Crow v Wood
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE MEGAW |
| Judgment Date | 09 June 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0609-3 |
| Docket Number | Plaint No. Z.103 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 1970 |
[1970] EWCA Civ J0609-3
In The Court of Appeal
On Appeal from the Malton County Court
The Master of The Rolls (Lord Denning)
Lord Justice Edmund Davies, and
Lord Justice Megaw
MR. JOHN MILLS, Q.C. and MR. H.G. HALL (instructed by Church, Adams, Tatham & Co., London, agents for Crombie, Wilkinson & Robinson, York) appeared on behalf of the Defendant (Appellant).
MR. J.M. COLLINS and MR. SINCLAIR MORRIS (instructed by Appleby, Hope & Matthews. Middlesborough) appeared on behalf of the Plaintiff (Respondent).
We are here concerned with Bilsdale West Moor in the North Riding of Yorkshire. It is a big tract of land which is grazed by sheep. There are several farms adjoining it. These farms had been enclosed from the moor many years ago. Stone walls had been erected dividing the farms from the moor. Until 30 years ago the whole of the moor and the adjoining farms were owned by the Earls of Feversham. The Earls had the rights of walking and depasturing sheep on the moor. They let off the farms to individual farmers and granted to each farmer a right to "stray" a certain number of sheep on the moor. In each tenancy agreement the farmer agreed to keep the fences and walls in good repair.
In 1941 the Trustees of the then Earl of Feversham sold the moor and the sheep rights and the farms to an Insurance Company. The deed set out the various farms, together with the number of sheep which each farm had the right to "stray" on the moor. In 1944 the Insurance Company sold the whole, including the sheep rights, to a purchaser who in turn in 1947 sold the whole to another purchaser. In this latter sale the sheep rights were not expressly mentioned, but no doubt passed without mention.
The whole moor and the adjoining farms remained in common ownership (with the farms let off to tenants) until on 11th July, 1951 the common owner sold one of the farms called Stable Holme Farm to the farmer, Mr. Featherstone. The conveyance did not in terms convey sheep rights over the moor but it is conceded that it carried a right to stray 40 sheep on the moor in respect of Stable Holme Farm (which is the number the farmer always had been entitled to stray there under his tenancy agreement). Subsequently Mr. Featherstone agreed to let this sheep right to Mr. Robin Wood, a neighbouring farmer. He put 40 sheep on the moor in pursuance of it.
In February, 1956 the common owner sold to Mr. Crow another of the farms called Stone House Farm, together with a right to stray 50 sheep on the moor. In 1962 Mrs. Crow bought another farm called Fangdale Beck, which carried a right to stray 80 sheep on the moor. But Mrs. Crow did not exercise those sheep rights for her two farms. She used the farms for corn and hay and cows. She had no sheep on the moor. The neighbouring farmers told her that it was her duty to keep up the fences and walls on her farms so as to keep the sheep out: and for the first 10 years, from 1956 to 1966, she did so.
But then in 1966 Mrs. Crow fought a case in the County Court against another farmer, George Hull. She won it: and she assumed from it that she was not bound to fence her farms so as to keep out the sheep. This was not a correct assumption. That case turned on another point. Mr. Hull had no right to stray his sheep on the moor next to her farms. But Mrs. Crow thenceforward contended that she was under no duty to fence her farms so as to keep out the sheep; but that it was the duty of the farmers (who let their sheep run on the moor) to keep the sheep within the moor and not allow them to get into her farms. So from 1966 she no longer kept up the walls or fences against the sheep. The result was that sheep got in. In particular, Mr. Robin Wood's sheep often got into Mrs. Crow's farms. She kept a note of all the occasions.
Eventually, on 15th July, 1968, she sued Mr. Wood for damages for cattle trespass and an injunction. Mr. Wood put in a Defence in which he said that Mrs. Crow was under a duty to keep up the fences and walls separating her farms from Bilsdale West Moor for the benefit of the holders of grazing rights on the moor: and that his sheep only entered her land because of her failure to keep them up.
On 24th September, 1969, the County Court Judge foundin favour of Mrs. Crow. He awarded her £205 damages and an injunction restraining Mr. Wood from causing or permitting his sheep to trespass on the Plaintiff's farms.
The Judge did, however, find that there was a custom of Bilsdale West Moor by which each of the farmers adjoining the moor was bound to keep up the fences and walls of his own farm. Each farmer was bound to fence out sheep from the moor. The best statement of the custom was by Mr. Dicker who was the agent for Lord Feversham 30 years ago. He said: "I know it was the practice for all farmers adjoining the moor to fence against the moorland sheep, and, so far as I was aware, this custom was in existence for many many years before my time. It is possible that the custom arose as and when land was enclosed from the moor. The cost of fencing the whole moor would be prohibitive. Most of the farms adjoining the moor had a right to graze a certain number of sheep on the moor. These farmers would only be responsible for fencing their own property adjoining the moor, which would be equitable". Then Mr. Fawcett, the agent for Lord Ingleby, with 23 years farming practice, said that: "Farmers having enclosed land are responsible for fencing out stock from moor". Mr. Garbutt, whose family had farmed there for three generations, said: "Farmers always fence to keep out moor stock". One of the witnesses said of Stone House Farm, which was Mrs. Crow's farm: "The previous tenants kept up the walls. Strangers coming in have different views". No doubt Mrs. Crow was regarded as a stranger, although she had been there for 14 years.
The Judge held that the custom was established. But this is not sufficient by itself to put an obligation on Mrs. Crow to fence her land. It appears from the old books that a right to have fences kept up does not arise by custom: see Bolus v. Hinstocke, 1690 2 Keble 680. It can arise by prescription at common law: see Lawrence v. Jenkins, 1873, L.R. 8 Q.B. 274:but this is only of avail as between adjoining owners. It does not avail when the lands have been in common ownership, as here, until recent years: see Kilgour v. Gaddes, 1904, 2 K.B. 457.
The custom is, however, of importance because of Section 62 of the Law of Property Act, 1925, to which I now turn. It follows Section 6 of the Conveyancing Act, 1881 in the selfsame words: "(1) A conveyance of land shall be deemed to include and shall by this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages, whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof".
Mr. Mills, who appears for Mr. Wood, says that that section is to be applied to the conveyance of 11th July, 1951, when the common owner sold Stable Holme Farm to Mr. Featberstone. He says that at that time the right to stray 40 sheep on the moor, and the right to have the other farmers maintain their fences and walls, was an easement right or advantage which was enjoyed with Stable Holme Farm and passed under the conveyance, although it was not expressly mentioned.
Section 62 has already been considered in this Court, notably in Wright v. Macadam, 1949, 2 K.B. 744: and Phipps v. Pears & Others, 1965, 1 Q.B. 76. It is clear from those cases that when land in common ownership is severed and one piece of it sold off (as in the present case) then by virtue of this section all rights and advantages enjoyed with that piece of land will pass to the purchaser provided that they are rights or advantages which are capable of being granted by law so as to run with the land and to be binding onsuccessors. Thus a right to use a coal-shed is such a right. It is in the nature of an easement and passes under Section 62. But a right, given by...
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