Letter to The Editor
Dear Sir,
1 My object in this letter is to question
the validity and effect of a hereditary contract dated 12 June 2015 (“the
contract”). This, a gift from the Crown, is the purported conveyance to
the public of the seabed and all the foreshores surrounding the Island of
Jersey excepting only those parts of the Ecrehos and Minquiers reefs which are
above the high water mark of the spring tide. On the strength of the contract,
the Department for Infrastructure now claims proprietary possession and in
December 2017 published a paper entitled “Encroachment upon the foreshore”.
The titles of a number of property owners whose land extends to the high tide
mark have since been challenged, raising for conveyancers questions bristling
with technical interest, for those whose titles are affected potential cost and
uncertainty, and for the wider community concerns for the continuing inviolability
of proprietary rights in land.
2 As Seigneur of the fief of Lulague dit
Mourier in the parish of St John which claims foreshore at Ronez, I consider my
title to have been disparaged by the passing of the contract. Save therefor, I
have no personal or professional interest to declare. I also have to make it
clear that although I am a member of the editorial board of this Review, the views expressed below are
mine alone.
3 It is my opinion that the contract is
defective. Not only is the subject matter of the gift uncertain in extent but
it appears to have been made without regard to settled principle, third-party
rights, conveyancing practice and the Jersey law of property, all of which
would appear to justify the following observations.
1.
The words of conveyance employed in the contract are at first sight, wide,
comprehending—
“all that foreshore situate all around and adjacent
to the . . . Bailiwick of Jersey including . . . all those
parts of the land, rocks, reefs, islands, islets and beaches which are found thereon”
and the seabed. This description is however, qualified,
because what is to pass in virtue of the conveyance is expressly limited in
these terms—
“The Public being bound to conform to all the
clauses conditions and restrictions to which Her Majesty was subject for and on
account of the title rights and interests of Her Majesty now given ceded and
transferred of which Her Majesty has been possessed from time immemorial and by
sovereign right.”
It is not in issue that title to everything described
above and possessed from time immemorial [foreshore] and by sovereign right
[seabed) would pass with that conveyance. But what of those “title[s]
rights and interests” in the “land, rocks, reefs, islands, islets”
such as Green Island, and beaches which Her Majesty has not possessed from time
immemorial or at all? It must be arguable that on a proper construction only
land with the provenance expressly given could have passed in the contract. The
development of that argument is however not central to my purpose in writing
this letter. What follows is not unrelated but it is my theme that the parties intended
by the passing of the contract to suppress private titles in the foreshore.
2.
The Crown’s paramount feudal title to land in right of the Norman dukes
is not in question. The nature and extent of its proprietary rights in land
are, however, like those of any private person, determined by law and subject
to investigation and proof. Fundamental to the proof of title is a
demonstration of provenance. It follows that, if the Crown’s claim to
have enjoyed immemorial possession of all the foreshores surrounding Jersey is
not sustainable, its capacity to pass title must be vulnerable to scrutiny. In
what follows, I seek briefly to demonstrate that the provenance given in the contract
is not only in large part inaccurate but, worse, seriously misleading. The
evidence is clear: the Crown could not claim immemorial or indeed any Crown
possession of those many foreshores which for centuries fell within the
strictly territorial jurisdiction of the Seigneurs of maritime fiefs. Such
jurisdiction existed largely to enforce feudal rights, e.g. varech, which before the Abolition of Seigneurial Rights
(Jersey) Law 1966 were fundamentally based upon ownership of the foreshore.
Moreover, that seigneurial jurisdiction and its exercise over the foreshore
were for centuries repeatedly recognized by judgments of the Royal Court and
the Privy Council.
3.
Support for this position is not entirely dependent upon ancient authority.
Before the International Court of Justice in 1953, the Crown succeeded in
proving sovereignty over the Minquiers Reef, basing its case upon the
territorial jurisdiction of the Seigneur of Noirmont over the foreshores of
that fief.
The
pleaded reply of the United Kingdom states this on the question of the fief of
Noirmont—
“An essential fact to be stressed regarding the
Fief of Noirmont is that the Minquiers were considered to be part of that fief.
