Creation and Quantification of rights
Creation of rights
Historically rights could arise:
by statute
by grant by deed – the grantor of a profit a prendre must have had the necessary competence to grant the intended interest(s).
by prescription – at common law a user of a profit a prendre for a sufficiently long period of time, exceeding 20 years, may have been able to make a claim.
by operation of law in connection with appendant rights - where the lord of the manor created a new interest in land the owner of the land may also have been given appendant rights to pasture certain animals, for example animals necessary to plough the land granted to him.
in the case of copyhold tenements, by custom – customary rights could be acquired by those exercising the rights and became enforceable against the lord of the manor and others. Eventually, customs became enforceable in the common law courts. Today new rights can only be created by the owner of the land. However, the rights must be attached to land. Since 2006 it is no longer possible to create a new right of common by prescription.
Quantification of rights pre-1965
What are known as rights of common of pasture were usually appendant or appurtenant to other property, i.e. attached to other land. The number of rights attached to a property has, by custom, been dependent more on the nature and extent of the land to which they are attached than the land over which they are exercised. This is the principle of levancy and couchancy: literally, the animals that can “get up and lie down” on the land to which the right is attached. In practice this meant that rights of common would be restricted to the number of cattle or sheep that the farm or land to which the rights were attached could support during the winter months. It has not been established in law whether this relates to the capacity of the holding using modern farming techniques or the capacity of the farm at the time of the original grant. Gadsden in The Law of Commons supports the view that it is the capacity of the holding at the time of the grant. Some rights were described as sans nombre (without number). This was not interpreted by the courts as without limit but more usually as having the same meaning as levant and couchant. Rights sans nombre are now obsolete as the Commons Registration Act 1965 required that all rights for grazing be limited to a maximum number. Rights in gross are usually for a specified number of stock.
Quantification of rights under the Commons Registration Act (CRA) 1965
The CRA 1965 required that all rights of common registered for grazing must be quantified. However, the Commons Commissioners gave little regard to the carrying capacity of the common land or appurtenant land when assessing applications. The consequence is that many commons now have many more rights registered on them than they have the capacity to carry. This has been exacerbated further by multiple registration of rights across adjacent commons.