Case No. CCRTF 97/1134/C
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNSTABLE COUNTY COURT
(MR RECORDER ADAMS)

Royal Courts of Justice
Strand
London W2A 2LL

Date: Friday, 17th July 1998

B e f o r e

LORD JUSTICE SIMON BROWN
LORD JUSTICE SCHIEMANN
LORD JUSTICE BUXTON

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	(1) SIR JOHN RICHARD CAREW POLE 
(2) HUGH BERNARD EDWARD CUTSEM	
Respondents	
	
v.
		
	A H PEAKE (Male) 
CAROLINE MARY PEAKE	
Appellants	

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(Transcript of the Handed-Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR D HARTE (instructed by Messrs Triggs Read & Dart, Barnstaple EX31 1SY) appeared on behalf of the Appellants.

MR MARK WORRACOTT (instructed by Messrs Bevan Ashford, Tiverton EX16 6LT) appeared on behalf of the Respondents.
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J U D G M E N T (As approved by the Court)
LORD JUSTICE BUXTON:  

Introduction
This appeal concerns a conflict between the Defendants' (Appellants) rights as freeholders of a smallholding in Devon, and the rights over that property of the Plaintiffs (Respondents) as holders of shooting rights.  The basic facts are not in dispute, and can be stated very shortly.

The Respondents' predecessors, as the trustees of the Fortescue Estate, sold off an area of 66.99 acres in 1974 but retained sporting rights.  The Second Appellant acquired the middle section of the holding, some 22 acres, in 1993 [the property], subject to those rights.   Shortly before this the Respondents had included the sporting rights over the holding in a lease to a syndicate.  When the Appellants challenged the manner of use of the sporting rights over their land by the syndicate, the Respondents sued for damages on the basis of interference with those rights.  The Appellants resisted the claim on the basis that no damage had been suffered by the Respondents, and brought a counterclaim to establish that the Respondents' sporting rights over the Appellants' land were restricted by standards of reasonableness.  At trial, the Respondents' counsel indicated that they were not concerned with pursuing the claim for damages but formulated a series of declarations intended to indicate the essential nature of the dispute.   The judge ruled on those declarations as a matter of law, and no further evidence was called.  The judge's order was to dismiss the claim for damages but grant the declarations largely in the form argued for by the Respondents.  From that latter order the Appellants now appeal.

The transfer of the property to the Appellants took the form of the creation of a fee simple subject to a reservation of hunting and shooting rights.  It will be convenient to set this out in full.
	ALL THOSE pieces or parcels of land situate in the Parish of East Buckland in the County of Devon containing 66990 acres or thereabouts and known as "Buryknolls" and in the occupation of the Purchasers and more particularly described in Part II of this Schedule hereto and for the purpose of identification only delineated and edged red on the plan annexed hereto EXCEPTED AND RESERVED unto the Vendors in fee simple (a) the exclusive right of hunting with hounds and with or without horses in pursuit of deer foxes and hares over and upon all or any of the lands woods and premises hereby conveyed and of taking such animals therefrom and of entering upon all or any part of the lands hereby conveyed for the purposes aforesaid subject and without prejudice to the right of the Purchasers or other the owners or occupiers for the time being of the said lands and premises or any part or parts thereof to farm cultivate afforest and develop the same as they may think fit and in particular but without prejudice to the generality of the foregoing to erect any building or structures thereon and to open gravel pits and quarries and to dig and mine for clay stone or other minerals and subject to making good or paying compensation for all damage which in the exercise of the said rights hereby excepted and reserved shall be done to the said lands fences hedges plantations or crops thereon and pursuant to the rights herein before reserved the Vendors may from time to time authorise the Committee Master or Masters of any recognised Packs of Staghounds Foxhounds Harriers or Beagles to exercise with their servants and followers of such Hunts the right of hunting over all or any of the lands and premises hereby conveyed and of taking deer foxes and hares therefrom hereinbefore excepted and reserved to the Vendors (b) the exclusive right with or without friends servants and others to hunt shoot fish and sport over and upon all or any part of the lands woods and premises hereby conveyed and to kill and take and dispose of all game rabbits wild fowl and other wild animals and birds and fish upon the said lands woods and premises and for any of the purposes aforesaid and also for the purpose of preserving and rearing game wild fowl and fish to enter upon the said lands woods and premises or any part thereof.

