Access, shooting and damage

Access, shooting and damage

Postby Pheasant8 » Tue Dec 19, 2017 3:50 pm

The farmer owns the fields surrounding our home and he has a right of access to the most distant field via a track through our garden. He also has access to the same field via his other land. Normally he accesses all the fields by circumnavigating our land by travelling from field to field. It is simpler for the farmer to access his most distance field via his own fields on both sides, to use our track is less convenient to him. However the farmer has developed a shoot recently and he marches the shooters through our land to his furthest field. We suspect that they chase pheasants out of our land to shoot in their field but have been unable to catch them so far. Technically they should also return the same way through our land to comply with their access right but they don't, instead they continue to circumnavigate our land and exit via another field. We are anti-hunting and frankly frightened of the 15 or so rough looking armed strangers with dogs off their leads. We have no warning of these visits which are often on a Saturday and the farmer will not provide any details. We have tried to discuss this with the farmer but he refuses and just drives a monster tractor along our track instead churning up the grass and leaving deep muddy furrows. As the shooters are passing just the one way then are we correct to assume this is "armed trespass" ? Can the farmer be said to be breaching his duty of care by churning up our track? Please note the sales particulars for the farm land did highlight the access right but it also highlighted the track is "not an all weather track". Should the use of our track be limited to appropriate dry season when it would not be so damaged? The attraction of our land is most likely the pheasants in our woods. Should the dogs be on leads, they dont keep to the track?
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Re: Access, shooting and damage

Postby span » Tue Dec 19, 2017 4:01 pm

You might have caused point about the dogs. The rest, not so much.
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Re: Access, shooting and damage

Postby stufe35 » Tue Dec 19, 2017 4:08 pm

You need to post the actual wording of the easement to get meaningful replies.

Dogs are required to be 'under control' ---this can be 'very obedient' it doesn't necessarily extend to having to have them on a lead.
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Re: Access, shooting and damage

Postby stufe35 » Tue Dec 19, 2017 5:26 pm

However it does of course extend to them not straying off the defined right of way.
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Re: Access, shooting and damage

Postby span » Tue Dec 19, 2017 6:13 pm

Or working, by illicit driving game from one holding to another.

If they're ethical hunters, they'll understand your request for them to be leashed or kept to the way whilst transiting.
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Re: Access, shooting and damage

Postby ukmicky » Tue Dec 19, 2017 11:42 pm

What does the easement say.

Depending on the wording of the easement as it may say for agricultural purposes only they can walk through your land with shotgun and they do not have come out the same way.

I believe Armed trespass is when someone walks onto private land with a loaded or unloaded gun without permission. If they have an easement and it’s worded correctly they have permission but as I said it depends on the wording.
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Re: Access, shooting and damage

Postby Eliza » Wed Dec 20, 2017 12:46 pm

Another way to approach this might be to contact the local animal rights group (presumably there will be one? - you could try to find them via Greenpeace or Friends of the Earth or put up a message on local Facebook page asking them to contact you privately).

They might be able to advise you how to protect pheasants on your land.

Another thought being that you "just happen" to take it into your head to do some maintenance or other of your land whilst they are trying to use it to walk through on what are basically illicit purposes in effect.
Apologies for not giving exact personal details in my posts - you never know who is reading....
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Re: Access, shooting and damage

Postby Pheasant8 » Wed Dec 20, 2017 9:59 pm

Please note the right of way is to the furthest most field only. The farmer is only able to access this field via my track if he exits the same way! Please see case law. As the shooters access field A via my track and exit via another field then they are on my land unlawfully and hence my assertion of armed trespass. Dancing on a head of a pin perhaps with this interpretation? However, my track is the longer route, I expect the benefit to them is beating animals out of my woods, then they go home the shortest way across the farmers fields. It is difficult to predict their arrival and catch them poaching and they have overwhelming numbers so this is very dangerous, so my preferences is to passive resistance and to use the Law if possible. Please see the attached document for wording.
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Re: Access, shooting and damage

Postby Collaborate » Wed Dec 20, 2017 10:04 pm

You may have a point then, If the ROW is for the benefit of a small part of the land of theirs (say, the first field), yet the purpose of their going on your land is to go on to numerous other fields, you need to see a solicitor about taking action to prevent trespass.
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Re: Access, shooting and damage

Postby span » Thu Dec 21, 2017 2:02 am

Cite your case law, please.
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Re: Access, shooting and damage

Postby ukmicky » Thu Dec 21, 2017 2:25 am

Silly question maybe but Is your land and his land registered and if so is that wording replicated on your charges register or official deed and is that drawing from an official plan. ?

