Bachelors Acre

LORD DENNING MR Today we look back far in time. To a town or village green. The turf is old. Animals have grazed there for hundreds of years. Nowadays they are pleasant stretches of grass where people sit and talk. Sometimes they play cricket or kick a ball about. But in mediaeval times it was the place where the young men mustered with their bows and arrows. They shot at the butts. There might be stocks there where offenders were put for their petty misdemeanours. In the month of May they set up a maypole and danced around it. We have no record of when it all began, but the poet tells us:

“On the green they watched their sons
Playing till too dark to see,
As their fathers watched them once,
As my father once watched me.”
[‘Forefathers’ Edmund Blunden.]

The villagers have an undoubted right to play games on their green. But whence comes their right? Not in deeds or in statutes. Only in custom from time immemorial. Rarely has it ever been challenged, but it may be useful to draw attention to the few cases on it. To be good, of course, a custom must be reasonable. In 1666 the owner of some land complained that the villagers danced on his field and spoilt his grass. But they proved a custom for all the inhabitants to dance there at their free will. The court held that “this is a good custom, for it is necessary for inhabitants to have their recreation “: see Abbot v Weekly (1666) 1 Lev 176, 177. But when a piece of land was arable land. and horsemen rode over it when corn was growing there, the owner was held to be entitled to stop them. The court said: “what is contrary to reason cannot be consonant to law”: see Bell v Wardell (1740) Willes 202, 204. To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that the custom was good if it applied only to the inhabitants of the village and their guests. but not if it applied to all the world at large: see Fitch v Rawling (1795) 2 Hy.Bl 394. In Edwards v Jenkins [1896] 1 Ch 308 Kekewich J held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held where villagers proved a custom to erect a maypole and dance around it “and otherwise enjoy any lawful and innocent recreation at any times in the year”: see Hall v Nottingham (1875) 1 ExD 1, 2. The result is that, in many village greens, no one knows who is the owner of the land. But everyone knows that the villagers have a right to play games on it. If anyone should disturb or hinder the exercise of that right, any one of the inhabitants can sue to enforce the right of all, stating that he does so on behalf of himself and all others. . . He can stop any fences being erected, or any holes being dug, or pipes laid, if they would interfere unreasonably with the exercise by the villagers of their right. And such a right, once acquired by custom. cannot be lost by disuse or abandonment. It can only be abolished or extinguished by Act of Parliament: see Hammerton v Honey (1876) 24 W.R. 603, per Sir George Jessel MR And no statute can take away that right by a side-wind. It can only be done by express words: see Forbes v Ecclesiastical Commissioners for England (1872) LR 15 Eq 51.

Registration

In 1965 Parliament determined to have a register made of all town or village greens. In order to be registered, a “ town or village green “must come within the definition in section 22 of the Commons Registration Act 1965. It defines it in three parts which 1 will call a, b and c. It says:

“ ‘town or village green’ means land [a] which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b], on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years.”

Class a concerns chiefly land which was set aside under the Inclosure Acts. Class b concerns the customary right known to the common law. Class c is a new thing which is not known to the common law, but which I will consider later.

The principal point in this case is whether a piece of land in Windsor called “Bachelors’ Acre” can properly be registered under b or c, ie as a customary right or as a 20-year user.

Any person in the wide world can apply for registration: and any person likewise can object to it. If there is an objection. it is referred to a commons commissioner. He can confirm the registration, or modify it, or refuse it. Once he confirms it, the registration becomes final.

On November 24 1967, Miss Doris Evelyn Mellor, a lady living in Windsor, applied to register the piece of land called Bachelors’ Acre. She applied to the Berkshire County Council because they are the registering authority. . . .The Royal Borough of New Windsor lodged an objection to that registration. It was referred to the Chief Commons Commissioner. He confirmed the registration. The borough appealed to Foster J [1974] 1 WLR 1504, and from him to us. The appeal is given only on a point of law. They say that the Chief Commons Commissioner went wrong in point of law in that he drew the wrong inference from the facts. This means that we were taken by both sides through the history of this piece of land. To this, therefore, I now turn.

