A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 Wm, c 71. That section points to a right belonging to an individual in respect of his land, not to a class such as freemen or citizens claiming a right in gross wholly irrespective of land; and to bring the right within the term ‘easement’, in that section, it must be one analogous to that of a right of way or a right of watercourse, and must be a right of utility and benefit and not one of mere recreation and amusement. Semble, that an easement in gross is within the Prescription Act.
Baron Martin said: ‘however this may be, we are of opinion that to bring the right within the term ‘easement’ in the second section [of the Prescription Act 2and3 Wm. 4, c.71] it must be one analogous to a right of way which precedes it and a watercourse which follows it, and must be a right of utility and benefit, and not one of mere recreation and amusement’.
Judges:
Baron Martin
Citations:
[1865] EngR 165, (1864) 3 H and C 486, (1865) 159 ER 621
Links:
Statutes:
Prescription Act 2and3 Wm. 4, c.71
Jurisdiction:
England and Wales
Citing:
Appeal from – Mounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Not followed – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 02 May 2022; Ref: scu.281077