A claim for a presumption of a lost modern grant must include an assertion that the enjoyment of the carriageway was continuous or uninterrupted.
Lindley LJ said: ‘It is difficult, if not impossible, to enunciate a principle which will reconcile all the decisions, and still more all the dicta to be found in them; the only safe course is to fall back on the language of the statute, to give effect to it, and to introduce into it nothing which is not to be found there. It is sufficient for the present case to observe that the statute expressly requires actual enjoyment as of right for the full period of twenty years before action. No use can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended. Can an user which is confined to the rare occasions on which the alleged right is supposed in this instance to have been exercised, satisfy even this test? It seems to us that it cannot: that it is not, and could not reasonably be treated as the assertion of a continuous right to enjoy; and when there is no assertion by conduct of a continuous right to enjoy, it appears to us that there cannot be an actual enjoyment within the meaning of the statute. Without therefore professing to be able to draw the line sharply between long and short periods of non-user, without holding that non-user for a year or even more is necessarily fatal in all cases, without attempting to define that which the statute has left indefinite, we are of opinion that no jury can properly find that the right claimed by the defendant in this case has been established by evidence of such limited user as was mainly relied upon, and as was contended by the defendant to be sufficient in the present case’
Judges:
Lindley LJ
Citations:
(1884) 13 QBD 304, [1884] LJQB 430, [1884] 51 LT 753, [1884] 48 JP 580, [1884] WR 5
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Hollins v Verney 1883
A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close. . .
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 – Llewellyn and Another v Lorey and Another CA 3-Feb-2011
The parties disputed whether a right of way was exerciseable for commercial as well as private purposes.
Held: The judge had made a finding as to use which was not supported by the evidence before him. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 07 October 2022; Ref: scu.402566