The plaintiff claimed to have acquired a right of light against the defendants.
Held: Lord Justice Lindley said: ‘The whole theory of prescription at common law is against presuming any grant, or covenant not to interrupt, by or with anyone except an owner in fee.’ In this case no grant could be presumed: ‘A grant from the Crown, as distinguished from its tenant, cannot be presumed, for there has been no enjoyment against the Crown itself; and without it there is no foundation for such a presumption.’
Lopes LJ decided on the facts that the fiction would not stand scrutiny because he could not believe that the Crown would have made a grant after 1852 which had been lost by 1893: ‘For convenience sake the fiction of a lost grant is very often pressed into the service; but to presume a lost grant made by the Crown, or the lessees of the Crown, since 1852 and lost, would be overtaxing the credulity of the most credulous, and would be making a demand too extravagant even for the elasticity of this patient and accommodating fiction.’
Judges:
Lindley LJ, Lopes LJ, A L Smith LJ
Citations:
[1893] 3 Ch 48
Cited by:
Cited – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 11 May 2022; Ref: scu.381615