Bettison and Others v. Langton and Others [2001] UKHL 24; [2001] 3 All ER 417; [2001] 2 WLR 1605 (17th May, 2001)

BETTISON AND OTHERS

(RESPONDENTS)

v.

LANGTON AND OTHERS

(APPELLANTS)

ON 17 MAY 2001

[2001] UKHL 24

LORD SLYNN OF HADLEY

My Lords,

1. I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Scott of Foscote. On the basis of the material to which he refers and which was considered by Robert Walker LJ it seems to me to be well established that at Common Law appurtenant rights of grazing for a fixed number of animals were severable and that section 187 of the Law of Property Act 1925 did not change that position. Despite the opinions expressed in the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462) I also consider it clear that the effect of section 15 of the Commons Registration Act 1965 was that on registration, rights of grazing formally determined by levancy and couchancy became rights to graze a fixed number of animals. There is nothing in the section which requires or leads to the conclusion that the general rule is not to apply. The grazing rights in the present case thus became severable. Accordingly, for the reasons given by Lord Scott I, too, would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

2. This appeal concerns the commons of England and Wales. Despite the continuing growth of towns and cities, ancient common lands still cover about 1.4 million acres, over 4 percent of the total area of England and Wales. Some commons, such as Clapham Common, are now within built up areas. But the great bulk of common lands are in the countryside, notably the extensive hill commons in the north and south west of England and in Wales.

3. For centuries many farmers whose lands adjoin the local common have enjoyed the right to put out their sheep and cattle to graze on the common. The animals wintered on the farms, but in the summer months they were let out to graze on the open common. This appeal raises an important point concerning the ownership of these grazing rights. These rights have feudal origins, but this should not be allowed to obscure their continuing importance. What happens on the commons is of importance to the local farmers. What happens on the commons is also of wider importance. Commons have considerable amenity value. Increasingly, what happens on the commons is a matter of general public concern. They are the last reserve of uncommitted land in England and Wales. They are an important national resource.

4. Traditionally grazing rights are an adjunct of the lands of the farmers who own the rights. The rights had their origin in actual or presumed grant, usually the latter. The law assumes that long continued use must have had a lawful origin. The number of animals that a farmer was entitled to depasture on the common was limited to the animals his land could support through the winter. The language was picturesque: the right was limited to the number of beasts ‘levant and couchant’ (‘getting up and lying down’) on the farmer’s holding in the winter months. These rights could be passed on or sold, but only with the farm to which they were appurtenant. They were to be enjoyed by the occupier for the time being. They could not be sold separately, or ‘severed’, from the farm.

5. Most grazing rights were governed by the principle of levancy and couchancy, but not always. Sometimes a grazing right might be for a fixed number of animals. Then the right, known as a right in gross, could be sold separately. Historically, grazing rights in gross are rare.

6. The respondents’ case is that all this was changed by the Commons Registration Act 1965. Under the Act the number of animals a farmer may pasture on the common in exercise of grazing rights is the number stated in the commons register. Levancy and couchancy, as a principle for quantifying a grazing right, has been overtaken. Accordingly, it is said, the Act has had the effect of transforming all grazing rights into rights in gross, which can be sold separately from the land to which they have been annexed for centuries. It is not suggested that in 1965 anyone anticipated or intended that the registration provisions should have this far-reaching effect. But, so it is said, as night follows day, that is the inevitable consequence of section 15 of the Act. Whether Parliament intended that result or not, that is what Parliament has done.

7. My Lords, arguments of this nature are to be approached with circumspection. An Act of Parliament is to be interpreted having regard to its purpose. The court is looking for the intention of Parliament expressed in the language under consideration. The intention of Parliament is to be judged objectively. It is the intention which the court imputes to Parliament in using the words in question. If the statutory language is fairly susceptible of a meaning which gives effect to the parliamentary intention, the court will prefer that meaning.

The object of the Act

8. So the starting point is to identify the purpose of the Commons Registration Act 1965. This was important but limited. It is well summarised in Megarry and Wade, The Law of Real Property, 6th ed (2000), p 1144. In 1965 there were many uncertainties about what land was subject to rights of common and what rights of common existed over these lands. The object of the Act was ‘to lay a foundation for further legislation to govern the management and improvement of common land’. To this end the Act enacted provisions for ascertaining what rights were claimed to be still in existence, and for extinguishing others. The provisions of the Act are to be interpreted with this in mind.

The background to the Act

9. Next, the background to the legislation. The Act followed the report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462). The Royal Commission was chaired by Sir Ivor Jennings QC. The overriding conclusion of the report was that common land ought to be preserved in the public interest. The commission recommended that certain local authorities should register claims that land is common land and claims by commoners to rights over common land. Any rights not registered should be held to have lapsed.

