Экзамен зачет учебный год 2023 / Dixon, Modern Land Law

Modern Land Law

the servient land was in the possession of a tenant at some time during the use. Prescriptive easements rest on acquiescence, not on the fact of whether there was, or was not, a lease. Two different situations need to be distinguished. First, there is no objection to the presumption of an easement from long use if the fee simple owner was in possession of the servient land at the commencement of the long use, but then subsequently leased the land to a tenant.94 This is because at the time the long use started it is possible to presume that the grant was made by the fee simple owner – the fee simple owner had the power to terminate the use before the tenancy took effect. Second, where a tenant is in possession of the alleged servient land before the long use commenced, it remains possible to presume a prescriptive easement against a freeholder, albeit that it might be difficult to establish on the facts. This is because the generation of an easement by prescription rests on the acquiescence of the freeholder and it is perfectly possibly for a freeholder to acquiesce in the long use (so as to burden the freehold) even though the land was in the possession of his tenant when the use commenced. If, however, the long use commenced while a tenant was on the land and the freeholder had no power to exclude the long use while his tenant was in possession,95 it would be almost impossible to establish a prescriptive easement against the freeholder because a person (the freeholder) cannot be taken to acquiesce in something that they cannot prevent.

3The above rules have additional practical implications. It is impossible for a tenant to claim a prescriptive easement against his own landlord and vice versa. If L (landlord) occupies Plot 1, and leases Plot 2 to T (tenant), T can never claim an easement by prescription against L, and L can never claim an easement by prescription against T. In both cases, the fee simple owner cannot be presumed to have granted an easement against himself. Likewise, if L leases both plots to different tenants, the tenants cannot claim an easement by prescription against each other, since neither is a fee simple owner.

4It has been confirmed, in Simmons v. Dobson (1991), that the above limitations apply to both common law prescription proper and common law prescription under ‘lost modern grant’. In principle, they should apply in the same measure to prescription under the

94Pugh v. Savage (1970).

95For example, because the right to control the land had been given to the tenant exclusively for the duration of the lease.

354

Chapter 7: The Law of Easements and Profits

Prescription Act 1932. However, it seems that the words of this statute may have modified the position. Thus, if the 40-year period of the Act is applicable (see 7.11.3), it may well be that objections based on the lack of a fee simple owner fall away. This is because, under section 2 of the Act, a claim to an easement based on 40 years’ use (without consent) is said to become ‘absolute and indefeasible’, and, according to Wright v. Williams (2001), this is enough to oust objections based on (at least) the lack of a fee simple servient owner.96

Likewise, under section 3 of the Act, it is clear that claims to easements of light do not have to fulfil all the common law conditions. One of the consequences is that there is no objection, if relying on the Prescription Act 1832, to prescriptive easements of light in favour of, or against, land held for the leasehold or life interests. Under the Prescription Act 1832, a tenant may acquire an easement of light by prescription against his landlord (and vice versa), and two tenants of the same landlord may acquire such easements for and against each other.

7.10.3 Use must be ‘of right’, so as to presume the grant

A second general requirement for the acquisition of an easement by prescription is that the long use must be ‘as of right’. To some extent this is circular. An easement is only truly ‘a right’ after it has been acquired, but in order to be generated by prescription, the requirement is that the long use must already be ‘as of right’! What is meant, then, is that the dominant tenement owner’s use of the servient tenement owner’s land must be in the character of a use as of right, and not be explicable for any other reason. As is sometimes said, the use must be nec clam (without secrecy), nec vi (without force) and nec precario (without permission).97 Thus, in Odey v. Barber (2007), a claim to a prescriptive right of way failed because use of the track had been with the permission of the alleged servient owner. Indeed, it matters not whether that permission is express, implied, solicited or unsolicited. In Odey, the claimants had never sought permission, but it had been given and they were aware of it. Hence, their use was not ‘of right’. Odey is, perhaps, generous to the defendant and is explicable only on the ground that the claimants had effectively accepted the unsolicited permission. In most cases an unsolicited permission will not suffice to defeat a prescriptive claim because the claimant’s assertion as to use by right cannot be defeated unilaterally by the acts of the landowner offering a permission.

96Davies v. Du Paver (1953) appears to doubt this proposition.

97Solomon v. Mystery and Vintners (1859).

355

Modern Land Law

7.10.3.1 Use without secrecy

No easement can be acquired by prescription unless it arises in circumstances where a grant can be presumed. Consequently, a secret, hidden use by the owner of the alleged dominant tenement is not sufficient because it demonstrates that no grant can be presumed: a grant presumes a degree of awareness on the part of the servient owner. In practice, this now means that prescriptive easements can be generated only if the use has been ‘open’ – that is to say, ‘of such character that an ordinary owner of land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware’ of the use (per Romer LJ in Union Lighterage Co v. London Graving Dock Co (1902)). For example, the wearing of a path on the servient land, or the open use of an existing path, are not secret, but the hidden discharge of water onto a neighbour’s land would be.

