REF/2007/0175

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
POLO WOODS FOUNDATION

Applicant
and

(1)	MICHAEL ALAN SHELTON-AGAR
(2)	SARAH KATHERINE SHELTON-AGAR

Respondents

Property Address: Waldergrove Farm and land adjoining Vale View Cottage,
Iping Road, Milland, Liphook, Hampshire

Title numbers: WSX253502 and WSX285556

Before Ann McAllister, sitting as Adjudicator
Procession House, London
12th to 14th May 2008

Representation: Mr Cowan  instructed by Burley & Geach  appeared for the Applicants: Mr Batstone  instructed by Penningtons  appeared for the Respondent.
 ___________________________________________________________________________

DECISION

Application to register benefit of profit a prendre – grazing for ponies – whether prescriptive right established – whether right accommodates dominant tenement – Chief Land Registrar ordered to cancel application

Introduction

1.	The Applicant (‘Polo Woods’) is the registered owner of Waldergrave Farm, Iping Road, Milland (‘the Farm’). The Farm is registered with title number WSX253502. It comprises some 111 acres and has been at all material times used for rearing polo ponies. Polo Woods is the successor to Polo Woods Establishment  which owned and occupied the Farm from October 1972. 

2.	The Respondents (Mr and Mrs Shelton-Agar) are the registered proprietors of Vale View Cottage which was conveyed to them by Dorothy Phyillis Simmons in July 2002.  Vale View Cottage is surrounded to the west and south by land belonging to the Farm, and to the east by Iping Road.

3.	In addition, Mr and Mrs Shelton-Agar are the registered proprietors of a field comprising 0.8 acres to the north east of Vale View Cottage. I will refer to this land as the ‘Triangle’. The Triangle is boarded to the south by the Cottage, to the east by Iping Road, and to the west by the Farm, and specifically by a field known as ‘the Common’.

4.	The Triangle was transferred to Mr and Mrs Shelton-Agar by the executors of Beryl Hunter Trimmer on 23 November 2004 for £10,000. It had been conveyed to her by the Parish Council of Iping on 13 October 1966.

5.	As is set out more fully below, both Polo Woods and Mr and Mrs Shelton-Agar believed that the Triangle formed part of the Farm. This belief continued beyond first registration of the Farm on 8 February 2001. Although separated from the Common by a row of hedges and trees, it was at all times possible to gain access to the Triangle from at least two wide openings. There was no other means of access to the Triangle other than from the Common.

6.	The issue in this case is whether Polo Woods have established a profit a prendre by prescription to graze a limited number of horses on the Triangle. By an application dated 25 April 2005 Polo Woods sought the registration of the benefit and the noting of a burden of a profit a prendre by prescription and/or lost modern grant appurtenant to the Farm being ‘ a right of pasturage for up to 20 ponies between the months of March and October each year’.

7.	Following the hearing in this matter, the claim has been modified. The right is now limited to up to 10 horses for the period 1 March to 31 October each year, and further limited to the hours of 5.30 pm to 6.00 am.

8.	Mr Batstone, who appeared for Mr and Mrs Shelton-Agar, argued that I have no jurisdiction to entertain this modified application. It is his case that the jurisdiction of the Adjudicator is limited to either giving effect to or cancelling the application as made to the Land Registry. As the application, he argues, has now been modified, the correct course is to cancel it, and leave the Applicants to make a fresh  application to the Land Registry. I do not accept this argument. 

9.	The matter referred to the Adjudicator under section 73(7) of the Land Registration Act 2002 is whether or not the Applicants are entitled to register a profit a prendre.  Rule 41 of the Adjudicator to Her Majesty’s Land Registry Rules 2003 (‘the 2003 Rules’) provides that where the adjudicator has made a substantive decision in the reference, the substantive order may include a requirement on the registrar to either give effect to the original application in whole or in part or to cancel the application in whole or in part. ‘Substantive decision’ is defined as a decision of the adjudicator on the matter or on any substantive issues that arises in it.