10. Paragraphs 271 to 275 of the report dealt specifically with grazing rights or, more formally, rights of common of pasture. The report noted that, under the commission’s recommendations, a right of common of pasture would be registered either as attached to a holding (appurtenant) or, if unattached, in the name of the owner as a right in gross. A claimant should be free to register his grazing rights as rights in gross provided he could produce evidence that that is what they were. The onus of proof would be on him. Otherwise rights of pasture would be registered as appurtenant to the land to which they were attached. Changes in the ownership of rights in gross would be registrable, but changes in the ownership of a holding to which grazing rights were appurtenant would not. Particulars of rights appurtenant would only be altered in the register if the holding were split. Otherwise, barring compulsory acquisition, or the purchase of rights within an approved scheme of management, ‘the rights would remain inseparable from the original holding’: see paragraph 273. The commission added:

    ‘The permanent registration of common rights attached to holdings as rights appurtenant should avert any danger of rights subsequently being alienated.’

11. Earlier in its report, at paragraphs 30-31, the commission criticised levancy and couchancy as one of the old customs and practices which, if not totally forgotten, were often an indifferent guide in modern circumstances and tended to become discredited. So it was small wonder if each commoner shifted for himself and crowded as many sheep as he dared on the upland sheepwalk. As a result the sward was becomingly increasingly impoverished through overgrazing. But if levancy and couchancy was not a satisfactory way to determine the extent of registered grazing rights, some other method had to be found. After considering possible alternatives, the commission recommended that each claimant should be free to claim those rights of pasture which he believed he was entitled to: see paragraph 274. A procedure was recommended for making and resolving objections which other commoners or the owner of the soil might have.

12. Thus, the commission made abundantly plain that, although it was recommending that grazing rights appurtenant to a farm should be quantified as fixed numbers, that was not intended to make the rights alienable from the farm. The commission envisaged that registration as an appurtenant right would suffice to maintain the appurtenant character of the right even though the right would be quantified. This intention was repeated in the commission’s summary of its recommendations, in paragraph 405(5):

    • ‘A right of common of pasture should be registered as appurtenant (i.e. attached) to the holding(s) of the claimant or, on proof by the claimant, as in gross (i.e. unattached to a holding).

… Rights appurtenant should not be severable from land to which they appertain

    , unless extinguished or transferred within an approved scheme of management and improvement.’ (My emphasis.)

The wording of the Act

13. I turn now to the Act. I can say at once that one looks in vain for any indication that Parliament intended to depart from the commission’s recommendations relating to grazing rights. Indeed, a striking feature of the Act is that it implements all the relevant recommendations in every particular. Section 1 provides for the registration of rights of common over common land. The section further provides that after the end of a prescribed period no rights of common shall be exercisable over common land unless they are registered. Section 4 provides that objections to registrations shall be referred to a Commons Commissioner, and section 5 makes provision for the disposal of disputed items which are so referred. Section 7 makes provision for the finality of undisputed registrations. Section 19 provides that the minister may make regulations prescribing, among other matters, the form of the registers and of applications for registration.

14. In exercise of this power the minister made the Commons Registration (General) Regulations 1966 (S I 1966/1471). I should refer briefly to these regulations. Regulation 4(3) provided that the rights section of each register should contain particulars of the rights of common registered as exercisable over the common in question. The particulars were to include descriptions of the land, if any, to which the rights were attached. The prescribed form, form 3, contained a corresponding column, headed: ‘Particulars of the land (if any) to which the right is attached’. Regulation 29(1) made provision for the amendment of registered rights. Where a registered right was apportioned, varied, extinguished or released or, being or having become a right in gross, was transferred, application might be made for the amendment of the register. This regulation made no provision for amendment of the register when the ownership of the holding to which a right was attached changed hands. This was not an oversight. Note 1 of the notes to the prescribed form, form 19, stated:

    ‘With regard to attached rights, it is important to remember that, so long as the land to which a right is attached remains a single holding, no case for amendment of the register arises, no matter how many times the holding may be sold or otherwise transferred, unless and until the right is apportioned. On the other hand, every transfer of the freehold ownership of a right held in gross should be recorded in the register.’

The reason for this distinction is not far to seek. The view was taken that in the case of rights which are attached to land, the register does not need to be amended because the ownership of the right will necessarily go hand in hand with the ownership of the land which is particularised on the register. This is in accordance with the Royal Commission’s recommendation.

Section 15

15. In section 15 of the Act Parliament made provision for quantifying grazing rights. The sidenote reads ‘Quantification of certain grazing rights’. Here also the statutory provisions conform wholly with the recommendations of the Royal Commission. Section 15(1) provides:

    ‘Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.’