In the submission of the Government of the UK, the Minquiers were included
within the Fief of Noirmont by the Crown’s exercise of its manorial right
to the wreck of the sea”.
Professor
Wade, counsel for the UK Government, who was also a distinguished historian,
had no doubt—
“There can be only one conclusion: the basis of
jurisdiction and of the claim was territorial, and only territorial. If a claim
was made, or jurisdiction exercised, it could only be on the basis that the
wreck had been washed up on the Lord’s shore.”
The finding of the court was equally clear. Citing the Grand Coutumier de Normandie as
authority, it stated—
“The Court inclines to the view that it was on the
basis of this ancient Norman Custom that the Manorial Court of Noirmont dealt
with them on behalf of the Lord in whose fief the wreck is found: the Lord of
Noirmont . . .”
4.
It is worth recording that Professor Wade, when addressing the ICJ, was able to
confirm that this same custom continued to be recognized in Jersey in 1953. He
said this—
“It is totally contrary . . . to all
those feudal concepts that seemed to have regulated such matters in Jersey, it
is contrary to English law, and it is contrary to Jersey Law at the present
time . . .”
The source of that information must surely have been Mr
Cecil Harrison, then Jersey’s Attorney General, also appearing for the
Crown.
It
is surprising to note the striking inconsistency between the Crown position in
1953 and the advice given by the Crown Officers in 2015 which founded a claim
to Crown title to all the shores around the Bailiwick based on “immemorial
possession”. It is surely also ironic to recall that this was the very claim
made by the Men of the Islands in response to the mediaeval Quo Warrantos and one which would ultimately
be conceded and confirmed to them by Edward III in his Great Charter of 1341,
and thereafter repeatedly confirmed by successive sovereigns and finally by
Parliament.
5.
All this of course is not to cast doubt on Crown title to the seabed under
territorial waters. The seabed has always belonged to the Sovereign. There is
moreover no evidence that any interest in the seabed under the waters around
Jersey has ever been granted to a subject. But seabed and foreshore have
throughout legal history been treated as distinct legal entities. The seabed is
not and never has been in law or in physical fact, part of the foreshore. The
attempt therefore in this procrustean contract to conflate an unchallengeable
title to the seabed with a quite different one to the foreshore was to do
violence to established legal concepts.
6.
Apart from provenance, there is the issue of formal validity. Article 21 of the
Loi (1880) sur la Propriété
Foncière provides that a contract conveying a parcel of land must,
on pain of nullity, define its boundaries. The conveyance of foreshore does not
constitute an exception to the law. It must be subject to the same formal
requirements as any other parcel of land. It follows that it was wrong in
practice to bundle the foreshore and seabed together and describe them in
effect as a continuous strip of land surrounding the Island of Jersey.
7.
It is difficult to release the conveyancers from all responsibility for the
shape and substance of the contract. Apart from an obligation to treat
foreshore as land, separate and distinct from the seabed, they must have known
of the existence of third-party titles, that the foreshore is not one but is
made up of a number of discrete parcels, each part of a maritime fief, only
some of which had ever been in the possession of the Crown. Failure to reflect those
facts in the contract amounted to an unsupported assertion that no private
titles in the foreshore exist.
8.
The Crown’s landed titles in Jersey are well known. Until 1966, the
parties to a contract of transfer of land were obliged to make a declaration of
the fief—Crown or private—upon which the land to be conveyed was
situated. It has always been easy to identify the Ancient Domain. Over the
centuries accounts of the Crown estate have been made at intervals in surveys
known as Extentes. Established by
Royal command, their preparation was closely supervised by the Royal Court. The
Extentes therefore constitute an
unchallengeable record of the contents of the Crown estate at particular times
with the effect that, if a given parcel of land is not mentioned in the Extentes, it is generally accepted that
it is not on the Ancient Domain. The Extentes
are published documents accessible to anyone drafting a contract involving
rights in land and destined to be sworn by the parties on “passation” before the Royal Court.
