Borwick Development Solutions Ltd v Clear Water Fisheries Ltd

Borwick Development Solutions Ltd v Clear Water Fisheries Ltd

Qualified property rights in fish, whether arising per industriam or ratione soli, are dependent on possession and control, which in this context are inseparable from land ownership. Upon transfer of the land to CWF, BDS lost possession and control of the fish, and thus any qualified property rights in them ceased. The court cannot alter the established legal classification of fish as animals ferae naturae, nor can it create a new category of captive wild animals subject to absolute ownership. BDS’s claim in conversion must therefore fail.

Parties
Claimant/respondent: Borwick Development Solutions Limited; Defendant/appellant: Clear Water Fisheries Limited
Jurisdiction
England and Wales
Judgment Date
01 May 2020
Procedural Posture
Civil Appeal / Appeal From High Court (business and Property Courts, Manchester) to Court of Appeal
Outcome
Appeal allowed; claim dismissed as regards the fish.
Legal Topics
Qualified Property in Animals, Conversion, Rights Per Industriam, Rights Ratione Soli
Property Law Tort Law Qualified Property in Animals Conversion Rights Per Industriam Rights Ratione Soli

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Parties

Borwick Development Solutions Limited

Claimant/respondent

Clear Water Fisheries Limited

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court (business and Property Courts, Manchester) to Court of Appeal

Legal Issues

  1. 1 Whether proprietary rights in fish (animals ferae naturae) survive transfer of land to a new owner
  2. 2 Whether rights per industriam or ratione soli apply to fish in enclosed lakes
  3. 3 Whether the former landowner retains any rights in the fish after sale of the land

Ratio Decidendi

Qualified property rights in fish, whether arising per industriam or ratione soli, are dependent on possession and control, which in this context are inseparable from land ownership. Upon transfer of the land to CWF, BDS lost possession and control of the fish, and thus any qualified property rights in them ceased. The court cannot alter the established legal classification of fish as animals ferae naturae, nor can it create a new category of captive wild animals subject to absolute ownership. BDS’s claim in conversion must therefore fail.

Court Disposition

Appeal allowed; claim dismissed as regards the fish.