The plaintiff was able to establish a right of way by prescription despite his personal belief that he had such a right by grant.
Ralph Gibson LJ said: ‘For mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. The requirement that user be ‘as of right’ means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner’s permission. If the owner is not going to submit to the claim, he has the opportunity to take advice and to decide whether to question the asserted right. The fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right.’
Parker LJ said: ‘The true position, as exemplified in the Chamber Colliery case, 32 Ch.D. 549, is that user in an asserted but mistaken belief that it is justified on a right of limited duration, which belief is acquiesced in, cannot be made the foundation of a grant of unlimited duration. To go as far as saying that no user based on a mistaken belief in a right could found a claim to prescription would be to say that the law will only presume a grant or allow a claim to prescription at common law in favour of someone who is aware that he is a wrongdoer.’
Judges:
Ralph Gibson LJ
Citations:
[1989] QB 169
Jurisdiction:
England and Wales
Cited by:
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 07 October 2022; Ref: scu.402567