7.10.3.2 Use without force

No easement can be acquired by prescription if the owner of the alleged dominant tenement must use ‘force’ to accomplish the use. Again, the need to use force shows that no grant can be presumed. ‘Force’ in this situation means either forcible assertion of the use (e.g. breaking down a fence), or continued use in the face of protests by the alleged servient owner. The latter is a forcible assertion of a use, even though no violence is used. A typical example of use ‘with force’ is continued use after the alleged servient owner has threatened to take, or has taken, legal proceedings (provided, of course, that this does not occur after the completion of the period of use sufficient to establish the prescriptive claim).

7.10.3.3 Use without permission

As we have seen, the acquisition of an easement by prescription assumes the grant of a right to the dominant tenement. The crucial matter, then, is the servient tenement owner’s acknowledgment of the dominant tenement owner’s ‘right’ to the use, not the servient owner’s consent to it. The servient owner must acquiesce in the right, not give his permission for the use, because ‘consent’ implies that the dominant owner has no right. Consequently, evidence that the alleged servient owner has consented to the use, perhaps by giving a licence, will bar a prescriptive claim, as in Hill v. Rosser (1997), and this may be effective even where the permission is unsolicited – Odey v. Barber (2007). Necessarily, however, the line between acquiescence (the claim to an easement succeeds) and consent (the claim fails) is a thin one. Generally speaking, the servient owner cannot argue that their mere knowledge of the use amounts to implied consent so as to defeat the claim98 and the dominant

98 Mills v. Silver (1991), but cf. Odey v. Barber (2007).

356

Chapter 7: The Law of Easements and Profits

and/or servient owner’s belief that consent has been given, when it has not, does not defeat prescription.99 A good checklist for determining whether the use has been without consent (but with acquiescence), and, therefore, may generate a prescriptive easement, is provided by Fry J in Dalton v. Angus and Co (1881); that is:

1Is there a use of the servient owner’s land?

2Is there an absence of a strict right to carry on the use?

3Does the servient owner have knowledge (actual or constructive) of the use?

4Does the servient owner have the ability to stop the use, either practically or legally?

5Has the servient owner abstained from stopping the use for the period required for a successful prescriptive claim?

If these can be answered positively, the prescriptive claim is likely to succeed, although one must be wary of dismissing claims simply because they fail to meet these criteria in some small way. Finally, it is in the nature of many prescriptive easements that they start out as being exercised with the servient owner’s consent and then cease to be consented to at a later date; for example, where a neighbour is given permission to walk across land for one month, but continues after that time. If it can be established that the use became without consent, the prescriptive claim can succeed, with the period of use being calculated by reference to the moment the consent ended.

7.10.3.4 A limited exception

As we have seen above, claims to easements of light under section 3 of the Prescription Act 1832 do not have to fulfil all the common law conditions. A further consequence is that the long user does not have to be ‘as of right’, in the sense just discussed. Therefore, under the Act (but only the Act), easements of light may be established even if it is clear that the servient owner was consenting to the right of light.

7.10.4 Use must be in the character of an easement

This is an obvious condition because, after all, we are discussing the generation of a proprietary right that will affect the dominant and servient tenements, irrespective of who later owns the land. Thus, no ‘easement’ by prescription can arise unless the ‘use’ itself satisfies the inherent characteristics of an easement. For example, no easement to wander over land can arise by prescription,

99 Bridle v. Ruby (1989).

357

Modern Land Law

because such a right can never be an easement and no prescriptive easement of drainage for the benefit of ‘higher’ over ‘lower’ land can exist, because the drainage is natural and not in the way of a right which the owner of the lower land could ever have prevented – Palmer v. Bowman (1999). Again, if both the dominant and servient tenements have come into common ownership at some time during the period of long use, there may be difficulties in establishing a prescriptive claim. In such cases, there is a union of the two tenements, and a landowner cannot have a true easement against himself. The period of long use would, therefore, be terminated and would have to recommence if the tenements later separated.

7.10.5 Use must be lawful

It is also the case that long use may mature into an easement by prescription only if the use itself is lawful. In general terms, easements may not exist for unlawful purposes and no servient owner can be presumed to grant one. However, it is clear from recent authority that this is a limited objection to the prescriptive grant of an easement. In Bakewell Management Ltd v. Brandwood (2004) the question arose whether the defendants had acquired prescriptive vehicular rights of way over common land. If they had not, Bakewell Management, as owner of the common, could charge a large fee. Under statute,100 a person who drives a vehicle on common land without lawful authority commits a criminal offence and Bakewell argued that no vehicular prescriptive right could have arisen because the alleged use was unlawful as contrary to the criminal law.101 The issue, being one of national as well as individual importance, found its way to the House of Lords. In the result, their Lordships overruled prior authority and upheld the prescriptive grant of the easement. While it was true that no easement could be acquired by prescription that involved a substantively unlawful purpose, that did not prevent the acquisition of easements whose substance would be lawful but for the lack of lawful authority which is alleged to deny the easement. Thus, a vehicular easement of way was, in itself, a perfectly lawful purpose, and it was only the lack of ‘lawful authority’ that rendered it unlawful, but this was the very reason why the easement was claimed in the first place. So, the alleged easement was not inherently unlawful, but was made unlawful by reason of the very facts that required an easement to be granted. While this distinction between a purpose which is substantively unlawful (no prescription) and one which would be lawful but for the denial of right by the landowner (prescription possible) may seem a fine one, it is submitted that it

100See section 14(1) of the Road Traffic Act 1930 and section 193(4) of the LPA 1925.