We will be principally concerned with reservation (b), though some reference will have also to be made to reservation (a).  It was agreed that, under the admittedly anomalous rule recognised by this court in Johnstone v Holdway [1963] 1 QB 601 and the St Edmundsbury case [1975] 1 WLR 468, these "reservations" operate in law as re-grants by the purchaser of the fee simple, who is in respect of them subject to the principles of contra proferentem and inability to derogate from his grant.  In the event, however, the first of those issues did not arise; and the argument about derogation went no further than would have been the effect in any event of the interpretation of an orthodox contract.

The issues
Before us, three issues or groups of issues were pursued.  I state these in an order that is convenient for exposition, rather than in order of importance.  The first concerned various matters of interpretation of the deed as set out above.  The second involved a general submission on the part of the Appellants that the Respondents could only exercise their rights over the property in a reasonable manner, and subject to what was described as a balance of interests between shooting and farming activities.  That issue had a substantial impact on the third issue, said by the Appellants' counsel to be the main matter of concern to them, as to whether the Respondents could accumulate or bring on to neighbouring land owned by them such numbers of pheasants that they then proceeded on to the property to such an extent that, unless the Respondents were protected by the deed, would give grounds for an action in nuisance.

These had been the issues, or some of them, at the trial.  As I have said, the Recorder expressed his conclusions, a substantial number of which the Appellants take objection to, in a series of declarations.  It will be convenient for understanding of the argument if the major part of those declarations are set out, with the numeration that they were given at the trial.

The declarations were prefaced by a concession on the part of the Respondents that their rights to come on to the Appellants' land for the purpose of preserving and rearing game did not extend to erecting pens or other artificial devices, and then recited:
(C)  The word "game" in the deed includes pheasants reared for the purpose of sport irrespective of whether they breed naturally on the Estate.

(D)  The excepted and reserved rights include the right to enter upon the Defendants' land for the purpose of rearing pheasants notwithstanding that it causes damage (whether reasonable or unreasonable).

(E)  By reason of the terms of the Deed the Defendants must not change the character of their land from that which it was in 1974 so as to substantially interfere with the excepted and reserved rights in paragraph (b) of the Deed but the Defendants' may adopt normal agricultural practices that do not substantially change the character of the land.

(F)(1)  For the purpose of preserving and rearing game wild fowl and fish the employees of the persons in whom the excepts and reserved rights in paragraph (b) are vested may enter upon the Defendants' land without notice on foot or in vehicles

(F)(2)  The excepted and reserved rights entitle the Plaintiffs to expand their activities on the Defendants' land beyond the level at which they were exercised in 1974, irrespective of whether this substantially interferes with normal agricultural practice on the Defendants' land

(F)(3)  In the exercise of the excepted and reserved rights the Plaintiffs must take reasonable care to avoid causing distress to sheep, geese or other stock on the defendants land in so far as the Defendants are entitled to keep such stock without interfering with the Plaintiffs' rights

(F)(4)  The excepted and reserved rights may be exercised without notice

(F)(5)  The excepted and reserved rights allow vehicles to be driven anywhere on the Defendants' land so far as practicable for a Land Rover

(G)  In the exercise of the excepted and reserved rights in paragraph (b) the person exercising the rights is not obliged to pay compensation for any pheasant damage

(H)  Pursuant to and in exercise of the excepted and reserved rights in paragraph (b) persons are entitled to stock Buryknoll Woods with as many pheasants as they see fit notwithstanding that those pheasants may enter upon the Defendants' land.

Matters of construction
The Appellants objected to declaration C, saying that the word "game" in the deed was restricted to "wild" game that was "naturally occurring on the property.  The object of this limitation was to prevent the Respondents from coming on to the property, or otherwise using it, for the purpose of rearing birds that had at some stage of their lives been reared in the pens used for that purpose by the Respondents on their adjacent property.

