LandGrazing rights - rights of common appurtenant for fixed number of animals - sale - severable from landBettison v Langton: HL (Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton and Lord Scott of Foscote): 17 May 2001In 1985 the first defendant purchased a farm together with the appurtenant right of common which had been registered pursuant to section 15 of the Commons Registration Act 1965.The right - although originally limited by levancy and couchancy - had, on registration, become a right 'exercisable in relation to animals not exceeding' 10 head of cattle and 30 sheep.

In 1987 the first defendant conveyed the right of common to the claimants but retained ownership of the farm and mortgaged it in 1988.

In 1994 the mortgagee sold the bulk of the farm to the second and third defendants, who contended that it was not possible in law for the first defendant to have severed the right of common from the land to which the right was appurtenant and that the conveyance of 1987 was ineffective so that the right remained vested in the first defendant and an appropriately apportioned part of the right passed to them under the conveyance of 1994.

The claimants brought proceedings in the county court claiming, among other things, a declaration that they were the owners of the grazing rights.

The judge granted the declaration and the Court of Appeal dismissed an appeal by the second and third defendants.

They appealed.Vivian Chapman (instructed by Blake Lapthorn for Edward Harris & Son, Swansea) for the defendants; Leslie Blohm and Alex Troup (instructed by Spouse Robinson Le Grice, St Ives) for the claimants.Held, dismissing the appeal (Lord Nicholls of Birkenhead dissenting) that at common law a right of common pasturage for a fixed number of animals could be created without being attached to any land, and if so created for an estate in fee simple, could be freely assigned; that the dispute was as to whether a right could be severed from the land to which the right was appurtenant; that the overwhelming weight of old authority was in favour of a right of pasturage appurtenant, not limited by levancy and couchancy but for a fixed number of animals, being severable from the land to which the right was appurtenant; that registration under section 15 transformed a levant and couchant grazing right into a right to graze a fixed number of animals noted in the register; that an inevitable consequence was that changes in the character of the land to which on the register the grazing was said to be attached, became irrelevant to the continued enjoyment of the grazing right as registered; that if appurtenant grazing rights for a fixed number of animals could, at common law, be severed from the land to which they were attached and registration under section 15 had transformed grazing rights limited by levancy and couchancy into grazing rights for a fixed number of animals, it followed that those registered rights too could be severed from the land to which they attached; that the present law was that appurtenant rights of grazing for a fixed number of animals were severable; that section 15 turned the first defendant's appurtenant grazing rights into rights for a fixed number of animals; and that, accordingly, her appurtenant rights of grazing became severable and the conveyance of those rights to the claimants in 1987 was effective.

(WLR)