Easement — Prescription — Right of way — Section 2 of Prescription Act 1832 — Prescriptive right of way claimed over common land — Wimbledon and Putney Commons Act 1871 — Whether owners of common capable of granting private right of way — Whether possible to acquire prescriptive right on basis of 40 years’ use in absence of capable grantor
The appellants owned property that was reached from a public road by an access way over a strip of land forming part of Wimbledon and Putney Commons. They applied to the Land Registry to register a private right of way over the land, claiming that such a right had been acquired by prescription under section 2 of the Prescription Act 1832. The respondents, in whom the common was vested under the Wimbledon and Putney Commons Act 1871, objected to the application. The Registry adjudicator upheld the objection and rejected the application on the grounds that: (i) the respondents had no power under the 1871 Act to grant easements; and (ii) the appellants could not acquire a prescriptive right under section 2 of the 1832 Act in the absence of a capable grantor of the right claimed. Dismissing an appeal by the appellants, HH Judge Roger Kaye QC upheld the conclusions of the adjudicator and held that the power to dispose of land and property conferred on the respondents by section 8 of the 1832 Act was expressly cut down by section 35, which, by providing that it “shall not be lawful… except as in this Act expressed, to sell, lease, grant or in any manner dispose of any part of the commons”, prevented exercise of the section 8 power to grant easements over land forming part of the commons.
The appellants appealed. They submitted that the second part of section 2 of the 1832 Act conferred an “absolute and indefeasible right” where 40 years’ use was established and did not proceed on the basis of a presumed grant by the servient owner, such that a prescriptive right could be acquired by 40 years’ use even where there was no capable grantor of the right claimed.
Held: The appeal was allowed. (1) On reading section 35 in the context of the 1871 Act as a whole, its apparent aim and its general scheme, it does not prevent the respondents from lawfully granting an easement over the access way. The grant of an easement to the appellants would not be incompatible with the respondents’ overriding duty to conserve the commons as an unenclosed, unbuilt-upon open space. The environmental purpose can be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act. Although section 35 imposes a wide prohibition against alienation, the restriction relates to “the commons” rather than to “land” or an “estate, interest or right in land”. Accordingly, it refers not so much to the land itself or to rights and interests in the land, as to the physical area of open space that is to remain unenclosed and unbuilt upon. The grant of an easement to the appellants would impose a legal burden on the land but would not diminish the area of the commons as a physical area of open space. It would not: (i) entitle the appellants to enclose or build upon the access way; (ii) give them exclusive possession of any part of it; and (iii) interfere with the public’s ability to continue to enjoy the part of the commons across which the access way runs. Accordingly, the respondents would not, by granting such an easement, be unlawfully disposing of or alienating part of the commons contrary to section 35. (2) Had the respondents not been capable grantors, the court would have been bound by earlier authorities to dismiss the appeal on the ground that even a 40-year period of use can be defeated by showing that the owner of the servient tenement could not lawfully grant the easement claimed.
The following cases are referred to in this report
Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 AC 519, [2004] 2 WLR 955; [2004] 2 All ER 305; [2004] 2 EGLR 15; [2004] 20 EG 168
Dalton v Henry Angus & Co; Commissioners of HM Works and Public Buildings v Henry Angus & Co; sub nom Dalton v Angus & Co (1881) LR 6 App Cas 740
Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229, HL, [1900] 1 Ch 592, Ch
Jordeson v Sutton, Southcoates & Drypool Gas Co [1898] 2 Ch 614
Lemaitre v Davis (1882) 19 Ch D 281
Neaverson v Peterborough Rural District Council [1902] 1 Ch 557
R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335; [1999] 3 WLR 160; [1999] 3 All ER 385; (1999) 79 P&CR 199; [1999] 2 EGLR 94; [1999] 31 EG 85; [2000] JPL 384, HL
Rochdale Canal Proprietors v Radcliffe (1852) 18 QB 287
Staffordshire & Worcestershire Canal Navigation Proprietors v Birmingham Canal Navigation Proprietors (1866) LR 1 HL 254
Tapling v Jones (1865) 11 HL Cas 290
This was an appeal by the appellants, Michael and Mrs Elizabeth Housden, from a decision of HH Judge Roger Kaye QC, sitting in the Chancery Division, dismissing their appeal from a decision of a Land Registry adjudicator refusing their application to register an easement over common land owned by the respondents, the Conservators of Wimbledon and Putney Commons.
Timothy Dutton QC (instructed by Russell-Cooke LLP) appeared for the appellants; Guy Fetherstonhaugh QC (instructed by Gregsons) represented the respondents.
Giving first judgment Mummery LJ said:
Introductory
[1] Wimbledon and Putney Commons, which were at one time waste of the manor vested in Earl Spencer and cover approximately 1,000 acres, are held by the respondent conservators (the conservators) on the terms of the Wimbledon and Putney Commons Act 1871 (1871 Act), as amended.
