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 or by lost modern grant.
Held: The earlier cases on prescription must now be read subject to the three more recent statements from the House of Lords and Supreme Court. There had been nothing in the use of the land to defeat a claim for use by force or in secret. Though the original use had been by permission, there was nothing to suggest that the defendant’s continued use was by virtue of it. The right had been acquired by a lost modern grant on the basis of long usage.
Roth J
[2010] EWHC 2749 (Ch)
Bailii
Prescription Act 1832 2
England and Wales
Citing:
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Gaved v Martyn CCP 3-Jun-1865
The parties disputed whether a right had been acquired to use a watercourse. The plaintiff’s predecessor (Hooper) had been given permission from the defendant’s predecessor (Geach) to cut a ‘leat’ or stream to carry water from a natural brook on . .
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – Union Lighterage Company v London Graving Dock Company CA 1902
Stirling LJ said: ‘in my opinion an easement of necessity means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.’
Romer LJ said that enjoyment of a . .
Cited – Central Midlands Estates Ltd v Leicester Dyers Ltd ChD 21-Jan-2003
The claimant sought a declaration that the caution registered by the defendant should be vacated. The defendant asserted acquisition by prescription either of an easement or of the land itself. They had parked vehicles on the land.
Held: . .
Cited – Jones v Price and Morgan CA 16-Jan-1992
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 . .
Cited – St Edmunsbury v Clark (No 2) CA 1975
The conveyance created ‘a right of way’. The court considered the manner of construction of a conveyance, saying: ‘We feel no doubt that the proper approach is that upon which the court construes all documents; that is to say, one must construe the . .
Cited – Bridle v Ruby CA 1989
The plaintiff was able to establish a right of way by prescription despite his personal belief that he had such a right by grant.
Ralph Gibson LJ said: ‘For mistake as to the origin of the right asserted by the user to be relevant, it seems to . .
Cited by:
Main Judgment – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 14-Jan-2011
. .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 10 December 2021; Ref: scu.425618