Fuller v Kitzing & Anor

Fuller v Kitzing & Anor

The court held that the right to preserve and rear game is a valid ancillary right to the profit a prendre of shooting, but does not extend to introducing poults or erecting pens or artificial devices on Mr Fuller's land. The right to feed game already present is included. No blanket territorial/geographical limitation (such as 300 metres) can be implied on the exercise of shooting rights, but the civiliter principle imposes practical restrictions: no shooting from or deliberately towards the house, and notice must be given before shooting near the property. The right of way reserved in the 2015 Transfer can be used for any lawful purpose connected with the dominant tenement, not just...

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
Civil (property/sporting Rights) / Trial of Preliminary Issues
Outcome
Declarations to be drafted by counsel in accordance with the judgment; matter adjourned for further argument on the form of order.
Legal Topics
Sporting Rights, Profits a Prendre, Easements, Construction of Grants, Ancillary Rights, Reasonable Use (civiliter), Right of Way, Nuisance
Property Law Land Law Easements and Profits Sporting Rights Profits a Prendre Easements Construction of Grants Ancillary Rights +3 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

Civil (property/sporting Rights) / Trial of Preliminary Issues

Legal Issues

  1. 1 Whether the sporting rights granted to Mrs Kitzing by Schedule 1 paragraph 1 of the 1998 Assent authorise her to preserve and rear game or to 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 excepted and reserved in clause 3.8 of the 2015 Transfer are subject to the limitations pleaded by Mr Fuller

Ratio Decidendi

The court held that the right to preserve and rear game is a valid ancillary right to the profit a prendre of shooting, but does not extend to introducing poults or erecting pens or artificial devices on Mr Fuller's land. The right to feed game already present is included. No blanket territorial/geographical limitation (such as 300 metres) can be implied on the exercise of shooting rights, but the civiliter principle imposes practical restrictions: no shooting from or deliberately towards the house, and notice must be given before shooting near the property. The right of way reserved in the 2015 Transfer can be used for any lawful purpose connected with the dominant tenement, not just...

Court Disposition

Declarations to be drafted by counsel in accordance with the judgment; matter adjourned for further argument on the form of order.