I need to try and borrow someone’s laptop as I can’t see the plan etc properly (away from home and on ipad ). but I have a few other questions

I asume what from what I can make out there are 5 plots of land surrounding what I assume is your land bordered in green. Is one of them plots the dominant land ,the farmers land that owns the ROW. If not where is the farmers land that actually owns the ROW in relation to your land.

Does the farmer own all those plots surrounding your land and are they separate titles or just fenced as separate fields but come under one title.

Is that all the wording ,it seems a bit vague and not very well drafted at all. .

Also the words 'the vendors adjoining land as shall require such rights' seems very vague. Any land that benefits from the easement should be clearly identifyable but that is worded such that it would be impossible for you to ascertain what land he could use the right of way for or could even purchase extra land further north and then under the easement use the right of way to benefit the new land ,which by law he couldn't do. .

I can clear up one thing for you , well 2 things . Firstly forgetting the bit that to me seems vague if he has a ROW to that land providing he is using the ROW for a reason connected with that land he can exit it anywhere onto any land ,he does not have to come out same way he went in. He also cant go through your land onto that land as a means to get to other land if the other land has no easement rights over your land.

As for the bit to do with it not being an all weather way , he can still use it in all weathers.
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Re: Access, shooting and damage

Postby Collaborate » Thu Dec 21, 2017 8:05 am

span wrote:Cite your case law, please.


Happy to do so.
(Harris v Flower (1905) 74 LJ 127).
Alvis v Harrison (1991)
Jobson v Record (1998)
Most importantly, Peacock v Custins ([2001] 13 EG152 in which the Court of Appeal held that a right of way expressly granted in favour of a field could not also be used to reach a neighbouring field even though both fields were being farmed as a single unit. In deciding whether the right of way could be used to access land other than the dominant tenement (ie the land for the benefit of which the right was originally granted), the court was concerned with the scope of the grant, its purposes and the identity of the dominant land.
The court is not concerned with the likely increase in the amount of use of the servient land (ie the land over which the right of way is exercised).
The grantor of the right had not authorised the use of the road as access to any other fields and, therefore, the road could only be used for the benefit of the land identified in the original grant.
The court referred to Harris v Flower ((1904) 74 LJ Ch 127):the burden on the servient land owner cannot be increased without his consent otherwise it will amount to trespass.
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Re: Access, shooting and damage

Postby span » Thu Dec 21, 2017 11:38 am

Collaborate wrote:
span wrote:Cite your case law, please.


Happy to do so.
(Harris v Flower (1905) 74 LJ 127).
Alvis v Harrison (1991)
Jobson v Record (1998)
Most importantly, Peacock v Custins ([2001] 13 EG152 in which the Court of Appeal held that a right of way expressly granted in favour of a field could not also be used to reach a neighbouring field even though both fields were being farmed as a single unit. In deciding whether the right of way could be used to access land other than the dominant tenement (ie the land for the benefit of which the right was originally granted), the court was concerned with the scope of the grant, its purposes and the identity of the dominant land.
The court is not concerned with the likely increase in the amount of use of the servient land (ie the land over which the right of way is exercised).
The grantor of the right had not authorised the use of the road as access to any other fields and, therefore, the road could only be used for the benefit of the land identified in the original grant.
The court referred to Harris v Flower ((1904) 74 LJ Ch 127):the burden on the servient land owner cannot be increased without his consent otherwise it will amount to trespass.


Not you, the OP!

Sorry, I was being unclear. Could the OP cite the case law that supports their position?
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Re: Access, shooting and damage

Postby arborlad » Thu Dec 21, 2017 12:45 pm

Pheasant8 wrote: However the farmer has developed a shoot recently and he marches the shooters through our land to his furthest field. We suspect that they chase pheasants out of our land to shoot in their field but have been unable to catch them so far. Technically they should also return the same way through our land to comply with their access right but they don't, instead they continue to circumnavigate our land and exit via another field.




I can think of no logic, case law or reason why this should be so - perhaps something exists. Shooting aside, if the farmer has sheep in one field and wants to move them to another, he may cross your land with his dog and move the sheep to where he wants them or he crosses you land with a tractor and empty trailer, load with hay and go another way to avoid low branches.
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Re: Access, shooting and damage

Postby MacadamB53 » Thu Dec 21, 2017 12:59 pm

Hi Pheasant8,

if all those five fields on your drawing that surround your property are part of the same title - or were part of the same title when the easement was reserved - then the owner(s) of those fields own a RoW over your property to access any of the fields.

the only fields that cannot be accessed via your land are those that were not part of the same title as field A when the easement was reserved.

kind regards, Mac
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