B e f o r e :
THE MASTER OF THE ROLLS (LORD DENNING)
LORD JUSTICE EDMUND DAVIES
and
LORD JUSTICE MEGAW
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EDNA JEAN CROW (Married Woman)
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Plaintiff (Respondent)
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and
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ROBIN STUART WOOD
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Defendant (Appellant)
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd.,
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)
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MR. JOHN MILLS, Q.C. and MR. H.G. HALL (instructed by Church, Adams, Latham & 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).
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HTML VERSION OF JUDGMENT
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THE MASTER OF THE ROLLS: 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 found in 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:
"(l) 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. Featherstone. 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 on successors. 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 contract to have a road kept in repair, is not such a right. It is a positive covenant which does not run with the land and is not binding on successors; see Austerberry v. Oldham Corporation, 1885, 29 Ch D 750.
The question is, therefore, whether a right to have a fence or wall kept in repair is a right which is capable of being granted by law. I think it is because it is in the nature of an easement. It is not an easement strictly so called, because it involves the servient owner in the expenditure of money. It was described by Gale as a "spurious easement". But it has been treated in practice by the Courts as being an easement. Professor Glanville Williams says in his book on the Liability for Animals (at page 201):
"If we put aside these questions of theory and turn to the practice of the Courts, there seems to be little doubt that fencing is an easement".
In Jones v. Price, 1965, 2 Q.B., at page 633 Lord Justice Willmer said:
"It is clear that a right to require the owner of adjoining land to keep the boundary fence in repair is a right which the law will recognise as a quasi-easement".
Lord Justice Diplock at page 639 points out that it is a right of such a nature that it can be acquired by prescription, which imports that it lies in grant, for prescription rests on a presumed grant.
It seems to me that it is now sufficiently established — or at any rate, if not established hitherto, we should now declare — that a right to have your neighbour keep up the fences is a right in the nature of an easement which is capable of being granted by law so as to run with the land and to be binding on successors. It is a right which lies in grant and is of such a nature that it can pass under Section 62 of the Law of Property Act, 1925.
Being such a right, did it pass in this case? Was it "enjoyed" with Stable Holme Farm when Mr. Featherstone bought it in 1951 from the common owner? I think it was. All the tenants of the common owner had previously enjoyed this right. The custom of the moor was that each farmer enjoyed this right. It was obviously enjoyed with the land and reputed to appertain to it. The result is that, in my opinion, each farmer next to Bilsdale West Moor had, on the one hand, a right to put so many sheep on the moor to stray: and each farmer, on the other hand, was under a duty to keep up his own walls and fences so as to keep the sheep of the other owners out. Those were rights and advantages which passed in the conveyance of 11th July, 1951 when the common owner sold Stable Holme Farm to Mr. Featherstone. He (and Mr.- Wood under him) became entitled to keep 40 sheep on the moor and had the right to require the other farmers to keep up their fences.
I must mention, however, one suggestion made by Mr. Mills. He suggested that, whilst Mr. Featherstone acquired this right in 1951 against a common owner, and against Mr. Wood who claimed from him: nevertheless Mrs. Crow had no such right against Mr. Featherstone. He suggested that, inasmuch as in 1951 the common owner had not reserved any such right against Mr. Featherstone, there was no longer any right which could be enforced against him: and that, as Mrs. Crow bought in 1956 from the common owner, she was in no better position than he. It is not necessary to rule on this point, but I must say I should deplore any such result. I see that Professor Glanville Williams says at page 208 of his book: "There may be a valid obligation to repair ancillary to an easement". Applying this, I would say that in every conveyance it is implied that every farmer who has a right to put sheep on the moor and to have his neighbour repair fences, is under an obligation, ancillary to it, to keep up his own fences. This right and obligation extends to all the farmers who buy their farms from the common
owner, no matter in what order they buy them. In this case therefore I hold that Mrs. Crow was under an obligation to fence her farms so as to keep out Mr. Wood's sheep. The result is that, if Mr. Wood's sheep get over the wall into her farm or knock the wall down, she cannot complain of cattle trespass: because she ought to have kept them out. Such is the custom of the moor. She abided by the custom for 10 years. It is a pity she ever departed from it.
I would allow the appeal and enter judgment for the Defendant.
LORD JUSTICE EDMUND DAVIES: It is beyond doubt that the tenancies granted by the trustees of the Earl of Feversham in respect of the farms abutting on Bilsdale West Moor on the one hand conferred on the tenants the right to pasture the specified number of sheep on the moor, and, on the other hand, imposed on each tenant the duty "to put maintain and keep all fences, gates, posts, stiles and walls ..... in good and sufficient repair". It was on these terms that Stable Holme Farm and Stone House Farm were at all material times let.
When on 18th August, 1941 the trustees severed the common ownership by selling off part of the Feversham Estate, the rights of pasturing over the lands retained by the vendors remained "..... for the purchasers and their successors in title the respective owners and occupiers for the time being of the several farms and lands specified ..... in common with all persons having a like right ..... restricted to the number of sheep specified".
