Fuller v Kitzing & Anor [2017] EWHC 810 (Ch) (27 March 2017)

Fuller v Kitzing & Anor [2017] EWHC 810 (Ch) (27 March 2017)

The sporting rights granted to Mrs Kitzing by the 1998 Assent include the right to preserve and rear game for normal shooting purposes, including the introduction of poults, as an ancillary right to the principal profit à prendre of shooting and taking game. Such rights are valid and commonly found in grants of sporting rights. The rights are not limited by a 300-metre exclusion zone from the main house or by the garden boundary, as no such restriction is expressed or implied in the relevant instruments. The rights of way reserved in the 2015 Transfer are not subject to the limitations pleaded by Mr Fuller.

Citation
[2017] EWHC 810 (Ch)
Parties
Part 20 Claimant: Jason Victor Fuller; Part 20 Defendant: Diana Carolyn Kitzing; Part 20 Defendant: Mark Eberhard Kitzing
Jurisdiction
England and Wales
Judgment Date
27 March 2017
Procedural Posture
Part 20 Claim (counterclaim) / Trial of Preliminary Issues
Outcome
All three preliminary issues determined in favour of Mrs Kitzing and Mark Kitzing (Part 20 Defendants).
Legal Topics
Sporting Rights, Profits À Prendre, Easements, Construction of Conveyancing Instruments, Ancillary Rights, Shooting Rights, Rights of Way
Property Law Land Law Sporting Rights Profits À Prendre Easements Construction of Conveyancing Instruments Ancillary Rights Shooting Rights +1 more

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Parties

Jason Victor Fuller

Part 20 Claimant

Diana Carolyn Kitzing

Part 20 Defendant

Mark Eberhard Kitzing

Part 20 Defendant

Procedural Posture

Part 20 Claim (counterclaim) / Trial of Preliminary Issues

Legal Issues

  1. 1 Whether the sporting rights granted to Mrs Kitzing by the 1998 Assent authorise her to preserve and rear game or introduce poults on Mr Fuller's land
  2. 2 Whether the sporting rights can lawfully be exercised within 300 metres of the main house or on the garden of the main house
  3. 3 Whether the rights of way reserved in the 2015 Transfer are subject to limitations pleaded by Mr Fuller

Ratio Decidendi

The sporting rights granted to Mrs Kitzing by the 1998 Assent include the right to preserve and rear game for normal shooting purposes, including the introduction of poults, as an ancillary right to the principal profit à prendre of shooting and taking game. Such rights are valid and commonly found in grants of sporting rights. The rights are not limited by a 300-metre exclusion zone from the main house or by the garden boundary, as no such restriction is expressed or implied in the relevant instruments. The rights of way reserved in the 2015 Transfer are not subject to the limitations pleaded by Mr Fuller.

Court Disposition

All three preliminary issues determined in favour of Mrs Kitzing and Mark Kitzing (Part 20 Defendants).

Orders

  • Declaration that Mrs Kitzing's sporting rights include the right to preserve and rear game and to introduce poults on Mr Fuller's land.
  • Declaration that the sporting rights are not subject to a 300-metre exclusion zone or garden boundary limitation.