Hughes and another v Incumbent of the Benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne & Framilode – Land registration – Easement by prescription – Lost modern grant – Respondent incumbent applying for vehicular right of way over appellants’ land – First-tier Tribunal directing registration of easement – Appellants appealing – Whether use sufficient to give rise to right of way by lost modern grant – Whether use sufficient to put servient owner on notice that right being asserted – Appeal dismissed
In 2018, the respondent incumbent of St James’ Church in the village of Saul applied to HM Land Registry for a vehicular right of way, for the benefit of the church, over land belonging to a neighbouring property owned by the appellants.
The appellants’ property was a former school site next to the church. It had been sold in 2012 and purchased by the appellants in 2015. The easement sought by the incumbent was over a track or drive which gave access to the appellants’ home from the public highway. The incumbent claimed to have acquired by prescription an easement, based on the doctrine of lost modern grant, for vehicles to pass between the highway and a grassed area belonging to the church.
The appellants objected and the matter was referred to the First-tier Tribunal (FTT) pursuant to section 73(7) of the Land Registration Act 2002. The FTT heard evidence that the track had been regularly used by successive incumbents and their visitors for more than 20 years for vehicular access from the highway to a grassy area owned by the church where vehicles parked to gain access to the church and churchyard. The FTT found in favour of the respondent and directed the registrar to register the easement.
The appellants appealed contending that the FTT’s finding that the respondent’s use was occasional was not sufficient to give rise to a right of way by lost modern grant. The use had to be of sufficient intensity or frequency to indicate to the owner of the servient tenement that a right was being asserted. Alternatively, the use was insufficient to put the appellants’ predecessors in title, as servient owners, on notice that a right was being asserted against them.
Held: The appeal was dismissed.
(1) The requirement that the use relied upon to give rise to a prescriptive easement should be more than occasional was not absolute, nor could it be since the term was imprecise and context-dependent. Weekly use, for example, might be regarded as occasional in some contexts and frequent in others. The point of the requirement was not to impose an arbitrary standard of frequency but to require sufficient use to put the servient owner on notice that a right was being asserted and that he or she needed to take action.
The enjoyment had to be definite and sufficiently continuous in its character. In those easements which required the repeated acts of man for their enjoyment, as rights of way, it appeared to be sufficient if the user was of such a nature, and took place at such intervals, as to afford an indication to the owner of the servient tenement that a right was claimed against him. Such an indication would not be afforded by a mere accidental or occasional exercise. On the other hand, the evidence might disclose a casual use, dependent for its continuance upon the tolerance and good nature of the servient owner, and not such as to put him on notice that a right was being asserted: see Gale on Easements, 21st edition, paragraph 4-169.
The use described in the evidence before the FTT was clearly not a casual use of the kind that Gale said was insufficient. The FTT had found that the use of the track by the incumbent and their visitors was sufficient.
(2) The FTT had not erred in making no finding as to whether the occasional use was enough to carry to the mind of a reasonable person who was in possession of the servient tenement, the fact that a continuous right to enjoyment was being asserted.
The parties agreed that the test was that the use had to be enough to carry to the mind of a reasonable person who was in possession of the servient tenement, the fact that a continuous right to enjoyment was being asserted: Mills v Silver [1971] Ch 281 applied.
However, the FTT found that, in the context of a country church serving a small congregation, enough had been done by the respondent and its lawful visitors to suggest to a reasonable servient owner that a right was being exercised and ought to be resisted if not accepted.
(3) In any event, the FTT had determined that 20 years’ use had been completed before 2012 and so prescription was completed before the sale of the school site. It was obvious that in 2011 and 2012 the church had no intention of claiming an easement over the track; if the church had wanted an easement at that stage, the incumbent and churchwardens could have granted an easement to the incumbent before they sold or as part of the same transaction. But there was nothing in law to prevent the incumbent from claiming prescriptive use now, despite the fact that successive incumbents were unaware that their use of the track would later enable them to do so and apparently had no intention of doing so. That made no difference to whether or not their use of the track was sufficient to meet the requirements of prescription.
It was clear, on the facts found by the judge, that prescription was completed before the first moment of 2012. Accordingly, the fact that the incumbent had not granted an express easement prior to the sale was no bar to a claim for a prescriptive easement prior to that date.
Jonathan Wills appeared for the appellants; Timothy Calland (instructed by Birketts LLP) appeared for the respondent.
Eileen O’Grady, barrister