[2] Mr and Mrs Housden (the appellants) are the registered proprietors of 8 Southside Common, Wimbledon, London SW19 (no 8), a house built between 1883 and 1893 on a plot of land lying south-west of a larger property called “Laurel Grove” to which access |page:108| was gained over a different way across the commons from that now being claimed. The appellants claim that no 8 enjoys the benefit of a prescriptive right of way to and from the public highway, called Southside Common, on foot and with vehicles over a strip of land forming part of the commons (the access way). There is also a narrow strip of verge vested in the local authority. The appellants rely upon uninterrupted user, openly and as of right, for a period of more than 40 years next before the commencement of these proceedings.
[3] On 12 September 2003, the appellants sought to register an easement over the access way. The application, which was opposed by the conservators, was referred to the adjudicator to HM Land Registry (Mr Edward Cousins). He dismissed the application on 11 July 2006.
[4] This second appeal is brought from an order of Mr Roger Kaye QC (sitting as a judge of the Chancery Division) dated 17 May 2007, dismissing with costs the appellants’ appeal from the adjudicator to the High Court.
[5] The two issues on this appeal are, first, whether the conservators have power to grant an easement under the 1871 Act (the vires issue); and, second, if not, whether absence of a power to grant an easement is fatal to the appellants’ claim to a prescriptive easement of way under the Prescription Act 1832 (the 1832 Act). The prescription issue is whether a claim under the 1832 Act that is based upon more than 40 years’ user proceeds on the presumption or fiction of a grant. (A further question as to whether it matters that the owners of the commons became incapable grantors only on the statutory vesting in the conservators, under the 1871 Act, was dealt with in the written submissions. As will appear, it is unnecessary to decide that question and I say nothing more about it.)
[6] The conservators accept that if the appeal succeeds on either issue, no 8 will have the benefit of an easement over the access way. If the appeal succeeds on the vires issue, it will be unnecessary to express a concluded view on the questions raised by the prescription issue.
[7] The adjudicator and the judge reached the same conclusions on the vires and the prescription issues. They both held that, on the true construction of the 1871 Act, in particular sections 8 and 35, the conservators had no power to grant an easement over part of the commons and that, on the true construction of the 1832 Act, in particular section 2, their inability to grant an easement was a bar to the acquisition of a prescriptive right of way.
[8] I turn to the vires issue first. It turns on the construction of the 1871 Act.
A. Vires issue
1871 Act
[9] The principal provisions governing the conservators’ powers to dispose of land and to alienate the commons or any part of them are sections 8 and 35. Other provisions in the 1871 Act are part of the picture of the overall aim and scheme of the legislation by which the conservators were established and within which they must operate.
[10] First, the general scheme. Section 4 of the 1871 Act states that:
For the purposes of this Act, the commons shall be taken to be the open spaces known as Wimbledon Common with Wimbledon Green and Putney Heath included and Putney Lower Common, as the same respectively are particularly described in this Act.
[11] Section 32 is the vesting provision. The commons, with the buildings and enclosures comprised within the ambit of the commons, as shown coloured green on deposited plans and described in the Third Schedule to the 1871 Act “with their respective rights, members and appurtenances”, were vested in the conservators. They were vested as on and from the passing of the 1871 Act for all the estate and interest that were, immediately before the passing of the Act, vested in or belonged to Earl Spencer.
[12] Section 34 required the conservators at all times to keep the commons:
open, uninclosed, and unbuilt on, except as regards such parts thereof as are at the passing of this Act inclosed or built on, and except as otherwise in this Act expressed, and shall by all lawful means prevent, resist and abate all encroachments and attempted encroachments on the commons, and protect the commons and preserve them as open spaces, and resist all proceedings tending to the inclosure, or appropriation for any purpose of any part thereof.
[13] The conservators were granted express powers to “make and maintain such roads and ways as may be in their judgment necessary or proper” (see section 39); and to purchase by agreement or accept a grant of any land having been or reputed to have been formerly part of or adjoining to Wimbledon Common or Putney Lower Common: see section 68.
[14] A saving provision in section 108 stated that:
Nothing in this Act or in any byelaw of the Conservators shall take away, abridge, or prejudicially affect any right of common, commonable or other like right, right of way, or other right in, over, or affecting the commons, other than any, right in, over, or affecting the same vested in or belonging to [Earl Spencer].
[15] Two provisions have a direct bearing on the vires of the conservators.
