Besley and others v John

Grazing rights — Ancillary rights — Appellant having grazing rights over common –Whether having right to bring additional feed onto land — Whether having right to use vehicles to transport feed and for general shepherding purposes — Whether golf course extension interfering with appellant’s grazing rights — Appeal allowed in part The appellant owned two farms adjacent to a common, over which he had registered rights of common to graze animals, and upon which he grazed his sheep. The respondents were the freeholders of part of the common, upon which they ran a golf course. In particular, they brought proceedings claiming that the appellant was exceeding his rights and exercising them in an excessive and unreasonable way. They objected to the appellant’s practice of bringing additional feed onto the land. They also complained that he used vehicles on the land to transport the feed and for shepherding purposes, resulting in damage to the greens on the golf course. The appellant counterclaimed that a recent extension of the golf course to 18 holes amounted to an interference with his grazing rights. The judge found that there was no right, ancillary to the grazing right, to bring additional food onto the land, or to use vehicles for that purpose. He considered that such a right could not, of its nature, be reasonably necessary to the exercise of the grazing right. He further found that the appellant had an ancillary right to bring vehicles onto the land only for the purpose of removing dead or injured animals, and that, even then, the appellant should use the existing hard tracks. The judge also dismissed the counterclaim, finding that any interference with the appellant’s grazing rights was minimal, since the addition to the golf course was very small when compared to the common as a whole. The appellant appealed, contending that: (i) bringing additional feed onto the land was reasonably necessary to the exercise of his grazing rights; (ii) the use of vehicles for that purpose was a reasonable mode of exercising that right in modern times; and (iii) he also had a right to use vehicles for carrying out general shepherding duties, such use being a reasonable mode of exercising his undisputed ancillary right to tend to the welfare of his sheep. As to his counterclaim, he argued that the judge should have compared the golf course extension not with the whole common, but with the more limited area actually grazed by his sheep. Held: The appeal was allowed in part. 1. The grazing right was, by its nature, a right only to take whatever of the grass the sheep could eat. The provision of extra food could not be regarded as incidental to, or reasonably necessary to the exercise of, the right of grazing. That right was a right only to graze, not to carry out all functions and services associated with keeping sheep and to treat the common as an extension of the appellant’s farms. 2. The appellant did have an ancillary right to tend to the welfare of his sheep and to carry out general shepherding duties. The judge had not addressed the issue of whether the use of vehicles constituted a reasonable method of exercising that right. That had led him to take a limited view of the appellant’s vehicular rights. It was for the parties to attempt to agree an order as to what would represent a reasonable use of vehicles in the light of the present judgment, failing which further submissions in writing should be made to the court: Earl of Antrim v Dobbs (1892) 30 LR Ir 424 applied; White v Taylor (No 2) [1969] 1 Ch 160 considered. 3. The judge had been right to use the whole common as the comparator when considering the counterclaim, since the appellant’s right extended over its entirety. Leslie Blohm (instructed by John Collins & Partners, of Swansea) appeared for the appellant; Stephen Lloyd (instructed by James H Tonner Johns & Co, of Swansea) appeared for the respondents. Sally Dobson, barrister