Tehidy Minerals Ltd v Norman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE BUCKLEY |
| Judgment Date | 03 December 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1203-4 |
| Date | 03 December 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J1203-4
Lord Justice Salmon
Lord Justice Sachs and
Lord Justice Buckley
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Deputy Judge Ellison - Bodmin County Court)
Mr. D.M. SCOTT (instructed by Messrs. Boxall & Boxall, Agents for Messrs. Blight, Broad & Skinnard, Callington, Cornwall) appeared on behalf of the Appellants (Plaintiffs).
Mr. GERARD RYAN and Mr. ROBIN PURCHAS (instructed by Messrs. Masons, Agents for Messrs. Wilson, Parnall & Godwin, Launceston, Cornwall) appeared on behalf of the Respondents (Defendants).
I will ask Lord Justice Buckley to give the judgment of the Court.
In this action the plaintiffs' claims were originally confined to damages for trespass and an injunction to restrain the defendants from continuing or repeating any of the acts complained of, but the substantial issue in the action is whether certain of the defendants, who are occupants of farms which abut on a down in the ownership of the plaintiff company, are entitled to common rights of grazing over the down or some part of it. The down in question, which is of some 240 acres in extent, is called Tawna Down and is situate in the parish of Cardinham in Cornwall. Until the 19th January, 1920, when it came into the ownership of the plaintiff company, Tawna Down belonged to Viscount Clifden and formed part of the ancient manor of Cabilla, of which Lord Clifden was Lord of the Manor. The farms in question, which lie around the down on all four sides of it, are as follows, starting at the north-western corner of the down and proceeding clockwise: (1) Tawna Farm, sometimes called Higher Tawna, about 30 acres, in the occupation of the defendant Peter Norman; (2) and (3) Higher Hill Farm and Lower Hill Farm, together about 120 acres, in the occupation of the defendants N.G. Worden and N.T. Worden respectively; (4) Sina Farm, about 40 acres, in the occupation of the defendant R.D. May; (5) Cabilla Farm, about 125 acres, in the occupation of Mrs. Juleff, the mother of the defendant Henry Juleff; (6) Pinsla Park, about 240 acres, in the occupation of the defendant M. Cawrse. We are also concerned to some extent with two other farms, namely, (7) Castle Farm, about 140 acres, in the occupation of the defendant R.H. Bate, and (8) Hole Farm, about 40 acres, in the occupation of the defendant Peter Norman. These last two farms lie to the north of Tawna Down but do not adjoin it.
There is a line of stones which have the appearance of being boundary marks running from the north-west corner of the down inan irregular curve in a southerly direction to the southern verge of the down. That part of the down which lies to the west of this curve contains some 86 acres or thereabouts, and we will call this area the "west down". The down is further sub-divided by a fence running from north to south across it further east than the line of stones already mentioned. The part of the down lying between the west down and this last-mentioned fence we will call the "middle down". The remainder of the down, that is, the part lying to the east of the last-mentioned fence, we will call the "east down".
In January of 1920 the plaintiff company bought from the then Lord Clifden a large number of properties in the county of Cornwall, including Tawna Down. The sale was completed by a conveyance dated the 19th January, 1920, by which the properties were conveyed to the plaintiff company subject to such easements or quasi-easements, rights and privileges as were then exercisable or enjoyed over the properties or any parts of them for or in respect of any other land. No express reference to grazing rights on Tawna Down is to be found in the conveyance, but on the plan relating to Tawna Down annexed to the conveyance the following legend appears on that part of the down which constitutes the middle and east downs: "Over this part of the downs rights of turbary and pasturage are claimed for adjoining tenements including Sina, Higher Tawna, and Hole Farm". The line indicated by the boundary stones is depicted on this plan but the fence dividing the middle down from the east down was not then in existence. It is not altogether clear to what part of Tawna Down the legend in question was intended to relate, but at the least it was an indication to the plaintiff company as purchaser that common rights were claimed over some part of the down. It was derived from an exactly similar legend on an earlier map of 1907.