Thus, a grazing right is to be deemed (‘be treated as’) exercisable in relation to a definite number of animals ‘for the purposes of registration under this Act’. Section 15(2) provides that an application for registration of such a right shall state the number of animals to be entered on the register. These two subsections are, necessarily, to be understood in the context of the whole Act. As already noted, an applicant who owns a right appurtenant to a holding must register it as such. These two subsections envisage that an applicant who owns a grazing right which is appurtenant to a holding, and who applies to register the right as attached to the holding, will himself specify the number of animals in respect of which the right is exercisable.

16. Section 15(3) then states the consequence (‘accordingly’) of the registration when it becomes final:

    ‘When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine.’

Thus, the right which is appurtenant to a holding, and has been registered as such, shall in future be exercisable in relation to the registered number of animals. That was the intended consequence.

17. In so providing Parliament cannot have intended that the mere fact of quantification should have the further effect of changing the nature of the right, so that what had been an appurtenant right, and registered as such, should automatically become a severable right. It was not intended that, up and down the country, rights which for centuries had been attached to particular farms should now immediately become alienable to the highest bidder who wanted to bring his sheep in lorries from many miles away. That would be a fundamental alteration in the character of these rights. It would go far beyond merely quantifying the right. There is nothing in the Act to suggest that quantification as part of the registration process was intended to make such a fundamental change. Such a change would, indeed, be inconsistent with the scheme of the legislation. The statutory scheme required appurtenant rights to be registered with particulars of the land to which they were attached. That would be pointless if they were alienable as rights in gross. And it would be extremely odd if the very process of registration rendered every appurtenant grazing right severable.

18. The preferable interpretation of the effect of section 15 is that the only change in a grazing right made by this registration legislation is that, when the registration becomes final, the grazing right is henceforward quantified by reference to the registered number. If, as was usually the case, the right was appurtenant to a particular holding, it would remain appurtenant to that holding as duly registered.

19. I accept, notwithstanding Mr Chapman’s skilful efforts to argue the contrary, that at common law a grazing right for a fixed number was regarded as severable from the holding. On this I agree with the views expressed by Robert Walker LJ in his erudite judgment. But it by no means follows that, when Parliament provides for the quantification of a grazing right which is appurtenant to property, the right must become a right in gross. There is no reason in principle why Parliament should not provide that a grazing right which is appurtenant to a particular farm may remain so appurtenant even though its extent is for the future quantified as a fixed number. A grazing right appurtenant to particular land, but whose extent is quantified by a fixed number, is not incoherent as a legal concept. The rationale underlying the common law principle is that when a grazing right is for a fixed number of animals, it is immaterial to the owner of the waste whether the animals are put on the common in respect of a holding or by a person who owns no land. But in the 1950s the Royal Commission was concerned with wider issues than the position of the owner of the common. The commission envisaged that appurtenant rights should remain appurtenant after quantification by registration. In the 1965 Act Parliament gave effect to the commission’s recommendation on this point. The common law principle which governed severability is not apt as a guide in the context of this registration scheme.

20. This interpretation does not strike at the foundations of the law relating to appurtenant grazing rights. It means only that, unlike quantification by agreement, quantification by registration under the Act does not have the consequence that an appurtenant right becomes severable. It does not have that consequence, because registration is a statutory system, and when establishing this system Parliament did not intend that registration should have this consequence. The Act is to be construed accordingly.

21. Nor does this construction of the Act give rise to practical difficulties. A grazing right which was appurtenant to a holding before 1965 was required to be registered as an appurtenant right. That is how it is recorded in the commons register. There is no scope for future uncertainty.

22. I am fortified in the conclusion I have reached by noting that recent publications concerned with the future of commons speak with one voice in drawing attention to the undesirable effects of grazing rights being severed from their traditional holdings: see, for instance, the Good Practice Guide on Managing the Use of Common Land, published by the Department of the Environment, Transport and the Regions (June 1998). Severance of grazing rights from the associated holdings off the common can reduce the long term viability of these holdings. It can also make co-operative grazing management more difficult. Needless to say, the soundness or otherwise of the points raised in these publications is not a matter for this House acting in its judicial capacity. But these publications do underline the public importance of the question whether commons grazing rights should remain attached to the local farms. More directly in point is a comment in a research report made to the Department in July 1998 by the Countryside and Community Research Unit of the Cheltenham and Gloucester College of Higher Education, in paragraph 7.9:

    ‘severance detaches the rights from the land forever and this was clearly not the intention .. when the registers were created in 1965-70.’