10.	 Rule 3 provides that the over-riding objective is to enable the adjudicator to deal with matters justly. This includes saving expense. Rule 3(3) further provides that the adjudicator must seek to give effect to the over-riding objective when interprets the Rules. It seems to me clear, therefore, that it is open to the Adjudicator to give effect to the application in part. As a matter of policy it seems to me, too, that I would only be driven to the narrow interpretation of the Rules (as urged by Mr Batstone) if the Rules were unequivocal in limiting my powers. It is of course common place for any number of applications to be modified before or at the end of a hearing. An obvious example is a claim to be entitled to a right of way with or without vehicles. The right might, in fact, be limited to a pedestrian right only. That is the order the Adjudicator would make.

11.	I had an opportunity of seeing the Farm and the Triangle on 12 May 2008.

12.	For the reasons set out below, I will order the Chief Land Registrar to cancel the application. In my judgment, Polo Woods have failed to established that they have acquired a profit a prendre to graze any ponies on the Triangle.

  Nature of a profit a prendre
  
13.	A profit a prendre is defined in Halsbury’s Laws of England (Vol 16(2), para 254) as follows: ‘ A profit a prendre is a right to take something off another person’s land. It may be more fully defined as a right to enter another’s land to take some profit of the soil, or a portion of the soil itself, for the use of the owner of the right.’  Rights have been established to take acorns and beech mast, fern, heather, turf and peat, freshwater fish, stone, ice from a canal and so on. 

14.	As LJ Robert Walker observed in Bettison v Langton [2000] Ch 54, cases on profits are ‘inextricably mixed up with the history and slow disintegration of the feudal system’. In relation to the right to pasture or graze, typically this will involve the grazing of animals on moors or large open spaces.

15.	It is also a feature of profits a prendre (in contrast with easements) that such rights can exist in gross, that is to say without any connection to any land. The right claimed in this case is appurtenant to the Farm. One of the issues in this case, to which I shall return later, is whether Polo Woods can demonstrate the required degree of connection with the enjoyment of the Farm.

16.	A right to graze is an established profit. This is not limited to cattle or ruminative animals generally but can extend, it seems, to pigs, goats and geese (see the judgment of Robert Walker LJ in Bettison). 

17.	If, as here, the right claimed is appurtenant to the dominant tenement, then there must be a limit or stint which applies. There is no right to graze, or take timber, or fish without limit.  This is well illustrated by the decision in Lord Chesterfield v Harris [1908] 2 Ch 397. (The decision was upheld in the House of Lords: [1911] AC 623) The defendants claimed to have a prescriptive right to fish in the river Wye appurtenant to their freehold land. 

18.	Cozens Hardy MR said this:… ‘ I think our law does not allow such a profit a prendre [ie a right to fish without limit]. It is claimed not as a right in gross, but as a profit a prendre in a que estate, or in other words as appurtenant to land. Apart from authorities, the very idea of a que estate seems to involve some relation between the needs of the estate or its owner and the extent of the profits a prendre. A right in an indefinite number of people to take a profit a prendre without stint and for sale must tend to the entire destruction of the property.’ (page 411)

19.	Buckley LJ said this: ‘ ..prescription in qua estate, being a prescriptive right in respect of a particular land to a profit a prendre in alieno solo is, I think, necessarily measured by the size or nature or wants of the estate in respect of which the prescription is made. Thus if it be for common of pasture it must be for cattle levant and couchant, that is to say, it must be limited by the number capable of being supported during the winter upon the estate in respect of which the prescription is made. So if it be a common of turbary this must be limited by the number of chimneys or hearths in which the turf may be burnt. If it be for plough-bote or cart-bote or the like it must be limited by instruments of tillage, and so on, which have to be repaired.’ (page 421)

20.	In other words, if the right claimed is a right to pasture, the maximum number of animals will be the number which the dominant tenement can sustain at a time when no grazing takes place. The number may, of course, on the facts, be much lower than that number. 

21.	In Anderson v Bostock [1976] 1 Ch 312 it was held that an exclusive right to grazing, or taking timber, or fishing without limit cannot exist as appurtenant to another property. It is a right unknown to law.

22.	Or to put the matter another way ‘ grazing appurtenant to a particular land, and whose extent is quantified by a particular number, is not incoherent as a legal concept.’  (per Lord Nicholls of Birknhead in Bettision v Langton [2002] 1 AC 27.

