Corpus Christi College, Oxford (President and Scholars) v Gloucestershire County Council

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE OLIVER,LORD JUSTICE KERR
Judgment Date23 July 1982
Judgment citation (vLex)[1982] EWCA Civ J0723-2
Docket Number82/0362
CourtCourt of Appeal (Civil Division)
Date23 July 1982

[1982] EWCA Civ J0723-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHELTENHAM COUNTY COURT

(HIS HONOUR JUDGE BULGER)

Royal Courts of Justice.

Before:

The Master of the Rolls

(Lord Denning)

Lord Justice Oliver

and

Lord Justice Kerr

82/0362

Plaint No. 8003663

The President and Scholars of Corpus Christ College in the University of Oxford
Appellants
and
Gloucestershire County Council
Respondents

MR. S.J. SHER, Q.C. and MR. M. KEENAN (instructed by Messrs. Morrell Peel & Gamlen) appeared on behalf of the Appellants.

MISS SHEILA CAMERON (instructed by D.A. Dean, Esq., M.A., LL.B.) appeared on behalf of the Respondents.

THE MASTER OF THE ROLLS
1

In the lovely Cotswold country there is the old parish of Little Rissington not far from Bourton-on-the-Water. It is a small place with only a few houses and the church. In the parish there is a meadow called Temple Ham Meadow of nearly 26 acres. It has been grazed by the residents of the parish for centuries. They have put their cattle or sheep on it each year—for half of the year only—from the 1st August to the 28th February or thereabouts. None of them knew the origin of the right but that they had it there was no doubt in any of their minds.

2

So when Parliament required a register to be made of all the rights of common in England, the Parish Council applied to the Gloucestershire County Council for this right of the residents to be registered. It was made on the 27th February, 1968—the very first of all the applications to be made to the county council under the Act. The clerk said in the application that he made it:

"On behalf of the residents for the time being of the Parish of Little Rissington, Gloucestershire".

3

He described their right as:

"The right to graze animals 50 cattle or 100 sheep 1st August each year to 28th February of the following year".

4

He said further:

"The right is exercisable by residents of the Parish of Little Rissington owning cattle or sheep".

5

On receiving that application, the Clerk to the County Council marked out the meadow on a map and described it as "Register Unit CL95". He made an entry in the Rights section of the register containing the claim made by the Parish Council. He made a corresponding entry in the Land section describing the meadow and adding that it was "Registered in consequence of the application" for the Rights section.

6

So far so good. But it then appeared that the meadow was owned by an Oxford College, called Corpus Christi College. And this college objected to the entry in the Rights section. It did not object to the entry in the Land section for this very good reason: The college knew that Temple Ham Meadow was common land and that some persons had rights of common over it. So it was properly entered in the Land section. But they objected to it being entered in the Rights section. Their grounds of objection I will set out in full:

7

"1. Only the tenants of the Manor of Little Rissington have rights over the land and so far as the modern Civil Parish is inconsistent as to Parish Boundaries with the boundaries of the Manor, Landowners in the Civil Parish should be excluded.

8

"2. The Registration does not refer to land to which the Common Rights are attached and is, therefore, bad unless it is shown that all property in the Civil Parish has Common Rights attached to it. Residence in the Parish, or indeed in the Manor, is irrelevant in this context.

9

"3. The field will not carry 50 head of cattle or 100 sheep for the period registered. Serious damage to the land would occur if this number of stock were grazed. Reasonable stocking rates in our opinion are 20 cattle or 60 sheep; furthermore, the period during which such Rights as exist may be exercised is from 1st August to 24th December, and not as Registered".

10

" The tenants of the Manor"

11

In order to understand that objection, you should know what is meant by the "tenants of the Manor of Little Rissington". I ought to know myself because by statute:

"All manorial documents shall be under the charge and superintendence of the Master of the Rolls"

12

and he is entitled to make all inquiries about them and to see that they are properly preserved, see the Law of Property (Amendment) Act 1924, Second Schedule, paragraph 2.

13

Further, for over twenty years I lived in a lane called Copyhold Lane, in Cuckfield, Sussex.

14

The bald statement in the objection that "the tenants of the Manor of Little Rissington have rights over the land" has since been amplified in an agreed statement of facts, which says:

15

"Temple Ham Meadow ('Temple Ham') comprises approximately 25.8 acres of grazing land. At all times since 1665 (if not before) it has been held by the applicants as part of the demesne lands of the Manor of Guiting. It has never been waste land of the Manor".

16

That statement is brief in the extreme. I suppose it has been got out by one of the college historians. I will endeavour to supplement it by my own researches. As Thomas Scrutton (afterwards Lord Justice Scrutton) said in his Essay on Commons (1887) page 1:

17

"The origin and history of common lands in England are insuperably bound up with the history of the manor".

