Shooting Rights Case law update following Kitzing v Fuller by Tom Bourne-Arton
The interpretation of sporting rights over land owned by another was recently considered in the case of Fuller v Kitzing  EWHC 810 (Ch).
Before turning to the case of Fuller v Kitzing it is helpful to consider a brief history of the law in relation to shooting rights.
Rights to take game or to sport are in their nature profit a pendres (rights to take from the land). This proposition is supported by the Court of Appeal in Pole v Peake  EGCS 125 and Fuller v Kitzing.
Profits a pendre can exist in two forms:
1) In gross – where they are attached to a person and burden a particular area of land; or
2) As appurtenant profits – which attach to a parcel of land known as a dominant tenement and burden another area known as the servient tenement.
Both forms can be created and transferred by deed. If not created by deed they can be established through long use (by prescription), albeit this is now a rarity.
Shooting rights, however they arise, are registerable at HM Land Registry.
For the most part profits a pendre can only be transmitted from one owner to another by deed. This general rule does not apply to leases not created by deed, to exempt short leases from having to be in writing; and tenancies of agricultural holdings which are from year to year.
As a profit a pendre, sporting rights can be enforced by successors in title.
The most recent Court of Appeal decision in this area of law is Pole v Peak which is authority for the following propositions:
1) “Game” in a deed includes pheasants reared for the purposes of sport irrespective of how they were bred.
2) No prior notice is required to be given by owners of the sporting rights, their servants or agents before they exercise rights of access. Such access is permitted not only for sporting but also for the purposes of preserving game (such as steps taken by a keeper to control vermin).
3) Use to which the rights can be put is based on the position as it is rather than as it was at the date of the grant.
Absent an express contractual obligation there is no duty on the owner of servient land to maintain the quantity of game on their land (Bird v Great Eastern Railway Company (1865) 19 CBNS 268).
Turning now to the case of Fuller v Kitzing, in that case Mr Fuller was the owner and occupier of land over which Mrs Kitzing maintained the sporting rights. The sporting rights were set out as follows:
“There are reserved to the Lessor, her successors in title and her or their servants, agents or invitees all sporting rights including fox hunting over the Estate to include without prejudice to the general reservation of such rights the following rights (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 thereon except on the duck pond.”
The issues to be determined by HHJ Hodge included:
1) Whether the sporting rights authorised Mrs Kitzing a) to preserve and rear game or b) to introduce poults on to Mr Fullers’ land.
2) Whether the sporting rights can lawfully be exercised within 300 metres of the main house or some other distance from the main house.
Two experts were called to give evidence: Mr Thorton-Berry for Mr Fuller, and Mr Huntington-Whiteley for Mrs Kitzing. Where the experts differed in their opinion HHJ Hodge preferred the evidence of Mr Thorton-Berry, for reasons set out in his judgement. Mr Thorton-Berry’s evidence included the following assertions:
1) No reasonable participant in a shoot would go upon a garden or terrace without prior notification to and agreement of the owner. In the event of an injured bird making its way within close proximity of the house, retrieval should only ever take place after the occupants have been notified.
2) Organised shoots should not put out gun stands where guns can be discharged at or over residential property. He recommended that guns be placed a minimum of 300 metres from any substantial property like Winsley Hurst Hall to ensure that there was no risk of injury or nuisance caused.
3) It is possible by moving the location of flushing points in drives and the gun stands to avoid the risks of dangerous shots being taken near a domestic residence and to present better flushing points by moving feeders and/or cutting drives, felling trees to encourage birds to fly. The use of sewelling or strips of plastic fastened to a line, or stops (shoot staff members) to prevent birds running through the flushing point, could also be used in continuous woodland such as at Winsley.
The experts agreed in the joint report that:
1) There is no accepted practice regarding shooting within the vicinity of residential properties in the UK other than compliance with statute and each shoot will operate dependent on individual circumstances.
2) No reasonable person when shooting would deliberately aim at a dwelling or its immediate garden such as to potentially cause injury or damage to persons or property.
3) Due consideration should be given by shoot organisers to take all reasonable steps to prevent causing illegal nuisance to others.
4) It would be neighbourly if notice was given to the Mr Fuller the evening before a day’s shooting of the timings of shooting any of the drives in the vicinity of Winsley Hurst Hall.
First Issue: “Whether the sporting rights authorised Mrs Kitzing a) to preserve and rear game or b) to introduce poults on to Mr Fullers’ land.”
In relation to the first issue HHJ Hodge held:
“In my judgment, a game bird can be a wild bird, and thus properly the subject of a profit a pendre (a right to take), 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 pendre. I therefore hold that the rights of shooting enjoyed by Mrs Kitzing extend to game birds introduced as poults on to neighbouring land and reared and fed there once they have been released back into the wild.”
Later on in his judgment HHJ Hodge states:
“In my judgment, a right to preserve game by protecting it from outside threats, such as by controlling vermin, is as much a valid incident to a right to take and shoot game as a right of entry on to the servient land. It is reasonably necessary to enable the owner of the shooting rights to shoot all of the game that is naturally on the servient land for the time being.
Conversely, I am entirely satisfied that a right to come on to the servient land for the purpose of preserving and rearing game does not extend to erecting pens or other artificial devices…To that extent 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 judgment, 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 judgment, 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 game birds already naturally there, or they have flown on to the servient land from 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.”
Second Issue: “Whether the sporting rights can lawfully be exercised within 300 metres of the main house or some other distance from the main house.”
In relation to the second issue HHJ Hodge held:
“[Counsel for Mrs Kitzing] acknowledge that profits a pendre are subject to the same general principles of civiliter as other servitudes: the dominant owner must exercise the right reasonably and without undue interference with the servient owner’s enjoyment of his own land. I accept [his] further submission that the civiliter principle works both ways and that it is a reciprocal one.
Pursuant to the civiliter principle, and in light of the expert evidence and the practical restrictions recognised [by Mrs Kitzing’s solicitor] I hold that the exercise by Mrs Kitzing of her shooting rights is subject to the following restrictions:
(1) Shooting should not take place from the house itself, its garages, outbuildings or terrace;
(2) Shooting should not deliberately take place in the direction of the house itself, its garages, outbuildings or terrace; and
(3) Notice should be given to Mr Fuller the evening before a day’s shooting of the timings of any shooting on any of the drives in the vicinity of Mr Fuller’s property.”
Practical implications of the decision
It must be stressed that Kitzing v Fuller is a first instance decision. However, if and until it is appealed, it is likely to be case cited in sporting rights cases as a comparable case which is persuasive. It confirms that sporting rights are a profit a pendre and as such subject to the civiliter principle, i.e. in exercising your sporting rights you have to do so reasonably and without undue interference with the servient’s owner’s enjoyments of his own land. Interestingly this principle works both ways and therefore the servient owner must act reasonably in allowing the sporting rights’ holder to exercise those rights. Kitzing v Fuller is a good example of ensuring that deeds granting sporting rights are well drafted so as to avoid misinterpretation or to fail to ensure a right is included within the deed. For example, if you want to have a pen on the servient owner’s land to release poults into then this has to be expressly stated. Failure to do so will likely mean that this cannot be done. It is to be hoped that most reasonable shoot operators already do so, but for the avoidance of doubt, if you are going to shoot over another person’s land in exercising your sporting rights it is neighbourly to inform the landowner when and where you are likely to be going.