The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and healthy sheep’ but with an express prohibition of other animals. Nevertheless the land was in the event used, for over sixty years, for the pasturage of horses and cattle, despite the fact that this involved a danger of damage to the drainage system.
Held: If a lost modern grant is to be presumed, it is essential to consider who are to be the supposed grantors and grantees. The defendants’ counsel found themselves in considerable difficulties in this respect. The Court is endowed with a great power of imagination for the purpose of supporting ancient user. But, in inferring a legal origin for such user, it cannot infer one which would involve illegality. A lost grant cannot be presumed where such a grant would be in contravention of a statute: ‘If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.’ and ‘such a grant as is here suggested would have been illegal, whoever is supposed to have made it.’
Judges:
Sir Richard Henn Collins MR
Citations:
[1902] 1 Ch 557
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – George Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
Cited – Glamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .
Cited by:
Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Cited – Tinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
Cited – Hanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
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 . .
Applied – Hulley v Silversprings Bleaching and Dyeing Co Ltd ChD 1992
A lower riparian owner sued the Silversprings company for nuisance.
Held: The fact that the plaintiff’s predecessors had acquiesced in pollution for twenty years was no defence, because the plaintiff was not the only person affected by the . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 12 May 2022; Ref: scu.179840