23. I agree. I would allow this appeal. The argument based on section 15 appears to have been presented differently in the Court of Appeal, because Robert Walker LJ did not deal specifically with the point I have discussed above. I would hold that the grazing rights over Tawna Down attached to Sina Farm, Mount, near Bodmin, Cornwall, remained so attached after they were registered as a right to graze 10 cattle and 30 sheep. Mrs Langton’s purported conveyance of these grazing rights alone to the respondents Mr and Mrs Bettison in April 1987 was ineffectual.

LORD STEYN

My Lords,

24. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scott of Foscote. For the reasons he has given I would also dismiss the appeal.

LORD HUTTON

My Lords,

25. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Scott of Foscote. The arguments in support of the conclusion that the appeal should be allowed are powerfully set out in the speech of Lord Nicholls. However, on balance, I have reached the conclusion that the appeal should be dismissed for the reasons set out in the speech of Lord Scott.

26. I have formed this view because it is clear from the authorities cited by Lord Scott that the common law recognised a right appurtenant to dominant land to pasture a fixed number of animals on common land and that such a right could be severed from the dominant land and alienated. As this was the rule of common law I agree with the opinion of Lord Scott that as section 15 of the Commons Registration Act 1965 transformed a levant and couchant grazing right into a right to graze the fixed number of animals noted in the register, it follows that in accordance with the common law such a right can be severed from the dominant land and alienated to a third party.

27. Whatever may have been the intention with which the Royal Commission made the recommendation upon which section 15 is based, I do not consider that section 15 can be read as operating to restrict the common law rule that the right to pasture a fixed number of animals on common land can be severed from the dominant land. To come to this conclusion is not to hold that Parliament in enacting section 15 intended that the fact of quantification of the number of animals which the dominant owner could graze should have the effect that a right which was not severable should become severable— rather it is to hold that the words of section 15 cannot be read as restricting the pre-existing and well established common law rule. Accordingly I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

28. Rights of common appurtenant are rights of common which are attached to land. They may be acquired either by grant or by prescription. The right of common with which this case is concerned is a right of pasturage, that is to say, a right to graze beasts on a common. The common in question is Tawna Down on the edge of Bodwin Moor in Cornwall. It is not in dispute that Tawna Down is a common and that rights of common of pasturage are exercisable over it. Nor is it in dispute that Mrs Langton, who purchased Sina Farm, near Bodmin, on 16 September 1985, thereby became proprietor of the right to graze 10 head of cattle and 30 sheep over Tawna Down. Her right of pasturage was appurtenant to Sina Farm.

29. Mrs Langton’s right of pasturage had begun its life, long before she had become owner of Sina Farm, as a right for the owners of Sina Farm to graze on Tawna Down the animals levant and couchant on the farm. In Gadsden’s The Law of Commons (1988) the following explanation of levancy and couchancy is given:

    “From early days it has been understood that levant and couchant means ‘so many of the cattle that the land, to which the common is appurtenant, may maintain in the winter’, that is to say, ‘if my land to which I claim common belonging, can yield me stover (feed) to find a hundred cattell in winter, then I shall have common in summer for a hundred cattell'” (p 101, para 3.128)

30. And in Carr v Lambert (1866) 1 Ex 168, 175 levancy and couchancy was described as a “measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits”.

31. The Commons Registration Act 1965 required all commons and all rights over commons to be registered. Tawna Down was duly registered as a common. The registration became final on 17 December 1971. The right of pasturage appurtenant to Sina Farm, too, was duly registered. The application for registration and the registration itself had to comply, and did comply, with section 15(1) and (2) of the 1965 Act. I shall have more to say later about sub-section (3) but it is convenient at this point to set out the section in full.

    “15 (1) Where a right of common consists of or includes a right, not limited by number, to graze animals or animals of any class, it shall for the purposes of registration under this Act be treated as exercisable in relation to no more animals, or animals of that class, than a definite number.
    (2) Any application for the registration of such a right shall state the number of animals to be entered in the register or, as the case may be, the numbers of animals of different classes to be so entered.
    (3) When the registration of such a right has become final the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine.”

32. The pasturage right appurtenant to Sina Farm, being a right limited by levancy and couchancy, was “a right, not limited by number”. So the registration application had to state the number of animals for which the right was claimed (subsection(2)), and the registration of the right had to treat the right as exercisable in relation to a definite number of animals (subsection(1)).

33. The applicants for registration were Mr and Mrs May, predecessors in title of Mrs Langton. The registration recorded their right to graze 10 head of cattle and 30 sheep over Tawna Down and that the right was attached to Sina Farm. Accordingly, the right to which Mrs Langton became entitled, although originally limited by levancy and couchancy, had become a right “exercisable in relation to animals not exceeding….” 10 head of cattle and 30 sheep (subsection(3)).