23.	It is also clearly established (and not in dispute in this case) that whilst the nature of a profit is essentially different from that of an easement, the rules and principles governing the acquisition, extinguishment and disturbance of profits are the same. Thus the profit must have been enjoyed as of right; it must be capable of forming the subject matter of a grant; it must have been capable of interruption and it must be definite and continuous (but not necessarily incessant if the right is intermittent in nature).

24.	There is also no doubt that a profit must ‘accommodate’ the dominant land.  In Re Ellenborough Park [1956] Ch 131 at 170 Lord Evershed M.R. said that what is required is that the right ‘accommodates and serves the dominant tenement and is reasonably necessary for the better enjoyment of that tenement’. In fact, two elements are required: the first is that there should be what might be called some geographical connection, albeit that the two tenements need not necessarily be contiguous (so that, as was said in Bailey v Stephens (1862) 12 C.B.(n.s) 91, the grant of to the owner of land in Kent a right of way over land in Northumberland would not create an easement) and the second is whether there is, in a real and intelligible sense, a benefit to the dominant tenement.

25.	This point was considered in Clos Farming Estates v Easton [2002] NSWCA 389 where the issue was whether a right to enter the servient land to carry out viticulture and to harvest and sell grapes was capable to being an easement. In answer to the question: what does ‘accommodation’ mean in this context Santow JA said this: ‘First it requires there to be a natural connection between the dominant and servient tenements. The right must be reasonably necessary for the enjoyment of the dominant tenement and not merely confer advantage on the owner, as would a mere contractual right… the nexus must exist is a real and intelligible sense…. The supposed dominant tenement was not relevantly benefited by the rights [in question] because it was merely a convenience and matter of efficiency that lot 86 be used for the purpose of farm management… the supposed connection was not a real one.’ 

26.	In the case of profits, the courts have been careful to stress two separate but related reasons why there is a difference between a right in gross and a prescription in qua estate. Thus, in Lord Chesterfield v Harris, Kennedy LJ said this (page 427): ‘The difference between a right in gross, under which there may be a right to take without stint, and a prescription in qua estate, which does not confer any such right is pointed out  in…. Bailey v Stevens. The reason of the rule may, I suppose, be two fold. In the first place, the fact of the appendancy of the right to the tenement points naturally to the maintenance of some relation, in the exercise of the right, between the extent of that exercise and the nature of that tenement and the requirements of its enjoyment. And, in the second place, if the enjoyment were without stint, it might result in the exercise of his right by one of the commoners becoming the destruction of the rights of the other commoners…’ The reference to the destruction of the rights of others refers back to the feudal origin of many such rights. This is not to say, of course, that profits a prendre cannot exist in other contexts. 

27.	Polo Wood rely on the doctrine of lost modern grant. The difficulty with relying on prescription under the Prescription Act 1832 is not only that a 30 year period must be shown (see section 1) (which they say they can demonstrate) but also that the period is ‘next before some suit or action’. In this case it is accepted that the last instance of grazing relied upon by Polo Woods took place in September 2003.

Conveyancing history

28.	By a conveyance dated 13 December 1944 the Farm was conveyed to Leonard John Hunter. The Farm extended to some 111 acres. It included part of field number 28 (the Commons field) consisting of some 7.5 acres, and field number 51 (6.7 acres) known as the Shop or  Mission field .

29.	A little less than four years later Leonard John Hunter conveyed the Farm to John Bradley Trimmer. On 13 October 1966, as stated above, Beryl Hunter Trimmer acquired the Triangle.

30.	On 6 October 1972 the Farm was conveyed by Mr Trimmer to the Polo Woods Establishment. The Triangle was not conveyed.

31.	Mrs Trimmer died on 13 January 2004. Probate was granted on 17 May 2004. The standard enquiries before contract raised by the solicitors for Mr and Mrs Shelton-Agar asked the personal representatives if they were aware of any adverse rights affecting the Triangle. Perhaps not entirely surprisingly, the reply was that there were none of which the sellers were aware but that the property was sold subject to any there may be. The sale was completed, as I have said, on 23 November 2004.

Factual evidence

32.	There are relatively few, if any, factual issues of any significance in dispute between the parties. The picture which has emerged as to the use of the Triangle and the extent of the grazing in the period 1972 to 2003 is, to my mind, clear.

