Bettison and Others v. Langton and Others

The House of Lords decided that, at common law, a right of pasturage appurtenant to land which is expressed as a right to graze a fixed number of animals is severable from the dominant tenement. The court held that section 15 of the Commons Registration Act 1965, by quantifying formerly levant-and-couchant rights as rights to graze a definite number of animals for the purposes of registration, removed levancy and couchancy as the post-registration measure of those rights. On the majority view this statutory quantification therefore produced rights that, under established common law principles, could be severed and assigned. The consequence in the present facts was that the 1987 conveyance of the quantified grazing rights was effective. The Law of Property Act 1925 (section 187) did not alter that common law rule.

This appeal concerned grazing rights over Tawna Down in Cornwall and whether a registered grazing right appurtenant to Sina Farm could be severed from the farm by conveyance. The dispute arose after Mrs Langton, registered proprietor of a right to graze 10 cattle and 30 sheep appurtenant to Sina Farm following registration under the Commons Registration Act 1965, conveyed those grazing rights separately in 1987 to the respondents, the Bettisons, while retaining ownership of the farm. The question was whether that conveyance was effective or whether the rights remained inseparable from the farm.

The procedural history was that the matter had been considered at first instance by Judge Anthony Thompson QC and then on appeal to the Court of Appeal ([2000] Ch 54, judgment of Robert Walker LJ). The House of Lords heard the appeal from the Court of Appeal.

Issues framed:

• Whether, at common law, appurtenant rights of pasturage quantified as a fixed number of animals are severable from the dominant land.
• Whether section 187 of the Law of Property Act 1925 precludes severance of such rights.
• Whether section 15 of the Commons Registration Act 1965, which requires levancy-and-couchancy rights to be registered as fixed numbers, had the effect of rendering previously appurtenant (and inalienable) rights incapable of severance.

Court’s reasoning (concise): The majority concluded that historical authorities and textbooks supported the proposition that rights of pasturage expressed as rights to graze a fixed number of animals were severable from the dominant tenement. Section 187(1) of the Law of Property Act 1925 did not change that rule. Section 15(1)–(3) of the Commons Registration Act 1965, by converting levancy-and-couchancy rights into registered rights exercisable up to a definite number of animals, removed levancy and couchancy as the qualifying measure and thus produced rights which (under the common law) could be severed. On that basis the 1987 conveyance was effective. A minority view in the House advocated a different construction of section 15 and concluded that registration should not have the consequence of making appurtenant rights alienable, but the majority rejected that approach.

The judgment also commented on the wider public importance of commons and the practical consequences of severance, but held that any policy decision to make registered appurtenant rights inalienable should be a matter for Parliament.

Appeal dismissed. The majority held that (i) at common law an appurtenant right to graze a fixed number of animals is severable from the dominant land; (ii) section 187(1) of the Law of Property Act 1925 does not prevent such severance; and (iii) section 15 of the Commons Registration Act 1965 quantifies levancy-and-couchancy rights into rights to graze a definite number of animals for registration purposes, thereby producing rights that are, in law, capable of severance. Accordingly the 1987 conveyance of the registered grazing rights was effective.

First instance: decision of Judge Anthony Thompson QC (first instance) (not separately reported in neutral form in this judgment). Court of Appeal: judgment reported at [2000] Ch 54 (Robert Walker LJ giving the leading judgment). Appeal to the House of Lords: [2001] UKHL 24.