Common land – Scheme giving management of common to local authority – Rights of commoners not including right of vehicular access over common – Construction of scheme – Rights of landowners not to be expropriated without express words – Application of council dismissed
The defendants were the owners of Bucklebury Common and the land had been owned by the family of the first defendant since 1540. A dispute arose as to the effect of a scheme made in 1929 investing the management of the common in the predecessor in title of the plaintiff council.The council sought a declaration that on the construction of the scheme, in particular of para 9, and the Commons Act 1899, they alone had lawful authority to grant to the residents of houses adjacent to the common rights of vehicular access over the land. Those residents had no other means of access to their houses. The council argued that the scheme as a whole had the effect of giving them the exclusive right to sue for trespass and that therefore the owners of the common, the defendants, were deprived of such a right.
The defendants contended that (1) as owners of the legal estate in fee simple of the soil of the common, subject to the rights of the commoners, they were entitled to grant easements and licences over the land so long as they did not thereby interfere with the rights of the commoners; (2) the rights of the commoners did not include a vehicular right of way across the common to adjoining land unless such a right had been granted to them by the owners of the common; and (3) there was nothing in the scheme or Act conferring a right of way on adjoining owners or entitling the council to confer such a right, or depriving the defendants of their common law right to grant easements and licences over the common land.