In preparing the contract, the conveyancer should accordingly have determined,
in relation to maritime fiefs, whether they were in the possession of the Crown
or the subject of private titles and, if the former, the root of title. He
could easily have established whether the particular fief and its foreshore was
part of the Ancient Domain or held by the Crown in virtue of a feudal accident
such as escheat or confiscation. A significant example of the latter would be
the properties of the Alien Priors, whose foreshores have been held by the
Crown and administered separately from those of the Ancient Domain since their
seizure in the 15th century.
9.
All the evidence shows that the Crown had never, until recently, claimed title
to the foreshores of private fiefs. It is a matter, therefore, of particular
concern that foreshores to which the Crown had no proprietary claim should have
been included in a purported gift to the public.
10.
While the Queen can do no wrong, she can nonetheless be wrongly advised. Many
of the affected titles are based, not only upon customary law, but upon ancient
Crown grants, confirmatory Royal Letters Patent and/or supported by judgments
of the Royal Court and the Privy Council. Those titles comprise much of the
foreshore surrounding this Island. It must therefore be supposed that Her
Majesty’s advisers will have passed the contract in her name in the mistaken
belief that a simple contract could lawfully override such ancient titles and
even override solemn reservations in earlier laws enacted by the States and
confirmed by Order in Council.
11.
The Crown is not above the law and will therefore recognize and be bound by established
principle, in this case one forcibly expressed in the dictum of Lord Mansfield in Goodtitle
d Edwards v Bailey—
“It shall never lie in the [grantor’s] mouth
to dispute the title of the party to whom he has so undertaken . . .
No man shall be allowed to dispute his own solemn deed.”
The dictum is
not dusty. It was cited with approval by Lord Millett in First National Bank plc v Thompson.
12.
Perhaps it is in obedience to this or a like principle that it is generally understood
that the Crown will not derogate from a grant made by Royal Letters Patent. It
is difficult however to square that understanding with this particular contract
where, if derogation was its intended effect, it would provide a remarkable
example of indifference to Royal Charters, Royal Letters Patent, ancient Crown
grants, and titles based upon immemorial possession.
13.
Challenged, the parties might point to the reservation of private rights made
in para 2 of the contract.
“It being further agreed and understood—
. . .
2.
That any right of access or of exploitation exercised as a matter of
long-standing habitual and recognized custom by the general public of the
Island or by any member thereof shall be and remain unaffected by this contract
of gift cession and transfer.”
This is a feeble form of words. What we have here are
not mere “rights of access or of exploitation” but rights of
property in land which are not dependent upon recognition by the general
public. This clause is calculated not to preserve but to disparage existing
titles to land. It should be contrasted with the unambiguous reservation of
rights and titles made in 19th-century laws confirmed by Order in Council, two
of which remained law in Jersey throughout the 20th century. They include—
(a)
Three laws governing the harvesting of vraic
(seaweed): 1829 (art 11), 1866 (art 12) and finally, art 13 of the Loi [1894] sur la Coupe et la Peche des
Vraics all contain this statement—
“Il n’est pas entendu deroger, par
cette Loi, aux droits qui peuvent exister à l’egard de quelques
pecheries particulières, ni aux droits des Seigneurs de Fiefs
particuliers.”
[It is not intended by this law to derogate from the
rights which may exist in relation to certain private fisheries, nor to the
rights of Seigneurs of private Fiefs.]
(b) Loi
[1882] sur les Parcs à Huitres. Article 3 provides, inter alia, that applicants for a
concession to establish an oyster bed must in their supporting documentation—
“donner les noms et adresses des
propriétaires ou prétendus propriétaires du fonds ou de partie
du fonds ou des personnes qui occupent le fonds ou partie du fonds qu’on
propose d’approprier ainsi que la nature de leurs titres.”
[give the names and addresses of the proprietors or intended
proprietors of the sub-soil or part of the sub-soil or of the persons who
occupy the sub-soil or part of the sub-soil which it is proposed to
appropriate, as well as the nature of their titles.]
