Bettison and Others v. Langton and Others

It is wrong to assume that registration under the Commons Registration Act 1965 converted appurtenant levancy and couchancy grazing rights into inalienable rights. Instead, where registration quantifies a grazing right into a fixed number, that right remains capable of severance at common law. Section 15 treats levancy and couchancy rights as exercisable for a definite number for registration purposes and does not, by its terms, prevent severance of rights that, once quantified, are of the fixed-number type.

The dispute concerned grazing rights over Tawna Down and the effect of registration under the Commons Registration Act 1965. The central question was whether a grazing right appurtenant to a holding that was registered and quantified under section 15 became incapable of severance from the holding. The point arose after a proprietor conveyed the registered grazing right separately from the dominant land. The issue reached this House on appeal from the Court of Appeal, which had decided on the applicable common law rules and the effect of section 15. The principal question before the House was whether registration converted a levancy and couchancy right into an inalienable right or into a severable fixed-number right.

1. Outcome. The appeal is dismissed. The House upholds the view that registered grazing rights quantified as rights for a fixed number of animals are severable at common law (see paras [47]; [63]).

2. At common law, a right of pasturage appurtenant that is for a fixed number of animals can be severed from the dominant tenement and alienated as a right in gross. Historical authorities and established text‑book statements support that rule (see paras [36]–[46]; [47]).

3. Section 15 of the Commons Registration Act 1965 requires that rights formerly measured by levancy and couchancy be treated, for registration purposes, as exercisable in respect of a definite number of animals and that the register record that number (see paras [15]–[16]; [60]). The subsection therefore transforms the post‑registration measure of the right into a fixed number rather than preserving levancy and couchancy as the operative mode of quantification (see paras [60]–[61]).

4. That transformation has the legal consequence that, as a matter of general law, a right quantified into a fixed number falls within the category of rights which, at common law, may be severed from the dominant land. Section 15 is not a provision dealing with severance and does not indicate an intention to alter the common law rule on severability (see paras [19]; [62]–[63]).

5. The House rejects the submission that section 187(1) of the Law of Property Act 1925 altered the common law in this respect. The provision does not, on its proper construction, preclude severance of those appurtenant grazing rights that are of the fixed‑number type (see paras [48]–[51]).

6. Applied to the facts, the grazing rights over Tawna Down attached to Sina Farm, having been registered as 10 cattle and 30 sheep, were rights of the fixed‑number type and therefore severable. The conveyance purporting to transfer those registered grazing rights separately was effective (see paras [33]; [63]).

7. Practical and policy considerations favouring retention of appurtenant character do not displace the statutory text and the common law rule. If Parliament wishes to change the law on severance it may do so by clear provision (see paras [20]; [62]).

8. Order: Appeal dismissed. The conveyance of the registered grazing rights was effective and the rights were severable from the dominant land (see para [63]).

• Court of Appeal (Civil Division): prior decision considered and reported at [2000] Ch 54. The Court of Appeal held that appurtenant grazing rights for a fixed number were severable; its reasoning informed the House's consideration (see para [36]).
• House of Lords: appeal heard and dismissed by majority. The House held that registration under section 15 produces a fixed‑number right which is severable at common law (see paras [47]; [63]).