A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the summer of 1866, and in September 1866 its whole bulk was sold to the defendant who carted it away over the plaintiff’s land to the highway. The jury held that the original storage on Nine acre field had been done honestly and not in order to gain the advantage of the right of way. The stacking and subsequent dealing with the hay must have been regarded by the jury as being in the ordinary and reasonable use of Nine acre field.
Held: The test identified judgments was whether Nine acre field was being used for purposes others than those included in its ordinary and reasonable use.
However, Bovill CJ said: ‘If no additional burthen was cast upon the servient tenement the jury might well find that there had been only the ordinary and reasonable use of the right of way’. A right of way obtained by prescription for the purpose of carting hay to field ‘cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen’ and ‘[i]n all cases of this kind which depend upon user the right acquired must be measured by the extent of the enjoyment which is proved’.
Judges:
Bovill CJ, Willes J
Citations:
[1867] LR 2 CP 577
Jurisdiction:
England and Wales
Cited by:
Cited – Richard Jonathan Brett Guise v John Drew ChD 8-Jun-2001
A right of way had been acquired by prescription, but its extent was disputed. It had been used for mainly residential purposes, but then to a greater extent for a different business use.
Held: A right of way may be for one purpose, to the . .
Applied – Wimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .
Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Cited – Wood v Saunders 1875
The dominant land at the time of sale contained a house ‘adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat’ on land retained by the vendor. The purchaser subsequently extended the house, . .
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed 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
Updated: 12 May 2022; Ref: scu.181798