- The basic point - prescription is based on user of the servient land
- The position where the owner of the land has no power to grant an easement - can a prescriptive easement arise?
- Acquisition of prescriptive easements where the servient land is subject to a tenancy
- "Without force, openly and continuously"
Based on user of the servient land
Right of way
 EWCA Civ 1382
The extent of a prescriptive right of way is defined by reference to the historic use of that way, rather than according to the use of the dominant land. A right, which permits access by vehicles and horses, does not necessarily extend to allow the driving of cattle, as the latter is generally considered to be more onerous.
This case concerned the existence and extent of rights of way enjoyed by the respondents’ agricultural land over a private road. In response to the appellants’ claim for an injunction to prevent any use of the private road by the respondents, the respondents counterclaimed for a declaration that their land enjoyed a right of way over the road.
The trial judge found that the respondents were entitled to a right of way by prescription. The judge declared that the right was enjoyed “at all times for agricultural purposes with or without animals and with or without vehicles”. The appellants appealed against the decision on the basis that the interpretation of the right should have been limited by the insertion of the words “(except for the purpose of driving stock)”. The judge had declined to make any such exclusion.
Decision on appeal
The Court of Appeal briefly reviewed the history of the ownership and use of the relevant area, noting that the private road was not the only access to the fields making up the dominant land owned by the respondents. Evidence as to the use of the road for driving cattle between 1986 and 2006 was very limited, with some evidence directly contradicting any such use. However, the respondents contended that this was irrelevant since – having established a right of way for agricultural purposes – there was nothing to justify excluding the driving of stock, on the basis that this is an ordinary and reasonable use of agricultural land. The court rejected this contention, noting that the easement in these circumstances should be defined by the use of the right of way rather than by the use of the dominant land. Elias J at para 33 quoting Lord Hoffmann in R v Oxfordshire CC ex p Sunningwell PC :
- "the purpose of rules of prescription is to 'prevent the disturbance of long established de facto enjoyment.' In English law, the fiction is that at some point a right was conferred on the owner of the dominant tenement. The right must relate to
what has in fact been enjoyed
- . As Bovill CJ noted in
Williams v James
- (1867) …: 'In all cases of this kind which depend upon user, the right acquired must be measured by the extent of the
enjoyment which is proved
Moreover, the court agreed with the appellants that the relevant case law on interpreting the use of particular way drew a distinction between a right of way for vehicles or horses and for driving cattle. The court noted that the latter is generally regarded as more onerous and should therefore not be included automatically within the former. The court felt that this was a particularly logical conclusion for a right of way acquired by prescription, since the owner of the servient land should not be burdened with a more onerous use than he or his predecessors had actually accepted as a matter of fact. Comment Elias J pointed out that the decision does not mean one can never have a different user. For example, over the years methods of transport change; but that doesn’t mean one can acquire by prescription a right to a completely different use. Para 34:
- "That is not to say that the right is limited to the
- in which it was used over the relevant twenty year period. It may be used for rights
- to them (such as for motor cars where the usage was horse and carriage: see
Lock v Abercester Ltd
-  Ch. 861) or for other purposes which impose
no greater burden
- on the servient tenement (on the principle that the greater includes the lesser). Here, there was no evidence of any driving of cattle over the requisite twenty year period, let alone such continuity of use sufficient to confer a right."
Elias LJ also pointed out that the use of dominant land might be an important consideration where a right of way arises by implied grant, as such easements are assumed to give such rights as are necessary for the reasonable enjoyment of activities on the land. However, he emphasised that there is a different focus with rights acquired by prescription, as they depend on acquiescence by the servient owner in what has actually been happening. Elias J at para 37:
use of the dominant tenement
- may be an important consideration where the easement arises by
- because the assumption is that the easements extend to such rights as are necessary for the reasonable enjoyment of the land granted. But rights acquired
- have a different focus. They depend not on permitting such use as is necessary to facilitate the activity carried on at the dominant land but rather on acquiescence in what has in fact been happening. That is not to say that the use of the dominant land is always immaterial; if there is a sufficiently significant change in the purpose for which the land is used, that may result in an increase in, or alteration of the burden on, the servient land such that the use of the right of way for that purpose will be unlawful: see the judgment of Neuberger LJ, as he was, in
McAdams Homes Limited v Robinson
-  EWCA Civ 214 ... But that is not this case, and in any event this principle does not augment the rights of the dominant owner."