The Appellants' construction was impossible, on two different scores.  First, once the pheasants left the pens, and thus passed out of the control of the Respondents, they became wild in law as well as in fact.  There is no basis for distinguishing between such wild birds according to whether or not they had at some time of their lives been bred in captivity.  Second, "game" must mean the same thing in the rearing limb of reservation (b) as it does in the shooting limb of that reservation.  It would be impossible to provide, as the Appellants' argument requires, that those exercising the shooting rights had to perform the impossible task of distinguishing between birds on the wing according to whether or not they had once been bred in captivity.  I would therefore uphold declaration C.

The Appellants objected to declaration F(1) (which largely overlaps with declarations F(4) and F(5)) on the grounds that the rights had to be exercised only on foot, and with notice.  I can see no justification for either of those limitations.  Even without the judicial notice taken by the judge of practice in relation to shooting in 1974, the date of the deed, there is no reason to assume that exploitation of rights such as these, over land such as this, should be limited to entry on foot unless that were specifically provided.  As to notice, some general element of this dispute is to be found under the issue as to the mode of exercise of competing rights, which I address below.  But, more specifically, a contractual requirement of "notice" would be unworkable unless there was provision for the period of notice, and (probably) the terms in which it should be given.  If there were a specific reference to notice, without more, then a court might interpret that as meaning reasonable notice, and decide what, in the circumstances of parties who had agreed to give and accept notice, would be reasonable.  But where there is no such provision for notice, the court cannot invent one by imposing whatever it would think to be reasonable.  

There is also a practical consideration, that points away from any requirement of notice in the circumstances of this grant.  Entry is permitted not only for sporting but also for the purpose of preserving game, an activity that was agreed to extend to eradicating predators, for instance by shooting foxes.  It can scarely have been intended that a keeper seeing a fox on the Appellants' land is obliged to give prior notice before entering to dispose of it.

The objections to declaration F(1) therefore fail.

Another aspect of this matter is taken up in declaration F(5), and more generally in declaration F(2), that the Respondents can only exercise their rights to the extent that they were exercised in 1974 at the time of the deed.  I cannot agree.   The case of a profit such as the present seems to me a fortiori of the case of an easement that was addressed in White v Grand Hotel Eastbourne Ltd [1913] 1 Ch 113.  If the use that may be made of a right of way to a specific property is not to be cut down by reference to the use of that property at the time of the grant, that must also be the case with a profit, unless that limitation is specified in the grant: which here it is not.

A further question of interpretation, which may affect the wider issues shortly to be discussed, but which it is convenient to deal with here, is the meaning or implication of the word "rearing" when used in the grant in relation to game.  For reasons that will become apparent, the Appellants sought to limit this activity to the operations already provided for in "preserving" game, together with an ability to remove ("naturally occurring") young birds from the Appellants' land for upbringing elsewhere.  It did not extend to stocking the Appellants' land, or any similar activity.  That contention however fails on a simple consideration of the natural meaning of the words used.  "Preserving" was agreed to be limited to protecting game from outside threats.  It most naturally, though perhaps not exclusively, applies to game not brought on to the land by the Respondents.  "Rearing" must indicate something different from that, and there is no reason to think that the concept does not have the meaning ascribed to it in the Shorter Oxford dictionary:  to bring an animal to maturity or to a certain stage of development by providing it with nourishment or other assistance.  Within that meaning, it would in my view be artificial to hold that the Respondents may only "rear" birds that are on the land without any intervention on their part.  The concept of entering the property only to deal with birds already there would also in practice seem to be entirely or at least largely taken up by the power to preserve game on that land.

I would therefore hold that the Respondents may perform on the property all the activities comprehended by the normal meaning of "rearing", and  may make use of the property by bringing birds on to it for that purpose.

These matters of construction are not only of importance in themselves, but also of important effect upon what the Appellants argued were the two main issues in the appeal.  To those I now turn.

"Balance of rights" on the Appellants' land
This is how the issue was identified by the Appellants, and it was formulated by them in terms of "whether between the Respondents' rights and those of the Appellants' on the property one takes priority over the other or whether they should be treated on an equal footing."  The Appellants argued for equality: that is, broadly speaking, that the Respondents' rights could not be exercised in any manner that interfered with reasonable and normal agricultural activities on the property.  The Respondents said that as holders of a profit in gross over the property they were not constrained in terms of reasonableness or otherwise as to how they exercised that profit.  They were constrained only by the terms of the grant, interpreted as already set out in this judgment.