34. By a conveyance dated 6 April 1987 Mrs Langton sold to Mr and Mrs Bettison (the respondents to this appeal) her right of pasturage over Tawna Down. She retained the ownership of Sina Farm. In 1988 Mrs Langton mortgaged Sina Farm to Midland bank plc and, by a conveyance dated 22 September 1994, the bank, as mortgagee, sold the bulk of Sina Farm to Mr and Mrs Penter (the appellants).

35. The appellants contend that it was not in law possible for Mrs Langton to have severed the right of pasturage from the land to which the right was appurtenant. The conveyance of 6 April 1987 was, they contend, ineffective. The right of pasturage remained vested in Mrs Langton and, by virtue of section 62(1) of the Law of Property Act 1925, an appropriately apportioned part of the right of pasturage passed to them under the conveyance of 22 September 1994. So the issue between the parties is whether the conveyance of 6 April 1987 was effective to do what it purported to do, namely, to transfer the Sina Farm right of pasturage to Mr and Mrs Bettison, thereby severing it from the farm and transforming it from a right appurtenant to a right in gross.

36. It is not in dispute that, at common law, a right of pasturage limited by levancy and couchancy could not be severed from the land to which the right was appurtenant. Nor is it in dispute that, at common law, a right of common of pasturage for a fixed number of animals could be created in gross, that is to say without being attached to any land, and, if so created for an estate in fee simple, could be freely assigned. It is, however, in dispute whether a right of pasturage appurtenant not limited by levancy and couchancy but for a fixed number of animals could be severed from the land to which the right was appurtenant. In my opinion, the overwhelming weight of old authority is in favour of such a right being severable. It was so decided both by Judge Anthony Thompson QC at first instance and by the Court of Appeal: [2000] Ch 54. The leading judgment in the Court of Appeal was given by Robert Walker LJ. I must pay an admiring tribute to his scholarly judgment with which, on this issue, I am in complete agreement. It is only out of respect for the arguments put before your Lordships by counsel on this appeal, and the suspicion that, as often happens, the arguments may have been slightly different from those addressed to the courts below, that I propose to examine the issue myself rather than simply to content myself by adopting the judgments and reasoning below.

37. In Hall’s Treatise on the Law relating to Profits à Prendre and Rights of Common (1871) the author, at p 249, cites a dictum attributed in Year Book 26 Hen 8 TT, p 4 c15 (edit. 1679) to Fitzherbert J:

    “for one can create common appurtenant at this day, and one can alienate it, and sever it from the land to which it is appurtenant….”

The author comments, at p 250, that

    “the passage…… must be understood as applying only to common appurtenant for a certain number.”

In Drury v Kent (1603) Cro Jac 14 it was held that

    “he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; ….. but common appurtenant for beasts certain may be granted over.”

According to the report of Daniel v Hanslip in (1672) 2 Lev 67:

    “Hale CJ said, that if a man hath common appurtenant to a messuage and land for certain number of beasts, he may alien the same; aliter if it be common for all his beasts levant and couchant upon the land, he cannot by his alienation sever that from the land.”

38. A more detailed report of what seems to be the same case under the title Leniel v Harslop is to be found in 3 Keble 66. This report records that it was held:

    “… a common appurtenant may be severed and granted, because nothing restrains it to cattle used upon the land also if it be for cattle levant and couchant it may be granted; with the land and not without it.”

39. Coming to modern times, Buckley J in White v Taylor (No 2) [1969] 1 Ch. 160, 190 gave the following summary of the law:

    • “But a right to depasture a fixed number of beasts differs significantly from a right for beasts levant and couchant. It is not confined to enjoyment by beasts levant and couchant on the dominant land and may be enjoyed by beasts that do not come from the tenement to which the right is appurtenant:

Richards v Squibb

    •  (1698) 1 Ld Raym 726. It may be aliened so as to become a right in gross, severed from the property of the alienor

(Daniel v Hanslip 

    • 2 Lev 67

; Leniel v Harslop 

    • 3 Keb 66;

 Drury v Kent

    •  Cro Jac 14;

 a

    • nd see

Bunn v Channen 

    • (1813) 5 Taunt 244, and

Cooke on Inclosures

     4th ed. (1864) p 21) because its enjoyment is not restricted to cattle on the land of the alienor and severance of the right from the land cannot increase the burden on the servient tenement.”

40. The view of the law as permitting severability of appurtenant rights of pasturage provided they were not limited by levancy and couchancy but were for a fixed number of animals is supported by a wealth of academic and textbook comment, from The anonymous treatise The Law of Commons and Commoners: in 1698 to Halsbury’s Laws of England (4th ed) (reissue) vol 6 in 1991.

