Who Owns the Marsh?

Kirton Marsh at High Tide

Stood on Hunstanton Beach I was once told that land rights were held by the owner of the land facing the coast out to sea, but with common rights granted to the distance that a man can ride a horse into the sea plus the distance he can throw a spear from the said horse. Now putting to one side whether local byelaws and land owners will allow you to ride a horse on the beach, and whether you can legally carry a spear on a public beach it is reasonable to assume this is a myth. But it does illustrate the difficulty of land rights on the marsh. Wildfowlers, eel-catchers, dab-prickers, shell fishermen, graziers and samphire collectors have all claimed various “common law” rights over marshland. Thus we have seen a three way struggle between the Crown, as owners of the sea, landowners of adjoining land facing the marsh, and local people using the marsh.

This came to a head around 1818 as the marsh had silted up at North Coates in Lincolnshire creating a discernible piece of land over which the sea no longer flowed as the marsh rose. This amounted to an estimated 453 acres with an annual rentable value of 4s. per acre. This was used locally for grazing by Lord Yarborough’s tenants. However, the King’s Commissioners seized the land on behalf of the King. This claim by the Crown was challenged by Lord Yarborough with an ultimate judgement given by the Court of King’s Bench on 1^st January 1824.

The judgement describes the formation and silting up of the marsh in an almost poetical manner: “by the slow, gradual and imperceptible projection, alluvion, subsidence and accretion of ooze, soil, sand and other matter, being slowly, gradually, and by imperceptible increase, in long time cast up, deposited and settled by and from the flux and reflux of the tide upon and against  the extremity of the said manor.”

Lord Yarborough’s argument was that as the deposits were from his adjacent land and the sea no longer covered the marsh land it was by right his. The Crown argued that the deposits had been left by the sea, and as the sea had left the land the Crown had a right to it. The judgement was to Lord Yarborough’s favour.

However  in 1839 further land was seeking to be reclaimed in the Wash including a proposed Wash Barrage. The Nene outfall was being developed anyway. But to fund the larger project shares were being issued to fund the works on the basis they could cash in on potential subsequent land reclamation. This caused owners of frontage land in the Wash to issue a warning that such shares might be worthless to anyone other than the lawyers and engineers being paid to commence the task. The potential was seen to reclaim the whole of the Wash basin, but this was seen as a potential corporate land grab headed by Lord Bentick.

The problem appears to be that Lord Bentick in his enthusiasm was led by Parliamentary sub-committees to believe that the rights of private individuals with land fronting the sea has their “rights limited to the ordinary high water marks”. But what is “the ordinary high water mark”? At that time recent cases had determined that the ordinary high wate mark was determined to be the “line of demarcation at the medium or neap tides.” Lord Bentick was at best misled, or at worse “trying it on” as he appeared ignorant of the reasoning  behind the judgement in favour of Lord Yarborough in 1824, that is: the deposits that caused the silting and extension of marshland was caused by material being washed on or through Lord Yarborough’s land.

It was made clear in a public letter that the frontagers, those owning land fronting the Wash, would seek compensation for loss of sea deliveries to their land and drainage from their land. Yet what really got their ire was the thought of being deprived the value of all future accretion of frontage land. This was because many of them had bought the land at a higher price due to the “hope value” of the probability of the increase in land over future years.

The open letter was a clever legal argument drawing upon the case and common law; and making it clear that real financial value was involved and a long-held right to acquire land as it silted up had been established:

“Has the Crown ever interfered in the many former embankments! Have not the Frontagers from time immemorial made such enclosures of out-marsh as they though proper without any claim being attempted to be urged by the Crown! And have not the marshes been so enclosed by Frontagers from time to time, since the embankment made by the Romans up to the present time, until in some places the embanked marshes are actually six or seven miles in width.”

These rights were significant, but perception was that it was the greed of landowners versus the greater good of the agricultural land that could be gained, but because this was to be funded by corporate share issue that would have worked because the Crown was prepared to give up most of its rights to enable the Wash to be dammed. Thus the project did not even get off the ground due to protection of land rights of the individual over those of a corporation.