It is probably not as true for those who graduated from law school less than 20 years ago, but many of those who studied law before then probably read quite a few English cases, especially in the first year. We also probably recall early American property law cases having to do with things like who owns the fox or the whale. As the years pass, and our professional lives take more focused and, shall we say, practical directions, ferae naturae and dead English judges tend to recede. But it turns out that they continue to cast a long shadow. A recent decision from the Supreme Court of the United Kingdom, successor to the Appellate Committee of the House of Lords, tells the tale.
Lynn Shellfish Ltd v. Loose, [2016] UKSC 14, decided on April 13, at the court’s Easter Term, came on for hearing before five justices on two consecutive days in February. The decision was written jointly by Lords Neuberger and Carnwath, with the other three concurring. To quote the opinion: “The issue raised by this appeal is the extent of an exclusive prescriptive right (i.e., an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of Norfolk.”
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