The Law of Commons and Commoners says at p 18, that

    “The common appurtenant be the same after a manner as common appendant; yet it differs in several particulars. As ….
    (4) This sort of common may be severed from the land to which it is appurtenant….”

41. In Woolrych’s A Treatise on the Law of Rights of Commons (1824), p 67 the author says:

    “But a common appurtenant for beasts certain may be granted over, for such a grant has no reference to connexion of tenure”

He cites Drury v Kent Cro Jac 14 and Daniel v Hanslip 2 Lev 67 as authority.

42.

    Elton’s A Treatise on Commons and Waste Lands (1868), p 81 contains the statement that

    “… where the right is a common of pasture appurtenant for a certain number of beasts, it may be granted over to a stranger, and so converted into a common in gross, because the severance is no prejudice to the owner of the waste, the number of the cattle being the same in either case”

43. The same point is made in Joshua Williams’ Rights of Common and other Prescriptive Rights (1880), p 184:

    “It is held to be immaterial to the owner of the waste, when the right is fixed and stinted to a certain given number of cattle, whether those cattle are put on in respect of a tenement, or by a person who owns no land.”

and also in Scriven, A Treatise on the Law of Copyholds (7th ed) (1896), p 378.

44. Both in Halsbury’s Laws of England, 3rd ed (1953), vol 5, p 334, para 773, and in the 4th ed (reissue), vol 6, pp 226-227 para 560, it is stated that a common of pasture appurtenant for a fixed number of animals may be severed from the land and the appurtenancy thereby destroyed.

45. Against this deluge of judicial and academic opinion favouring the severability of appurtenant rights to pasture a fixed number of animals, Mr Chapman, counsel for the appellants, relied on Baylis v Tyssen-Amhurst (1877) 6 Ch 500 and Chesterfield v Harris in the Court of Appeal [1908] 2 Ch 397, and in the House of Lords [1911] AC 623. Both these cases were concerned not with the severability of appurtenant rights but with the acquisition of them by prescription. In Baylis v Tyssen-Amhurst it was held that, in order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was claimed was not, however, a fixed and certain number nor a number limited by levancy and couchancy. It was said to be a number dependent on the value of the dominant land relative to the value of the other tenements in respect of which pasturage rights were being claimed “according to a scale fixed by the homage of the manor”. Sir George Jessel MR began his judgment by saying 6 Ch 500, 506: “I confess I know of no such right as is alleged here”. Chesterfield v Harris concerned a claim to an unlimited right of fishing said to be vested in the freehold tenants of the manor and to have been acquired by prescription. Nothing said in the judgments either in the Court of Appeal or in this House is, in my view, of any assistance on the question of severability of appurtenant rights of pasture for a fixed number of animals.

46. In addition, and more cogently, Mr Chapman relied on passages in Gadsden’s The Law of Commons, published in 1988. Chapter 6 deals with severance of appurtenant grazing rights and in it the author examines each of the cases to which I have referred, and several others, in which statements in favour of the severability of grazing rights limited to a fixed number of animals are to be found. He points out that the statements in question are all obiter dicta and accompanied by very little in the way of explanation or analysis. He speculates that the fixed number grazing rights, although pleaded in the cases as rights appurtenant, may have been really rights in gross: see para 6.08. He dismisses the academic and textbook statements on the ground that “… there was a general acceptance in agricultural practice that rights appurtenant to land could not be severed, so in legal circles the matter was not one of much significance”. para 6.09 and comments that “… the odd remark in the books of London lawyers obviously had little effect in the Shires…” para 6.12. There is, however, no reason of principle offered to explain why grazing rights for a fixed number of beasts, as opposed to rights limited by levancy and couchancy, should not be alienable whether or not they are rights appurtenant. As Buckley J pointed out in White v Taylor (No 2) [1969] 1 Ch 160, and as is pointed out in a number of the old textbooks, the alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the right will remain constant. Mr Chapman argued that, so long as the right remained appurtenant, changes in the nature of the dominant land might reduce the number of beasts that could be grazed. So that, if a reservoir were constructed on the dominant tenement, or if it were developed as a housing estate, or if it otherwise lost its character as an agricultural unit, the appurtenant right of grazing, being no longer capable of benefiting the dominant land, would be lost. This might indeed be the consequence if the right were limited by levancy and couchancy, for the land would no longer be capable of supporting any animals at all (but see Carr v Lambert (1866) 1 Ex 168), but where the right is for a fixed number I can see no reason whatever why a change in the character of the dominant tenement should make any difference and no authority, in case law or textbooks, including Gadsden’s The Law of Commons, suggests the contrary.

