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Sporting rights exist as part of land and are exercisable as such unless they are separated from it.
Such separation can occur by way of lease or licence, rights reserved out of a conveyance or third parties establishing long use. Sporting rights are not an easement, as would usually be considered where people have rights over others land, but they are in fact profits a prendre.
The case of Fuller v Kitzing provided that the right to preserve and rear game does not include the right to introduce poults; nor the right to erect pens and other artificial devices; nor the right to feed game birds already present on or above the land in question, even if they have been introduced on neighbouring land as poults in pens and later released into the wild.
However, the case refused to impose a restriction on shooting within close proximity of a residential property, as it would deny the other party the benefit of their reserved sporting right. The High Court did restrict shooting in order to avoid it taking place in the direction of the defendant’s house, garage and outbuildings. It also required the claimant to give advance notice to the defendant of any shooting they would be doing in the vicinity of the property.
The litigation was originally begun by Mrs Kitzing as once Mr Fuller acquired the land he undertook extensive clearance of the ground cover and trees on the land, reducing the ability of the woodland to hold game and also reducing the areas of the shoot in which the claimant’s rights could be effectively exercised. The defendant’s conduct was said to constitute an unlawful infringement of her rights and to be a trespass and/or nuisance. The claimant sought an interim injunction restraining him from taking any steps which unlawfully interfered with her rights, from felling trees and from removing ground cover.
The interim injunction was refused on grounds that were primarily concerned with the legal principles that govern the grant of such injunctions. However, the proceedings raised the question of the extent to which the existence of sporting rights can restrict what the servient owner may do on his or her own land, at least in the absence of explicit provision in the grant or the exception and reservation of sporting rights.
Mrs Kitzing’s mother owned a large agricultural estate in North Yorkshire, known as the Winsley Hurst Estate. In 1989 she granted a 999-year lease of Harwith Hall, which had been part of the estate, reserving out of that lease a right of way and the sporting rights. In addition to the general sporting rights reservation, the lease reserved specifically...
“(a) the right to stand guns on the estate; (b) the right to take game and game eggs; (c) the right to come on to the estate for the purpose of exercising the sporting rights and their management but no game shall be reared on the estate nor fed theron except on the duck pond”.
In 1990, part of the leased property, including the house and gardens were transferred to a new leasehold title, which Mr Fuller acquired in 2012, later he bought the freehold interest and additional land. The freehold transfer was expressly subject to the terms of the lease and also expressly reserved the shooting rights. One of the rights to which Mr Fuller took subject was “the right to preserve and rear game for normal shooting purposes over the whole of the land known as the Winsley Hurst estate”.
Mr Fuller objected to the exercise of the shooting rights by Mrs Kitzing and those invited to her shooting parties, close to his house and in his garden. He began proceedings to determine the extent of the rights.
Two of the sporting rights issues brought before the court were:
The Court considered the three forms of profit a prendre; (1) right to take some part of soil or the minerals under it; (2) right to take the natural produce of the land, or crops which grow naturally, as distinct from those which are cultivated or produced by labour; and (3) rights to take wild animals or birds that existed on the land. Mr Fuller argued that his land could not be subject to a profit, because the game had been bred by humans and were not wild. The Judge decided, however, that:
“A game bird can be a wild bird, and thus properly the subject of a profit a prendre, even if it has been bred and fed by human agency provided it has been released back into the wild; and it matters not that it has been bred on, and then flushed out and beaten or driven onto the servient land from, neighbouring land belonging to a third party, whether the holder of the shooting rights or someone else. Even when reared in pens, pheasants (and other game birds) are wild birds once released from the pens into the wild. Once so released, they are capable of being the subject of a valid profit a prendre”.
Therefore, the shooting rights extended to game birds introduced as poults onto neighbouring land and reared and fed there, once released back into the wild.
The court then considered the meaning of the phrase “to preserve and rear game”. The judge found that a right to preserve game from outside threats was reasonably necessary to enable the owner of the rights to shoot all the game that was naturally on the property. A right to rear game already on the property was also sufficiently ancillary to a profit of shooting game as it helped make such game ready for shooting. The right to preserve and rear game was, therefore, ancillary to the sporting rights which were a profit a prendre.
The Judge decided that in general terms:
“The right to rear game does not extend to introducing poults onto the servient land or to stocking it with pheasants. Such a right is not, in my judgement, a right reasonably necessary to the right to shoot and take game on the servient land rather it involves artificially introducing (captive) birds on to the land which were not already there. However, a right to preserve and rear game does, in my judgement, extend to feeding game birds that are already present on or above the servient land, whether they have been hatched on the servient land by games birds already naturally there, or they have flown onto the servient land from the neighbouring land where they were hatched, or even if they have been introduced on to neighbouring land as poults in pens or some other artificial contraptions and reared there and then later released into the wild”.
The final question to consider was whether there are any restrictions on the exercise of sporting rights when those rights include land within the curtilage of a residential property.
On the question of how close to Harwith Hall the sporting rights could be exercised Mr Fuller argued that the wording in the original reservation of sporting rights “over the entirety of the estate” should be interpreted as being subject to some reasonable geographical limitation around a residential property. He suggested in his case the rights should not be exercised within 300 meters of the house. Mr Fuller argued that profits a prendre are subject to the general principles of civiliter being that the rights must be exercised reasonably and without undue interference with the enjoyment of the affected land by the owner of that land.
As detailed earlier in this article, the 1989 lease expressly entitled Mrs Kitzing to stand guns on the land, so the Judge held that she could not be restricted from shooting on any of that land. Furthermore, he found that there could be no blanket ban on shooting rights within 300 metres 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 Mr Fuller in 2015.
The judge did however impose the following restrictions in view of the requirement that the rights should be exercised reasonably:
The lesson to be learnt from this case focussed around the requirement to be clear and unambiguous in drafting to avoid future conflict with third parties. General phrases are to be avoided and rights should be described in full (ie types of game, actions permitted, proximity to dwellings etc) so that all parties are entirely clear of the extent of the rights.
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