Rights of common – Grazing rights – Commons Registration Act 1965 – Appellant claiming grazing rights over common land owned by respondents – Judge declaring rights exercisable one year in three – Whether judge erring in failing to find right of common exercisable every year – Whether finding regarding ancillary rights too restrictive – Whether respondents entitled to entirety of damages claimed – Appeal and cross-appeal dismissed
The respondents owned land comprising some ten acres which was common land subject to rights of pasture registered under the Commons Registration Act 1965. The rights were exercisable one year in three. Those entitled to registered rights of common over the land included the trustees of an abbey. Their rights were of common of pasture on the land in respect of defined numbers of cattle, horses or sheep and were registered as attached to a farm adjacent to the land.
The appellant was the tenant of the farm under a tenancy granted by the abbey trustees. He argued that his tenancy agreement impliedly granted him the trustees’ rights of common attached to the farm by application of section 62 of the Law of Property Act 1925. He complained about the respondents’ alleged interference with his purported right to access their land and the exercise of his rights of common over it.
The county court found that the appellant’s right over the respondents’ land as a commoner was exercisable every third year; that the right was only a right of pasture for a certain number of animals to graze; the appellant had no right to cut or remove fodder or to provide additional fodder to the animals grazing; the appellant had no right to cut or remove weeds or to improve the land; during commonable years the respondents could not obstruct access to the common land in any way; and it was not possible for the appellant to bring a vehicle on to the land unless it was necessary for the enjoyment of his right for the purpose of removing a dead or sick animal; and the respondents were entitled to nominal damages respect of the appellant’s trespass onto their land with agricultural machinery.
The appellant appealed against that decision, contending, inter alia, that: (i) the judge had erred in finding that his right of common was exercisable only one year in three; (ii) the judge’s declaration that he could not bring vehicles onto the common save for the purpose of removing a dead or a sick animal was unduly restrictive; and (iii) the judge had erred in awarding nominal damages. The respondents cross-appealed, contending that the judge ought to have awarded the damages which they had claimed for loss of a hay crop.
Held: The appeal and the cross-appeal were dismissed.
(1) In the absence of any temporal limitation on the register upon the exercise of a grazing right, the burden of establishing the existence of any such limitation lay upon the party asserting it. However, in the present case, the judge had ample material before him upon which to base his finding that the appellant’s right of common was only exercisable every third year: Dance v Savery [2011] EWCA Civ 1250; [2011] PLSCS 256 considered.
(2) As regards the ancillary right to bring vehicles onto the land, the test was whether the alleged right was reasonably necessary for the reasonable enjoyment of the principal or primary right. In the present case, the appellant had a right to graze a defined number of animals on the respondents’ land in commonable years. As an incident of that right of pasture he had a right to do whatever was reasonably necessary for the care and management of those animals. The land in question was a relatively small parcel of common land and the evidence did not begin to establish that it would ever be necessary to bring a vehicle onto the land for general shepherding purposes. Therefore the judge’s declaration was appropriate because it accommodated the appellant’s legitimate concerns and provided protection for the respondents against having their land interfered with any more than reasonably necessary. However, the declaration would be amended, as the respondents accepted, to allow access for the removal of injurious or noxious weeds which might harm the appellant’s livestock: White v Taylor [1969] 1 Ch 160 and Besley v John [2003] EWCA Civ 1737; [2003] PLSCS 240 applied.
(3) In relation to the award of damages, the appellant had no right to enter onto the respondents’ land with agricultural machinery and cut and remove hay. He was trespassing when he did so and the respondents were entitled at least to nominal damages. However, it was for the respondents to establish any further loss which they had failed to do, since the judge did not accept that any hay had been taken by the appellant.
Zachary Bredemear (instructed by the Bar Pro Bono Unit) appeared for the appellant; John Randall QC and Giles Harrison-Hall (instructed by Stallard March & Edwards and by Masefields Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