47. Accordingly, in my opinion, your Lordships, in dealing with this appeal, should proceed on the footing that, at common law, appurtenant rights of grazing for a fixed number of animals were severable.

48. Mr Chapman submitted, next, that even if that were the common law, the law had been changed by section 187(1) of the Law of Property Act 1925, which reproduced section 23 of the Law of Property Act 1922. Section 187 (1) provides:

    “Where an easement, right or privilege for a legal estate is created, it shall enure for the benefit of the land to which it is intended to be annexed.”

According to Wolstenholme and Cherry’s Conveyancing Statutes, 13th ed (1972), vol 1, p 312:

    “This section is new. Subsection (1) shows that, as heretofore, when a legal easement is created it … should be made appurtenant to some land. There can be no such thing as an easement in gross.”

49. There can, however, be such a thing as a profit in gross and it is common ground that grazing rights can be created and can exist not only as rights appurtenant to some land, but also, if exercisable by a fixed number of beasts, as rights in gross.

50. Robert Walker LJ, after noting that neither the purpose nor the effect of section 187 (1) had been elucidated by any reported case, said this about it [2000] Ch 54, 72:

    “I find it a very obscure provision. I think it likely that it must have been intended to clarify some supposed doubt or to fill some supposed gap in the law, but the precise nature of the doubt or gap is a matter of conjecture…. But whatever the true explanation is, I find it inconceivable that Parliament intended by those obscure words (directed as they are primarily to easements rather than profits) to change the law as to the severance of profits….”

I agree. I can see no reason for attributing any such intention to Parliament. The subsection, in my opinion, does not prevent the severability of appurtenant rights that under the common law are severable.

51. Mr Chapman’s final point was that, although section 15 of the Commons Registration Act, 1965, requires grazing rights formerly limited by levancy and couchancy to be registered as rights exercisable for a fixed number of animals, that legislative change should not be given an effect so as to permit an appurtenant right previously inalienable from the dominant land to be severed from that land.

52. This point, of course, only arises if, as is my opinion, Mr Chapman is wrong in submitting that appurtenant grazing rights for a fixed number of animals cannot be severed from the land to which the rights are appurtenant.

53. In support of his argument as to the effect of section 15 of the 1965 Act, Mr Chapman placed strong reliance on policy considerations. He drew attention to the Report of the Royal Commission on Common Land, published in July 1958. He pointed out that the 1965 Act represented a partial, and first stage, implementation of the recommendations in the Report.

54. Paragraph 270 of the Report recommended that:

    “rights of common other than those of pasture should invariably be registered as attached (appurtenant) to the holding of the claimant… There should be no possibility of commercial exploitation…”

As to rights of pasture, paragraph 271 said:

    “Rights of common of pasture have never been so closely restricted as other rights to the requirements of particular holdings, and it would cause unnecessary hardship to impose such a limitation today.”

And paragraph 272 recommended that rights of common of pasture “be registered either as attached to a holding (appurtenant) or, if unattached, in the name of the owner as a right in gross”. A note to paragraph 272 expresses the commissioners’ view that:

    “The permanent registration of common rights attached to holdings as rights appurtenant should avert any danger of rights subsequently being lieniated.”

55. In paragraph 273 the commissioners make some recommendations regarding amendment of the registered particulars of rights of common.

    “From the date of registration of a claim to common rights the particulars shown in the Register would stand (ie the rights would be held to be attached to the claimant’s tenement or vested in gross) unless on objection it was determined otherwise…. Particulars of rights appurtenant (attached to a holding) would only be altered in the Register if the holding were split up and a person acquiring ownership of a part of it could then show that all or some of the rights had been conveyed to him with his part of the holding. Otherwise, barring compulsory acquisition and extinguishment, or the purchase of rights within an approved scheme of management and improvement, the rights would remain inseparable from the original holding.”

56. As to registration of rights limited by levancy and couchancy, the report said:

    “274. We recommend that each claimant should be free to claim those rights of pasture which he believes he is entitled to…. Under modern conditions to attempt a definition according to the winter carrying capacity of the farm – a revival, that is, of the old rule of levancy and couchancy – or according to the valuation of the farm as a pastoral unit would often be more a test of the capabilities of the farmer than of the capacity of his land….

275.

    The impossibility of making an objective definition leaves only one alternative – to allow the commoner in his claim to rights of common of pasture to define them himself: in other words, to allow him to claim whatever he believes he is entitled to….”