33.	The principal figure behind Polo Woods Establishment was James Reardon Sharp who moved to the United Kingdom from America in 1970. He was a keen polo player. His daughter, Elizabeth Graham, is one of the beneficiaries of the foundation set up with funds from her inheritance from her father. She was 18 when the family moved to the Farm, but schooling abroad, and then a move to Argentina with her husband, meant that her detailed knowledge of the Farm began in 1990. Mr Sharp died in 1992. From then on, she has spent most of the year at the Farm, but is not closely  involved in the day to day activities of the ponies.

34.	Her evidence confirms the key elements of all the witnesses who gave evidence on behalf of Polo Woods: at all times until 2004 it was believed that the Triangle formed part of the Farm; ponies, let out onto the Common, would go into the Triangle through the gaps in the line of hedges and trees and  the Triangle was adequately maintained  for this purpose. Her own recollection as to the largest number of ponies she has seen on the Triangle and the Common at any one time is 8. In her mind, both fields were effectively one. 

35.	Mr Graham spends none months of the year in Argentina, and spends the summer at the Farm. This has been the pattern for the last 10 years. He has lived at the Farm, on and off, since he married Mrs Graham in 1973 He has very little to do with the day to day running of the Farm. He explained that the polo season has been extended over the years, and play continues into October. The ponies are allowed to go into the fields at night during the season. The 1st March is the date which is aimed at for the beginning of the season, though in practice it may be a few days earlier or later. The competitive seasons ends on the last weekend in September, although as he says, play does extend  beyond that date. 

36.	His evidence, which I entirely accept, is that he has seen as many as 10 ponies in the Triangle on few occasions. One of the main reasons for so many congregating at one time is to view what Mr Graham described as their ‘equine neighbours’ along Iping Road. Some lose interest and will graze. He said that he is unhappy with quite as many being in the Triangle since if they are frightened they are likely to stampede. There is no difficulty with 2 or 3 horses at a time. The Triangle was not treated in any way differently from the remainder of the Farm.

37.	Mr Graham also explained that the thick roadside hedge and the further line of hedges and trees means that the ponies are less visible from the road. The line of trees and hedges dividing the Triangle from the Common provides a convenient secondary barrier or second line of defence. 

38.	Mrs Simmons, who gave evidence on behalf of Polo Woods, lived at Vale View Cottage from 1971 to 2002. Mrs Trimmer lived at the Farm. Mrs Simmons was told that Mrs Trimmer bought the Triangle to prevent anyone else from buying it, and made it part of the Farm. She believed that the entirety of the Farm, including the Triangle, had been sold to Mr Sharp in 1972. It was he who arranged for the renewal of some fencing between the Triangle and Vale View Cottage.

39.	Mrs Simmons stated, as did other witnesses who knew the Farm and the Triangle at this time, that there was no fence between the Triangle and the Common. Ponies could and did come through on a regular basis.  There was a broken hedge, and a large distinctive oak tree (which can still be seen today). Although Mrs Simmons is very elderly, I have no reason to doubt her evidence which is in any event consistent with that given by other witnesses on behalf of Polo Woods.

40.	Mrs Simmons’ daughter, Penelope Johnson, moved to Liphook in 1968. She was an impressive witness and I have no reason to doubt any of her evidence. She was a regular visitor to Vale View Cottage until the late 1990s when her visits became less frequent. She too believed the Triangle belonged to the Farm. She saw horses and ponies grazing, both before and after 1972, but never more than 3 at a time to the best of her recollection and usually in winter. The majority of the horses would be on the Common, but drifters came onto the Triangle through 3 or 4 gaps. They kept the grass down. The Triangle was not overgrown except along the roadside hedge and in part along the other hedge. There was a hay rack on the Common but not on the Triangle (nor is there a water supply). Mrs Johnson was a groom and, she says, was aware of the horses.  

41.	Alan Jones and Christopher Carter have both known the Farm and the Triangle for many years and have both, at various times, worked for Mrs Graham.  Both say that they believed the Triangle to belong to the Farm. Both say, and I accept, that they have seen ponies grazing on the Triangle. ( Mr Jones stated, and again I accept, that whilst the rest of the Farm was kept in pristine condition, the Triangle was less well kept.)