The plaintiff company is a mining company and was not concerned with making use of the surface of the down. The owners of the various farms adjoining the down were then accustomed to allow their beasts on to the down to graze, and the evidenceindicates that there were normally many animals grazing the down. Most of these probably came from the farms immediately adjoining the down but some may have come from further afield.
This state of affairs continued until the 6th October, 1941, when Tawna Down was requisitioned by the Ministry of Agriculture acting through the County Agricultural Committee. The whole of the down, with the exception of (a) the east down and (b) a narrow strip extending all down the western side of the down and containing approximately 6 acres, was enclosed in a ring fence. The fenced area was ploughed and for some time during the Second World War was under cultivation. Subsequently, while the requisition was in operation, this land was reseeded and was let for grazing by tender until November, 1954, when on the 29th of that month the Minister of Agriculture and Fisheries entered into a written agreement with two gentlemen who were members of a body known as the Cardinham Commoners Committee of the Cornwall Commoners Association acting on behalf of that body. In this agreement these two gentlemen are defined as "the Licensees", and by the agreement (which we will call "the Ministry Agreement") the Minister granted to the licensees licence to occupy and use as agricultural land four downs lying in the parishes of Cardinham and Bodmin known as Racecourse Downs, Cardinham Downs, Long Downs and Tawna Downs from the 4th December, 1954, to the 3rd December, 1956, but so that nothing therein contained should be deemed to create a tenancy of the land either at law or in equity. The agreement further provided that it should determine forthwith on the expiration of the Emergency Powers Defence Acts, 1939 to 1945, or any statutory modification or re-enactment of those Acts as amended. The licensees agreed to pay the Minister during the continuance of the agreement £153. 3s. 7d. per annum by quarterly payments; to maintain the existing boundary fence in its then stockproof condition; to use the land for grazing of cattle and sheep belonging to bona file commonholders; not to overstock; not to plough without written consent of the Committee; and other terms which we need not particularise. The agreement provided that if any part of the rent thereby agreed to bepaid should be in arrear for at least 30 days, whether demanded or not, or if there should be any breach of any of the obligations thereby or by law imposed on the licensees the Minister might at any time thereafter revoke the licence thereby granted, whereupon the agreement should absolutely determine.
Thereafter, during the continuance of the requisition of Tawna Down the Cardinham Commoners Committee, or as it came to be called the Cardinham Commoners Association (to which we will refer as "the Association"), managed the grazing on the down under the licence contained in the agreement to which we have just referred. The Association's control of the grazing on Tawna Down, however, was only effective in respect of that part which was included in the ring fence which the Ministry had erected after the requisition. It did not extend to the east down or to the strip along the western verge of the down, which were outside the ring fence. The Association managed the grazing of the four downs mentioned in the Ministry agreement in two groups, each containing two of the downs. For this purpose Tawna Down was associated with Long Down. Only farmers claiming to be entitled to common rights on one or other of the four downs in question were permitted to graze any of the downs by the Association. Farmers claiming grazing rights over either Tawna Down or Long Down were permitted to graze animals on either of those two downs under the control and direction of the Association. Any farmer who wished to avail himself of this arrangement had to satisfy the Association with regard to his claim to be a commoner on one or other of these downs. Having done so and having been admitted to grazing rights, he was required to sign a written agreement whereby it was recorded that the Association accepted cattle on agistment on the downs on specified terms which were therein set out as follows:
"(1) The Committee will during the whole period maintain as far as practically possible the existing fences in a stock-proof condition.
"(2) The Committee will accept on agistment during the"period 15th April to 15th November in, any year cattle and sheep which are the property of bona fide Common Holders, During the period 16th November to 14th April the Committee will accept sheep only on agistment.
"(3) Stock will only be accepted on the land at the Stock-owner's risk.
"(4) All cattle and sheep will be permanently marked by the Stock-owner with a mark registered with the Committee.
"(5) (a) Stock-owners will undertake to dress all cattle...
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