With reference to our recent telephone conversation, we write to inform you that the Conveyance to your sons and yourself of the 5th December 1955 contained the following:-
"All that freeboard containing 3 acres 2 roods and "15 perches or thereabouts over and along the land coloured "green on the said plan and -all estate in and rights over "or in respect of the said land coloured green but subject "to the rights (if any) of adjoining owners over or in "respect of the last mentioned land".
I enclose a copy of the plan and have marked the green colour shown thereon. The said Conveyance apart from that, conveyed to you the freehold land and half the bed of the river which is uncoloured on the enclosed plan. The Contract to purchase also shows that the freehold land amounts to 482.281 acres.
It is clear, therefore, that what was granted to you by the Conveyance was a right, i.e. freeboard and not the land itself. In particular, you will see from the above wording that freeboard is "over and along the land". From the copy of the plan, you will see that freeboard is a right over the strip of land abutting on to the boundary of fields Nos. G5, 57 and 70. It would seem, therefore, that the actual soil will be in the ownership of the adjoining owner.
"Freeboard" is of ancient origin and ha as "the nature of a claim to and ownership of only a mere right of user; and in practice, is affected not by way of grant or conveyance in the land, but by an actual Conveyance of the soil itself". The Conveyance to your sons and yourself has as shown above and the only difficulty seems to be the words "all estate in and rights over or in respect land". It might be argued that these words could convey
T. M. Paton, Esq.
the soil itself but my view is that taking into account the description in the Contract and the total acreage shown, this could not be so.
I have also referred to an extract from the Oadby (Leicestershire) Inclosure Act 1758/9 and the Toddington (Bedfordshire) Inclosure Act 1797 and it would and it would seem from these that freeboard is in fact a right to deal with land which was not owned by the person enjoying the right, the rights usually being at the normal times of the year for cutting and laying hedges and cleaning ditches.
As the strip of land in question lies along your boundary, it may be that this is exactly the position with regard to this land in question.
I trust that the contents of this letter will be of assistance and perhaps you will kindly contact me if necessary in due course.
T. M. Paton, Esq.,