42.	Shirley Kirby was employed as a full time groom from 1972 or 1973 to 1991 or thereabouts. She lived in one of the farm cottages. She was clear in her recollection of the use by the ponies of the Triangle which was always treated as part of the Farm. Her evidence is that the ponies were left out 24 hours per day on the Common, the Mission Field and the Triangle during the winter, and at night in the summer. Turning the ponies out simply meant unhitching the chains on their stables and they would generally make their own way to and from the fields. The Common field gate was then shut.  If for any reason they did not come back, she would go and get them, entering the Triangle through the gap by the oak tree.Generally they would come willingly, as they knew they would be getting their breakfast. The Triangle  land was fit for grazing though she accepted that the grazing was more attractive to the ponies on the Common and Mission fields.

43.	During her employment the Farm had some 50 to 60 horses. Contrary to what is stated in her statutory declaration in support of Polo Woods application, the largest number of ponies seen by her on the Triangle at any one time was 5, not 20, which was the maximum number of ponies which would be turned out by her onto the Common, Mission field and Triangle.

44.	William Healy is the Farm Manager. He has been involved with the Farm since 1987. He lived on a farm cottage until 1998, though spending much of the winter abroad. He began to manage the Farm in 1992.  There are now 60 to 70 ponies under his care at any given time. All the farmland is used for the purpose of grazing, feeding and maintaining the ponies. Some of the land is used to grow hay, some only for grazing. Until 2005 the Common and the Mission field were used for grazing in the summer months, with some 10 ponies kept on each field. Since that date, the Mission field is used only for exercising in summer and grazing in winter.

45.	Mr Healy confirmed that the Triangle was considered to be part and parcel of the Farm. As for the gaps between the Common and the Triangle, Mr Healy’s evidence is that, in addition to the large gap by the oak tree, there is also a gap at the apex (now occupied by Mr and Mrs Shelton-Agar’s pigs.) In my judgment such inconsistencies as there may be between the various witnesses as to the number and location of the gaps between the Common and the Triangle are irrelevant: there is no doubt that access from one to the other has always been possible, whether by people or by ponies.

46.	In the summer months, that is to say between April and September, the ponies are brought into the stables at about 6am every day and turned into the fields at 6pm every evening. If any ponies did not come back he rounded them up by going, if necessary, into the Triangle, though this was rare. In winter, fields other than the Common, the Mission field and the Triangle are used, save that the Common is used to keep problem ponies. This is partly to give the fields a rest and partly because they get wet. He applied a different system to that used by Shirley Kirby.

47.	The largest number of ponies Mr Healy remembers seeing on the Triangle is 10. This number is consistent with the fact that ponies were kept in groups of 10 on the Common.

48.	Mr Healy states, and again I accept this evidence, that he maintained the Triangle by using a rotary mower, and that this land was maintained at the same time and in the same way as the Common. This was done once or twice a year. He also made sure that there was nothing dangerous on the Triangle and that ragwort was removed. Given the width of the roadside hedge he estimates that only 70% of the Triangle could be used for grazing.

49.	The old fence in the roadside hedge had deteriorated over the years to such an extent that only the vegetation was keeping the animals from the road. In the spring of 2004 he erected an electric fence on the line of the hedge between the Triangle and the Common. This was removed in the autumn of 2004. Putting a fence along the road side hedge would have been difficult given the extent of the growth.

50.	Mr Healy’s wife confirmed this evidence. She has lived full time in the United Kingdom since 1998 (previously dividing her time between here and Argentina). She has always considered the Common and the Triangle to be one field: no-one else has ever used it, and she believed that it belonged to the Farm. She says that 8 ponies are placed on the Common, and that she may have seen 3 or 4 coming out of the Triangle.

51.	The position regarding the use of the Triangle by ponies can be summarised in this way. Such ponies as were let out onto the Common field also had access to the Triangle. This practice existed for a period of well over 20 years, from 1972 onwards. In the early years (up to the late 1980s) ponies were let out in winter and in the summer, but since then the pattern has been to allow the ponies onto the fields at night time during the summer months, ie March to the end of September.

52.	The numbers of ponies at any given time on the Triangle fluctuated from 3 to 10. The purpose for putting them out onto the Common, and the purpose of going onto the Triangle, was both to graze and to loaf or exercise.

