Commons registration–Common rights not abandoned by mere non-user–Intention never to use again essential–Rights not lost by period of requisition, by some house building or by absence of mention in conveyances–Effect of copyhold enfranchisement–‘Common land’ either land subject to rights of common or waste land of a manor
This was an
appeal by Douglas Arnold, owner of Blackbushe Airport, Hampshire, from the
decision of a Commons Commissioner, A A Baden Fuller, that the whole of Yateley
Common (including the airport) was properly registered as common land under the
Commons Registration Act 1965.
W J Mowbray QC
and J Byng (instructed by Stallard & Gurney, agents for Jackson, Kent &
Hodges, of Littlehampton) appeared for the appellant, J W Mills QC and J Bradburn
(instructed by Gouldens) represented the individual claimants, and M Essayan QC
(instructed by the Hampshire County Council solicitor) represented the
authority.
Giving
judgment, FOSTER J said that Hampshire County Council had registered the whole
of Yateley Common as common land, and persons who claimed common rights over
the whole of the land had submitted a large number of applications. The
appellant, Douglas Arnold, the owner of Blackbushe airport, was now opposed by
23 persons. Yateley Common was said to be of about 1,218 acres, a little more
than 3 miles long and was crossed by the A30 road. It was divided into four
parts, the Blackbushe part, of 300 acres owned by Mr Arnold, which was north of
the A30 and west of the Old Vigo Lane; the Calthorpe part, now owned by Sir
Richard Anstruther-Gough-Calthorpe, south of the A30; the defence part owned by
the Ministry of Defence, south of the A30 and east of the Calthorpe part; and
the county part, owned by Hampshire county council, to the north of the defence
part and east of the Blackbushe part. The appeal concerned only the Blackbushe
part. Since time immemorial the commoners had exercised rights of common over
Yateley Common until 1942. In the 16th century there was an intense dispute
between the lord of the manor and the copyholders which resulted in the
‘Crondal Customary’ in 1567, which could only be described as a peace treaty.
The copyholders claimed then, and still claimed, rights of common not only by
prescription or by user but as a legal right granted from time immemorial. Mr
Arnold claimed that those rights had been abandoned, but, if not, that some
claimants had lost their rights by conveyancing defects. It was difficult to
prove that a person having such a right had abandoned it, especially if he had
no reason to use it. It required something more than a lengthy period of
nonuser to amount to abandonment. It had to be proved not only that a person
had not used it but that he intended never to use it again. In considering
whether or not the legal rights had been abandoned it was immaterial whether
the present user as an airfield was of importance as being in the public
interest and it was equally immaterial for what motive the commoners sought to
maintain their rights.
From 1942 to
1960 the Blackbushe part was requisitioned as a wartime aerodrome, and
subsequently had been used as a civil airport, under licence from the Civil
Aviation Authority, which brought into play restrictions of rights of access to
the land to avoid the obstruction of flying. The county council had wished to
buy the Blackbushe part, and Mr Arnold had brought an action against them to
prevent that. In those circumstances it could not be said that the future of
the land as an airfield had been secure. The fact that there was no user during
the requisition period did not show any intention by the commoners to abandon
their rights–they were merely prevented from exercising them. Although the land
had been split and small houses had been built on parts of it, that was not
such a fundamental change of character as the building, say, of a factory or
garage which would have prevented a claim to rights of common.
It was also
submitted that there had been many conveyances and sets of auction particulars
which never mentioned the common rights, but the rights passed by operation of
law. Such rights may have been thought to be of no value, but that did not mean
that they had been abandoned. As there was no abandonment, the claimants whose
copyhold lands had been enfranchised by statute were not affected and their
claims must be confirmed. If the grantee of a deed of enfranchisement had a
right of common at the date of the deed, there was no need to re-create the
right or regrant it. The deed merely had to show that the right should not
cease when the copyhold interest disappeared. In this case the grantees had a
right from time immemorial and the words in the deed of enfranchisement were
sufficient to confirm them. It was further submitted by Mr Arnold that the
rights of common were exaggerated and should be reduced, but that point was not
taken before the Commons Commissioner and so it was not open to the appellant
to raise it in the appeal. Accordingly the decision of the Commons Commissioner
was correct and the appeal must be dismissed.
In case of
further appeal and if it should be found that there were no rights of common
there was a point raised as to whether the appellant’s land was nevertheless
‘common land’ as being ‘waste land of a manor.’
The Commons Commissioner had decided that point by finding that the
Blackbushe part was in fact waste land of a manor. The appellant submitted that
that was not now so, as it was an aerodrome and also that it ceased to be waste
when the Ecclesiastical Commissioners conveyed the land to Lord Calthorpe in
1891. Regarding the first point, the land was requisitioned for an aerodrome
and nothing done during or after its derequisition could affect the position.
The land could easily revert to common land when it stopped being used as an
aerodrome. On the second point, the manor ceased to exist as a geographical
entity after 1925 and had become an incorporeal hereditament. There was no
reason why land should cease to be registrable because it was no longer owned
by the lord of the manor. The Commons Commissioner had been correct on that
point also.
The appeal
was dismissed, but leave to appeal to the Court of Appeal was granted.