Article
4 requires the authorities to give publicity to any application for a
concession—
“afin que tous ceux qui pourraient avoir ou
prétendre avoir des droits particuliers ou antérieurs à
telle partie du bord et rivage de la mer qui sera désignée . . .
puissent en avoir connaissance.”
[in order that all those who might have or pretend to
have private or precedent rights to that part of the foreshore . . .
may have knowledge of it.]
Article 18 of the 1882 Law provides—
“Il n’est entendu déroger par la
présente Loi aux droits qui pourraient avoir les particuliers à
certaines parties du bord et rivage de la mer en vertu de Chartres, Lettres
Patentes ou usage immemorial.”
[It
is not intended to derogate by this present Law from the rights which
particular persons might have to certain parts of the foreshore in virtue of
Charters, Letters Patent or immemorial usage.]
14.
It is noteworthy that art 1 of the 1894 law mentioned above, before amendment
in 1928, defined the extent of the foreshore by reference to the boundaries of
fiefs—
“La coupe du vraic sur la côte de
l’Est . . . sera permise . . . depuis les rochers du
château Elizabeth allant Est jusqu’au courant d’eau qui
sépare le Fief de la Reine en la Paroisse de St Martin d’avec le
Fief de Rozel.”
[The cutting of vraic
on the east coast shall be permitted . . . from the rocks of
Elizabeth Castle [repeatedly confirmed by the Royal Court as the western extent
of the Fief de la Fosse] going east as far as the stream which separates the
Queen’s Fief in the Parish of St Martin from the Fief of Rozel.]
This last provision unambiguously amounts to statutory
recognition of legal boundaries between the Crown and private fiefs extending
over the foreshore, boundaries which would have been familiar to the large
number of people who, like their ancestors before them, had for centuries been
involved in the harvesting of vraic.
15.
The express saving of “fisheries” in the vraicing laws was made to
protect the lawful enjoyment of such private titles on the foreshore. One
example is the fishery appurtenant to the Manoir
des Prés in the parish of Grouville which the owner holds in virtue of
an ancient grant from the Crown confirmed by judgment of the Royal Court
following a title dispute in the 1740s. The fishery extends over a significant
area of foreshore north of Seymour Tower, its boundaries marked with a large “P”
[for the family Payn] cut into the rocks pursuant to that judgment.
16.
Any response to these objections by those advising the Department of
Infrastructure would in my opinion have to address the relevance of two ancient
maxims “Nemo dat quod non habet”
and “Res inter alios acta alteri nocere
non debet”. The first, although a statement of the obvious, is
nonetheless, evergreen. Where the Crown lacks title it cannot dispose of the
rights of others. The second embodies another fundamental legal principle: a
transaction between others will not prejudice anyone who is not a party to it.
17.
To some, this argument may appear arcane. For the reasons advanced above, I
take a different view. But apart from those whose seigneurial titles are
threatened by the contract, the ownership of the solum of the foreshore is of immediate practical concern to a large
number of persons with properties on the edge of the sea. Given the matters to
which I refer in my opening paragraph, and in the light of the above generally,
some might reasonably argue that on a proper construction of the contract, the
words of conveyance in terms limit the title passing to the public to those
foreshores of which “Her Majesty has been possessed from time immemorial”.
It is a construction which, if agreed, would surely offer the parties to the contract
a dignified withdrawal from what would seem to be an untenable position.
18.
Unfortunately, settlement of the long running claim of Les Pas Holdings Ltd
against the Crown and the States of Jersey some years ago in relation to the
foreshore of the Fief de la Fosse meant there would be no definitive judgement
on the law governing foreshore titles. Two long articles in this Review by Advocate John Kelleher and me,
written following that settlement, preserve some of the evidence and rehearse
the arguments. Yet despite what was a largely unanswered claim, the parties to
the contract have on one construction, attempted without lawful authority to
appropriate private titles in land. In doing so they have in my view done
violence to the principle of private property upon which our society is
substantially based. It is surely an exceedingly bad precedent.
Yours
faithfully,
RICHARD FALLE
Ville es
Philippes,
Grouville
Jersey JE3 9UZ