The Appellants relied principally on two cases, Farrer v Nelson (1885) 15 QB 258 and Peech v Best [1931] KB 1.  In Farrer v Nelson the plaintiff was tenant of a farm over which the defendants' predecessor had reserved shooting rights.  The defendants had brought on to land very close to the plaintiffs' farm pheasants in coops, which entered the farm and damaged the plaintiff's crops.  The defendants' argument, 15 QB at p259, was that
	The defendants had the right of shooting over the land, and it was necessary for the reasonable enjoyment of this right that they should be at liberty to stock the land with pheasants.

Pollock B however held, at p260, that
	so long as the lessee of the right of shooting was exercising the ordinary rights which the landlord who had reserved the right might have exercised, he was acting within his rights, but the moment he brings on game to an unreasonable amount or causes it to increase to an unreasonable extent, he is doing that which is unlawful, and an action may be maintained by his neighbour for the damage which he has sustained.

Peech v Best was less closely related to the facts of our case.  The defendant, owner of a 700 acre farm, granted the plaintiff "the exclusive right of shooting and sporting in over and upon it" for a term of fourteen years.  With still some four years of the term to run, he conveyed 12 acres of the farm for the erection of racing stables.  The case itself went no further than to hold that the building substantially interfered with or limited the shooting rights, and was therefore a derogation from the defendant's grant of which the plaintiff could complain.  The Appellants however draw attention to the comment of Scrutton LJ, at p14, that Farrer v Nelson 
	apparently shows that both landlord and sporting tenant must use their land reasonably having regard to the interest of the other, and will be liable for damage caused to the other by extraordinary, non-natural, or unreasonable action.

The Respondents' short answer to the argument that they also are thus constrained is that in neither of the cases referred to did a right exist to "rear" game on the servient land.  That is demonstrated by the argument in Farrer v Nelson, cited above, in which the holder of the shooting rights contended, unsuccessfully, that a right to bring birds on to and stock the land should be implied in a right to shoot.  That a mere grant of shooting rights only permits what it addresses in terms, shooting, is also shown by another case that was reviewed in Peech v Best, Gearns v Baker (1875) LR 10 Ch App 355.  There, a lessor of shooting rights was not constrained from cutting timber on his land, even though that would interfere with the shooting.  The court emphasised that the grant was "an ordinary agreement for letting shooting" and, to paraphrase, the grantee must take the land as he found it from time to time.  But, in our case, the grant is not just for shooting alone.

I cannot therefore accept the Appellants' arguments on this issue.  The Respondents accepted that whatever rights they enjoyed had to be exercised with reasonable care, as indeed was envisaged by declaration F(3).  But, subject to that, they could exercise their right to enter for purposes of shooting, rearing and preserving game without limit, and even if so doing interfered with agricultural activity on the property.  I agree with that view, subject to the following caveats.

First, I was not persuaded by the argument, which by the end of the appeal may not have been persisted in, that activity on the property should be judged by its condition at the date of the deed, when it was, on various views of the evidence, either scrubland or rough grazing land.  The conveyance to the Appellants envisaged the land's use for farming, as is demonstrated by the terms of part (a) of the Reservation; and it would in my view be inconsistent with the terms of that grant for the Appellants to be held down to use of the land in the condition that it was in in 1974.  The, I have to say, somewhat obscure terms of declaration (E) (which, it should be noted, was not sought to be disturbed by the Appellants) have to be read in that sense.  That declaration does, however, make clear that it is not open to the Appellants to adopt farming practices that interfere with the exercise of the Respondents' shooting and rearing rights.

Second, the extent of the Respondents' rights is, as their counsel urged, to be determined according to the terms of the grant.  The question is not resolved simply by stating that the grant is, as it is, of a profit in gross without stint (ie, as I understand it, unlimited as to numbers of game taken), not least because that concept does not seem to apply naturally to the "rearing" right which is the main bone of contention between the parties.  In exercising that right, it is, as indicated above, accepted that the Respondents must act with due care; and the right excludes any activity that cannot be characterised as part of a normal rearing operation.  For that reason, declaration (D) in its present extent is unsupportable, as the Respondents recognised in the course of argument.  The Respondents are liable for "unreasonable" damage, not because of some high principle, but because damage that can be characterised as unreasonable (whatever exactly that might relate to) would not have been inflicted by the exercise of the rearing rights envisaged by the grant.

