Common Land and Commoner's Rights
A view of what it meant in the past and how we interpret it in modern times
Alan Payne, March 2014
Left: Strips of common land exist throughout the parish including at Box Hill (CMP)
A view of what it meant in the past and how we interpret it in modern times
Alan Payne, March 2014
Left: Strips of common land exist throughout the parish including at Box Hill (CMP)
[We had a question from readers asking what is Common Land? The answer is a legal conundrum but we can give an interesting historical view relating to a local dispute which involved residents at Kingsdown and Ashley.
Common land was originally based on the ancient rights which village residents claimed to exist through traditional usage before laws were recorded, called common law. This is often called prescriptive rights (pre script meaning before writing).
In later medieval times, common land could be privately owned by the lord of the manor, but still allowed rights to some tenants. These rights included livestock grazing, collecting firewood, rights to fish etc. Because so many people wanted to exercise their rights (especially at times of high population levels before the Black Death and in the 1500s) the manorial court determined which manorial tenants could exercise these rights and sometimes the terms were recorded on the medieval manorial court roll.
In 1832 the Prescription Act tried to tidy up the system. It deemed that common law rights derived from 1189 when the Normans began to record the country's legal system. The Act defined the time that residents had to show common land rights existed: twenty years for rights of way; forty years for other easements (such as right of entry).
In 1965 an attempt was made to record the rights held on all common land and village greens in the United Kingdom. As the case in 1982 shows at the foot of this article, the subject still often remains confused.]
Common land was originally based on the ancient rights which village residents claimed to exist through traditional usage before laws were recorded, called common law. This is often called prescriptive rights (pre script meaning before writing).
In later medieval times, common land could be privately owned by the lord of the manor, but still allowed rights to some tenants. These rights included livestock grazing, collecting firewood, rights to fish etc. Because so many people wanted to exercise their rights (especially at times of high population levels before the Black Death and in the 1500s) the manorial court determined which manorial tenants could exercise these rights and sometimes the terms were recorded on the medieval manorial court roll.
In 1832 the Prescription Act tried to tidy up the system. It deemed that common law rights derived from 1189 when the Normans began to record the country's legal system. The Act defined the time that residents had to show common land rights existed: twenty years for rights of way; forty years for other easements (such as right of entry).
In 1965 an attempt was made to record the rights held on all common land and village greens in the United Kingdom. As the case in 1982 shows at the foot of this article, the subject still often remains confused.]
Battle for Common Land Rights on
Kingsdown Golf Course
24th July 1948
The leading front page article of the Bath and Wilts Chronicle and Herald of Saturday July 24th 1948 tells the story below:
Left: Robert Ford starts his lonely vigil
Kingsdown Golf Course
24th July 1948
The leading front page article of the Bath and Wilts Chronicle and Herald of Saturday July 24th 1948 tells the story below:
Left: Robert Ford starts his lonely vigil
His Sunday Dinner on Golf Course? - BOX MAN'S THREAT, 1948
I'll show them, said 70-year-old Robert John Ford, as he demonstrated on Thursday that he is prepared to sit on various greens of Kingsdown Golf Course all day on a Sunday, if someone will bring his meals to him, in support of the claim which is being made that the greens are on common land.
The Battle of Kingsdown Golf Course is on and the champion of the Common Land contenders is 70-year old Mr Robert John Ford, a smallholder (who formerly had a stall in the Bath Market) of South View, Longsplatt, Kingsdown, Box, who sat with his dog as a guard on the course on Friday afternoon.
There was a great deal of controversy at the Box Parish Council this week regarding an allegation that local youths playing on the Downs were turned off. Mr Ford says he is a stickler for rights and will go as far as to sit in the various drives of the golf course on a Sunday, just to defy those who have any doubts about the Downs not being common land.
All he asks is that someone should take him his dinner. He has even gone so far as to make an offer to the Parish Council to play a cricket match on the Downs.
I'll show them, said 70-year-old Robert John Ford, as he demonstrated on Thursday that he is prepared to sit on various greens of Kingsdown Golf Course all day on a Sunday, if someone will bring his meals to him, in support of the claim which is being made that the greens are on common land.
The Battle of Kingsdown Golf Course is on and the champion of the Common Land contenders is 70-year old Mr Robert John Ford, a smallholder (who formerly had a stall in the Bath Market) of South View, Longsplatt, Kingsdown, Box, who sat with his dog as a guard on the course on Friday afternoon.
There was a great deal of controversy at the Box Parish Council this week regarding an allegation that local youths playing on the Downs were turned off. Mr Ford says he is a stickler for rights and will go as far as to sit in the various drives of the golf course on a Sunday, just to defy those who have any doubts about the Downs not being common land.
All he asks is that someone should take him his dinner. He has even gone so far as to make an offer to the Parish Council to play a cricket match on the Downs.
