Crow v Wood

On a conveyance which severs land previously held in common ownership, section 62(1) of the Law of Property Act 1925 may pass an advantage previously enjoyed with the conveyed land if it is capable of grant and capable of binding successors.

A reciprocal right to require adjoining landowners to maintain boundary fences may be such an advantage. It need not be classified conclusively as a strict easement if it is capable of arising by express or implied grant. A landowner who is subject to that fencing obligation cannot recover for trespass by sheep lawfully grazed on adjoining common land where the sheep enter through the landowner's failure to maintain the boundary.

The claimant owned farms adjoining Bilsdale West Moor. Her farms carried rights to graze specified numbers of sheep on the moor, although she did not exercise those rights. The defendant was licensed by the owner of another adjoining farm to graze 40 sheep there.

There was a longstanding local practice that each adjoining farmer maintained the walls and fences separating that farmer's land from the moor. After the claimant stopped maintaining her boundaries, the defendant's sheep entered her farms. The Malton County Court awarded her damages for cattle trespass and an injunction.

The defendant appealed. The central issue was whether the 1951 severance conveyance passed to the owner of the farm from which the defendant derived his licence an enforceable advantage requiring the claimant to maintain her boundary fences.

1. Appeal allowed unanimously. Lord Denning MR and Edmund Davies LJ held, with Megaw LJ agreeing, that the claimant was obliged to maintain the boundary walls and fences of her farms so as to exclude sheep lawfully grazed on the moor. Judgment was entered for the defendant.

2. Section 62(1) of the Law of Property Act 1925 operated on the 1951 conveyance which severed Stable Holme Farm from land in common ownership. The section could pass an advantage actually enjoyed with that farm, provided that the advantage was of a kind capable of grant and of binding successors. The fact that the relevant relationship had existed while the land was in common ownership did not prevent the statutory operation upon severance.

3. The reciprocal advantage was the right to require occupiers of the adjoining farms to maintain their boundary walls and fences. Lord Denning MR regarded such a right as in the nature of an easement, though involving positive expenditure. Edmund Davies LJ considered that a final classification as an easement or quasi-easement was unnecessary. On either approach, it was an advantage capable of arising by express or implied grant and passing under section 62(1).

4. The established practice on the moor showed that the fencing advantage was enjoyed with each farm and reputed to appertain to it. The claimant's failure to maintain her boundaries therefore precluded her claim for trespass by the defendant's sheep. The defendant had been duly licensed to graze them on the moor.

5. Lord Denning MR additionally indicated, without deciding the point, that reciprocal fencing obligations could be implied as obligations ancillary to the respective grazing and fencing advantages, irrespective of the order in which farms were purchased from the common owner.

The Court ordered costs on the County Court scale, judgment for the defendant and a declaration in a form to be agreed. Leave to appeal to the House of Lords was refused.

• Court of Appeal: Allowed the defendant's appeal and entered judgment for him: [1970] EWCA Civ 5.
• Malton County Court: Found for the claimant, awarding £205 damages and an injunction for cattle trespass.