Besley v John

A right of common pasture entitles the commoner’s animals to eat the grass on the common. It does not entitle the commoner to bring supplementary feed onto the land or to use the common as an extension of a farm.

Care for the welfare of grazing animals is an ancillary incident of the right. The reasonable means of exercising that incident may evolve with modern conditions. Vehicular access may therefore be a prima facie reasonable means of shepherding over a large common, but it must cause the minimum reasonably necessary interference with the landowner’s rights.

A landowner’s use of a common does not unlawfully interfere with grazing rights unless it materially reduces the grazing available to the commoner.

The claimant golf club owned part of Vaynor Common and had enlarged its golf course, creating additional mown greens, tees and fairways. The defendant owned adjoining farms and held registered rights to graze sheep on the common under the Commons Registration Act 1965.

The County Court declared that the defendant could not bring feed onto the club’s land and could use a vehicle only to remove sick, injured or dead animals. It also dismissed his counterclaim that the enlarged and mown golf course interfered with his grazing rights.

On appeal, the central issues were whether feeding and general vehicular shepherding were ancillary to a right of pasture, and whether mowing part of the common materially interfered with that right.

1. Appeal allowed to a limited extent. The court upheld the rejection of a right to bring supplementary feed onto the common and upheld dismissal of the counterclaim. It held, however, that the declaration had unduly restricted vehicular access for sheep welfare and shepherding.

2. A right of pasture is a right for livestock to eat the grass on the common. It does not include every activity useful in keeping sheep. Supplementary feed is not reasonably necessary to exercise that right. It is inconsistent with it, because sheep eating supplied feed are not exercising the grazing right. The commoner cannot remedy naturally insufficient pasture by conducting a different activity on the common.

3. Care for the welfare of sheep, including general shepherding, is a necessary incident of the grazing right. Although the extent of the right is fixed at the date of the grant, or in this case registration, its reasonable mode of exercise is not confined to the means then customary. Modern conditions could make vehicular shepherding over a large common prima facie reasonable.

4. That access is qualified. It must be exercised reasonably and with the minimum interference with the landowner’s use of the land. The court invited the parties to agree an order dealing with use of tracks, vulnerable greens and tees, and the limited circumstances in which vehicles could be used to round up sheep. Failing agreement, written submissions were to be made.

5. The golf course expansion did not materially interfere with the defendant’s grazing right. That right extended over the whole common, not merely the area where he had chosen to keep his hefted flock. The judge was entitled to find that the small mown area remained available and suitable for grazing. An injunction preventing use of the golf course would in any event have been unreasonable on the evidence.

The appellant was ordered to pay two-thirds of the respondents’ costs in both the Court of Appeal and the court below.

• Court of Appeal (Civil Division): allowed the appeal to a limited extent in [2003] EWCA Civ 1737, holding that welfare-related vehicular access had been too narrowly confined, while affirming the rejection of a feeding right and the dismissal of the counterclaim.
• Merthyr Tydfil County Court: declared that the defendant could not bring feed onto the claimant’s land and could use vehicles only where necessary to remove sick, injured or dead animals; dismissed the counterclaim concerning the golf course expansion.