Bob's 50 Year Battle against some rattling good chaps |
50 Year Controversy
Mr Ford, who is the oldest member of a family on the summit of Kingsdown, made it quite plain that he was not objecting to golf but, as he puts it, just the fact that some of the golfers forget that it is common land and think it is their own property by domineering over people who choose to picnic or play cricket on this really picturesque spot. |
There are some rattling good chaps who play golf there but there is a certain class who come from Bath who think they can do just exactly what they like.
It appears that the question of the Kingsdown golf course being on common land arose about 50 years ago when the late Dr Martin, in order to prove that the land was public property, rode on horseback over the course. There is now a special track for horses and such a daring act would not be considered wise today and would be one of the last things Mr Ford and his supporters would wish to do. All they ask is what they consider is their right should be recognised.
Beware
Twenty years ago, Bob fought the same battle with the golfers and according to him a notice was erected in the golf house to the effect, Beware of the man with the Airedale dogs (meaning Bob).
There is no question about Kingsdown golf course not being on common land, said Mr Ford, and I will defy any of them to say otherwise.
It appears that the question of the Kingsdown golf course being on common land arose about 50 years ago when the late Dr Martin, in order to prove that the land was public property, rode on horseback over the course. There is now a special track for horses and such a daring act would not be considered wise today and would be one of the last things Mr Ford and his supporters would wish to do. All they ask is what they consider is their right should be recognised.
Beware
Twenty years ago, Bob fought the same battle with the golfers and according to him a notice was erected in the golf house to the effect, Beware of the man with the Airedale dogs (meaning Bob).
There is no question about Kingsdown golf course not being on common land, said Mr Ford, and I will defy any of them to say otherwise.
|
Local author and translator, Mr Lancelot C Sheppard of Chapel Cottage, Kingsdown is in full sympathy with the villagers and in a recent local guide he remarks, A golf course has been laid out on the Down, but it is still common land.
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Mr Launcelot C Sheppard in agreement |
Calling on Mr Sheppard at Chapel Cottage, which nestles below the course, he further explained that the fundamental position surely was that the land concerned, whether golf or cricket was played on it, was agricultural land and common at that. Local residents used to have grazing rights on the Downs.
Kingsdown was the scene years ago of a big fair every September where for days flocks of sheep blocked the roads from many parts on their way to the fair. Duels have also been fought on the Down, once by Brinsley Sheridan, the Irish dramatist and politician.
Kingsdown was the scene years ago of a big fair every September where for days flocks of sheep blocked the roads from many parts on their way to the fair. Duels have also been fought on the Down, once by Brinsley Sheridan, the Irish dramatist and politician.
Legal Decision 1982
Under the Commons Registration Act 1965 Reference No. 241/D/70 page 56-57
In the Matter of Kingsdown Common and Ashley Green, Box, Wiltshire
The article below is a transcript of the judgement made in 1982
http://www.acraew.org.uk/index.php?page=wiltshire
Left: 1919 map of the Northey estate at Ashley and Kingsdown
Under the Commons Registration Act 1965 Reference No. 241/D/70 page 56-57
In the Matter of Kingsdown Common and Ashley Green, Box, Wiltshire
The article below is a transcript of the judgement made in 1982
http://www.acraew.org.uk/index.php?page=wiltshire
Left: 1919 map of the Northey estate at Ashley and Kingsdown
DECISION
This dispute relates to the registration at Entry Nos 1 to 9 in the Rights Section of Register Unit No CL17 in the Register of Common Land maintained by the Wiltshire County Council and is occasioned by Objection No 81 made by the Kingsdown Golf Club and noted on 6 September 1972.
I held a hearing for the purpose of inquiring into the dispute at Chippenham on 26 November 1981. The hearing was attended by Mr and Mrs RG Sims, the applicants for the registration at Entry No 1; Miss MA Ford, the applicant for the registration at Entry No 2; and Mr C Rawlins, of Counsel, on behalf of the Objector. There was no appearance by or on behalf of the applicant or the Objector. There was no appearance by or on behalf of the applicants for the registrations at Entry Nos 3 to 9, but the Clerk of the Commons Commissioners was informed by Messrs Cluttons, Chartered Surveyors, that the applicants for the registrations at Entry Nos 3 to 8 did not wish to pursue their applications, and by Messrs Collins and Hughes, Solicitors, that the applicant for the registration at Entry No 9 did not propose to be represented at the hearing.
The registration at Entry No 1 is of grazing rights for 1 cow or 5 ewes and lambs or 1 pony attached to an area of land adjacent to the land comprised in the Register Unit. Mr Sims gave evidence, which was un-contradicted, that during the whole of the 24½ years that he has owned his land he has always kept two or three Shetland ponies and has tethered them for grazing on a small area adjacent to his property. For the first twelve or thirteen years he grazed some cows on the same land and since the mid-1960s until the present time he has occasionally grazed sheep there.
