At trial, the use of a track across a neighbouring farm for the driving of sheep was found to be originally by oral permission, and that although the permission was not expressly renewed ‘there was a tacit understanding that did not need to be expressed overtly between neighbours, then on good terms’ that when the one farm made arrangements to bring sheep along the track ‘it was on the assumption on both sides that the permission to do so was still in force.’ The judge also found that other farmers, who could not by reason of the location of their land prescribe for an easement, similarly used the track.
Held: The appeal failed. The 1832 Act could not be used to acquire a right of way where there was found a tacit understanding that a permission given before the suggested prescription period was still in place. The use was permissive so as to preclude a prescriptive easement being acquired.
Parker LJ said: ‘Oral permission given within the period will of course negative user as of right or any claim to user as of right, but so also, in my view, will a user which continues on a common understanding that the user is and continues to be permissive. If both parties have such a common understanding it cannot be, in my judgment, that there is an assertion to a claim as of right, nor could any such user bring home to the mind of the alleged servient owner that a claim of right was being asserted. This common understanding has been found by the judge, and there was ample evidence on which he could so find.’
Judges:
Parker LJ
Citations:
(1992) 64 P and CR, Independent 16-Jan-1992
Statutes:
Cited by:
Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 02 May 2022; Ref: scu.425622