The Court looked to citations from Roman law, from early English authors and to authorities from Canada and the US to grapple with principles of ancient origin to decide this novel point. However, the decision is not simply of academic interest: it has very real implications for landowners who carry on a commercial venture involving animals on their land, and whether they can, in principle, retain rights over those animals following a sale of land.
In Borwick’s case, the failure to grapple with those rights, or to address the parties’ rights in relation to the fish specifically in the sale of land contract, cost Borwick its £1.1million prized fish stock.
Borwick owned a commercial fishery comprising nine enclosed gravel lakes, in which stocks of coarse fish were kept for angling.
In 2016, Borwick defaulted on its loan repayments, and its lender exercised a charge over the fishery and appointed receivers to sell the land. Shortly afterwards, the land was sold to Clear Water Fisheries (“CWF”) for £625,000.
The sale contract did not specifically deal with the fish stocks. The receivers did not consider that the lender’s charge extended to the fish and, on that basis, they had given no warranties to CWF in relation to the transfer of ownership of the fish on completion of the sale of land.
Borwick subsequently claimed that it retained ‘ownership’ of the fish and brought a claim in conversion against CWF in relation to the fish stocks CWF had acquired; it put the value of its claim in damages, in essence, the value of the fish stocks, at more than £1.1 million.
English law draws a distinction between wild animals and domestic animals - animals ferae naturae and animals domitae naturae. Which category an animal falls is a question of law, rather than fact.
This classification has consequences for property rights. A domestic animal (such as cattle or a dog) can be the subject of absolute ownership just like an inanimate object, whereas live wild animals cannot.
Notwithstanding that, a person may acquire a qualified property right in live wild animals. The law relating to property rights in wild animals is derived from Roman law, which, for the purposes of the present case, provides that a qualified property right may be acquired or held, principally, in one of two ways: either (1) per industriam (i.e. by industry); or (2) ratione soli (i.e. of the soil).
Rights held ratione soli are contingent upon ownership in land. The freehold owner of land has, as an incident of his ownership of land, the exclusive right to hunt, take, keep and kill wild animals while they are on his land. A landowner may exercise these rights himself or grant to others, by way of a profit à prendre, the right to exercise these sporting rights on his land; it is this Roman-derived law that forms the conceptual basis for leases or licences of shooting rights or fishing rights which are so commonplace in rural society.
Rights held per industriam arise when an animal is in someone’s possession by way of some effort or industry to capture or tame the animal, and, generally, last so long as the animal remains in that person’s possession. These rights arise, principally, in two situations. One is where there is no relevant land ownership, for example fishing in the open sea, so there can be no rights ratione soli. The other is the case of animals which may roam but return home, such as bees from a hive, or pigeons from a pigeon loft, where the qualified right may prevail even if the animal is away from its home territory.
There were, in broad terms, two questions before the Court: firstly, whether the fish were wild; and, secondly, whether Borwick retained rights in the fish following the sale of the land to CWF.
The fish, like all fish, were ‘wild’, irrespective of their individual characteristics, propensity and circumstances. The Court held, following Buckle v Holmes (1925) 134 LT 284, 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 only qualified property rights.
As to the nature of that qualified property right in the present case, the Court was ambivalent. However, whether Borwick’s rights were to be regarded as rights per industriam or rights ratione soli, was not a distinction the Court was required to determine: the Court held that, irrespective of the precise categorisation of right, those rights were lost upon the sale of land.
Rights rationale soli, as an incident of land ownership, passed to CWF along with title to the land.
Rights per industriam depend for their acquisition and continuation on possession of the relevant animals. In principle those rights might exist where the person asserting the right does not have title to the land on which the animals are found; however, in order to do so he must continue to exercise close control over those animals to establish the necessary degree of possession. In the absence of any reservation of rights in the transfer of land, Borwick had no right to enter the land and do anything with or in respect of the fish after the sale to CWF; thus, Borwick had no control over the fish and any rights per industriam were lost.
Putting the legal reasoning to one side, the outcome of this case might be unpalatable to some.
Borwick, having expended substantial sums on acquiring the fish and on their husbandry thereafter, lost the value of its enterprise and investment; CWF, on the other hand, arguably obtained a windfall.
Was there anything Borwick could have done differently? Absent extracting the fish before the sale and taking them elsewhere, no. The receivers were in control of the sale, and so Borwick had little say in the structure of the transfer or the possibility of reserving rights in relation to the fish.
The lessons for practitioners and landowners are clear. In most cases, rights in live wild animals kept on land for a commercial venture (whether that be for sport or consumption) are likely to be contingent on ownership in land. In a sale of land, a landowner should ensure that he strikes a bargain which properly reflects the value of his land with its animal stock. If he wishes to reserve rights to that stock following a sale of land, then practitioners should structure transfers accordingly, whether that be by way of a reservation of a profit à prendre or otherwise.