Individuals owning stints — Claim by plaintiff to freehold — Whether stint holders had greater interest than right of grazing — Whether stint holders had right to soil in common with others — Decision by commons commissioners in favour of stint holders reversed at first instance — Court of Appeal allowing stint holders’ appeal — House of Lords allowing plaintiff’s appeal
The appeal concerned the ownership of part of Burnhope Moor, Weardale, Durham, for the purposes of registration in the ownership register of common land under the Commons Registration Act 1965. A number of individuals were entered in the register as owners of stints (ie they had the right to pasture animals on the unenclosed land, also referred to as cattle gates or beast gates). The actual ownership of the moor remained in dispute, the claimant being BL Ltd, the appellant, and the stint holders, who were local farmers who grazed their animals on the moorland. BL Ltd claimed to be entitled as freeholder under a conveyance of 1959 from the church commissioners. However, the commons commissioner rejected that claim on the ground that there was no satisfactory evidence to show that the stint holders had only an incorporeal right of grazing. He found in favour of the stint holders on the basis that, by a private Enclosure Act of 1799 and an award of 1815, they were not only allotted stints but also, by implication, the stinted lands had been vested in them as tenants in common in undivided shares in the soil. The dispute fundamentally concerned the right to shoot grouse on the moor. BL Ltd had shot grouse on the moor for many years, latterly under the 1959 conveyance. It was common ground that whoever owned the soil owned the grouse shooting.
BL Ltd appealed on the ground that it had acquired title by adverse possession and, at first instance, the judge found that in construing the Enclosure Act and the award it was necessary to establish the pre-award ownership of the moor. He held that the land devolved upon the Crown and that the present stint holders merely had incorporeal right of pasturage and that the ownership of the soil was with the Crown. He further held that BL Ltd had acquired titles to the moor (subject to the stint holders’ rights) by long possession. The stint holders’ appeal was allowed: see [1993] EGCS 106. BL Ltd appealed to the House of Lords. Its counsel, who did not appear below, abandoned any claim based on adverse possession and accepted that everything depended upon who owned the rights to the soil before and after the award of 1815. Counsel also discovered that there had been litigation concerning the shooting rights on Burnhope Moor in the 1860s: see Ecclesiastical Commissioners v Peart The Times, February 13 1867.
Held The appeal was allowed.
1. The court was not prepared to overturn long established law, when to do so would cast doubt on established titles.
2. The 1867 decision was clearly right in holding that whoever held the title to the soil of the unenclosed residue before the Enclosure Act, their title was not affected by the Act.
3. The court applied the presumption that the soil was vested in the Lord of the Manor who was then the Bishop of Durham from whom the church commissioners had title to convey the soil in 1959.
4. The land in dispute in the present case was that part of Burnhope Moor which was unenclosed residue. It was vested in BL Ltd which was entitled to be registered under the Commons Registration Act 1965 as owner.
John McDonnell QC and Peter Keenan (instructed by Gaynham Smith & Mellor, of Appleby) appeared for the appellant, Brackenbank Lodge Ltd; Sheila Cameron QC and John Fryer-Spedding (instructed by Snowball Tucker Bibby, of Consett) appeared for the respondent stint holders.