There can be no question here of a prescriptive right at common law, since during the 19th Century Mr Sim's land and the land comprised in the Register Unit were in the common ownership of the Northey family, who were lords of the Manor of Box. For the purposes of the Prescription Act 1832 the period of enjoyment as of right must have been before suit or action brought, and it is provided that by Section 16(2) of the Common Registration Act 1965 that an objection to a registration of a right of common is to be deemed to be such a suit or action. The Objection in this case was made on 21 July 1972, by which date Mr Sims had not been grazing on the land in question for long enough for him to have acquired a right under the Act of 1832. Similarly, there has not been enjoyment as of right for a sufficient period to found a presumption of a lost modern grant. I must therefore refuse to confirm the registration at Entry No 1.
Miss Ford stated that she wished to relinquish her grazing rights and that she was only interested in safe-guarding a right of way, a note of which she wished to have in the Register. Such a note was duly made on 18 April 1969. I therefore refuse to confirm the registration at Entry No 2.
In the absence of any evidence to support them, I refuse to confirm the registration at Entry Nos 3 to 9.
I am required by regulation 30(1) of the Commons Commissioners Regulations 1971 to explain that a person aggrieved by this decision as being erroneous in point of law may, within 6 weeks from the date on which notice of the decision is sent to him, require me to state a case for the decision of the High Court.
Dated 2nd day of July 1982, Chief Commons Commissioner
This dispute relates to the registration at Entry Nos 1 to 9 in the Rights Section of Register Unit No CL17 in the Register of Common Land maintained by the Wiltshire County Council and is occasioned by Objection No 81 made by the Kingsdown Golf Club and noted on 6 September 1972.
I held a hearing for the purpose of inquiring into the dispute at Chippenham on 26 November 1981. The hearing was attended by Mr and Mrs RG Sims, the applicants for the registration at Entry No 1; Miss MA Ford, the applicant for the registration at Entry No 2; and Mr C Rawlins, of Counsel, on behalf of the Objector. There was no appearance by or on behalf of the applicant or the Objector. There was no appearance by or on behalf of the applicants for the registrations at Entry Nos 3 to 9, but the Clerk of the Commons Commissioners was informed by Messrs Cluttons, Chartered Surveyors, that the applicants for the registrations at Entry Nos 3 to 8 did not wish to pursue their applications, and by Messrs Collins and Hughes, Solicitors, that the applicant for the registration at Entry No 9 did not propose to be represented at the hearing.
The registration at Entry No 1 is of grazing rights for 1 cow or 5 ewes and lambs or 1 pony attached to an area of land adjacent to the land comprised in the Register Unit. Mr Sims gave evidence, which was un-contradicted, that during the whole of the 24½ years that he has owned his land he has always kept two or three Shetland ponies and has tethered them for grazing on a small area adjacent to his property. For the first twelve or thirteen years he grazed some cows on the same land and since the mid-1960s until the present time he has occasionally grazed sheep there.
There can be no question here of a prescriptive right at common law, since during the 19th Century Mr Sim's land and the land comprised in the Register Unit were in the common ownership of the Northey family, who were lords of the Manor of Box. For the purposes of the Prescription Act 1832 the period of enjoyment as of right must have been before suit or action brought, and it is provided that by Section 16(2) of the Common Registration Act 1965 that an objection to a registration of a right of common is to be deemed to be such a suit or action. The Objection in this case was made on 21 July 1972, by which date Mr Sims had not been grazing on the land in question for long enough for him to have acquired a right under the Act of 1832. Similarly, there has not been enjoyment as of right for a sufficient period to found a presumption of a lost modern grant. I must therefore refuse to confirm the registration at Entry No 1.
Miss Ford stated that she wished to relinquish her grazing rights and that she was only interested in safe-guarding a right of way, a note of which she wished to have in the Register. Such a note was duly made on 18 April 1969. I therefore refuse to confirm the registration at Entry No 2.
In the absence of any evidence to support them, I refuse to confirm the registration at Entry Nos 3 to 9.
I am required by regulation 30(1) of the Commons Commissioners Regulations 1971 to explain that a person aggrieved by this decision as being erroneous in point of law may, within 6 weeks from the date on which notice of the decision is sent to him, require me to state a case for the decision of the High Court.
Dated 2nd day of July 1982, Chief Commons Commissioner
[The issue of Commoner's Rights is intriguing and goes to the heart of the conflict between individual day-to-day rights and private ownership. Central to the debate is how to determine the ownership of real estate (property) which includes land; buildings on it; the right of neighbours (for example to enjoy light access); footpaths; and the exploitation of assets below ground. We welcome the contribution of others as this conflict is far from decided and, indeed, may never be fully resolved.]