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Judgments - Bettison and Others v. Langton and Others

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    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; and 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.


    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….


    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.


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