Land – Right of way – Prescription – Claimants claiming prescriptive right of way over defendants’ land – Defendants arguing claimants having permission to use land – Claimants seeking declaration regarding existence of rights and injunctive relief – Whether prescriptive right of way established on qualified 20-year basis of enjoyment, absolute 40-year basis or doctrine of lost modern grant – Claim allowed
The claimants, who were the freehold owners of 1 Yew Tree Road, Elkesley, Retford, Nottinghamshire, claimed a prescriptive right of way over neighbouring land forming part of Elkesley Memorial Hall, which consisted of the local village hall and open land surrounding it. It was held by the first defendant as custodian trustee on behalf of a charity. The second, third and fourth defendants were the managing trustees with full legal responsibility for the management of both the hall and the land as if it were vested in them. When the second defendant died, the claim proceeded against the remaining trustees, who were responsible for the alleged interference with the claimant’s enjoyment of their right of way by installing a fence panel behind the claimants’ gate. The claim against the first defendant was stayed by consent as it had no right of management over the hall.
The claimants said that, at all material times since their acquisition of their property in 1978, for more than 40 years prior to the proceedings, they had had access by foot from their home through a gap in their fence (where they installed the gate) and along the boundary that ran along the western edge of the hall land to access the hall and the public playing fields beyond.
They argued that they had acquired a prescriptive right of way over the hall land under section 2 of the Prescription Act 1832, either under a “qualified” 20-year basis of enjoyment or an “absolute” 40-year basis. Alternatively, they had acquired the right under the doctrine of lost modern grant since they had exercised the right claimed for a period of at least 20 years.
Held: The claim was allowed.
(1) Section 2 of the 1832 Act provided that a prescriptive right might be acquired where there had been use “as of right” for periods of 20 years or more or 40 years or more. Use “as of right” had to be without force, without secrecy and without permission.
There was a crucial legal distinction between permission and acquiescence. Acquiescence was “as of right” but permission was not. Passive toleration of a particular use was not enough. User which was acquiesced in by the owner was “as of right”; acquiescence was the foundation of prescription. However, user which was with the licence or permission of the owner was not “as of right”. Permission involved some positive act on the part of the owner, whereas passive toleration was all that was required of right for acquiescence: Jones v Price (1992) 64 P&CR 404 considered.
The legal burden of proof in a prescriptive claim rested on the claimant. However, once it was established that the easement claim was used for the necessary period of time openly, to bring home to the owner of the servient land that the right was being asserted, it was presumed that the easement had been enjoyed as of right. It was for the serving owner to rebut that presumption by calling evidence to the fact that the user was either by permission or contentious.
Whether the use was based on use for a 20-year period or a 40-year period, the user must have been exercised “without interruption” in the period. Under section 4 of the 1832 Act, the exercise of the right claimed would not be taken to have been interrupted unless the claimant had acquiesced in the interruption for a year or more. In this case, the proceedings were issued within the limitation period of 12 months.
(2) Regarding the absolute right under the second limb of section 2 of the 1832 Act, the use “as of right” necessarily meant the use must have been without permission. However, the words of the Act expressly stated that if 40 years’ use could be shown, an oral permission could not be used to defeat the right; only permission given by deed or in writing would suffice. The courts had resolved that inconsistency by holding that permission given prior to the commencement of the 40-year prescriptive period would not prevent a prescriptive easement arising based on 40 years’ use. However, if that consent was renewed throughout the period, the user would not have been “as of right” throughout the period and therefore no prescriptive rights would arise.
On the other hand, oral permission given prior to the user would defeat a claim based on the 20-year period and under the doctrine of lost modern grant because, under both those doctrines, it did not matter when permission was given. Further, oral permission given prior to the 40-year period and where that permission continued pursuant to a common tacit understanding that the use was permissive would also defeat a right arising under the 40-year rule.
(3) The main issue in the present claim was whether the use over the period was “as of right”. There was no challenge to the period of use or the limitation period.
The first claimant accepted that a conversation had taken place between him and a managing trustee (W) regarding a gap in the claimants’ fence giving access to the hall land. But there were no discussions about permission and it was consistent with a neighbourly discussion between the parties. There was no positive act of permission in the active sense. There was passive toleration or acquiescence by the charity, which did not amount to permission. In any event, W did not have any authority from the charity to grant any such permission. The claimants had no legal right to use the land. They used it because it was convenient to them. That was the nature of a prescriptive right.
It followed that the claimants had a legally enforceable right of way over the hall land to access the hall and the playing fields beyond. Therefore, the defendants had no lawful entitlement to continue to obstruct the claimant’s exercise of their lawful right of way.
(4) The tribunal would have exercised its discretion to grant the mandatory injunction claimed. However, the defendants were willing to offer undertakings in relation to those matters and the claimant agreed that it could be dealt with by way of undertakings, instead of injunctive relief.
Thomas Rothwell (instructed by Irwin Mitchell LLP) appeared for the claimant; Christopher Moss (instructed by Jones & Co Solicitors) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Savill and another v Elkesley Parish Council and others
