Disputes about sporting rights are fairly common, but cases on this area of the law are rare. In Fuller v. Kitzing, in which Loxley acted for the owner of sporting rights, the High Court considered a number of issues about how such rights should be exercised in practice.
Mrs Kitzing owned the sporting rights over an estate in Yorkshire. The estate had originally been acquired by her grandfather. Over the years, parts had been sold off, including the former mansion house which was now owned by Mr Fuller, but the sporting rights had been reserved.
The definition of the sporting rights included the exclusive right of shooting, of taking all manner of game, of trapping vermin, as well as the right to preserve and rear game for normal shooting purposes. There were also ancillary rights of access in connection with their exercise.
The Court was asked to determine a number of preliminary issues about the nature and extent of sporting rights. There were two main areas of challenge from Mr Fuller.
First, the Court had to determine the extent of the right to preserve and rear game. Mr Fuller argued that birds were not “wild” – and so could not be subject to Mrs Kitzing’s right to shoot wild animals and birds – if they had been grown in part as a result of human labour, e.g. where they had been introduced as poults and reared in pens on neighbouring land.
Secondly, Mr Fuller argued that the sporting rights could not lawfully be exercised within 300 metres of his house (or such lesser distance as the Court might determine) and, in any event, not within his garden.
On the first issue, the Court held that the birds on Mr Fuller’s land were “wild”, even if they had been introduced (e.g. as poults) and reared on other land. The key point was that pheasants and other birds, even when reared in pens, would be wild birds once released from the pens into the wild.
The Court also held that the right to rear and preserve game included a right to go onto Mr Fuller’s land in order to feed the wild birds and to protect them from outside threats, such as vermin. The right did not extend to introducing poults onto Mr Fuller’s land, stocking it with pheasants or erecting pens, but it did permit Mrs Kitzing to flush out, drive or beat birds onto Mr Fuller’s land from neighbouring land.
On the second issue, the Court rejected Mr Fuller’s argument that there was any geographical limitation on the exercise of the sporting rights. Indeed, the title documents expressly provided that guns could be stood on Mr Fuller’s land, including in his garden.
Instead, the Court accepted Mrs Kitzing’s argument that sporting rights had to be exercised civiliter, i.e. reasonably and without undue interference with Mr Fuller’s enjoyment of his own land. It gave some examples of what that meant in practice: there should be no shooting from Mr Fuller’s house, its garages, outbuildings or terrace; there should be no deliberate shooting in the direction of Mr Fuller’s house, garages, outbuildings or terrace; and notice should be given to Mr Fuller by email, the evening before any shoot, of the timings of any shooting on any drives in the vicinity of his property.
The decision is an important one. It confirms the lawfulness of what is now common practice with shoots, namely for birds to be reared and then released onto land which is subject to sporting rights. If the Court had accepted Mr Fuller’s much narrower definition of what constitutes a “wild bird”, that decision would have severely restricted the exercise of sporting rights over third party land.
A full copy of the judgment can be found here:
http://www.bailii.org/ew/cases/EWHC/Ch/2017/810.html
For further information, please contact Fred Harrison-James.
Fuller v. Kitzing [2017] EWHC 810 (Ch), [2017] 3 WLR 615