Fuller v Kitzing & Anor

A profit à prendre for shooting may include ancillary rights to preserve and rear wild game already present on the servient land. Game birds bred in captivity become wild birds when released and may be taken under the profit. The right does not extend to stocking the land with poults or erecting pens. Express lease provisions may limit otherwise ancillary rights.

Sporting rights are subject to the reciprocal principle of civiliter. The court may not imply a territorial restriction that contradicts an express grant, but shooting must be conducted reasonably and without undue interference. A right of way may be used for any lawful purpose connected with the dominant tenement, assessed in light of the nature and extent of both tenements.

The claimant owned Winsley Hurst Hall and surrounding land. The defendants held sporting rights over the wider Winsley Hurst Estate under a 1998 assent, together with rights of entry and way. The claimant’s Part 20 claim concerned the construction and extent of those rights.

Three preliminary issues remained: whether the sporting rights permitted preservation, rearing or introduction of game; whether shooting was subject to a 300-metre or other restriction around the house; and whether rights of way reserved by a 2015 transfer were confined to access to and from the retained land.

1. Profit à prendre. The sporting rights were property rights in the nature of a profit à prendre. The law distinguishes between cultivated crops, where the relevant question is whether they are natural produce or the result of human labour, and wild animals or birds, where the relevant question is whether they are wild.
2. Following the reasoning in Pole v Peake, a game bird bred in captivity becomes wild in law and fact when released. The shooting rights therefore covered pheasants introduced as poults on neighbouring land and later released into the wild.
3. The ancillary right to preserve game included protecting it from outside threats, such as vermin. The right to rear game already on the servient land was also sufficiently ancillary to the right to shoot. It did not, however, authorise pens, artificial devices, stocking the servient land, or introducing poults onto it. Those activities were not reasonably necessary to exercise the principal right.
4. For land remaining subject to the 1989 lease, paragraph 7(c) of the Third Schedule expressly prevented intensive rearing or feeding of game, except on the duck pond.
5. Proximity. The court rejected a blanket prohibition on shooting within 300 metres, or any other specified distance, of the house. Such a restriction would contradict the express lease right to stand guns on part of the land. Applying civiliter, shooting was nevertheless restricted: it was not to take place from the house, garages, outbuildings or terrace; it was not deliberately to take place towards them; and notice was to be given the previous evening of shooting near the property.
6. Right of way. The relevant right of way could be used for any lawful purpose connected with the dominant tenement. It was not confined to travel to or from the retained land. The rule in Harris v Flower remained applicable where the way was substantially used to access land beyond the dominant tenement. The court declined to prescribe exhaustively whether walking, recreation or photography was permissible; each use depended on its connection with the dominant land.
7. The parties were directed to draft declarations giving effect to the judgment, with further argument on the form of order.

This was a first-instance determination of three remaining preliminary issues in a Part 20 claim. The judgment records that the defendants’ original Part 7 claim had been discontinued and that an earlier interim injunction application had been dismissed in [2016] EWHC 804 (Ch).