53.	 My clear impression, however, is that the principal grazing ground was the Common and the Mission and that it was less usual for a large number of ponies to spend very much time in the Triangle.  There was some concern over the condition of the fence in the road side hedge in 2003/4, and I suspect that by then the hedge itself had become overgrown, and had encroached considerably into the Triangle.c The Triangle was in any event a useful buffer zone, giving a measure of protection to the Farm, and there is some sense in leaving it in a less pristine state than the Common.

54.	These conclusions are not affected, in my judgment, by the evidence given by a number of witnesses on behalf of Mr and Mrs Shelton-Agar. Their own knowledge of the Triangle, of course, dates only from 2002. I do not doubt that, viewed from the road, the Triangle appeared unkempt and even poorly maintained. Most of the witnesses’ knowledge of the Triangle is relatively recent, save that of Mr Johnson-Hill.  He has lived in Milland for 24 years and was involved in both the parish and district council. One of his tasks (in 2003) was to inspect the road in detail with a view to placing a Milland sign there.  He did not want the sign next to the Triangle which he described as an unsightly scrub covered field. The field was, he says, transformed after the purchase by Mr and Mrs Shelton-Agar. 

55.	Following the purchase by Mr and Mrs Shelton-Agar of Vale View Cottage extensive works of renovation were carried out. These works lasted two years. During this time the fence between their garden and the Triangle was not safe.

56.	At some point they asked Mr Graham if they could buy or lease the Triangle. Mr Shelton-Agar accepted the Triangle and the Common were used as one field, and recalls seeing ponies on the Triangle in 2002. The request to purchase was turned down. Mr Graham stated that he could quite understand why they wanted the land: he would have wanted it in their shoes. The occasion of their purchase was the arrival of two men who had come to survey the land following Mrs Trimmer’s death. It was only then that it became apparent that the Triangle was not part of the Farm.

57.	Mrs Trimmer never lived at Vale View Cottage. There is very little evidence about her, save that she was living in the village of Linch near Liphook at the time of her death. Mr Graham is not sure whether she ever met her, but recalls going, with her father, to her house.  She had no dealings with the Farm after 1972. None of the other witnesses were able to provide any further information about her. 

58.	The purchase prompted a letter from Mr Cruden in December 2004 asserting that the Triangle formed part of the Farm and stating that any attempt to take the land from Polo Woods would be strongly resisted. A further letter stated that Mrs Trimmer had never laid claim to the land. In January 2005 solicitors acting for Polo Woods stated that there was, potentially, an adverse possession claim. This claim was never advanced.

59.	In 2005 the Triangle was cleared of weeds and brambles. Mr and Mrs Shelton-Agar have two ponies and one horse. The Triangle is not sufficient for them. Two other fields are leased.  There is no grazing in winter because there is not enough grass. In the summer the grazing is sufficient for a laminitic pony. A fence was also erected along the line of hedges and trees dividing the Triangle from the Common. This was to stop their ponies straying onto the Common. The apex of the Triangle has been fenced off to allow pigs to be kept. Chickens are also kept in the south west corner.

60.	 One of the issues which arises in this case is the practical consequences of giving effect to the application. Mr Batstone argues that the right sought is not capable of judicial control and that accordingly this, of itself, is fatal to the claim. I am not persuaded that this argument is correct. Many easements (and profits) involve a degree of accommodation and co-operation between the owners of the dominant and servient tenements. A different, but related point, is whether the use of the easement or the exercise of the profit effectively ‘ousts’ the servient owner from (relevant test). I will come back more fully to these points below.

61.	Nonetheless, it is right to say that, at the very least, a gate would need to be put into the fence currently dividing the Triangle from the Common which would be opened at night during the summer, allowing ponies from the Common to pass into the Triangle. The effect of this would not only be that Mr and Mrs Shelton-Agar could not have animals grazing on their land at this time (to avoid them straying into the Common) but also that the number of ponies on the Common would be limited to the number having the right to graze on the Triangle.

62.	I should also add that it is accepted on all sides that the Triangle has no commercial value for the Farm. Moreover, it is also accepted that the value of the grass which could be taken from the Triangle is something in the region of £20 to £30 per annum. 

Expert evidence

63.	On behalf of Polo Woods I heard evidence from Tim Brigstocke, and on behalf of Mr and Mrs Shelton-Agar, from Dr Capper (who is also their solicitor). There is a very large measure of agreement between the experts. Neither Mr Brigstocke nor Dr Capper, it seems to me,  can sensibly comment on the state of the Triangle before 2002, but both agree that the Farm was impressively kept and run by people who, in Mr Brigstocke’s words, knew what they were doing. 

