Right of way — Right to pass over common land — Track used for vehicular access — Use contrary to statute — Whether easement acquired by long albeit illegal user — High Court holding that court had discretion whether to withhold presumptive easement where activity illegal — Discretion exercised in favour of easement — Court of Appeal allowing appeal — Court would not recognise easement established by illegal activity — Judgment for plaintiffs
The plaintiffs were the trustee owners of land known as Horsell Common, Woking. The defendant owned land which adjoined the common known as Young Stroat Farm, which had been used in part since 1965 as premises for the carrying on the business of adapting, maintaining and repairing motor vehicles, in particular buses used by one or more of the travel companies associated with the defendant. A track running across the common close to the defendant’s land had enabled vehicles to pass for some years. The land was a common over which members of the public had access under section 193 of the Law of Property Act 1925. Section 193(4) provided that any person who without lawful authorisation applied any vehicle on such land was liable on summary conviction to a fine. The plaintiffs saw the defendant and its invitees using the track to take buses and other vehicles to and from the farm in connection with the defendant’s use of the site for its business purposes. They wished to stop that use and to have it declared that the defendant had no right to use the track for any such purpose. The defendant claimed that by reason of long user of the track it had acquired the right to use the track for its commercial purposes.
The High Court held that it had a discretion to withhold the presumption of an easement for long user where the use was illegal (in this case in breach of section 193(1)). However, this was not a case in which, as a matter of discretion, the benefit of the presumption should be withheld. The plaintiffs appealed.
Held The appeal was allowed.
1. It was a general rule of law that an easement was not acquired by conduct which at the time it took place was prohibited by public statute: see Glamorgan County Council v Crater [1963] 1 WLR 1; Cargill v Gotts [1981] 1 WLR 441.
2. The court would not recognise an easement established by illegal activity and the prohibition in section 193 could not be waived merely because, apart from the illegality, the user for commercial purposes since 1965 would have been sufficient for the defendant to acquire an easement by prescription. The plaintiffs could have granted the defendants a right of way for commercial vehicles but they had not done so.
3. Accordingly the defendants in this case had not acquired any prescriptive right.
Michael Templeman (instructed by Bartons, of Guildford) appeared for the plaintiffs; Vivian Chapman (instructed by Michael Ambler & Co) appeared for the defendant.
