Land — Prescriptive right of way — Long user — Council granting tenancy of servient land after beginning of long user — Council failing to prevent user — Dominant owner subsequently using alternative track — Whether council acquiescing in user — Whether appellants abandoning user — Appeal allowed
The appellants owned a freehold property situated on a public road that ran parallel to a river. The land to the north lay in the ownership of the local council, the respondent’s predecessor in title. In 1976, the appellants had taken over a 1908 lease of a part of the council land, upon which there stood a boathouse (the boathouse land), together with a right of access from the road over the council land. In 1984, in the context of development proposals, the appellants wrote to the council claiming to have acquired an easement over the council land. In 1990, the appellants obtained a three-year renewal of their lease, which later continued after the end of the contractual term pursuant to Part II of the Landlord and Tenant Act 1954.
The respondent purchased the council land in 2003 with a view to developing it for housing. The appellants agreed to relinquish the tenancy of the boathouse, and the access that went with it, when the respondent obtained planning consent. However, they then sought a declaration that they were entitled to use a track that crossed the council land to reach their property (the primary route) in conjunction with a secondary route across the common boundary. Further, or in the alternative, they claimed to be entitled, under section 2 of the Prescription Act 1832, to pass and repass by vehicle or on foot over the secondary track in conjunction with the primary route. They also sought an injunction restraining the respondent from erecting the proposed houses on the track or otherwise interfering with the exercise of those rights.
The judge found on the evidence that the appellants had had more than 20 years’ uninterrupted enjoyment of an easement over the track prior to 1976, they track, but held that after that time there had been an absence of the necessary acquiescence by the council. He further held that the right over the secondary route had been lost by abandonment in 1976. The appellants appealed.
Held: The appeal was allowed.
The appellants were entitled to the rights of way claimed over both the primary and secondary routes.
Where the grant of a tenancy of servient land (the respondent’s land) predated the user by or on behalf of the owner of the dominant land (the appellants’ property), it was necessary to ask whether the freeholder of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, it was likely to be immaterial whether the terms of the tenancy were such that the owner of the servient land could take steps to prevent that user. If, with knowledge of the user, the owner of the servient land had granted a tenancy on terms that removed any power to prevent that user, it could properly be said to have acquiesced in it.
On an analysis of the facts, the judge had been bound to conclude that, from at least 1984, the council had had knowledge that the primary route was being used to gain access from the road to the appellants’ property. Therefore, the council had acquiesced in the user: Pugh v Savage (1970) 213 EG 1535 considered.
The appellants had not abandoned the right to use the secondary route. A dominant owner did not lose its acquired prescriptive right if it ceased to use the route for many years without an intention to abandon it. A right of way was not lost merely by non-user, even if it had extended over many years. The dominant owner would have to have intended that to abandon the right. There was no evidence to support the conclusion that the appellants had acknowledged an intention to abandon a right to use the secondary route: Ward v Ward (1852) 7 Ex 838 applied.
Nicholas Jackson (instructed by Hill Dickinson, of Chester) appeared for the appellants; Katherine Dunn (instructed by Addleshaw Goddard, of Manchester) appeared for the respondent.
Eileen O’Grady, barrister
