The Bar

Commercial and Chancery Bar: To the manor bought

Author: Frank Hinks

Published: 04/09/2008 02:29

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Can ordinary citizens who have purchased titles enforce the associated ancient land rights? Frank Hinks reports on the case of Lord Marcher of Trelleck

As a result of the conversion of copyhold into freehold in 1926, manorial courts were no longer needed for the transfer of title and manors ceased to be of any practical significance. However, the title ‘Lord of the Manor’ was not abolished. Neither were most of the property rights vested in Lords of the Manor. In the latter part of the 20th century, pandering to the vanity of those people who were not content to be a plain ‘Mr’ or ‘Mrs’, lordships were put up for auction. Those selling the titles did not always exclude the property rights which pass as parcel of the lordship. This gave rise to a new breed of businessman who buys ancient titles at auction and then seeks to exploit commercially the property rights that come with the title.

Pre-eminent among such businessmen is Mr Roberts, the self-styled Lord Marcher of Trelleck who has bought more than 60 titles at auction and is pilloried in the popular press as “the Lord of Extortion”, despite — according to his evidence — being entirely reasonable in his charging.

The principal source of income for businessmen like Roberts was to demand substantial payments from houseowners who wished to continue to drive to their homes over waste of the manor (road verges, commons and village greens) but were prevented from doing so by the fact that it is a criminal offence to cross such land without lawful authority. This source of income was stopped by the decision of the House of Lords in Bakewell Management v Bradwell [2004]
which allowed easements across land whose owner could have lawfully made a grant removing criminality.

An alternative source of income for Lords of the manor arises through the possibility of establishing title to foreshore and seabed as “waste of the manor” — with marinas, wind and tidal power projects offering potentially lucrative rewards. Roberts attempted to claim such a title. Since there is a legal presumption that the foreshore and seabed belongs to the Crown by prerogative right, this claim brought Roberts on a collision course with the Crown.

The first case to come to trial concerned the bed of the River Severn: Roberts v Swangrove Estates [2008]. There were competing claims by different estates. The Crown established title to a section of the river bed on the basis of adverse possession. Having bombed, dredged and shot over it there was little doubt as to possession, but Roberts (relying on ancient textbooks and authorities) appealed principally on the ground that it was a fundamental principle of law that the Crown could not disseise a subject and hence the Crown could not gain title unless it proved that it originally entered into possession lawfully. The Court of Appeal held that the true principle was that the subject could not say that he had been disseised by the Crown — a variant of the constitutional principle that the King can do no wrong — but that since the subject could recover land from the Crown by petition of right, this principle was no bar to gaining title by adverse possession.

The more substantial action between the Crown and Roberts concerned title to half the coastline of Pembrokeshire. Roberts claimed title as Lord Marcher of St Davids. In his Land Registry Objection he claimed to be a corporation sole in succession to the Bishops of St Davids, and asserted that, as Lord Marcher, he enjoyed the legal status of a rajah and hence was immune from all pleas, suits and actions. He exhorted Her Majesty to treat with him as between two component parts of the Empire. In the event Roberts submitted to the jurisdiction of the High Court and the case came on for hearing before Mr Justice Lewison in May 2008.

Immediately before the case was due to be heard Roberts conceded on the basis of the earlier judgment that the Crown had title by adverse possession, but put forward an entirely new claim to various ancient franchise and manorial rights. These included wreck, estray (the right to beasts straying on the foreshore), treasure trove and a remarkable claim to exclusive fishing rights off the entire coastline. This would have enabled him to hold the fishermen of South Wales to ransom, although at trial he disclaimed any intention of doing so. Fortunately for the fishermen the value of his disclaimer need never be tested since the Crown’s claim to title by prerogative right was upheld. As a result, Mr Roberts lost all claims to franchise and manorial rights, other than a moiety of wreck in respect of two manors (moiety of wreck being a unique survival of pre-Norman conquest Welsh law whereby wreck was shared between King and bishop).

The Pembrokeshire case, which principally turned on the construction of a Royal Charter of 1115, also put in issue Mr Roberts’ entire claim to be a Lord Marcher. During Roberts’ acquisition of the manor of the City and Suburbs of St Davids, he persuaded the seller, the University of Wales, also to convey to him the Lordship Marcher of St Davids — which arguably covered the entire ancient possessions of the Bishops of St Davids. Prior to this case there was no authority as to what is a Lordship Marcher and as to what (if anything) passes by a conveyance of a Lordship Marcher.

The temporal marcher lords conquered Wales in the name of the Crown, maintaining their own independent legal systems within their territories. The Bishops of St. Davids were never conquered in any real sense. They remained in possession of their pre-conquest lands, but when the last Welsh bishop died in 1115, the King appointed a Norman bishop. The bishop and his successors then aped the jurisdictional privileges of neighbouring marcher lords, and such privileges were eventually confirmed by royal charters wholly distinct from the charter of 1115, which confirmed the pre-conquest property rights. Lewison held that a lordship marcher was a jurisdictional franchise abolished by the 1535 Statute of Wales, which removed all the jurisdictional privileges of the marcher lords and united England with Wales. Clearly the conveyance to Roberts’ company could not have conveyed such a defunct jurisdictional privilege. Construed in accordance with the private dictionary provided by the auction contract of sale, the conveyance was held to be effective only to convey to Roberts the manor of the City and Suburbs of St Davids. Roberts lost not merely title franchise and manorial rights (other than moiety of wreck) but his very status as Lord Marcher. Sadly he can no longer exhort Her Majesty to treat with him as one sovereign to another.

Frank Hinks QC was leading counsel for the Crown Estate Commissioners in both the River Severn and the Pembrokeshire cases. He is a member of Serle Court.

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