[16] Section 8 of the 1871 Act provided for the incorporation of the conservators with power to dispose of land:
There shall be a body of Conservators… who are hereby incorporated… with power to take and hold, and to dispose of (by grant, demise, or otherwise) land and other property…
[17] Section 35 placed an important restriction on the conservators’ powers to dispose of any part of the commons:
It shall not be lawful for the Conservators, except as in this Act expressed, to sell, lease, grant, or in any manner dispose of any part of the commons.
[18] The judge held (in [41] to [46] of his judgment) that the conservators could not lawfully grant across part of the commons a private right of way of the kind claimed by the appellants. He held that section 8 did not assist the appellants, being an enabling provision akin to the memorandum of association of a company setting out the basic powers of the conservators. They include the acquisition, holding and disposal of land. The powers were, however, expressly cut down by section 35 by restricting the exercise of the conservators’ core powers under section 8, which could not be exercised lawfully to dispose of any part of the commons. The access way is part of the commons. The restriction on alienation prevented the conservators from granting any easements over any land forming part of the commons. This construction, the judge held, accorded with the object of the 1871 Act, which was to preserve the commons as an open space. It fitted with other provisions of the 1871 Act, such as those aimed at the prevention of encroachments on the commons.
Discussion and conclusion on vires issue
[19] The social value reflected in the 1871 Act was conservation of the natural environment in an urban locality for the benefit of an expanding local population. A scheme was established “with a view to preservation” of the commons as “open spaces of large extent, unenclosed and unbuilt on” for “great local and public advantage” by vesting them in an incorporated body of appointed and elected conservators, upon whom duties were imposed and powers conferred.
[20] The environmental purpose can be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act. The legislative text should be read sensibly in context. In this way, full effect can be given, so far as a fair and reasonable reading of the statutory language allows, to the stated purpose and the scheme devised to attain it.
[21] The excellent expert decisions of the adjudicator and the deputy High Court judge deserve great respect. I hesitate to disagree with them. However, adopting the approach to the 1871 Act stated in the previous paragraph, I have arrived at a different result.
[22] I accept that section 35 is a very wide prohibition against alienation of the commons by the conservators. I also agree that there is a sense in which the grant of an easement over land is disposing of part of it. It is a disposal of a right over land that forms the commons. There is a parcel of rights and interests in that land. However, on reading section 35 in the wider context of the 1871 Act as a whole, its apparent aim and its general scheme, I do not construe it as preventing the conservators from lawfully granting an easement over the access way. |page:109|
[23] First, looking at the aim of the 1871 Act broadly, the grant would not be incompatible with the conservators’ overriding duty to conserve the commons as an unenclosed, unbuilt-upon, open space. The access way would not cease to be an open space if the appellants were granted an easement over it. The grant of an easement would not entitle them to enclose or build on the access way. The easement would not interfere with the ability of members of the public to continue enjoying the part of the commons across which the access way runs.
[24] Second, looking at the detail of the matter, the wording of section 35 is, in my judgment, reasonably open to an interpretation enabling the conservators to grant easements in circumstances consistent with the conservation of the commons in their existing state as an open space.
[25] The question is whether the grant of the easement would be a disposal of part of the commons in breach of the prohibition in section 35. I begin by asking whether there is a possible reason for making it unlawful to grant the appellants a right of way over the access way. A grant would entitle them to pass and repass over only a narrow strip of the commons running alongside the verge of the highway. It would not give them exclusive possession of any part of the surface of the commons or detract from the openness of the space of the access way.
[26] Section 35 makes it unlawful for the conservators to “dispose” of any part of “the commons” by sale, lease, grant and so on. A number of points arise on the language in which the prohibition is expressed. It is of some significance that the restriction relates to “the commons” rather than to “land” or to an “estate, interest or right in land”. The latter are the expressions apt to include rights in or over land and incorporeal hereditaments such as a right of way: see para 5(b) of Schedule 2 to the Interpretation Act 1978. “The commons” refer not so much to the land itself or to the rights and interests in the land, as to the physical area of open space, which is to remain unenclosed and unbuilt upon. The grant of a right of way to the appellants over the small defined access way would impose a legal burden on the land, but not one that would diminish the area of the commons as a physical area of open space or result in any physical enclosure of it or building upon it. In these circumstances, I do not think that the conservators would be unlawfully disposing of or alienating part of the commons contrary to section 35.
[27] I would add this footnote. The National Trust, which was reincorporated by a private Act of parliament with power to purchase, take, hold, deal with and dispose of land, holds certain property subject to prohibition on alienation: see section 21(1) of the National Trust Act 1907 and section 8 of the National Trust Act 1939 (the 1939 Act). It is well known that the property of the National Trust includes open spaces, such as farmland, stretches of the coastline and parks and gardens. The National Trust is, however, expressly permitted to grant an easement or right (not including a right to exclusive possession of the surface) over or in respect of its inalienable property: see section 12 of the 1939 Act.
