Jason Victor Fuller (part 20 claimant) v (1) Diana Carolyn Kitzing (2) Mark Eberhard Kitzing (part 20 defendants) (2017)
A profit a prendre giving sporting rights over a property could include the right to take game birds which were on the property, notwithstanding that the birds had been bred by humans. A game bird could be wild, and thus properly the subject of a profit, even if it had been bred and fed by human agency, provided it had been released back into the wild.
The court was required to determine preliminary issues in a property owner's claim against the owner of sporting rights over the property.
The defendant's mother had owned a large estate. In 1989, she granted a lease of a property on the estate. The lease reserved a right of way for the lessor over a road running over that property. It also reserved all sporting rights over the estate, including the right to stand guns on the estate, the right to take game, and the right to come onto the estate for the purpose of exercising the sporting rights and their management. However, it provided that no game would be reared or fed on the estate. In 1990, part of the leased property was transferred to a new leasehold title, which the claimant later acquired. The road ran along the boundary of the new property, which comprised a large house and garden. In 1997, the defendant became a trustee of the estate. She inherited the sporting rights from her mother, and they were vested in her as a freehold profit a prendre. The claimant acquired his lease in 2012, later buying the freehold reversion and additional land. The freehold land remained subject to the 1989 lease and the transfer excluded the sporting rights. The claimant objected to the defendant's shooting parties coming close to the house and entering the garden.
The issues were whether (1) the sporting rights authorised the defendant to preserve or rear game or to introduce young birds, or poults, onto the land; (2) the sporting rights could lawfully be exercised within 300m of the house, or in the garden; (3) the right of way over the road could only be used for travelling to or from retained parts of the estate.
(1)(a) Profits a prendre - There were in law three distinct forms of profit, namely rights to take: some part of the soil or minerals; the natural produce of the land; and wild animals or birds that existed upon the land. In submitting that game on his land could not be subject to a profit because it had been bred by humans, the claimant had elided the principles that applied to crops, where the applicable dividing line was whether they had grown naturally or as the result of human labour, and the right to take creatures found on the land, where the test was whether or not they were wild. A game bird could be wild, and thus properly the subject of a profit, even if it had been bred and fed by human agency, provided it had been released back into the wild. Accordingly, the shooting rights extended to game birds introduced as poults onto neighbouring land and reared and fed there once released back into the wild, Pole v Peake Times, July 22, 1998 applied (see paras 50-51, 56 of judgment).
(1)(b) Rights to preserve game and introduce poults - A right to preserve game from outside threats, such as by controlling vermin, was reasonably necessary to enable the rights owner to shoot all the game that was naturally on the servient land for the time being. A right to rear game already on the servient land was also sufficiently ancillary to a profit of shooting game. It assisted to make such game ready for shooting. However, the right to come onto the servient land did not extend to introducing poults onto the land. A right to rear game did, however, extend to feeding game birds already present on or above the servient land, although the express terms of the lease in the instant case prevented the rights owner from intensively rearing or feeding game on the land (paras 74-79).
(2) Proximity - The 1989 lease expressly entitled the defendant to stand guns on the land held under the lease. She could not be restricted from shooting on any of that land. The suggested limitations would deny the defendant the rights expressly conferred on her by the lease. There could be no blanket ban on shooting rights within 300m of the house or in the garden. Nor was there any justification for implying any blanket provision against shooting on the further land acquired by the claimant in 2015. However, as rights were to be exercised reasonably, the following restrictions applied: shooting should not take place from the house itself, its outbuildings or terrace; shooting should not deliberately take place in the direction of the house; and notice should be given to the claimant the evening before a day's shooting of the timing of any shooting in the vicinity (paras 87-89).
(3) Rights of way - A right of way could be used for any lawful purpose connected with the dominant tenement. If one was using the right of way substantially to access land beyond the dominant tenement, the right of way could not properly be said to be being used in connection with the dominant tenement, but that did not mean that the road in the instant case could only be used for access to or egress from the dominant land. There was no reason why the owner of a right of way could not walk along part of it and then return without having reached the public highway at the end, or could not use it for the purpose of recreation provided they were doing so in their capacity as owner of the dominant land (para.109).
Preliminary issues determined in favour of defendant
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