Public footpath – Continuous user – Prescription – Lost modern grant – Claimants claiming right of way over track owned by defendant – Whether claimants acquiring right of way by prescription – whether claimants having express permission to use track – Whether claimants abandoning implied right – Claim allowed in part
The claimants owned property and land that included a field that was used for motorcycle scrambling. The field was accessed via the right-hand side of a track, which belonged to the claimants’ neighbour, the defendant, that bordered their land. The left-hand side of the track led to the road. The claimants sought a declaration that they had the benefit of a right of way over the track for all purposes, with or without vehicles or animals.
The claimants accepted that no right of way over the track had been expressly granted to them or their predecessors, but they contended that they had rights of way in respect of: (i) the left-hand side of the track, which had been acquired under the doctrine of lost modern grant, having been used for a continuous period of 20 years; and (ii) the right-hand side of the track, which had been created by implication under section 62 of the Law of Property Act 1925 or by conveyance.
The defendant accepted that the claimants had an implied right to use the right-hand side of the track, but maintained that the use had been abandoned.
Held: The claim was allowed in part.
All individuals had a right to use the track on foot because it was a public footpath. The claimants’ claim to a right of way over the left-hand side of the track leading to the road had to be dismissed. However, they were entitled to a right of way in respect of the right-hand side of the track.
(1) A right of way would arise by prescription only if it had been used for 20 years “not by force, nor stealth, nor the licence of the owner”. The instant case, with regard to the left-hand side of the track, was concerned only with whether the use had been with the owner’s licence. On the evidence, a clear licence had been given by the former owner to use the track. That precluded time running so as to enable a right of way to be acquired by the claimants’ predecessors by reason of prescription under the doctrine of lost grant: Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229; Rafique v Trustees of the Walton Estate (1993) 65 P&CR 356; and R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94; [1999] 31 EG 85 considered.
The use of the track had not changed so radically as to mean that it no longer accorded with the earlier purported permission. On the evidence, the use had been consistent with that earlier unconditional permission. Moreover, the fact that the permission had been unsolicited at the time did not add weight to the claimants’ case in claiming a right of way over the left-hand side of the track: McAdams Homes Limited v Robinson and another [2004] EWCA Civ 214; [2004] 3 EGLR 93 distinguished.
(2) On the evidence, the claim to a right of way over the right-hand side of the track had not been abandoned. Despite the fact that the defendant had blocked access, which was unlawful, there had been no firm intention on the part of the claimants that they would make no further use of the easement. Thus, that right of way remained in force.
A further hearing would br required to determine whether the claimants were entitled to an injunction or damages in lieu in respect of their right to use the right-hand side of the track.
Marie-Claire Bleasdale (instructed by Wilsons, of Salisbury) appeared for the claimants; Leslie Blohm QC (instructed by Jordans, of Cheltenham) appeared for the defendant.
Eileen O’Grady, barrister
