Brackenbank Lodge Ltd v Peart and others

Individuals owning stints — Claim by plaintiff to freehold — Whether stint holders having greater interest than right of grazing — Whether stint holders having right to the soil in common with others — Decision by Commons Commissioners in favour of stint holders reversed at first instance — Appeal by stint holders allowedThe appeal concerned the ownership of part of Burnhope Moor, Weardale, Durham, for the purposes of registration in the Ownership Register of Common Land under the Commons Registration Act 1965. A number of individuals were entered in the register as owners of stints (ie they had the right to pasture animals on the unenclosed land, also referred to as cattle gates or beast gates). The actual ownership of the moor remained in dispute, the claimants being BL Ltd and the stint holders, who were local farmers who grazed their animals on the moorland. BL Ltd claimed to be entitled as freeholder under a conveyance of 1959, but the commissioner rejected that claim on the ground that there was no satisfactory evidence to show that the stint holders had only an incorporeal right of grazing. He found in favour of the stint holders on the basis that, by a private Enclosure Act of 1799 and an award of 1815, they were not only allotted stints but also, by implication, the stinted lands had been vested in the stint holders as tenants in common in fee, in shares proportionate to their stint. BL Ltd appealed and at first instance, the judge found that in construing the Enclosure Act and the award, it was necessary to establish the pre-award ownership of the moor. He held that the land devolved upon the Crown and that the present stint holders merely had incorporeal right of pasturage in the moor and that the ownership of the soil was with the Crown. He further held that BL Ltd had acquired title to the moor (subject to the stint holders’ rights) by long possession. The stint holders appealed. Held The appeal was allowed. 1. The Royal Commission on Common Land stated that the ambit of the word “stint” was either: (a) the sole right acquired by grant from the owner of the soil or by prescription to graze beasts on land, in the soil of which the holder of the right has no interest; or (b) the right to graze on a piece of land which the holder of the right owned in common with the possessor of other gates — also referred to as a “proprietary stint”. 2. The court considered that generally in relation to Burnhope Moor, a stint was not simply an incorporeal right of grazing. At the time of the Enclosure Act and at the time of the award, the stints were proprietary stints which included a right in common to the soil. 3. With regard to the argument that BL Ltd had acquired title by long possession, the substantial fact was that the moor was, and had from time immemorial been, a stinted moor used for grazing. There was no evidence of any significant interference with that right; the continued and uninterrupted use of the land by the stint holders for grazing their animals was crucial in establishing that they had never been dispossessed, but were entitled to proprietary stints at all material times. Sheila Cameron QC and John Fryer-Spedding (instructed by Snowball Tucker and Bibby, of Consett) appeared for the stint holders; Peter Keenan (instructed by Cartmell Shepherd, of Penrith) appeared for the respondent, BL Ltd.