The history of Bachelors’ Acre

The land is called Bachelors’ Acre. But it is not the preserve of unmarried men. Nor is it just one acre. It is over two acres. It lies in the middle of the Royal Borough of New Windsor. From time immemorial it has belonged to the Mayor, Bailiffs and Burgesses. There is proof positive that in mediaeval times it was the meadow where young men practised with their bows and arrows. A pair of butts was set up there. They shot at the targets. The word “bachelor” was in those days used to describe “A young knight who followed the banner of another, a novice in arms.” That is the first meaning in the Shorter Oxford English Dictionary, 3rd ed. (1944), p. 134. Later on, when the long bow went out of use, the young men practised with their muskets. That appears from a deed made in the year 1651. The corporation of New Windsor let Bachelors’ Acre to one Richard Hale for 40 years for use as pasture. In the deed they stipulated that he was to “make and set up … one sufficient pair of butts for the inhabitants of the said town to shoot at” and that he was not to make “any fence or enclosure” there nor to do “any act or thing that shall or may be any let or hindrance of shooting or any other lawful exercise for recreation of the people.” A later lease of 1704 shows that by that time the butts had disappeared: but nevertheless the corporation stipulated that “all . . . persons” should have access to the ground “to use and exercise any lawful pastime for their recreation at all convenient times.” After another 50 years, in 1749, there was a new lease to William Tyrrell of the Inner Temple. which contains the same stipulations. The words “the people” and “all . . . persons” in those deeds clearly meant the inhabitants of New Windsor.

Such was the position down to the year 1789. But then it seems that Bachelors’ Acre was much neglected. The occupiers of houses made drains into it. which flooded it. All and sundry threw dung and rubbish on to it. It became such an eyesore that in 1809 a group of the inhabitants banded together to improve it. They called themselves the Bachelors of Windsor. This did not mean that they were all unmarried men. It was only a name to denote a group of public spirited inhabitants, married and single. young and old, determined to assert their rights. They removed every encroachment. They filled up a large pond. They raised the ground and levelled it. They turfed it afresh. Many lent their horses and waggons to fetch turf from different places. When they had finished their work. they had a great celebration there to mark the jubilee of King George Ill. Queen Charlotte joined in. They roasted an ox and had plum pudding. They put up a big obelisk 17 feet high, which is still there. On the side there are the words:

“1810
Alterations and Improvements
were made by
The Bachelors of Windsor
in this their Acre”

In the summer of 1810 a grand match of cricket was played on the acre across which a few months before it was impossible to walk.

Four years later – in 1814 – there was a serious threat to Bachelors’ Acre. It was about to be inclosed under an Inclosure Act. A commissioner held a sitting at the Swan Inn at Windsor. The “Natives and Bachelors” of New Windsor opposed the inclosure. They presented a claim to the right of playing “all lawful sports. games and pastimes whatsoever” on the land. In support of their claim the oldest inhabitants gave evidence which “fully proved the right of playing in and over every part of the Bachelors’ Acre, to have been enjoyed by the Bachelors from the earliest period of their recollection (in some instances near 80 years) to the present time.”

This evidence was so conclusive that the commissioner decided that Bachelors’ Acre “would be left precisely as it was, as he did not consider himself authorised to interfere with it; . . . The Inclosure Act would not in any way be applied to it.”

This was followed by a celebration in the Swan Inn in 1817 when the chairman expressed the hope that the obelisk would remain “. . . the bulwark of the right of the Bachelors of Windsor, even when the all-powerful hand of time shall have crumbled more magnificent structures into dust.”

Thereafter the corporation let the land as pasture, but always “subject to the rights and privileges of the Bachelors of Windsor, who are entitled to use the same for all lawful recreations and amusements.”

Some years later, in 1847, there was the “Battle of Bachelors’ Acre.” The local authorities sent four men to dig a well in Bachelors’ Acre so as to supply water to the streets. Several hundred people thought that this was an invasion of their rights. They came with spades and shovels to fill up the well. The police went to stop them. But they threw volleys of clay and turf at the police, who had to withdraw. The people filled up the well and put up a flag over the spot. They celebrated their triumph with a bonfire and fireworks. Later the town council passed a resolution that there should be an agreed site for the well “so as not to interfere with the enjoyment of the same by the inhabitants.”

In 1875 there was another incident. The people proposed to hold sports on the Acre. The mayor and corporation said it was their property, and threatened to take steps to stop the sports. The town clerk advised the corporation that when the inclosure took place in 1817, the whole of the land in the Acre became the property of the corporation, and that the corporation had it as free as any other property. But the mayor and town clerk did not have their way. The local newspaper says that the people “acting upon the conviction that the corporation had no right to interfere with them they held their sports . . .”

From that time onwards the corporation laid claim to the land as if it was their own property without any right in the inhabitants to play games there. So much so that in 1903 the town council proposed to sell part of Bachelors’ Acre to the local infirmary. The Local Government Board sent an inspector to hold an inquiry. He took evidence which showed that the inhabitants still claimed the use of the land. Thereupon the Local Government Board refused to approve the sale because the building would be incompatible with the use by the inhabitants. After this inquiry, big improvements were made making the Acre into a sports ground.

