Brown v Collins and Others (Easements): LRA 4 Jul 2011

LRA The Applicant proved that for over 20 years between 1985 and 2008, about 12 times a year, he had gone on foot across the edge of a field between the public highway and the back of his house to bring logs and ladders to the back of the house and to exercise his dog. To do this the Applicant would climb over a wall at the end of the courtyard behind the house which was sufficiently high to require either some athleticism or the use of steps. Between 1985 and 1996 the field was found to be surrounded by an electric and pig wire fence erected by a licensee under a grazing agreement each spring and taken down in late autumn each year. While it was there, the route could only be accessed at either end by climbing through or over the fence and throwing the dog over or through it, moving the upper strand of fencing to get through. Access was obtained from the roadway through a hole in the hedge about 2 to 3 feet wide and access to and from the house was by climbing over a wall which required steps or some athleticism to get over. The wall, which was the property of the Applicant, had once had an opening onto the field but it had been filled in by a friend of the Applicant in about 1985. The Applicant’s occasional use of the route, which was held to be on foot and occasionally with a wheelbarrow, left no visible track and the wall appeared to the casual onlooker to suggest that there was no access to the house from the field. The evidence was that the trustees had no actual knowledge of the use of the route. The route had been fenced off in July 2008, but this had been protested and early in 2009 the Applicant applied to the Land Registry to register a right of way with vehicles. That application was referred to the Adjudicator, the reference being received by him on 13 August 2009.
Held: 1. The fencing had not been acquiesced in for over a year prior to the suit before the Adjudicator. The objections and the application to the Land Registry meant that a right under the Prescription Act 1832 could be claimed on appropriate evidence notwithstanding the obstruction
[2011] EWLandRA 2009 – 1013
Bailii
England and Wales

Updated: 21 April 2021; Ref: scu.465865