[28] A point could be made that, in conferring an express power to grant easements, parliament recognised that, but for that power, the grant of an easement over inalienable land might breach the prohibition on alienation. On the other hand, parliament has recognised that the grant of an easement does not necessarily offend the purpose served by a statutory prohibition against alienation of open spaces.
[29] Another footnote. During the course of the hearing, there was discussion concerning the part of the common used as a golf course by the Wimbledon Common Golf Club and its predecessors since before the passing of the 1871 Act. The decision of the London South West Valuation Tribunal (31 May 2007), in which the restrictions on the commons were considered, was cited. It was a rating case. The tribunal noted that the golf clubs using the course had no lease or licence to use the land for golf. There was no permission document. The use was with unwritten permission without payment, but accompanied by annual voluntary contributions. The tribunal concluded that the course was sufficiently defined for it to be capable of being a hereditament for rating purposes, but the clubs did not have paramount or exclusive control and were joint occupiers. In my judgment, the decision does not assist on the vires issue.
[30] Since I have concluded that the conservators have power to grant a right of way over the access way, the appeal succeeds. It is agreed that the appellants are entitled to a prescriptive right of way over the access way if the conservators have, as I hold they do, power to make such a grant.
[31] On the prescription issue, the court has heard full argument on the construction of the 1832 Act. Counsel have researched and argued the point in depth in their written and oral submissions and in further material submitted since the hearing. It is unnecessary to decide the issue for the purpose of disposing of the appeal. In general, it is unwise to deliver judgments on points that do not have to be decided. There is no point in cluttering up the law reports with obiter dicta, which could, in some cases, embarrass a court having to decide the issue later on.
[32] There are, however, four reasons for departing from the general rule in this case. First, the judge’s conclusion on the vires issue meant that he had to deal with the prescription issue and he did so fully. The decision could be cited in future as a precedent on this point. It would be sensible for this court to say whether it thought that he had got it right. Second, this case may go further. Third, the same point may well arise in other cases under the 1832 Act. Fourth, prescription is topical. Litigation and law reform are in the air. This is the second appeal on the 1832 Act that I have heard in the past month. There have been two recent important decisions of the House of Lords and the Law Commission is in the process of reporting on the reform of this notoriously difficult branch of English land law.
B. Prescription issue
[33] In his Introduction to the History of Land Law (1961), Professor AWB Simpson wrote, at p251:
It need hardly be said that the present state of the law on the acquisition of easements and profits is a disgrace to the law. The nineteenth-century judges did their best to interpret the Prescription Act so as to avoid injustice, but it is hardly surprising that they produced a disorderly and uncertain body of laws, and that many simple and obvious points remain unsettled to this day. The Act is the classic example of an incompetent attempt to reform the law, and its retention on the Statute book is indefensible.
[34] No attempt was made to reform it in the 1925 property legislation, an omission that prompted Sir William Holdsworth to comment, at p286 of An Historical Introduction to the Land Law (1927), that:
It is odd that the branch of the land law which most requires to be restated should have been left wholly untouched by the Property Acts.
[35] Nor was it reformed after the 14th report of the Law Reform Committee in 1966 (Cmnd 3100), in which leading lawyers of the day unanimously recommended the repeal of the 1832 Act in its entirety and that prescription at common law and under the doctrine of lost modern grant should be abolished. The committee had no better view of the 1832 Act than Professor Simpson:
40. The Prescription Act 1832 has no friends. It has long been criticised as one of the worst drafted Acts on the Statute Book. Those whom we have consulted are unanimous in thinking that the Act should be repealed.
[36] The committee was, however, deeply divided on what to put in its place; eight of the committee recommended that, with regard to easements other than rights of support, no new system of prescription should be adopted, although the other six members recommended that a simplified and improved statutory system should be substituted for the existing forms of prescription.
[37] On the particular question arising in this case, the committee, which listed in its report (see para 99(6)) the methods that should be adopted if it were decided to substitute a new system, recommended that:
(xi) Incapacity to make a grant on the part of a servient owner should not bar a prescriptive claim. |page:110|
[38] The recommendation reflected the view that the presumption of a grant should cease to be an essential part of the process of prescription, with the consequence that the basis of the decisions that turned on there having been no competent grantor or grantee would disappear. Thus, the committee concluded that:
53. We do not think that a servient owner’s incompetence to make a grant should bar a prescriptive claim. The fact that a grant would be ultra vires a servient owner would not prevent him from protecting his title either by litigation or by interrupting the dominant owner’s enjoyment.
[39] We heard detailed arguments on the interpretation and application of the 1832 Act on this issue on the basis that the conservators did not have legal power, under the 1871 Act, to grant an easement to the appellants over the access way.
