The whole case depended on the currency and location of supposed 'agreements' purporting to be between the Oyster Company, then the Whitstable Free Fishers and Dredgers, and FLINT & Co. Canterbury Brewers, owners of The Stag Public House.
The Oyster Company claimed that a 9th June 1860 hand-written document, a copy, and on which- at first glance... signatures of Flint & Co appeared, was an 'agreement' for land beneath the Pub. Rent 10shillings p/a.
was not signed at all, but entirely the creation of the
Company's solicitors in 1860, Stephen and Edward Plummer. The
supposed signatures were written by these Company agents.
It was a try-on. Their barrister Mr Needham advised, as they did not have title, they could possibly obtain it by 'acts on the land' i.e. via adverse possession.
Remember at this time the Company's lands were certainly below High Water.
was also the Company's Steward, creator of the 1860 Table of Tolls...
complained of - at that time, by the tradespeople of Whitstable
These circumstances throw into question the validity of this said 'agreement' ...above HWM.
Whitstable's older residents say it would have been for pub customers to pull boats up... at the margin of the sea - the Oyster Co claimed similarly, i.e. that oystermen pulling up skiffs onto the beach gained company title there. I doubt any skiffs were pulled into the pub - albeit at times squiffy oystermen were pulled out.
The land is described as "sea-beach and shore"... so must straddle High Water. Sea-beach and shore are almost synonyms whose legal meaning is tidal lands, i.e. lands between High and Low water, Mr Needham, Paper Buildings, company barrister, confirmed this in 1848...Land Registry also confirmed this in 2004.
In 2003 Mr Bensted's
solicitor advised him to look into historic records.
This he did and in the local museum discovered another 'agreement' dated 10th Oct 1867...for land 22ft by 38ft...North of - i.e. seaward of the pub.
22ft is the exact width of the Pub site, and in 1867 it was 38ft above MHWM...
the 'agreement' was for land seaward - behind the Pub.
The 1867 rent was 17/5d p/a ... exactly a farthing a sq ft.
There was no seal or signatures on the document. It was however- singed
(in the 1950's -it is said- a director of the Oyster Company had a bonfire on the beach- of old documents. This particular one blew into adjoining streets where, so the story goes, it was retrieved by a member of the public and eventually donated to the Whitstable Museum)
Clearly if either of the so-called agreements were credible the later presumably supersede the earlier.
In the judgment the Judge said...
"It is correct that there is a lease dated the 10th October 1867. If this lease covers Stag Cottage then, as a matter of law, it determines the 1860 Lease".
Both 'agreements' say that property of The Stag is abutting to and south of the land supposedly rented out.
Properly understood... there is no possibility that the later did not overlay, wholly or in part...the earlier, so killing/determining it - irrespective of where you place the landward boundary of the fishery... and providing consistency of compass points.
He also said...
"Although the 1860 Lease makes no mention of buildings actually on the land, it contemplates the construction of buildings on the land "
Clearly therefore all structures shown to exist, on maps/plans, prior to the said 'agreement' and described in the 'agreement' as a plurality, buildings and outbuildings - then comprising the Stag Inn - are not on the land supposed rented, the future site supposedly of - 'extensions' hypothesised retrospectively..
The Judge's two statements above, part of the approved judgment, seem to contradict the plan on the Court order- if taken together with the historic, factual, physical and geographic evidence.
It was therefore
crucial for there to have been a correct understanding of the
geographic locations and physical/structural reality described
in-- and validity(in 2004) of, these two supposed 'agreements'.
Sadly this was never achieved. The Court's adopted geography placed North in effect getting on for 90degrees east of its true 1860 position.
The amount of
money claimed by the Company in 2004, in back rent...was based
on £1 14s 10d p/a and amounted to almost £6-
squid" as one local mariner commented)
Intriguingly £1 14s 10d is exactly double 17/5d
Clearly it was the 1867 'agreement' for land behind the Pub, that was, seemingly, not understood yet operated -- conflated with that of 1860 - and so...the claim of the Company to land beneath the Pub should have been dismissed.
The geographic placement in court, of the lands supposedly described in the two 'Agreements'... in order to escape the principle of Overlay mentioned above would require two different orientations for North. One for each 'agreement' and separated by 90 degrees (our belief is that this utter muddle 'avoided' the legal principle outlined by the Judge)
pointed this out to the court but, it seems, was ignored.
Another factor overlooked was the orientation of groynes on the beach.
In 1860 these ran more or less north east and north i.e. NNE and would have constricted land usage to be also aligned/oriented this way.
(In 1860 there was a magnetic
jerk and magnetic north moved almost 26degrees west of true
north. Presumably mariners would have used compass north in agreements
and this may have led to modern confusion as - geographic
north is now the norm. This phenomenon seems the only sensible
explanation of the compass directions used in 1860 as compared
to the fixed structures then but now specified in modern terms
vis-a-vis map north.)
As the orientation of the fixed structure of the pub lay at an angle to the groynes mentioned above and by the compass indications of 1860 it ran south east and south i.e. SSE this is why in the 1860 'agreement' the pub is to the south east and south whilst the land said leased is to the north east and north, one at approx 45degrees to the other.
Given the above
inconsistencies in the Judgment it is amazing how it has come
to be, that a former fishery company, now a Property & Entertainments
company, has been awarded the rear (seaward/north) end of a house that was in existence many years
prior to the date of the document on which the claim was founded...
And when the company owned no land above the high water mark as verified by the Lord Chief Justice in 1861.