64.	The areas of disagreement between them relate to the condition of the Triangle before 2002/3 and whether or not it was really treated by the Farm as part of the Common, or whether it was always something of a backwater which was kept to a lower standard. In the event, it seems to me that neither of these areas are really susceptible to expert evidence.

65.	Mr Brigstocke’s evidence is that the industry standard is 1 acre per horse, although the Agricultural Budgeting and Costing Book suggests that the appropriate stocking rate is 1.9 acres per horse. Assuming a maximum grazing growing season of 245 days, the Triangle would produce at most 103 horse grazing days in the summer. As the period between 1st March and 31st October is 184 days it follows that the Triangle, taken by itself, would produce sufficient grazing for a fraction of a horse. One pony on this land, therefore, for the entire period would more than exhaust its grazing capacity. 20 ponies could graze it for just over 5 days. These calculations are based on the assumption that the animals have no other form of feed at all. On these calculation the stocking level would be sufficient for half a horse.

66.	Dr Capper reaches a very similar  conclusion. On the assumption that consumable dry matter yield from properly managed pasture would be 2 or 3 tons per acre, and the dry matter feed for a medium sized horse is only 1.6 for a 6 month period, the Triangle, on his calculations and for the reasons given in his report, would produce a stocking level for three quarters of a horse. His conclusion, therefore, is that the contribution of the land to the nutrition of the number of ponies said to have grazed on the land would be insufficient to substantiate any grazing rights: their nutritional requirements were met elsewhere. The primary purpose of the ponies being put on to the Common was not to eat but to exercise.

67.	Mr Brigstocke also comments that use of the Common and other fields at night is standard practice to stop animals eating too much and getting fat, to prevent heart stress and metabolic or other disorders such as grass staggers or laminitis. He says that it is therefore highly unlikely that during the hours of darkness the ponies would have been intensively grazing but rather that the fields were used as ‘loafing’ or an exercise area. Loafing includes, however, some element of feeding.  It is for this reason that it is quite possible to have large numbers of polo ponies in a relatively small area. In other words if the Triangle was being used together with the Common, and if the main purpose as a loafing and exercise area, rather than for optimum grazing intensity, then it would be possible to have up to 20 ponies on the two field together. If the Triangle alone were to be used, the optimum number to avoid ‘poaching’ (trampling of the ground by hooves)  would be 5.

68.	Dr Capper and Mr Brigstocke signed a joint statement on 8 February 2008 from which it might appear, at first sight, that they were in agreement on all matters. Mr Brigstocke, however, wrote a letter to Dr Capper in April 2008 in which he stated that this was not so. In particular he made the point that it is clear that the Farm treated both the Triangle and the Common as one field. As I said above, I do not consider that the issue on which the experts appear to disagree are of any real consequence in terms of their expert evidence.

Analysis

69.	As I have stated I am satisfied that for over 20 years from 1972 onwards an indefinite number of ponies (never more than 10 and frequently less than 5) entered onto the Triangle between the hours of 5.30 pm to 6.00 between March and October as part of their daily routine and that, in the course of so doing, they occasionally grazed. Taken on its own, the Triangle would not be capable of providing enough stocking material for even one horse over the period in question.

70.	Mr Batstone put forward a number of reasons for saying that the application must fail. I agree that the application must fail,  but not for all the reasons advanced.

71.	The first point to make is this. The fact that the ponies may not have taken all or substantially all their nutritional requirements from the grass on the Triangle is not, in my judgment, a relevant consideration: they have undoubtedly taken grass from the Triangle. It also seems to me that the fact that the number may have fluctuated over time is irrelevant: what matters is that a maximum number of ponies can be identified. The right, by definition, is only enjoyed intermittently (see White v Taylor (No 2) [1969] 1 Ch 161)

72.	Secondly,  I do not accept the argument that  there is no evidence in this case that Mrs Trimmer had either actual knowledge or the means of knowledge of the exercise of the right. It seems to me clear on the authorities that the burden in on the Respondents to show that she did not know. The test in any event is whether the user for the necessary period is such to bring home to the mind of a reasonable person that a continuous right is being asserted. If it is, and the owner either knows or must be taken to know of it, then the right is established (see Mills v Silver [1991] Ch 271 and generally Gale on Easements at paras 4-89 following). Mrs Trimmer lived in the locality. It seems to me that I can safely infer that she must be taken to have known that the Triangle was used, as part of one field, with the Common, for the grazing of ponies.