[40] In his excellent judgment, HH Judge Kaye QC referred to the relevant sections of the 1832 Act, cited the leading authorities, summarised the rival contentions and concluded that if, as he had held, the conservators could not lawfully grant an easement over the access way, that fact prevented the appellants from acquiring a prescriptive right based upon 40 years’ user under section 2 of the 1832 Act. As I shall explain, his conclusion was strongly influenced by his reading of the judgments of the House of Lords in Staffordshire, cited and analysed later in this judgment.
[41] Before examining the judge’s reasons for his conclusions and the criticisms of them in this appeal, a general introduction to the 1832 Act is required. It was passed following the report of the Real Property Commissioners (1829). They criticised, in particular, the judicial fiction of lost modern grant, which was to be presumed on the basis of 20 years’ use rather than on enjoyment from time immemorial (1189), which would have been enjoyment for 640 years when the Real Property Commissioners reported. In the case of lost modern grant, it was not open to the person against whom the claim was made to show that user commenced after 1189. The commissioners proposed (see at p51 of their report) that adverse enjoyment for a period of 60 years should be conclusive evidence of a right and that a period of 20 years’ enjoyment should be prima facie title. Neither the commissioners’ report nor the Hansard report of the debate on the bill, which mention that uninterrupted enjoyment for a period of 40 years “should not be effectually challenged”, throw light on the problem of prescribing against a grantor incapable of granting an easement.
[42] The 1832 Act was aimed at shortening the time for common law prescription in some cases by preventing a defendant from showing that the user was first enjoyed prior to the period of 20 years next before the action was brought, which was one, but only one, of the ways of defeating a claim to a prescriptive right at common law based upon lost modern grant: see Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229, at p236, per Lord Macnaghten.
[43] As Sir William Holdsworth explained, in his Historical Introduction, at p284, that the 1832 Act did not reform the law by abolishing the existing common law methods of acquiring title to an easement (apart from the right to light) by prescription. It simply added one more method to the existing methods of uninterrupted user, openly and as of right, since 1189, and the doctrine of lost modern grant, under which a grant was presumed after 20 years. As I shall explain, that is the way in which the 1832 Act has been interpreted in the cases that treated the fiction of lost modern grant as surviving the reforms.
[44] I have set out section 2 in full in the next paragraph of this judgment. A preliminary outline of its structure might ease the task of interpretation. The section opens by referring to claims “which may be lawfully made at the common law”. It then provides for two different periods of user. The first is the shorter period of 20 years’ user. It is stated that if the way or other matter shall have been enjoyed by any person claiming right without interruption for the period of 20 years, no claim to it at common law shall be defeated by showing only that it was first enjoyed at any time prior to the period of 20 years. There is then added the provision that “nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated”. Subject to the previous modification of the common law, this provision preserved existing common law defences to a claim to a prescriptive easement falling within section 2. Following a semi-colon, the next part of the section deals with the longer period of 40 years’ user, from which the right was deemed “absolute and indefeasible” unless it was enjoyed with consent in writing.
[45] So much for the structure of section 2. I now turn to the text itself.
No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King… or being parcel of the duchy of Lancaster or of the duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as foresaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
[46] Section 3 provided for the right to the use of light enjoyed for 20 years to be absolute and indefeasible unless shown to have been by consent. The wording is very similar to that used in section 2 in respect of the 40-year period for easements other than the right to light.
[47] In order to fall within the 1832 Act, the 20 years’ user had to be immediately before the action: see section 4.
[48] Section 7 made express provision for cases in which a person was incapable of resisting a claim, for example an infant, a mental patient or a tenant for life. There was no express provision in the Act dealing with an incorporated body for which the grant of an easement would be ultra vires.
[49] On the prescription issue, the judge set out in detail the reasons for his conclusion and helpfully summed up the position as follows:
81. Thus on construction of the 1832 Act and the 1871 Act and on analysis of the authorities including at the very least, on the basis of the Staffordshire case, the position may be summarised thus: where the capacity or power of the alleged servient owner is shown to derive from a statute which would render it unlawful for the owner to grant an easement of the nature claimed then that will at least prevent a right being acquired by prescription under the second part of s2 of the 1832 Act. The basis seems to be a presumption, assumption or acknowledgment that the fictional basis of long user, a presumed grant, could not have been lawfully granted by reason of a parliamentary statute. As I have said in relation to the first issue, s35 of the 1871 Act expressly provided that “It shall not be lawful for the Conservators” except as provided, to grant easements.
