The Case

SHEEP

THE CASE FOR COMMONING

The nature and extent of the rights of common has never been registered in respect of Crown 'Land in the Forest of Dean. Section 11 of the COMMONS REGISTRATION ACT 1965 specifically exempts the Forest of Dean. Crown land in the Forest of Dean, being Royal forest, is demesne land and the Crown does not accordingly hold any estate in such land and as such land was therefore not capable of being registered under the LAND REGISTRATION ACT 1925 by reason of the wording of Section 2 thereof. This changed when the LAND REGISTRATION ACT 2002 came into force in October 2003, when demesne land of the Crown became registerable for the first time and rights claimed against it. What is clear however is that such rights are recognized and preserved by the 1667 Act, and it would be a matter or proof in an individual case of the right claimed.

THE DEAN FOREST (REAFFORESTATION) ACT 1667

And it is hereby further enacted and declared, that at all times hereafter, whensoever the lord treasurer of England or commissioners of the treasury, or chancellor of the exchequer for the time being, shall, at any time or times hereafter be satisfied and shall determine that the woods and trees, which shall be growing on the said 11,000 acres, or any part thereof, so to be in closed as aforesaid, are become past danger of the browsing the same or any part thereof, consisting of 500 acres or more, open and in common and shall cause the same to be so done, That then and so often it shall and may be lawful to and for the King’s majesty, his heirs and successors, from time to time to in close in lieu of so much as shall be laid open out of the said 11,000 acres, the like quantity out of any other part of the residue of the said wastes, to be set out by like commission and the admeasurement as aforesaid and to be holden, inclosed, freed and discharged of all manner of common, estovers, herbage or pannage and other rights, excepting fee deer as aforesaid, for so long time as the same shall remain and continue inclosed according to the purport, direction and intent of this present act to be a nursery for timber as aforesaid, instead of so much as shall be laid open according to the direction aforesaid.And to the end some recompense may be made to the persons whose ^-right of common and of herbage within the said intended inclosures is hereby taken from them for the necessary preservation of the said timber.

Customs, and. the rights they confer, are recognized and defined in the English law of property. That term 'property' refers both to rights of ownership the corporeal things, land and goods, which are the subject of those rights. Those rights which may be had separately from possession are called ‘incorporeal’. Those incorporeal rights which may be passed to heirs are in turn called ‘incorporeal hereditaments’. In this category of property lie rights of common. Title in incorporeal hereditaments might be claimed, among other ways but custom. The law recognizes three sorts of custom. The one that matters here is that of particular local custom. Such a custom has the force of law in the locality to which it refers, takes the place of the common law in that locality and in that may even be inconsistent with the general common law.

To be valid in law a custom must have four main characteristics. It must firstly have been in existence 'time out of minde'. That is usually taken to mean that the custom existed in 1189, at the start of the reign of Richard I. In effect though it is enough to show that the custom has been exercised as of right as far back as living memory can go. Secondly, the custom must be reasonable. Thirdly, a custom should have continued without interruption from time immemorial. If a right is surrendered for even a short period it is lost and the custom becomes void. Lastly, a custom should refer. Specifically to some locality, defined by reference to the limits of a recognized division of land. At the same time, the people who may exercise the custom must be defined with certainty. Customs may belong to a specific group of people in a specified locality and to no others.

In 1955 a committee was set up to look into all the existing rights interests in the Forest of Dean and to make recommendations as to-the measures needed to secure the administration of the Forest with special attention given to the question of commoning and grazing. This committee became known as the CREED COMMITTEE and reported in 1958. The committee came to the conclusion that Sheep have been run on the Forest not by legal right but by sufferance of the Crown. The committee made proposals for the registration and marking of sheep together with proposals for the limitation of numbers and the setting up of sheep reserves. The committee also suggested ex-gratia payments in return for the Crown's right to prohibit all sheep from the open Forest.

THE COMMITTEE'S PROPOSALS WERE NEVER ENDORSED INTO STATUTORY LAW. SOME OF ITS PROPOSALS, SUCH AS THE REGISTRATION AND MARKING OF SHEEP WERE ESTABLISHED.

Dean Forest Voice