classifciation, as animals ferae naturae.

A number of previous authorities were considered including Buckle v Holmes (19250 134 LT 284 (on appeal [1926] KB 125) a case where the defendant’s cat had killed valuable racing and homing pigeons and some bantams of the plaintiff. The plaintiff sued for damages for the loss, but was unable to prove the defendant' knew the cat to have any specially vicious propensity as compared with cats generally. He argued therefore that although cats were classified as domitae naturae, they should be classified as ferae naturae on relation to birds. Shearman and Sankey JJ sitting on appeal held that it was not open to the Court to interfere with this long established legal classification.

Fish are, as a matter of law, animals ferae naturae. They cannot therefore be the subject of absolute ownership while they are alive, but they can be the subject of qualified property rights.

The classification of animals has consequences for property rights as well as for liability for damage done by animals. An animal domitae naturae can be the subject of ownership just like an inanimate chattel, whereas live animals ferae naturae cannot.

In the instant case, the relevant qualified property rights were rights per industriam (the right of the person who takes and keeps possession of an animal ferae naturae) and rights ratione soli (the exclusive right of the freehold owner of land to hunt, take, keep and kill animals ferae naturae while they are on his land). Of course where he or a predecessor in title has granted such rights to another as a profit à pendre, then of course his own rights are limited by the effect of that grant, and the grantee has the relevant rights so far as the rights extend.

In Fitzgerald v Firbank [1897] 2 Ch 96, the rights of the holder of a profit à pendre of fishery have been described as “the right to fish in the water and when the fish are caught it is a right to the property in that fish.” However, the idea of catching animals for the sake of pleasure was not foreign in itself. Evershed LJ in Hamps v Darby [1948] 2 KB 311 quoted from Holdsworth’s History of English Law about keeping a singing bird which is of value even though not in monetary terms: -

“For if I have a signing bird, though it be no pecuniarily profitable, yet it refreshes my spirits and gives me good health, which is a greater treasure than great riches. So if anyone takes it from me he does me much damage for which I shall have an action.”

In Kearry v Pattinson [1939] 1 KB 471, the Court of Appeal had to decide on the rights and wrongs arising where bees had left a hive on the plaintiff’s land and had swarmed, first to the defendant’s land and then father on. The plaintiff sought permission from the defendant to come onto his land to recover the swarm, which was denied at first. By the time permission was given, the bees had moved on and could not be recovered. The defendant was held not to be liable to the plaintiff for the loss of the bees on the basis that he had no obligation to allow access onto his land. Slesser LJ spoke of ownership of bees as being rationale soli and “thus a qualified property may be had in bees in consideration of the property whereon they are found” but also said “they are ferae naturae before being hived but may be taken into the disposition of the owner per industriam by hiving and so become his property,.”

The Court of Appeal held that, whether BDSL’s rights in the fish were properly to be regarded as rights per industriam or rights ratione soli, the rights were lost when BDSL’s land was sold. Rights per industriam depend for their acquisition and retention on possession of the relevant animals. When the land was sold, BDSL lost the right to enter the land and to do anything with or in respect of the fish (as confirmed by the Court of Appeal in Kearry v Pattinson [1939] 1 KB 471). BDSL therefore lost possession of the fish and, with it, any qualified property rights per industriam.

Rights ratione soli are rights in the land (unless they have been severed and granted to a third party as a profit à prendre) and passed automatically to CWFL upon their purchase of the land. Therefore, the Court of Appeal found that following the sale of the land to CWFL, BDSL ceased to have any proprietary rights in the fish stocks and their claim in conversion was therefore dismissed.

This case therefore demonstrates the importance of recording in sale documentation which assets are intended to pass with a sale. The case also demonstrates the importance of reserving fishing, sporting and access rights on a sale or lease, where the land owner intends to maintain any rights over wild animals.

Full judgment can be found here.