Prescription–No lost modern grant where servient property was glebe land and consent of Ecclesiastical Commissioners would have been required for the grant of a proprietary interest to be valid–Court cannot simply presume consent by the commissioners
This was an
appeal by Mr Harold Oakley and his wife, Hazel Oakley, of Old Rectory, Appleby
Magna, Leicestershire, from a judgment of Judge Harrison-Hall at
Ashby-de-la-Zouch County Court on December 19 1974 dismissing their action
against the respondent, Mr Frederick Boston, of Bowleys Lane, Appleby Magna,
owner of an adjoining piece of land, for an injunction against trespass and for
damages.
Mr K J Farrow
(instructed by Kingsford Dorman & Co, agents for Crane & Walton, of
Ashby-de-la-Zouch) appeared for the appellants, and Mr J S Trenhaile
(instructed by Fishers, of Ashby-de-la-Zouch) represented the respondent.
Giving
judgment MEGAW LJ said that the defendant’s answer to the plaintiffs’ claim in
trespass was that he was entitled to a right-of-way over a tongue of land
forming part of the plaintiffs’ property. If made out, the right-of-way would
give the defendant convenient access to certain public footpaths. In support of
his claim, the defendant relied on prescription under the Prescription Act 1832
and on the doctrine of lost modern grant. Judge Harrison-Hall found that up to
1962 there had been sufficient user of the alleged right-of-way to establish an
easement under the 1832 Act, but that the user from 1962 until the date of
commencement of the action had been insufficient. He therefore rejected the
defendant’s claim under the Act, but found that sufficient user had been
established to bring into operation the doctrine of lost modern grant. Until
1952, when it was conveyed with all necessary consents to predecessors in title
of the plaintiffs, the land in question had been glebe land, which meant that
the consent of the Ecclesiastical Commissioners was required if a valid
proprietary interest in the property was to be granted. Judge Harrison-Hall was
prepared to presume that that consent had been obtained. The plaintiffs now
argued that there was no material on which the court could presume that there
had been a grant, made and lost, to which the commissioners, in the exercise of
their statutory duty, had given their consent. The defendant, on the other
hand, submitted that the court was entitled to presume, at any rate in the
absence of some evidence to the contrary, that the incumbent of the glebe land
had sought and obtained the consent of the commissioners.
He (his
Lordship) thought that the defendant’s argument could not succeed. The basis on
which the court was entitled to make a presumption of a lost modern grant in
what might be called a normal case was that the owner of the alleged servient
tenement had with knowledge of acts of trespass acquiesced in them, so that
that owner or a predecessor must be presumed to have conferred an easement by
grant. But why should the court make that assumption in respect of the
commissioners? There was no evidence of
any knowledge on their part of acts in which they had acquiesced. Their
interest was different from and wider than that of the incumbent for the time
being. Unless there was some evidence, or fair inference, that they knew of or
assented to the incumbent’s acquiescence in acts which would otherwise have
been acts of trespass, he (Megaw LJ) could not see how the court could fairly
make such a presumption. The appeal should be allowed.
ORR LJ agreed,
and GOULDING J gave a concurring judgment. The appeal was allowed with costs.