18

The nature of the manor

19

In mediaeval times the manor was the nucleus of English rural life. It was an administrative unit of an extensive area of land. The whole of it was owned originally by the Lord of the Manor. He lived in the big house called the Manor House. Attached to it were many acres of grassland and woodlands called the Park. These were the "demesne lands" which were for the personal use of the Lord of the Manor. Dotted all round were the enclosed homes and land occupied by the "tenants of the manor". They held them by copyhold tenure. Their titles were entered in the court rolls of the manor. They were nearly equivalent to freehold, but described as "tenants of the manor", the rest of the manorial lands were the "waste lands of the manor". The "tenants of the manor" had the right to graze their animals on the waste lands of the manor. Although the "demesne land" was personal to the Lord of the Manor, nevertheless he sometimes granted to the "tenants of the manor" the right to graze their animals on it, or they acquired it by custom. In such case their right to graze on the "demesne land" was indistinguishable from their right to graze on the "waste lands of the manor", so long as it remained open to them and uncultivated, although there might be hedges and gates to keep the cattle from straying. So much so that their rights over it became known as a "right of common" and the land became known as "common land".

20

In the course of time, however, the Lordship of the Manor became severed from the lands of the manor. This was where the Lord of the Manor sold off parcels of the land to purchasers. He might, for instance, sell of the demesne lands and convey them as a distinct property. Thenceforward the land ceased to form part of the manor and was held by a freeholder, see Delacherois v. Delacherois (1864) 11 H.L. (I) 62 at pages 102–103 by Lord Brougham. But no such conveyance could adversely affect the rights of common of those who were entitled to them as "tenants of the manor" or otherwise. No Lord of the Manor could, by alienation, deprive those entitled to their rights over it or in respect of it, see Swayne's case 8 Coke's Reports 63 and The Queen v. Duchess of Buccleugh (1704) 1 Salkeld 358.

21

Nowadays there are few, if any, manors left intact. The Lords of the Manor have sold off the house and lands to strangers. Nothing remains in the lordship except the title of "Lord of the Manor" and the right to hold the manorial documents. This bare title and right is sometimes put on the market and sold for a nominal figure of £200 or £300.

22

The one point of principle of all this is that no Lord of the Manor could, by selling the manorial lands, deprive the tenants of the manor of their rights of common over them, no matter whether those lands were originally part of the "demesne lands" or the "waste land of the manor".

23

Enfranchisement

24

In the 1922 legislation every parcel of copyhold land was enfranchised. It ceased to be copyhold and became freehold. But there was a special provision preserving the right of common. The previous "tenants of the manor", now freeholders, remained entitled to exercise their right of common. It is provided in the Law of Property Act 1922, Twelfth Schedule (4) that:

25

"An enfranchisement by virtue of this Act shall not deprive a tenant of any commonable right to which he is entitled in respect of the enfranchised land, but where any such right exists in respect of any land at the commencement of this Act it shall continue attached to the land notwithstanding that the land has become freehold".

26

This little piece of history shows clearly that, when the Parish Council of Little Rissington applied in 1968 to register the right of common, there were undoubtedly several freeholders of land in and about Little Rissington who were successors to the former "tenants of the manor" and as such had the right to graze their animals in Temple Ham Meadow. I will call them the "commoners".

27

The hearing before the Commissioner

28

In February 1976 Mr. Settle, Q.C., the Commons Commissioner, held an inquiry. Unfortunately for the commoners, he refused to confirm the entry in the Rights section. I will set out his decision in full:

29

"This dispute relates to the registration at Entry No. 1 in the Rights Section of Register Unit No. CL95 in the Register of Common Land maintained by the Gloucestershire County Council and is occasioned by Objection No. 119 made by the President...

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11 cases
  • Crown Estate Commissioners v Roberts
    • United Kingdom
    • Chancery Division
    • 13 June 2008
    ...Lord Denning MR's typically picturesque description of the manor in Corpus Christi College Oxford v Gloucestershire County Council [1983] QB 360 which I think bears out what I have said: “In mediaeval times the manor was the nucleus of English rural life. It was an administrative unit of an......
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    ...by Lord Hoffmann ( Bryant v Foot LR2 QB 161) was about customary charges for marriage services. lxix Per Lord Denning MR, Corpus Christi College v Gloucestershire CC [1983] 1 QB 360, 363G (a case relating to common lxx As in the Royal Commission's understanding that the "villagers… know wh......
  • R (Whitmey) v Commons Commissioners
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    • Court of Appeal (Civil Division)
    • 21 July 2004
    ...those conducting the inquiry may be able to take account of evidence which is not strictly admissible (see generally Corpus Christi College v Gloucestershire County Council [1983] 1 QB 360, 366 to 367 and 379). This may be a valuable feature of an inquiry, given the period of time over whic......
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    • Chancery Division
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3 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill The Law of the Manor - 2nd Edition Preliminary Sections
    • 29 August 2012
    ...EWCA Civ 463, [2009] QB 335, [2009] 2 WLR 609, [2008] BLR 411 24.4 Corpus Christi College (Oxford) v Gloucestershire County Council [1983] QB 360, [1982] 3 WLR 849, [1982] 3 All ER 995, CA 6.3 Crown Estate Commissioners v Dorset County Council [1990] 1 Ch 297, [1990] 2 WLR 89, (1989) 60 P &......
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    • Wildy Simmonds & Hill Restrictions on the Use of Land Part I. Easements and profits à prendre
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    ...to take sand stone, gravel, brick-earth, coal and minerals). 7 CRA 1965, s 10. 8 Corpus Christi College Oxford v Gloucestershire CC [1983] QB 360. 9 SI 1969/1843. 10 CA 2006, s 6(1)–(3); s 6(3) reverses the decision in Bettison v Langton [2002] 1 AC 27. 11 CA 2006, s 6(5). 12 CA 2006, ss 16......

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