Rights of common pasture – Entitlement – Tenancy – Appellant holding tenancy of farm and claiming grazing rights over common land – Whether rights of common attached to farm passing to tenant with tenancy of farm – Appeal allowed
The appellant became the tenant of a farm owned by the trustees of Stanbrook Abbey following the death of his father, who had held a tenancy since 1961. The tenancy agreement granted a tenancy from year to year. The appellant claimed that he was entitled to graze livestock on certain common land, which comprised approximately 10 acres and formed part of a larger area owned by the respondents. It was subject to registered rights of common pasture recorded in a register maintained by the local authority pursuant to the Commons Registration Act 1965; the rights were exercisable one year in three. The trustees of the abbey were entitled to registered rights of common over the land for a defined number of cattle, horses and sheep, which were registered as attached to the farm.
The appellant argued that the trustees’ rights of common had passed to him with his tenancy agreement by virtue of section 62 of the Law of Property Act 1925. He complained that the respondents had wrongly obstructed his access by fencing off the land. Accordingly, he brought a claim in nuisance for disturbance of his rights, and applied for an injunction restraining the obstructions.
The judge considered as a preliminary issue whether the appellant was entitled to the rights of common to graze livestock on the common land and held that the appellant had no such rights by virtue of his tenancy. The judge found that the tenancy agreement had expressly reserved the rights of common to the trustees since they fell within para 4 of Schedule 2 to the agreement, which reserved the benefit of all existing and future wayleaves, easements and rights affecting the farm and all rents and moneys payable in respect thereof. He further found that the rights of common had been waived by an agreement between the landowners and a committee representing the commoners. The appellant appealed.
Held: The appeal was allowed.
On the sale of part of a vendor’s property, a reservation of rights in favour of the retained land would not ordinarily be implied, apart from easements of necessity. Any rights that were to be reserved had to be reserved expressly. If, as a matter of interpretation, the trustees’ rights of common were properly regarded as rights affecting the farm, para 4 was a sufficient express reservation of them. Appurtenant rights of common for the grazing of a specified number of animals were capable of being severed from the land to which they were attached and of becoming rights in gross: Wheeldon v Burrows (1879) 12 Ch D 31 considered.
However, the judge was wrong to interpret para 4 as reserving the rights of common to the trustees. The context of that paragraph indicated that the word “affecting” did not refer to rights benefiting the farm but to rights burdening it, which was the usual sense of the word: White v Taylor (No 2) [1969] 1 Ch 150 considered.
Paragraph 4 had to be read and interpreted as a whole. The benefit of all wayleaves and easements affecting the farm and all rents and moneys payable in respect thereof referred naturally and only to wayleaves and easements that burdened the farm. There was no reason to give a different interpretation to “rights”, which was essentially a sweeping-up reference. Therefore, the word “rights” in para 4 was not referring to the rights of common attached or appurtenant to the farm and in respect of which the farm was the dominant tenement those rights could not be interpreted as being reserved to the trustees.
Furthermore, the commoners’ committee was not a statutory body with statutory power to bind the commoners. Although the committee might have rights of management over the common land, it had no power to waive or suspend the proprietary rights of the commoners. Accordingly, the rights of common attached to the farm had not been waived by agreement before the tenancy was granted to the appellant.
The appellant appeared in person; Giles Harrison-Hall (instructed by Masefield LLP, of Ledbury for the first respondent and John Stallard & Co, of Worcester for the second and third respondents) appeared for the respondents.
Eileen O’Grady, barrister
