Bettison and Others v. Langton and Others

An appurtenant common right of pasture for a fixed number of animals is severable from the dominant land and may become a right in gross. Section 187(1) of the Law of Property Act 1925 did not alter that common law rule.

Under section 15 of the Commons Registration Act 1965, final registration transformed a grazing right formerly measured by levancy and couchancy into a right exercisable for the fixed number entered in the register. The general law of severability therefore applied. The right became alienable separately from the land, although the register continued to describe it as attached to that land. The policy preferences or assumptions underlying the legislation could not preserve inalienability when the enacted provisions did not do so.

A right to graze animals on Tawna Down was originally appurtenant to Sina Farm and measured by levancy and couchancy. Registration under the Commons Registration Act 1965 recorded the right as attached to the farm and quantified it at 10 cattle and 30 sheep.

The farm's owner later conveyed the grazing right separately to the respondents while retaining the farm. The appellants subsequently acquired most of the farm and contended that the earlier conveyance had been ineffective because the grazing right was inseverable.

Judge Anthony Thompson QC and the Court of Appeal, reported at [2000] Ch 54, held that the right was severable. The central issue before the House was whether registration had produced a fixed-number right capable of being severed from the farm.

By a majority of four to one, the appeal was dismissed.

1. Lord Scott of Foscote delivered the leading speech. Lord Slynn of Hadley, Lord Steyn and Lord Hutton agreed with his conclusion and reasoning. The overwhelming weight of judicial and academic authority established that, at common law, an appurtenant grazing right for a fixed number of animals was severable. This differed from a right measured by levancy and couchancy, which could not be severed. Severance of a fixed-number right could not increase the burden on the servient common because the permitted number of animals remained constant.

2. Per Lord Scott, section 187(1) of the Law of Property Act 1925 did not change the common law rule. The obscure provision was directed primarily to easements. It did not prevent the severance of appurtenant profits which were severable at common law.

3. Per Lord Scott, section 15 of the Commons Registration Act 1965 required a grazing right formerly measured by levancy and couchancy to be registered for a definite number of animals. On final registration, subsection (3) transformed the right into a fixed-number right. It did more than impose an upper limit while retaining levancy and couchancy as the underlying measure.

4. Per Lord Scott, the common law consequences of that transformation then applied. The dominant land's agricultural character and carrying capacity ceased to control enjoyment of the registered right. As a fixed-number appurtenant right, it was severable notwithstanding the Royal Commission's expectation that registered appurtenant rights would remain attached. Legislative assumptions could not alter the law, and section 15 contained no restriction on severance. The separate conveyance of the grazing right was therefore effective.

5. Lord Nicholls of Birkenhead dissented. He considered that section 15 should be construed in light of the limited purpose and scheme of the registration legislation. On his construction, registration merely quantified the right; it did not change its appurtenant character or make it severable. He would have allowed the appeal and held the separate conveyance ineffective.

1. House of Lords: By a four-to-one majority, dismissed the appeal and affirmed the conclusion that the registered fixed-number grazing right was severable.
2. Court of Appeal: In [2000] Ch 54, upheld the first-instance decision. Robert Walker LJ delivered the leading judgment and held that an appurtenant grazing right for a fixed number of animals was severable.
3. First instance: Judge Anthony Thompson QC held that the fixed-number grazing right was severable and that its separate conveyance was effective.