On a few past occasions, I have used these articles to demonstrate the quirkiness of English law and how we still rely on parliamentary and case law that may date back to the 19th century. However, a recent case highlighted how we may still rely on legal principles that were first laid down nearly 2000 years ago!

The case in question concerned the ownership of some fish in some lakes in Lancashire, which had originally been created when the M6 was constructed. The previous owner, Borwick Development Solutions Ltd, sold the lakes to Clear Water Fisheries Ltd. However, it then took exception when the new owners developed a coarse fishery in the lakes and claimed that the fish still belonged to it and were not transferred with the sale of the lakes. The lakes contained a substantial quantity of carp and other coarse fish with an estimated value of £1.2m. These items were not included or referenced specifically in the sale documentation.

The High Court agreed but Clear Water Fisheries took the case to the Court of Appeal. The Court, while relying on a number of legal principles also quoted the Second Commentary, written by the legal scholar Gaius in AD 161, which said: “Wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power.” The court also noted that Emperor Justinian came to a similar conclusion in his Book of Things (AD 535).

The Court of Appeal overturned the previous High Court decision and ruled that Borwick did not own the fish once the land had been sold and the fish were no longer within its control. Borwick could have taken any of the fish before the sale or demanded payment for them, but particular financial circumstances meant it could not. With the sale, possession of and rights to the fish were lost and Borwick’s qualified property rights came to an end.

The effect of this ruling for landowners is that it affirmed that ownership of land can include animals under the landowner’s control (unless they are expressly reserved) but that those rights are likely to cease once ownership ends. It also serves as a timely lesson to expressly exclude and remove any separate assets/rights in a sale agreement.

l Tom Wills is head of agriculture at Sintons Law