Private easement — Prescription — Disputed right to drive sheep along track — Use of track over plaintiffs’ land for over 50 years — Purported withdrawal of permission — Defendant seeking to enforce right to use track for animals — Whether user as of right or by permission — Prescription Act 1832, section 2 — Judgment at first instance in plaintiffs’ favour — Defendants’ appeal dismissed
The owners of Tybrych Farm, Llanddeusant, Llangadog, Dyfed, used a track through the neighbouring land of Llwynrosser Farm between 1926 and 1979, when the then owner purported to withdraw his permission. In 1983, the defendant (P), accompanied by the second defendant, attempted to drive several hundred sheep along the track but was intercepted by the first plaintiff, the present owner, (J), who was accompanied by his relatives, the other plaintiffs. A scuffle took place and an assault ensued. J brought proceedings claiming, inter alia, an injunction against the defendants and a declaration that the first defendant had no right of way to use the track for his sheep. The first defendant counterclaimed, inter alia, that he had a right of way over the land when driving his sheep up on to the Black Mountains as of right. The Prescription Act 1832, section 2, provides that: “no Claim which may be lawfully made … to any Way or other Easement … actually enjoyed by any Person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way … was first enjoyed at any time prior to such period.” Judge T Lewis Bowen, sitting at Ammanford County Court, found that P had no right of way, since his right was acquired by permission and continued by tacit consent until the owner purported to withdraw permission in 1979.
P appealed to the Court of Appeal arguing that the judge should have found that the user was as of right acquired by prescription.
Held The appeal was dismissed.
1. No right of way over land could be argued by virtue of the Prescription Act 1832 where the way was used on a tacit understanding that permission given before the beginning of the alleged prescriptive period continued to be effective.
2. Any oral permission given within the prescriptive period would negative user as of right: see Healy v Hawkins [1968] 1 WLR 1967 at p 1973. The same applied where user was continued on the common understanding that it was by permission. In such circumstances it could not be asserted that user was as of right.
3. It was for the person claiming the right of way to establish that his user was as of right and, on the facts found by the judge, that onus had not been discharged in this case. Therefore the court could not interfere with the judge’s decision.
Timothy Dutton (who did not appear below) (instructed by Burges Salmon, of Bristol) appeared for the appellants; and Wyn Richards (instructed by Steadman Jones & Bell, of Ammanford) appeared for the respondents.
