Pole and another v Peake and another

Landowner selling land subject to sporting rights – Syndicate leasing sporting rights – Appellants challenging manner of use of sporting rights by syndicate – Whether respondents entitled to bring birds on to premises for rearing – Whether respondents liable for damage resulting from rearing of birds – Whether sporting right defence to action in nuisance In 1974 the respondents’ predecessors sold an area of 67 acres over which they retained sporting rights. In 1993 the appellants acquired 22 acres of the land (the premises) and the transfer reserved, inter alia, “the exclusive right . . . to hunt shoot fish and sport over and upon . . . [the] premises hereby conveyed . . . and for any of the purposes aforesaid and also for the purpose of preserving and rearing game wild fowl and fish to enter upon the said land woods and premises or any part thereof”. Meanwhile the respondents leased the sporting rights over the premises to a syndicate. The appellants subsequently challenged the manner of use of the sporting rights by the syndicate. The respondents issued proceedings seeking declarations to define those rights. The judge made the declarations, largely in the form sought by the respondents. The appellants appealed contending, inter alia, that the respondents were only entitled to exercise their sporting rights over the premises in a reasonable manner and subject to a balance of interest between the respondents’ shooting rights and the appellants’ farming activities. Further, it was submitted that the respondents were not entitled to accumulate, or bring on to neighbouring land owned by them, such a number of pheasants that would give rise to an action in nuisance. Held The appeal was dismissed. 1. The word “game” in the deed was not to be restricted to “wild game which was naturally occurring on the premises” and there was no justification for interpreting the deed so that the rights could only be exercised on foot and with notice. The word “rearing” could not be limited to the keeping of game that were on the premises without any intervention by the respondents, since that was largely covered by the power to preserve game. The respondents therefore were entitled to bring birds on to the premises and for that purpose. 2. The use that could be made of a right of way to a specific property was not limited by reference to the use of that property at the time of the grant, and that was the case with a profit unless limitation was specified in the grant. Therefore, the respondents were not limited to exercising their rights to the extent that they were exercised at the time of the deed. See White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113. 3. The respondents’ rights were limited to the extent that they had to be exercised with reasonable care, but ,subject to that, they could exercise their rights to enter for purposes of shooting, rearing and preserving game without limit, even if it interfered with agricultural activity on the premises. Therefore, the respondents were not liable for damage which reasonably occurred in the course of “rearing”. However, their rights did not include any activity that could not be characterised as part of a normal rearing operation and, accordingly, they would be liable for any “unreasonable” damage, since it would not have occurred in the exercise of “rearing” as envisaged by the grant: Farrer v Nelson (1885) 15 QBD 258 and Peech v Best [1931] 1 KB 1 considered. 4. Although the terms of the grant only gave the respondents the right to enter upon the premises for the purposes of rearing game, the respondents were not liable for birds which had not been reared on the premises and which interfered with, or damaged, farming operations, since that would have been a too narrow reading of the grant. David Harte (instructed by Triggs Read & Dart, of Barnstaple) appeared for the appellants; Mark Wonnacott (instructed by Bevan Ashford, of Tiverton) appeared for the respondents. Tom Elliott, barrister