The Tenant's Right to Shoot

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Chapter 13

The Tenant’s Right to Shoot

COMMON LAW

13.01 Under Common Law, the right to possession of land carries with it the right to take all birds and animals naturally on the land, whether they be game or not.¹Thus a landowner has such rights and he may reserve those rights to himself or grant them to another. When he grants such game rights, the grantee may exercise those rights in the same manner and to the same extent as the owner of the land. Where the owner, whether in occupation or not, has let the shooting rights, he has no right at Common Law to shoot over the land. However, an owner in occupation has a statutory right to shoot ground game.²

13.02 If the owner does not occupy his land but lets it to another under a tenancy then, unless the shooting is ‘reserved’ to the landlord, the tenant will have an absolute right to shoot as against any other person. Conversely, if the right to take game is ‘reserved’, the tenant will have no right to shoot at Common Law.³This rule is expressly preserved by the GA 1831.⁴Further, it is an offence under that Act for an occupier to pursue, kill or take game, or to permit another to do so, where the owner has reserved the game rights or granted them to another.⁵

However, any reservation of rights will be void in so far as it purports to exclude the owner’s rights to destroy ground game.⁶An occupier, such as a tenant, with

¹Rare exceptions to this rule apply where sporting rights are given to lords of manors under

Inclosure Acts and Awards.

²Ground Game Act 1880 (GGA 1880), s 1. ‘Ground game’ means hares and rabbits (GGA 1880, s 8).

³Unless he is expressly permitted to do so by the landlord.

⁴GA 1831, s 8, which also forbids the occupier to permit another person to shoot.

⁵GA 1831, s 1. The punishment for such an offence is a fine at level 1 on the standard scale, and a person can be fined such an amount for each head of game so killed or taken.

⁶GGA 1880, s 3.

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full shooting rights may authorise any person to kill and take game and other birds and animals and may also let or assign his shooting rights.

GROUND GAME ACT 1880

13.03 As can be seen above, the position at Common Law was much altered by the Ground Game Act 1880 (GGA 1880). The objective of the Act was to allow tenants without shooting rights to protect their crops against hares and rabbits. It did so by permitting occupiers of land to kill and take ground game⁷on their land concurrently with any other person who may have the right to do the same thing.⁸

Within certain limitations, tenants may also claim compensation from their landlords for damage to crops caused by any wild animals or birds.⁹There are some extensions to, and several limitations on, this right of the occupier to take ground game, and these will now be considered.

13.04 First, who shall be deemed an occupier for the purposes of the Act? Clearly, an occupying owner, tenant or sub-tenant of land will be. The Act says that a person having a right of common or ‘an occupation for the purpose of grazing or pasturage of sheep, cattle, or horses for not more than nine months’ will not be an occupier.¹⁰It would seem to follow from this that if the occupation for the purposes quoted exceeds 9 months, the occupier will be qualified under the Act. However, this proposition has been questioned and the contrary view put that the occupier must have the right to full possession of the land and not a limited right to its use, as in the case of a licensee.¹¹Doubts also arise in cases where land is used for grazing other animals such as goats and pigs. Where there are joint occupiers, all are entitled to the rights conferred by the Act.¹²

⁷‘Ground game’ means hares and rabbits (GGA 1880, s 8).

⁸GGA 1880, s 1.

⁹Agricultural Holdings Act 1986, s 20.

¹⁰GGA 1880, s 1(2).

¹¹See Oke’s Game Laws, 5th edition, p 103.

¹²Oke’s Game Laws, 5th edition, pp 101–2.

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13.05 In addition to the occupier, the occupier can authorise one other person in writing¹³to shoot¹⁴ground game.¹⁵This person can only be:

(a) a member of the occupier’s household¹⁶resident¹⁷on the land in his occupation, the shooting authority extending only to that land; or

(b) a person in the occupier’s ordinary service¹⁸on the land occupied, the shooting authority extending only to that land; or

(c) any other person bona fide employed by the occupier for reward¹⁹in the taking and destruction of ground game.²⁰

More than one person from classes (a) and (b) above, but only one from class (c), may, at the same time, kill and take ground game otherwise than by shooting if, again, they are authorised in writing by the occupier.²¹Only one person, aside from the occupier himself, may be authorised by him to kill ground game with firearms.²²

13.06 An authorised person must produce his written authority, if asked to do so, to any person having a concurrent right to take or kill ground game on the land or

¹³The authority need not be in any prescribed form, and no provision expressly requires it to be signed or dated, but it would be desirable for it to describe the person to whom it is given and precisely state the situation and extent of the land over which it is to operate.

¹⁴More than one person may, however, be authorised to take...