73.	The next point which arises is whether the ‘ouster principle’ is engaged. Is the case that the exercise of the right, in the months and at the time now sought, will leave the servient owners without any reasonable use of the Triangle or will effectively exclude them from possession or control? The question is framed in that way in the light of the recent House of Lords decision in Moncrieff v Jamieson  [2007] 1 WLR 2620. That case concerned the Scottish law of servitudes, and in particular whether the right claimed (a right to park) was ancillary to the express right of way granted. Lord Scott expressed his unease with the test formulated in Batchelor v Marlow [2003] 1 WLR 764, namely that if the exercise of a right leaves the owner with no reasonable use of the land, then such a right cannot amount to an easement.

74.	In my judgment, whichever test is used, the right claimed in this case would not be  defeated by it. In Moncrieff Lord Hope cites as an example of the fact that the servient owner is excluded from part of his property is not necessarily inimical to the exercise of a servitude, the easement of pasture which has the inevitable effect of excluding the servient proprietor, at least partially, from pasturing his own animals. (see para 23). It seems to me plain that the right to graze is inevitably going to reduce the rights of the servient owner. But the right cannot be defeated merely by saying that the servient owner could not graze his own beasts on the land, or that user will limit the use to which the land can be put.

75.	This leaves one final point of substance, and the point which, in my judgment, does defeat the Farm’s claim. The Triangle, it will be recalled, is 0.8 of an acre. Only 70% is can be grazed. It is not, on any footing, necessary for the Farm to be able to allow ponies to graze on this land. The value of the grass on the Triangle is negligible. As I have said above, the grass can only provide grazing for less than one horse over the period sought. 

76.	Mr Cowan argues that the test is not whether the right sought is necessary, but whether it is reasonably necessary, and that this is to be tested subjectively. I agree (subject to the points made below) that the test is not one of strict necessity, and also agree with the further point that the test is whether the right benefits the dominant tenement, rather than the owner at any given time of the tenement. This is why the question is not (or is not necessarily) whether the right confers a commercial benefit.  But I disagree that the test is a subjective one.  It is a question of fact in each case, dependent on the nature of the dominant tenement and the right claimed. The connection must be a real one. Even if the test were subjective, I heard no evidence to suggest that any one involved in the Farm seriously believed that the Triangle could provide any real or appreciable benefit to the Farm. On the contrary, it seemed to me quite clear to everyone that there would be no additional benefit in being able to use the Triangle for grazing.  

77.	The formulation in earlier authorities (such as Lord Chesterfield v Harris) that there must be some relation between the needs of the estate and the extent of the profits, or that the right is limited to the wants of the estate, is, in my judgment, another way of articulating the test (whilst also taking account of the particular nature of common rights). It is an important test. It is not enough to say that it is merely an ‘accident of title’ (as Mr Cowan put it) which means that the Triangle is in separate ownership. Without an objective test relating the profit sought to the needs of the estate, one or two horses, occasionally grazing on any land, however small, and regardless of the extent of the dominant tenement or the real benefit to the dominant land, could create a profit in favour of the dominant tenement. On the facts of this case the benefit to the dominant land is, it seems to me, so slight as to fail this test.

Conclusion

78.	I will accordingly order the Chief Land Registrar to cancel the application. As for costs, the Respondents are, subject to any representations or objections which might be made by the Applicant, entitled to their costs from the date of the reference, namely 7 February 2007. In the first instance, therefore, a schedule in form N260 or in like form is to be served and filed by 4 July 2008. The Applicants may serve a response by 18 July 2008. This may well be a case where costs need to be the subject of a detailed assessment, and I will consider whether to make such an order once I have received the schedule and the response. If either party asks for a detailed assessment at the outset, I will order this. The assessment will be undertaken by a costs judge sitting as a Deputy Adjudicator for this purpose.

BY ORDER OF THE ADJUDICATOR

ANN McALLISTER

Dated this 19th day of June 2008