Commons registration—-Rights of common of pasture–Partition of manor–Lease of waste of manor–"Tenant of the manor"–Lease perpetually renewable by custom–Transmission of rights of common–Section 62(1) of the Law of Property Act 1925–Claims to rights of common upheld in one case and rejected in other
This was an
appeal by Anthony Gary Peter Whitfield, of Headley Wood Farm, Broxhead Common,
Hampshire, from the decision of the Chief Commons Commissioner, G D Squibb QC,
on November 22 1974 confirming rights of common of pasture over that part of
the common south of the Sleaford to Trottsford road. The rights of common had
been registered by Ernest Alexander Connell and Mrs Fiona Cooke.
Sir Frederick
Corfield QC and R J A Carnwath (instructed by Stones, Porter & Co) appeared
for the appellant; John Mills QC and John Trenhaile (instructed by W Bradly
Trimmer & Son, of Alton) represented the respondents.
Giving
judgment, BRIGHTMAN J, said that Mr Ernest Alexander Connell, of Lindford
Bridge House, which was at the southernmost point of the area, had registered a
right of common for pasturing on June 12 1968. A similar right was registered
six days later by Mrs Fiona R D Cooke, of Trottsford Farm. On September 1 1970
Mr Whitfield objected to those two registrations. The Chief Commons Commissioner
had upheld both registrations and from that decision Mr Whitfield now appealed.
Broxhead
Common was divided into four parts, but the only part under consideration was
that part which was bounded on the north by the Sleaford to Trottsford road, on
the west by the Sleaford-Lindford road, and on the east by parkland. The
freehold of that part of the common belonged to Mr Whitfield. The hearing was
not concerned with the registration, but with the rights of common. The only
part of the area concerned which had not been claimed as subject to common
rights was a small enclosed part called Wildman’s Plat. Broxhead Common formed
part of Broxhead Manor. The Chief Commons Commissioner found that until 1637
the owners of the undivided parts of the manor kept courts and granted
copyholds and other estates. No court rolls after that time had been found.
Lindford
Bridge House was part of the waste of the manor at the time of partition in
1637 and was later enclosed. In 1678, 41 years after the partition, a lease was
granted to a Jasper Moorer and his assigns. The lease was for 99 years and the
lessors covenanted on the expiration of the term to grant a new lease to Mr
Moorer, his executors and assigns for a like term. That was the starting point
of Mr Connell’s title. It was renewed for 99 years in 1778, and in 1876 a
further lease was granted for 99 years. The 1876 lease became vested in a Mr
Gamblen in 1909, and on November 30 1929 a Mr Dutton, who then owned the
reversion in succession to his father, conveyed the reversion to Mr Gamblen so
as to merge the 99 years’ term in the reversion and extinguish it. The freehold
was conveyed to Mr Connell in 1958. At the date of the 1929 conveyance Mr
Dutton did not own the part of the common with which the court was concerned,
which was called part C. The 1778 and 1876 leases made no mention of the grant
of any rights of common over part C or any other part of the common. As Mr
Dutton did not own part C in 1929, that conveyance could not create any new
rights over part C and could only transfer existing rights. Rights of common
could only have become vested in Mr Gamblen and later in Mr Connell if they
were appurtenant to the land when the leases were granted.
The Chief
Commons Commissioner found as a fact that there was a right of common of
pasture over the whole of the common attached to each of the tenements whether
customary, freehold, copyhold or leasehold mentioned in the survey of the
unpartitioned manor in 1636. He interpreted the 1637 partition as having the
effect of attaching to each of the tenements like rights of common. Mr
Whitfield contended that at the time of partition Lindford Bridge House was
waste of the manor and therefore no common rights could have been appurtenant
to it. When the lord of the manor enclosed this piece of waste he could have
retained it for himself, or disposed of it by an ordinary grant under the
common law system of conveyancing, or he could have disposed of it to a tenant
to be held as customary land of the manor. An ordinary common law lease would
not create any rights of common without express mention. If the lord of the
manor chose the third course and granted a customary lease the customary rights
of common, assuming the existing commoners were not prejudiced, would have
passed without express mention to the lessee.
Mr Mills, for
Mr Connell, founded his case on the proposition that the lease of 1678 was a
grant of the waste of the manor to be held for a term of years according to the
custom of the manor and having attached thereto the customary rights of common.
There were no sufficient grounds for challenging the finding of the Chief
Commons Commissioner that in the ancient days the manorial tenants enjoyed
rights of common both before and after partition. There was plenty of documentary
evidence to justify that finding of fact. There were references to such rights
in a translation from the Manor Court Book of Broxhead based on testimony said
to have been given on January 7 1619. A survey of the manor in 1636 referred to
the existence of rights of common. If the lease of 1678 was granted to be held
as customary land, and later leases were on a like basis, the rights of common
would have attached to them.
A submission
by Sir Frederick Corfield, that terms of years were outside the manorial system
save so far as carved out of the interest of a copyholder, was plainly mistaken
and was contrary to what was seen in the text-books and authorities.
The arguments
in favour of the leases being common law leases were that they were expressed
as ordinary indentures. The tenant was not said to hold the land by copy of the
court rolls. The leases were not, therefore, in a form appropriate to a
copyhold tenement. Also a grant of land to be held according to the custom of
the manor should be so expressed. On the other hand the indenture, by
implication, described the grantee as "a tenant of the manor" who was
covenanted to do suit and service to the Court Baron. If the lease had been
under common law it would not have been accurate to describe him as a tenant of
the manor.
It was
legitimate to construe the leases in the light of the circumstances shown by
contemporary documents which were consistent with the view that the leased land
was customary land, that the lease of Lindford Bridge House was perpetually
renewable by custom, and that such rights passed by section 62(1) of the Law of
Property Act 1925.
Regarding Mrs
Cooke’s claim to a right of common pasture over the same part of the common
because of
part of the manor but it was not clear, and could not be inferred, to which
part of the manor it belonged after partition. He held that there was
insufficient evidence to support Mrs Cooke’s claim, but nevertheless decided in
her favour. When the farm was sold to a predecessor of Mrs Cooke the transfer
did not pass any grazing rights. Evidence was given to the inquiry that there
was no evidence of any exercise of such rights for 22 years before the
conveyance to Mrs Cooke’s predecessor. After dismissing Mrs Cooke’s claim for
manorial rights of common, the Chief Commons Commissioner found in her favour
on the basis that a conveyance of land shall be deemed to include all
liberties, privileges, easements, rights and advantages if they were at the
time of the conveyance enjoyed with the land. The Chief Commons Commissioner
had erroneously drawn the inference that rights of common had been held by the
occupier of Trottsford Farm until 1948. The evidence in the case showed no
occupier of Trottsford Farm grazing cattle on the common later than 1912,
although there was an unsatisfactory mention of some grazing up to 1926. In
those circumstances it was impossible to infer that the occupier of Trottsford
Farm grazed the common between 1926 and 1948. It was therefore impossible to
assert that such grazing rights were enjoyed or were reputed or known at the
time of the conveyance.
Mr Whitfield
failed against Mr Connell but succeeded against Mrs Cooke.