Here, no driving of cattle or anything analogous to it had occurred at all in the relevant period; accordingly, there could be no acquiescence in such use, and hence no right to drive cattle could be acquired.
Servient land subject to tenancy
 EWCA Civ 1738
The principle on which the acquisition of a prescriptive easement rests is acquiescence by the freehold owner of the servient tenement. In what circumstances can it be said that the owner has acquiesced where the property is let? That was the question in this case. Acquiescence by the freehold owner - Chadwick LJ at para 22:
- "It is trite law that, for the purposes of prescription, the relevant owner of the servient tenement is the owner of the freehold interest. The presumption or inference of a grant, to which long uninterrupted user of the right claimed may give rise, is a grant by the freehold owner."
That gives rise to a difficulty when the property is subject to a tenancy. Chadwick LJ at para 22:
- "It is the need to show acquiescence on the part of the freehold owner which, if not met, may prevent the acquisition of a right by prescription in a case where the servient tenement has been subject to a tenancy during the period of the use. The existence of the tenancy may lead to the conclusion that the freehold owner had no knowledge of the user upon which the prescriptive claim is founded; or (if knowledge is shown) may lead to the conclusion that it was not within the power of the freehold owner, during the period of the tenancy, to prevent that user."
So how does one determine whether or not there has been acquiescence when the land is subject to a tenancy? The principles were set out in the judgment of Chadwick LJ at para 24:
- "First, in a case where the grant of the tenancy of the servient land predates the user by or on behalf of the owner of the dominant land, it is necessary to ask whether, notwithstanding the tenancy, the freehold owner of the servient land could take steps to prevent user during the tenancy. The answer to that question is likely to turn on the terms of the tenancy.
- Second, if (notwithstanding the tenancy) the owner of the servient land could take steps to prevent the user, then it is necessary to ask whether (and, if so, when) the freehold owner had knowledge (actual or imputed) of that user by the owner of the dominant land. The fact that the freehold owner of the servient land was out of possession when the user began and throughout the term of the tenancy may well lead to the conclusion that knowledge of that user should not be imputed. But if, on the facts, the owner of the servient land does have knowledge of the user and could (notwithstanding the tenancy) take steps to prevent that user, but does not do so, then (prima facie) acquiescence will be established.
- Third, in a case where user of the servient land by the owner of the dominant land began before the grant of the tenancy, it is necessary to ask whether the freehold owner of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, then it is likely to be immaterial whether the terms of the tenancy are such that the owner of the servient land could (or could not) take steps to prevent that user. That is because if (with knowledge of the user) the owner of the servient land grants a tenancy of that land on terms which put it out of his power to prevent that user, he can properly be said to have acquiesced in it.
- Fourth, if the owner of the servient land did not have knowledge of the user at the date of the grant, then the position is the same as it would be if the grant had pre-dated the user. It is necessary to ask whether (notwithstanding the tenancy) the freehold owner can take steps to prevent the user; and, if so, whether (and if so when) the owner had knowledge of the user.".
 EWCA Civ 200
Where an owner of land derives its powers over the land from a statute, which would render it unlawful for the owner to grant an easement over the land of the nature claimed, such an easement cannot be acquired by prescription under the second part of s2 of the Prescription Act 1832 - 40 years ("one of the worst drafted Acts on the Statute book").
The applicants sought to register the benefit of a private right of way (with or without vehicles) over a small strip of land, which is part of Wimbledon Common, which leads to their house. The Land Registry Adjudicator, and the judge on the first appeal, held that s 35 of the Wimbledon and Putney Commons Act 1871 expressly provided that "It shall not be lawful for the Conservators" except as provided, to grant easements. They took the view that to create such an easement would therefore be unlawful and so decided that no right of way been acquired by prescription. The applicants appealed to the CA.
Appeal allowed. The Court of Appeal held that the Conservators did in fact have power to grant a right of way over the commons (para 22-26). However, it did also confirm that, if the grant had been outside the Conservators' powers an easement could not be acquired by prescription.