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.
Buckley J said: ‘To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time, or for 24 hours of the day, or very possibly on every day of the week or all round the year. But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed.’
Judges:
Buckley J
Citations:
[1969] 1 Ch 160
Jurisdiction:
England and Wales
Citing:
Cited – Richards v Squibb 1698
A right to depasture a fixed number of beasts differs 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 . .
Cited – Drury v Kent 1603
‘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.’ . .
Cited – Daniel v Hanslip 1672
‘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.’ It was . .
Cited – Bunn v Channen 1813
A right of depasture may be aliened so as to become a right in gross, severed from the property of the alienor. . .
Cited by:
Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 09 May 2022; Ref: scu.191143