The further severance, achieved on 18th August, 1944, conveyed property to J.W. Tunnicliffe and Hird & Gibson Ltd., together with the right for them and "their respective successors and assigns the respective owners and occupiers for the time being of the several farms and lands hereby transferred in common with all persons having a like right at all times hereafter to use and enjoy in respect of and as annexed to each of such farms and lands respectively sheep rights" as enumerated in the conveyance of 18th August, 1941.
Mr. J.H. Gill having acquired the title in October, 1947, it is of importance to note that, as far as the parties to this litigation are concerned, the first disposition thereafter was of Stable Holme Farm in 1951 to the Featherstones, who were then apparently its occupiers. It is common ground that with this conveyance went the right to graze 40 sheep on Bilsdale West Moor and that the Featherstones effectively authorised the Defendant to exercise that right by a licence granted to him on 1st September, 1962. It was not until 8th March, 1956, that Mrs. Crow acquired Stone House Farm from Mr. Gill, the conveyance expressly passing to her the right to graze 50 sheep provided for under the conveyance of 18th August, 1941. There is no doubt that at that time the farm was bounded by dry-stone walls and these were thereafter maintained (whether adequately or not is immaterial for present purposes) by Mrs. Crow. She claims that she continued to maintain them until 1966 in the belief that she was obliged to do this to keep out straying sheep; but the relevance or otherwise of this claim remains to be considered.
In the circumstances that I have outlined, was Mrs. Crow in fact and in law obliged to keep out straying sheep? The learned County Court Judge held that she was not and although her walls seemed to have been allowed to become very defective in places, the Defendant was in consequence obliged to compensate her for the damage done by his straying sheep.
That a duty to fence against trespassers can be created by express or implied grant seems clear. Whether, when such a duty exists, it is to be regarded as an easement ("spurious" or otherwise) or a quasi-easement has been much canvassed before us, but I am not satisfied that a final decision as to the exact legal nature of such a duty is presently called for.
I say that for this reason: Section 62(1) of the Law of Property Act, 1925, is so expansive in its terms that, in my judgment, when on 11th July, 1951 the Featherstones acquired Stable Holme Farm, there also passed to them by virtue of that statutory provision as an "advantage" appertaining thereto, the obligation imposed on the occupier of Stone House Farm and Fangdale Beck Farm to maintain their boundary walls. This aspect of the case was summarily dismissed by the learned County Court Judge, but in my judgment it constituted the kernel. Professor Glanville Williams hinted that a duty to fence might fall within the "general words" of Section 62(1) in his "Liability for Animals" at page 211. Writing in 1939, he rightly said that "upon this question there is no authority", but since then there have been decided the cases already referred to by the Master of the Rolls.
The County Court Judge appears to have been strongly affected by the evidence, which satisfied him that (as he expressed it)
"..... the plaintiff has repaired her boundary walls voluntarily, not as a matter of obligation or agreement, or as a result of requests", and by his finding that "the plaintiff has for years protested against the incursion of sheep".
It may here be recalled that the Plaintiff herself said that for 10 years she maintained the walls because she believed that she was under a duty to do so. But the answer to all this seems to be that, whatever be the legal basis of a duty to fence, the balance of authorities for centuries favours the view that the obligation, when it exists, arises from proof that the land is accustomed to be fenced and that it is immaterial that a party has voluntarily fenced his premises simply for, it may be, his own protection — see the cases reviewed in Glanville Williams on pages 203 and 208.
Since that learned work appeared in 1939, there have been at least two decisions of importance relating to the ambit of section 62. The first of these, Wright v. Macadam, (1949 2 K.B, 744) clearly laid down that, like its predecessor, section 6 of the Conveyancing Act, 1881, section 62 was not confined simply to rights which, as a matter of law, were so annexed or appurtenant to the property conveyed as to make them actually legally enforceable right (1913) 1 Chancery, page 571,
"..... 'a right' permissive at the date of the grant may become a legal right upon the grant by force of the general words in section 6 of the Conveyancing Act, 1881. From this point of view the circumstances under which the quasi-right was enjoyed become immaterial so long as it was actually enjoyed and was of a nature which could be granted, that is to say, a right known to the law".
In Wright V. Macadam itself Lord Justice Jenkins said, at page 750:
"There is, therefore, ample authority for the proposition that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into it under section 62, even although down to the date of the conveyance the right was exercised by permission only, and therefore was in that sense precarious".
In the circumstances of the present case it seems to me that a right to compel another to maintain fences is in the nature of an easement capable of arising from grant or implied grant and can pass under section 62. Furthermore, those same circumstances (which the Master of the Rolls has already described in detail) in my judgment give rise to a "right or advantage appurtenant to each farmer to call upon others to maintain their fences", and one which passed on the conveyance of Stable Holme in 1951 to the Featherstones. It therefore follows that the Plaintiff, being in breach of her duty to fence, had no entitlement to complain that the Defendant's sheep had strayed on her land, he being duly licensed to pasture them on the moor by the purchasers of Stable Holme Farm.
I would therefore concur in allowing this appeal.
LORD JUSTICE MEGAW: I agree.
(Order: Appeal allowed with costs on scale 4 of County Court scale, with discretionary items; judgment for Defendant; declaration in form to be agreed; leave to appeal to House of Lords refused)