57. The 1965 Act was a partial implementation of the Royal Commission’s recommendations. It was, at the time the Act was passed, envisaged that the reform of commons and the law of commons would be completed by a second enactment to complement the first. Unfortunately this second enactment has never emerged, although the Access to the Countryside Act 2001 has now implemented some of the Royal Commission’s recommendations about public access to common land.

58. It is plain enough from the report that the commissioners, while willing to accept the continuing exercise over commons of existing rights of pasture in gross, were opposed to any increase in the number of these rights. They contemplated that appurtenant rights of pasture would, once registered, continue to be appurtenant and would not, in general, be alienable from the land to which they were attached.

59. Section 15 of the Act did not, however, provide for their inalienability. It required, by subsections (1) and (2), that levancy and couchancy rights be registered as rights in respect of a fixed number of animals and, by subsection (3), enacted that upon registration:

    “the right shall accordingly be exercisable in relation to animals not exceeding the number or numbers registered or such other number or numbers as Parliament may hereafter determine.”

60. The conclusion is, in my opinion, inescapable that subsection (3) transformed the right, on registration, from being a right limited by levancy and couchancy to being a right for a fixed number of animals. That had been the intention of the Royal Commission whose recommendation to that effect was implemented by section 15. I am unable to accept Mr Chapman’s argument that section 15(3) simply imposed a cap on the number of animals levant and couchant that could be grazed. If that were right, the levancy and couchancy limitation would, subject to the cap, have remained. Whatever else section 15 may or may not have done, it plainly, in my opinion, got rid of levancy and couchancy as a measure of the number of animals that, post registration, could be grazed.

61. So, if registration under section 15 transformed a levant and couchant grazing right into a right to graze the fixed number of animals noted in the Register, what were the other consequences of the registration? An inevitable consequence, in my opinion, was that changes in the character of the dominant tenement, the land to which on the register the grazing was said to be attached, became irrelevant to the continued enjoyment of the grazing right as registered. Any application to have the registered number of animals reduced because the land had ceased to be an agricultural unit would have to be rejected. Once levancy and couchancy as the measure of the grazing rights has gone, the capacity of the dominant land to support animals and its character as an agricultural unit loses its relevance to the exercise of the grazing rights. The owner of a sugar beet farm, or of a farm consisting of nothing but set-aside land, or of land that has become a reservoir, can derive the same economic benefit from the right to graze 50 sheep on a common as can the owner of a sheep farm. The only real difference is that the latter owner is likely to have more convenient facilities for shearing, dipping, marketing and the like.

62. As to the severability of appurtenant grazing rights that were formerly limited by levancy and couchancy but have become, on registration, rights for a fixed number of beasts, it may be that the commissioners were under the impression that appurtenant rights, of whatever character, were not severable from the dominant land. And it may be that the draftsman of the 1965 Act shared that belief. But, in relation to appurtenant grazing rights for a fixed number of animals, that belief was, in law, wrong. In Kirkness v John Hudson & Co Ltd.[1955] AC 696, 714 Viscount Simonds said that:

    “the beliefs or assumptions of those who frame Acts of Parliament cannot make the law”.

The passage was cited by Goff LJ in Pritchard v Briggs [1980] Ch 338, 398 when considering section 186 of the Law of Property Act 1925 which, he concluded, had been passed by Parliament under the misapprehension that pre-emption rights over land were interests in land.

63. If, as I think, appurtenant grazing rights for a fixed number of animals can, at common law, be severed from the land to which they are attached and if, as I also think, registration under section 15 has transformed grazing rights limited by levancy and couchancy into grazing rights for a fixed number of animals, it must follow, in my opinion, that these registered rights, too, can be severed from the land to which they are attached. This consequence is not based upon a construction of section 15 that attributes to Parliament any intention at all about severance. Section 15 is not a provision dealing with severance. It is dealing with the registration of common rights and the extent of those rights after registration. It is the general law, established by the authorities to which I have referred, that, when applied to the registered grazing rights produced by section 15, impels the conclusion that the rights are severable. If Parliament wishes to make these, and any other, appurtenant grazing rights incapable of severance it can, of course, do so. In considering whether to do so it will place what weight, if any, it thinks proper on the policy considerations expressed in the various publications to which Mr Chapman referred your Lordships. It is not for this House to pre-empt Parliament in deciding what, if anything, should be done. The present law is that appurtenant rights of grazing for a fixed number of animals are severable. Section 15 of the 1965 Act turned Mrs Langton’s appurtenant grazing rights into rights for a fixed number of animals. So Mrs Langton’s appurtenant rights of grazing became severable and the conveyance of those rights to Mr and Mrs Bettison in 1987 was effective.

64. In my opinion, Judge Anthony Thompson and the Court of Appeal were correct on all points and I would dismiss this appeal.

 

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