Discussion and conclusion on prescription issue
[50] On a first trawl through section 2, which is not an easy read, one might be forgiven for thinking that where a right of way has been enjoyed for 40 years, as this right has, there is no obstacle, other than consent in writing, to establishing the existence of an easement by prescription under the 1832 Act: the right “shall be deemed to be absolute and indefeasible”. It is difficult to express the nature of the right acquired in stronger terms. According to his obiter dicta in Gardner v Hodgson’s Kingston Breweries Co [1900] 1 Ch 592, at p595, Cozens-Hardy J seems to have thought that this was the statutory effect of the longer period. He was in good company, since this was also the view of Lord Selborne LC in Dalton v Henry Angus & Co (1881) LR 6 App Cas 740, at p800.
[51] According to Professor Simpson, at p249:
The object of this Statute was to do away with the need for the [lost modern grant] fiction, but to preserve the effect of it, and to render obsolete prescription at common law.
[52] Professor Simpson explained, at p250 of his book, that the 40-year period was “intended to supplant prescription at common law”. That was certainly held by the House of Lords to be so with rights to |page:111| light under section 3 of the 1832 Act. In Tapling v Jones (1865) 11 HL Cas 290, Lord Westbury LC stated, at p304, that the right:
to what is called an ancient light now depends upon positive enactment. It is matter juris positivi, and does not require, and therefore ought not to be rested on any presumption of grant or fiction of a license having been obtained from the adjoining proprietor.
[53] He went on to emphasise that, after 20 years’ access of light without interruption, the right is declared by the statute to be absolute and indefeasible. Lord Cranworth and Lord Chelmsford agreed, at pp310 and 318, that the right was, by the express provision of section 3, absolute and indefeasible: see also Jordeson v Sutton, Southcoates & Drypool Gas Co [1898] 2 Ch 614, at p626.
[54] Professor Simpson also explains that the common law methods of prescription survived the Act with regard to easements other than light, certainly as regards the 20-year period of user. Common law prescription could be based upon user, open and as of right from before the time of legal memory, and upon a presumed grant made before that date. There was also the fiction of lost modern grant after 20 years’ user. Following through the logic of a grant presumed by the common law from long user, the position was that “no prescriptive title can be acquired unless a grant of the thing is legally possible”: see Holdsworth (see above), at p282. It would not be possible if the right in question was not capable of existing as an easement at common law or if the owner of the servient tenement had no legal power to make the grant.
[55] Accordingly, the case for the conservators is that if, contrary to my view, the prohibition on alienation prevented them from granting a right of way over the access way to the appellants, that, by the same token, prevented the acquisition of an easement by prescription at common law over the access way. It would have been unlawful, and therefore legally impossible, for the conservators to have made a grant that was prohibited by section 35 of the 1871 Act. It was submitted that this is the case with both the 20-year period and the 40-year period, both being in section 2 and, it is submitted, both being governed by the opening words, which refer to claims that could lawfully be made at common law. No such claim could be made if it was ultra vires the owner of the servient tenement to make a grant of the easement claimed.
[56] This submission was strongly disputed by Mr Timothy Dutton, for the appellants. He adopted the passage in Megarry & Wade: The Law of Real Property (6th ed), at p1137, in para 18-160, repeating the views in earlier editions that, in principle, it should be possible, under the 40-year period, to prescribe against corporations that have no power of grant. In the case of the 40-year period, the last part of section 2, like the similarly drafted section 3 relating to rights of light, positively conferred an absolute and indefeasible right. Thus, the right did not proceed on the basis of a presumption of a grant by the servient owner. It was accomplished by the clear terms of the statute itself, without the need for the fiction of a presumed grant. Thus, even in the case of the servient owner without power to grant an easement, a prescriptive right could be acquired based upon 40 years’ user.
[57] We were taken through the authorities on this point, which, as Megarry & Wade observe, conflict. As with section 2 itself, they are certainly not free from difficulty. A detailed analysis of the judgments of the House of Lords in Staffordshire & Worcestershire Canal Navigation Proprietors v Birmingham Canal Navigation Proprietors (1866) LR 1 HL 254 was required. As the adjudicator commented in his decision, in para 34: “It is a case which is somewhat complex to interpret.” The relevant passages are at pp268, 273 and 278.
[58] The three judgments were given by the same three judges that sat on the appeal in Tapling (see above) the previous year. The only difference was that the intervening period had witnessed the drama of Lord Westbury’s downfall, following inept handling of an official’s misappropriation of public funds and criticisms of his appointment of members of his family to public office. So, in Staffordshire, Lord Westbury was no longer Lord Chancellor. Lord Chelmsford had replaced him.
