Claimant enjoying grazing rights over common under 1954 freehold grant — Defendant farmers enjoying like rights under successive leases renewed between 1994 and 1998 — Priority dispute triggered by imposition of severe restrictions imposed upon designation of common as SSSI — Claimant claiming priority — Defendants contending for rateable reduction of entitlement — Whether claim supported by terms of 1954 grant — Claim dismissed
The first defendant (MB) was the freehold owner of a large estate in Somerset, which included an area of 810 acres known as Porlock Common (the common)*. Historically, a number of tenanted farms enjoyed sheep-grazing rights over the common, including the 113 acre Westcott Farm. This farm, at all material times before 1954, was let on terms (the old lease terms) that spoke of: “The right in common with other tenants of the Lessor to turn out upon Porlock Common& such horses, cattle and other stock as can be properly maintained on the demised premises.” In May 1954, the then owner of the estate sold the freehold of Westcott Farm to the predecessors of the claimant freeholder. The conveyance (the 1954 conveyance), while otherwise repeating the old lease terms, described the grazing right thereby granted as “the right in common with all other persons entitled to a like right”. At the date of the 1954 conveyance, and at all material times until the events giving rise to the dispute, the tenants of three neighbouring farms exercised grazing rights on terms corresponding to the old lease terms. During the 1990s, each of those tenants obtained fresh leases on similar terms.
In May 1992, the common was designated by English Nature as a site of special scientific interest, pursuant to section 28 of the Wildlife and Countryside Act 1981. In May 1996, English Nature, while formally consenting to the claimant grazing his animals on the common, indicated that no more than 292 sheep could be grazed during the winter months, and no more than 435 throughout the rest of the year. Those figures were substantially lower than the number that could be maintained on Westcott Farm alone. Having regard to that restriction, the claimant contended that he alone possessed grazing rights over the common, such claim being based upon the assertion that the rights given by the 1954 conveyance had priority over those derived from the fresh leases. In High Court proceedings, MB and the neighbouring tenants (the defendants) argued that no such priority was conferred by the 1954 conveyance, which, on its proper construction, placed all the dominant farms on an equal footing. On that view, each farm had to submit to a rateable reduction in the number of animals it could put out.
Held: The claim was dismissed.
Given that, in 1954, the common was capable of accommodating the grazing rights of all four farms, their operators would simply have regarded themselves as having equal status, and could hardly have envisaged the development of an arbitrary hierarchical scheme for the future of the grazing rights. The grant of a right “in common” with others plainly carried a notion of sharing, those words being superfluous if the claimant’s case were correct: Bahamas International Trust Co Ltd v Threadgold [1975] 1 EGLR 1 considered. The rule that priority between competing rights was determined by the date of grant did not depend only upon those rights being mutually inconsistent; it also amounted to no more than a presumption that could be rebutted by what the parties had agreed. A comparison between the words used in the old lease terms and the 1954 conveyance further indicated that the meaning contended for by the defendants was intended. Nor was there anything to violate the rule that a grantor could not make a grant that significantly detracted from an earlier grant: Newby v Harrison (1861) De GF&J 287 distinguished; Jelbert v Davies [1968] 1 WLR 589 considered.
That the solution lay in a scaling down of entitlements was supported by the “prorating” approach favoured in the analogous case of partial failure of supply of goods where there was more than one contract to fulfil: see, in particular, Treitel Frustration and Force Majeure (1994) at paras 5-015-5-027.
* Editor’s note: The common ceased to be a common in the technical sense on being enclosed in 1878.
Paul Morgan QC and Emily Windsor (instructed by Clarke Willmott & Clarke, of Taunton) appeared for the claimant; Joanne Moss and Adam Rosenthal (instructed by Stone King, of Bath) appeared for the defendants.
Alan Cooklin, barrister
