It is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in grant, it should be capable of being created by an express grant made by deed. Cockburn CJ said that the fiction of lost modern grant, animus dedicandi and the like are ‘a bad and mischievous law, and one which is discreditable to us as a civilized and enlightened people.’ and ‘time immemorial’ had came to mean from before 1189.
Judges:
Cockburn CJ
Citations:
(1867) LR 2 QB 161
Jurisdiction:
England and Wales
Cited by:
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.
Land, Limitation
Updated: 13 May 2022; Ref: scu.195477