[59] Although the claim in Staffordshire was as to the use of a watercourse by 40 years’ user and was based upon section 2, the attorney-general (and future Lord Selbourne LC) Sir Roundell Palmer QC, for the appellant claimants, cited, at p260, the right to light case of Tapling for the proposition that no presumption of a grant was now required to establish the prescriptive right, which was deemed by the section to be absolute and indefeasible. This submission was not expressly addressed either in the reported argument of the respondents or in any of the judgments of the Lord Chancellor or the two ex-Lord Chancellors. The respondents and the judges concentrated on two other points: first, that the respondents had no power to make the grant claimed by the appellants and, second, that there was nothing that constituted an enjoyment in the character of an easement. All three judgments decided against the appellants. Lord Chelmsford LC said, at p268:
To impose such a servitude upon the water in their canal as that contended for by the Appellants would have been ultra vires of the Respondents, and consequently length of user could never confer an indefeasible claim upon the Appellants under the Prescription Act, as no grant to the use of the water could have been lawfully made by the Respondents.
[60] Lord Cranworth said, at p273:
Of the existence of such a grant or covenant there is no trace whatever, and it cannot be presumed. To have entered into any such engagement would have been a clear breach of duty on the part of the Respondents.
[61] Lord Westbury, at p278, dealt with both points taken by the respondents. He said:
In my opinion it is a mistake to suppose that the second section of the Prescription Act is applicable to the circumstances of this case. There is no existing stream or body of water, either natural or artificial, the use of which has been, is, or can be, claimed by the Appellants.
[62] In the concluding paragraph of his opinion, Lord Westbury added his opinion on the vires point at pp278-279:
But if the Prescription Act had been at all applicable it would be incumbent on the Appellants to prove that the right founded on the claim by user might, at the beginning of, or during that user, have been lawfully granted to them by the Respondents’ company. No such proposition can be maintained. Had any grant been made at any time by the Respondents’ company of the right, now alleged by the Appellants to have been acquired against them by user, such grant would have been ultra vires and void, as amounting to a contract by the Respondents not to perform their duty by improving their navigation, and conducting their undertaking with economy and prudence.
[63] Regarding the ratio of Staffordshire, a different view from that in Megarry & Wade is taken by the editors of Gale on the Law of Easements (17th ed), in paras 4 to 64, at p205, and also in Cheshire and Burn’s Modern Law of Real Property (17th ed), at pp621-622, where the case is cited for the proposition that a claim based upon the longer period, as well as one based upon the shorter period, can be defeated by the common law defence that the right is prohibited in law because the grant would have been ultra vires the grantor. The passage at p278 of the report is cited in the footnote, along with Rochdale Canal Proprietors v Radcliffe (1852) 18 QB 287, at p315 (a case on the shorter period). See also Neaverson v Peterborough Rural District Council [1902] 1 Ch 557, at p579, to the effect that a legal origin for a user could not be inferred that would involve illegality — in that case in violation of the provisions of a statute.
[64] If free to choose, I would have preferred Megarry & Wade‘s statement of the legal position, although it was noted that the authorities were not at one on the point. The similarity in the language in sections 2 and 3 relating to the acquisition of absolute and indefeasible rights under the statute would indicate to me that the longer 40-year period of user in section 2 does not proceed on the common law presumption of a grant, but was a creation of statute according to its terms.
[65] Further, like the Law Reform Committee, I find it difficult to see what sensible or practical reason might exist for denying the acquisition of an easement by long user in such circumstances. |page:112|
[66] However, with considerable reluctance, I am compelled by precedent to the conclusion that the judges in Staffordshire were unanimous: (i) in not accepting the attorney-general’s submission on the application of Tapling to a section 2 case; and (ii) in holding that, in a section 2 case, even a 40-year period of user could be defeated by showing that it was ultra vires the owner of the servient tenement to grant the easement claimed. The three judges must, I think, have proceeded upon the basis that the opening words of section 2, which are absent from section 3, control the entire section. They apply the common law presumption of grant to both the shorter and the longer period of user.
[67] A number of other cases have been cited. They are neither directly in point nor do they decide anything that undermines the authority of the decision of the House of Lords in Staffordshire, which is binding on this court. Like the judge, I derived no assistance from Lemaitre v Davis (1882) 19 Ch D 281, a case of a claim based upon prescription against an ecclesiastical corporation under a restraint against alienation, in which Staffordshire was not cited.
[68] Two recent cases of the House of Lords on prescription should be mentioned. In R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335*, at pp349-351, Lord Hoffmann analysed the law of prescription, explaining how it proceeded on the basis of attributing a lawful title to long uninterrupted user as of right by the use of the legal fiction of a presumed grant before 1189 or by presumption of a lost modern grant. He did not deal specifically with the effect of the 1832 Act in a case in which the owner of a servient tenement lacked the legal power to grant an easement. The point did not arise in the case.
