Housden and another v Conservators of Wimbledon and Putney Commons
Judge Roger Kaye QC, sitting as a High Court judge
Common land — Claim to private right of way over common — Application to register right rejected — Whether defendants as owners of common capable of granting right — Whether possible to acquire right by prescription in absence of capable grantor — Section 2 of Prescription Act 1832 — Appeal dismissed
The claimants owned the freehold of a property to which access was gained from the public road over a small strip of land that formed part of Wimbledon common. They applied to the Land Registry to register a private right of way over the strip, claiming that such a right had been acquired by prescription under section 2 of the Prescription Act 1832. The defendants, in whom the common was vested by virtue of the Wimbledon and Putney Commons Act 1871, objected to the application. They submitted that, on the true construction of the 1871 Act, in particular section 35 read with section 8, they had no power to grant any easements, and that the claimants could not acquire a prescriptive right where there had not been, and was not, any capable grantor of the right claimed.
The Land Registry adjudicator rejected the claimants’ application on the grounds that the defendants were not capable grantors and the claimants had not otherwise acquired the right by reason of 40 years’ user under the second part of section 2 of the 1832 Act. On appeal, the claimants argued, by analogy with section 3 of the 1832 Act, that a right acquired under the second part of section 2 was, unlike those acquired under the first part, absolute and indefeasible and could not be defeated by proof that the grantor was not capable of granting the right in question.
Common land — Claim to private right of way over common — Application to register right rejected — Whether defendants as owners of common capable of granting right — Whether possible to acquire right by prescription in absence of capable grantor — Section 2 of Prescription Act 1832 — Appeal dismissedThe claimants owned the freehold of a property to which access was gained from the public road over a small strip of land that formed part of Wimbledon common. They applied to the Land Registry to register a private right of way over the strip, claiming that such a right had been acquired by prescription under section 2 of the Prescription Act 1832. The defendants, in whom the common was vested by virtue of the Wimbledon and Putney Commons Act 1871, objected to the application. They submitted that, on the true construction of the 1871 Act, in particular section 35 read with section 8, they had no power to grant any easements, and that the claimants could not acquire a prescriptive right where there had not been, and was not, any capable grantor of the right claimed.The Land Registry adjudicator rejected the claimants’ application on the grounds that the defendants were not capable grantors and the claimants had not otherwise acquired the right by reason of 40 years’ user under the second part of section 2 of the 1832 Act. On appeal, the claimants argued, by analogy with section 3 of the 1832 Act, that a right acquired under the second part of section 2 was, unlike those acquired under the first part, absolute and indefeasible and could not be defeated by proof that the grantor was not capable of granting the right in question.Held: The appeal was dismissed. (1) The powers conferred upon the defendants by the 1871 Act were all ancillary to furthering their duties to keep the commons as open spaces for the use and enjoyment of the public at large. Although section 8 was an enabling provision, permitting the defendants to acquire and “dispose” of land and other property, that core power was cut down by section 35, which defined how the section 8 power might be exercised and, in particular, prevented the defendants from disposing “in any manner” of “any part of the commons”. That precluded them from granting any easements over any land forming part of the commons. They could not lawfully grant a private right of way such as was claimed by the claimants and, accordingly, could never have been capable grantors of such a right.(2) A binding authority showed that the lack of a capable grantor prevented the acquisition of a prescriptive right under the second part of section 2 of the 1832 Act: Staffordshire and Worcester Canal Navigation Proprietors v Birmingham Canal Navigation Proprietors (1866) LR 1 HL 254 applied; Tapling v Jones (1865) 11 HL Cas 290 considered. Where the capacity or power of the alleged servient owner was shown to derive from a statute that would render it unlawful for that owner to grant an easement of the nature claimed, that would prevent a right from being acquired by prescription under the second part. The basis for that was a presumption, assumption or acknowledgment that the fictional basis of the long user, namely a presumed grant, could not have been lawfully granted by reason of a parliamentary statute.Timothy Dutton QC (instructed by Russell-Cooke) appeared for the claimants; Guy Fetherstonhaugh QC (instructed by Gregsons) appeared for the defendants.Sally Dobson, barrister