The corporation, however, still refused to recognise any right in the inhabitants to use the land for recreation. The corporation have now turned half of it into a car park, and have allowed the Royal Free School to use the other half as a playground. In 1968 they actually proposed to put up a multi-storey car park. But planning permission was not granted. One of the reasons was because of the claim of right by the inhabitants to use it for recreation.

The inferences

From this history, it seems to me clear that the inhabitants of New Windsor had a customary right to indulge in lawful sports and pastimes on Bachelors’ Acre. But Mr. Patrick Freeman for the corporation took these points:

(i) He said that the customary right was not for the benefit of “the inhabitants of New Windsor” but only for the “Bachelors”, ie the unmarried men. To my mind the evidence showed that it was for the benefit of all the inhabitants. The “Bachelors of New Windsor” was simply the name used by the active defenders of the right, that is, those who were actively defending the right on behalf of all the inhabitants.

(ii) He said that the customary right was not for the inhabitants of a ‘locality’, ie New Windsor, but for the people at large from New Windsor and anywhere roundabout. To my mind the evidence showed that it was for the benefit of New Windsor. The reference in the lease to “all persons” or “the people” meant the inhabitants of New Windsor.

(iii) He said that it was not a customary ‘right’ but only a licence or privilege. To my mind the evidence shows beyond question that the inhabitants for over 300 years were asserting a right. The obelisk is still there today as a permanent record of their stand for their rights.

(iv) He relied on the non-user since 1875, especially the finding of the Chief Commons Commissioner that since 1875 “it has not been so used.” If the evidence of custom had been dubious, then the 100 years of nonuser would go far to negative any customary right. But the evidence before 1875 is so strong that it shows the customary right was well established at that time. So the case comes within the rule that a customary right is not lost by abandonment or disuse. I would, however, like to say that, when the commissioner found non-user, he omitted to state that in 1903 and 1968 the inhabitants were still claiming their right. There was clearly no abandonment. In my opinion, the Chief Commons Commissioner was entitled to find a customary right. . .

Conclusion

In my opinion, Bachelors’ Acre in New Windsor is subject to a customary right in the inhabitants to indulge in lawful sports and pastimes on that land. This means that any inhabitant can prevent its present user. He can bring an action to stop it being used as a car park or as a school playing field: provided that he shows that he and others reasonably want to play games there. He can stop anything that prevents or hinders the inhabitants in exercising this right. He can bring an action himself to enforce this right. There is no way in which the corporation can continue its present use or put it to other uses except by getting a private Act of Parliament. This is one of the unfortunate consequences of the present statute. It leaves these old rights intact without any means of disposing of them by agreement, or otherwise: not even by providing a substitute ground. It is urgent that Parliament should direct its attention to it.

Browne LJ

I agree that this appeal should be dismissed, for the reasons given by Lord Denning MR The question is whether it has been proved that Bachelors’ Acre is “land . . . on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes. . .”

. . . Mr Freeman [for the Borough of New Windsor] relies on the commissioner’s finding that Bachelors’ Acre has not been used by the inhabitants for recreation since 1875. It is, of course, true that a long period of non-user would in itself be strong evidence against the existence of any customary right: see Hammerton v Honey, 24 W.R. 603. But if it is proved that the customary right existed before the beginning of the period of non-user, it cannot be lost by nonuser, but can only be abolished by statute: see Wyld v Silver [1963] Ch. 243, per Lord Denning MR, at pp. 255-256 and Harman LJ at pp. 263-264. In that case too, there had been no use since 1875. As Foster J pointed out, at p 1511, the custom found good in Scales v Key (1840) 11 Ad. & El. 819 had not been exercised since 1689. In my judgment the evidence proves that the customary right here in question was well established before 1875; if a case raising the present issue had been tried in 1847 or 1875, I think the inhabitants would clearly have succeeded. . . . Although the land has not in fact been used for public recreation since 1875, their rights have been claimed from time to time. They did in fact hold their sports in 1875 in spite of the Council (see Mr. Dewe’s speech, reported in The Windsor and Eton Express October 2, 1875); as Lord Denning MR has pointed out, they made claims in 1903 and 1968 – and in 1967 when Miss Mellor made the registration now in question; and throughout the last 100 years the obelisk has stood there as a silent witness.

On the whole of the evidence, I am satisfied that the customary right claimed is established, and that the commissioner’s decision should be upheld. . . .

Brightman LJ I agree that this appeal should be dismissed for the reasons given in the judgments of Lord Denning MR and Browne LJ.