Pole & Anor v Peake & Anor

A reservation of hunting, shooting, fishing and sporting rights is construed by its terms. Where it expressly includes preserving and rearing game, the right may extend to normal rearing operations, including bringing pheasants onto the land, and is not confined to the way the right was exercised when granted. No freestanding balance-of-interests test limits the right merely because it interferes with farming, although the rights must be exercised with reasonable care and cannot authorise activities outside normal rearing. Damage necessarily incidental to rearing, including pheasant damage, is not compensable unless the grant expressly provides for compensation. A requirement of notice or entry on foot cannot be implied without textual support. Birds straying from adjoining land attract no nuisance liability where the grant authorises equivalent interference on the servient land.

The respondents held reserved hunting and shooting rights over land acquired by the appellants under a 1974 conveyance. Following a dispute about the use of those rights, including pheasant rearing, the respondents claimed damages and sought declarations defining the scope of the reservation. At trial before Mr Recorder Adams in Barnstaple County Court, the damages claim was dismissed but declarations were largely granted in the respondents’ favour.

The appeal concerned the construction of the reservation, whether its exercise was subject to a general balance between sporting and agricultural interests, whether use was limited to the level existing in 1974, and whether pheasants stocked on adjoining land could give rise to nuisance.

Appeal dismissed unanimously. Lord Justice Buxton gave the principal judgment, with Lord Justices Schiemann and Simon Brown agreeing. The contested declarations were upheld or varied as set out below.

1. Construction of the reservation. Per Lord Justice Buxton, game had the same meaning in the rearing and shooting limbs of the reservation. Pheasants reared in captivity became wild in law and fact once outside the pens, so declaration C was upheld. The ordinary meaning of rearing included bringing birds onto the property and providing nourishment or other assistance.
2. Extent and mode of exercise. The rights were not limited to the manner or level in which they had been exercised in 1974. Applying the reasoning in White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113, an express restriction was required to impose such a limit. Entry was not confined to foot travel, and no requirement of notice could be invented where the grant contained no workable provision for notice.
3. Balance between sporting and agricultural use. The reservation did not create a general balance-of-interests or reasonableness test. The rights remained governed by the grant. They had to be exercised with reasonable care and did not extend to activities outside normal rearing operations. Farming use was permitted as contemplated by the conveyance, but practices interfering with the reserved rights were not. Damage necessarily consequent upon or incidental to normal rearing was within the right. Unreasonable damage fell outside it because it was not damage caused by the exercise of the granted right. Pheasant damage was not compensable under reservation (b), since compensation had to be expressly provided and bargained for.
4. Nuisance. Since the grant authorised bringing birds onto the property even where they interfered with farming, equivalent interference caused by birds straying from adjoining land did not give rise to nuisance. The reference to entry expressed the exercise of the rights on the property and was not limited to cases in which the respondents physically introduced the birds.

Declarations C, F(1), F(2), F(4), F(5), G and H were upheld. Declaration D was replaced by an agreed formulation recognising damage necessarily consequent upon or incidental to rearing. The formal order was appeal dismissed, with a section 18 order for costs and legal aid taxation of the appellants’ costs.

• Court of Appeal (Civil Division): In [1998] EWCA Civ 1229, the appeal was dismissed unanimously. Most of the declarations were upheld and declaration D was substituted in agreed terms.
• Barnstaple County Court (Mr Recorder Adams): The claim for damages was dismissed, while declarations largely defining the respondents’ reserved rights were granted.