At the same time, however, I agree that the Respondents are not liable for damage reasonably occurring in the course of rearing activities; and also, in terms of declaration (G), that the Respondents are not liable for "pheasant damage".  The judge reached that conclusion on the ground that compensation was specifically provided for in reservation (a) but not in reservation (b).  I suspect that contrast may reflect countryside tradition rather than any thought-out scheme of liabilities.  The reality, however, is that rearing of birds upon a piece of land used as a farm will necessarily entail some damage being caused to the farm, and if compensation is to be paid it must be specifically provided for (and, I would add, specifically bargained for).

Nuisance caused by birds entering the property from adjoining land
I have summarised this issue above.  The complaint is that young pheasants are kept by the Respondents in pens in an area known as Buryknoll Woods very close to the property, with the result, and it was suggested with the intended result, that on release they took themselves to the property for the purpose of feeding.  The Appellants sought at trial to establish that the grant did not prevent them from taking action in respect of such accumulation when, absent the grant, it would give grounds for an action in nuisance.  

The ruling of the judge appealed against is expressed in declaration (H).  For that declaration the Appellants seek to substitute a declaration that 
	in the exercise of the rights in paragraph (b) persons are obliged to keep the numbers of pheasants in Buryknoll Woods (i) to a level which the wood can support without artificial feeding or (ii) to a level such that they do not enter upon the Second Defendant's land and cause damage

I have addressed this issue after the "balance of rights" issue because it is determined by the respective rights of the parties in relation to the property.  That in turn is because, as the Respondents' counsel pointed out, a condition does not constitute a "nuisance" until it affects the plaintiff's land either actually or, in a  proceeding quia timet, imminently.  But, quite simply, if, as I have held, the Respondents are entitled under the grant to bring birds on to the property even if those birds interfere with or damage the farming operations, they cannot be liable if such interference or damage is caused by birds straying from elsewhere.  

I can see no answer to that argument.  True it is that the terms of the grant give the Respondents the right to "enter upon" the property for the purpose of rearing game; and it might be said that where all that happens is that the pheasants come on to the property from elsewhere that is not a circumstance covered by the grant, since there is no intervention by the Respondents themselves.  That would, however, be altogether too narrow a reading of the grant.  The reference to entry on to the property is a means of expressing the right to exercise the grant on the property; and, as counsel for the Respondents pointed out, it would be paradoxical indeed if the Respondents could bring food on to the property to attract birds there, or carry birds on to the property, but were liable if birds not so attracted or artificially let loose eat the farmer's crops.

Conclusion
I would therefore dismiss this appeal.  In more detail, of the contested declarations I would uphold declarations (C), (F)(1)-(2) and (4)-(5), (G) and (H).  Declaration (D), which was intended to address the "balance of rights" issue, is for the reasons indicated in the judgment not satisfactory for that purpose.  On consideration of the reasons set out above the parties are agreed that the substance of the judgment is conveyed by there being substituted for the present declaration (D) the wording as proposed by the appellants: 

	The excepted and reserved rights include the right to enter upon the Defendants' land for the purpose of rearing pheasants notwithstanding that damage is caused which is necessarily consequent upon or incidental to the exercise of the excepted and reserved rights.

LORD JUSTICE SCHIEMANN:  

I agree with the judgment which has just been delivered.  The only matter, but an important matter, which has caused me to hesitate is whether the right to enter the appellants' land for the purpose of preserving and rearing game is limited to a right to enter the land for the purpose of preserving and rearing game on the respondents' land or whether it includes a right to enter on the appellants' land for the purpose of preserving and rearing game on the appellants' land.  I am persuaded, by the reasons set out by my lord, that the latter is the case and so I too would dismiss this appeal.

LORD JUSTICE SIMON BROWN:  
For the reasons given by Buxton L.J. I too would dismiss this appeal.

		ORDER:  Appeal dismissed; section 18 order for costs; legal aid taxation of appellants' costs.