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* Editor’s note: Also reported at [1999] 2 EGLR 94; [1999] 31 EG 85
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[69] Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 AC 519† is closer to this case, as some of the claims to a prescriptive vehicular right of way over common land were based upon 40 years’ user. The claims to a prescriptive right of way were advanced under section 2 of the 1832 Act and on lost modern grant. That was not, however, a case in which it was ultra vires or unlawful for the servient owner to grant the easement or vest any right in the grantee. As explained by Lord Scott, at p342, the issue was whether a claim to a right of way could be made in reliance upon user that was itself unlawful and criminal because it was without consent and in contravention of a statutory prohibition forbidding particular use of land without the consent of the owner. It was unanimously held that a right of way could be acquired by prescription in such a case. Acquisition by prescription was not prevented by any requirement of public policy.
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† Editor’s note: Also reported at [2004] 2 EGLR 15; [2004] 20 EG 168
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Result
[70] I would allow the appeal on the vires issue. The conservators have power, under the 1871 Act, to grant to the appellants a right of way over the access way.
[71] Had I decided that the appeal on the vires point should be dismissed, I would also, although with reluctance, have dismissed the appeal on the prescription issue.
[72] Finally, I wish the Law Commission well in its deliberations. It is better equipped than the courts to recommend improvements in this area of the law, although prescription is low down in the priorities for law reform. Nevertheless, the rapid expansion of homeownership, the increasing pressures on land available for development and the almost universal reliance upon cars for travel outside the city all mean that the need for a simpler law of prescription has become of more rather than less concern. The experience of the courts is that bitter and unaffordable neighbour disputes sometimes stem from claims to user of a way as a means of access to, and for parking close by, a private house, and from complaints of increased and excessive user of an existing access.
Giving the second judgment, Carnwath LJ said:
[73] My mind has shifted several times during the argument. This is both a tribute to the quality of the submissions and is also symptomatic of the difficulties of interpreting two obscure 19th century statutes, each passed in an unfamiliar social and legal context.
[74] On the 1871 Act, I have come to the conclusion that the simplest approach is best: that is, to apply the operative provisions in accordance with their own terms. Section 8 permits the disposal of “land”. “Land” includes “hereditaments of any tenure” (see para 5(b) of Schedule 2 to the Interpretation Act 1978), and thus includes incorporeal hereditaments such as easements. Section 35 prohibits the disposal of “parts of the commons”. In ordinary language, the words “part of the commons” denote a physical concept, not a legal right. It is natural to talk of selling, leasing or granting a part of the commons. However, an easement is not a part of the commons; it is a right granted over the commons. There is no corresponding definition of “commons” to stretch the ordinary meaning to include such rights. Nor does the purpose of the 1871 Act require such an extension. Any easements granted by the conservators would have to be consistent with their overall objectives, and they have full control of the nature of any easements and the conditions under which they are granted.
[75] In summary, section 8 permits the grant of easements, and section 35 does not prohibit it. On these short grounds, I would allow the appeal. I am encouraged to see that the same result follows from the more analytical approach adopted by Mummery LJ, with whichI also agree.
[76] This makes it strictly unnecessary to consider the second issue under the 1832 Act. However, in view of the extensive arguments we have heard, I would add a brief comment. We have spent much time seeking to analyse Staffordshire & Worcestershire Canal Navigation Proprietors v Birmingham Canal Navigation Proprietors (1866) LR 1 HL 254, and have found difficulty in arriving at a clear view of its ratio. In this we have shared the experiences of generations of judges and textbook writers. Ultimately, I am persuaded that the extracts quoted by Mummery LJ are sufficient to constrain us to the view adopted by the adjudicator and the judge.
[77] In any event, one point that does stand out clearly is that their lordships, in spite of having the previous year been involved in a rights of light case under section 3 (Tapling v Jones), and in spite of it having been relied upon in argument, did not regard it as deserving of a mention in their speeches. It must be inferred that they did not regard it as assisting the determination of the apparently similar issue that arose in the later case under section 2. The only significant difference between the two sections is in the introductory words of section 2, not found in section 3, referring to claims that may be “lawfully made at common law, by custom, prescription or grant…”. Lord Chelmsford referred to these words, commenting, at p267:
Custom and prescription are here out of the question, and if the Respondents could not have granted the use of the water to the Appellants, the Act is wholly inapplicable…
This passage provided the context for the passage (on p268) quoted by Mummery LJ.
[78] At the highest from the appellants’ point of view, one is left with the position that, almost two centuries after the passing of the 1832 Act, there is no clear authority for the application of section 2 in the way they propose, and a striking lack of consensus among the textbook writers. Given the relative obscurity of the Act, I would be very cautious about extending it beyond its established ambit. I also have in mind that the Law Commission is reviewing the law of easements and can better consider what place, if any, the provisions of the 1832 Act should have in modern conditions.
[79] For these reasons, in agreement with Mummery LJ, I would allow the appeal on the first ground.
Richards LJ said:
[80] I agree with both judgments.
Appeal allowed.