101See Hanning v. Top Deck Travel Group Ltd (1993) 68 P & CR 14, overruled by this case.

358

Chapter 7: The Law of Easements and Profits

is perfectly in keeping with the rationale of prescription to preserve the quiet enjoyment of those who have exercised otherwise perfectly rights undisturbed for many years. Thus, ‘unlawfulness’ will not always prevent a successful claim of prescription.

7.11Methods of establishing an easement by prescription

As indicated at the start of this section, there are three recognised varieties of prescription: prescription at common law; prescription at common law utilising the doctrine of ‘lost modern grant’; and prescription under the Prescription Act 1832. We have seen, also, that the inherent nature of a prescriptive claim is the same under all three methods, save that prescription under the Prescription Act 1832 has less rigid requirements in matters of detail, due to the wording of that statute. In fact, when it comes to making a prescriptive claim, the owner of the potential dominant tenement may rely on any or all three methods.102 This illustrates more than anything their common origin. As we shall see, the methods differ essentially in the way in which the claimant must establish the long use and the length of time he must have used the ‘right’ before it can mature into an easement proper. In essence, the methods are about how the long use is to be proven, not primarily about the quality of the long use. In all three methods, even though the period of long use required for a successful claim can vary, the claimant must establish that the use has been ‘continuous’ throughout the relevant period.

‘Continuous user’ (sometimes referred to as ‘continuity of user’) does not mean that the claimant must use the ‘right’ incessantly, never stopping. It denotes, rather, that there is a regular, consistent use of the right for the relevant period, commensurate with the nature of the right. This means that ‘regular’ use will be a question of fact. The exercise of a right of way might be ‘continuous’ in one case if it is exploited only two or three times a year but, in another set of circumstances, monthly use might be required. Again, some easements are, by nature, more obviously exercised ‘continuously’ – such as an easement of way – while others (an easement to enter and cut obstructing trees) are not. The continuity of some easements is often completely hidden

– as with the easement of support offered by a wall on the servient owner’s land. Likewise, unimportant inconsistencies in the long use cannot defeat a claim, as where the route of a path deviates over time, or a replacement sign is hung in a slightly different position on the servient owner’s land. Assuming, then, that the claimant can establish that he is a continuous user, what period of time is necessary to propel this into an easement proper?

102 In Brandwood, the claim rested on either the Act or lost modern grant.

359

Modern Land Law

7.11.1 Prescription at common law

At common law, long use could mature into an easement if it could be shown to have occurred since before ‘legal memory’. According to the Statute of Westminster 1275, legal memory was fixed (arbitrarily) at 1189, so a claim of prescription could succeed at common law if it could be shown that the use existed before then. Obviously, this was well nigh impossible, so it became accepted that use for 20 years raised a presumption that use commenced before 1189.103 Unfortunately, however, this did not mean that 20 years’ use generated a prescriptive easement. It remained the case that the claim could be defeated by any evidence that the use could not, in fact, have started before 1189. So, for example, a claim to a right of light, even if used for 150 years, could be defeated by showing that the building so benefited was built ‘only’ in the year 1190. The ease with which an alleged servient owner can defeat the 20-year presumption effectively ensures that this form of common law prescription is hardly ever successful.

7.11.2 Prescription at common law: lost modern grant

The doctrine of lost modern grant developed as an antidote to the manifest deficiencies of ‘pure’ common law prescription. In fact, this doctrine is really no more than a fictional gloss on the old common law rules. As we know, the rationale for prescription is a presumed grant of the right by the servient owner. Under ‘lost modern grant’, the law assumes that 20 years’ use of the right is conclusive evidence of such a grant being made by the servient owner. The grant is ‘modern’, because it is assumed to have been made at some time after 1189, and it is ‘lost’, because it cannot now be produced – of course, it does not actually exist, but this is the convenient fiction. Stripped of its trappings, the doctrine means that 20 years’ continuous use by the owner of the dominant tenement is sufficient to establish an easement by prescription (Dalton v. Angus (1881)). This is so even if the servient owner produces evidence that no grant had been made – which, of course, is true. Indeed, it seems that the one way in which the servient owner can defeat the claim (apart from the absence of other requirements mentioned above) is if he shows that the servient owner who is assumed to have made the grant (i.e. the owner at the commencement of 20 years’ use) was legally incompetent at the time, being a minor or lunatic. Even then, although there is authority to support this limitation,104 it seems strange to deny a prescriptive claim on the ground that the person supposed to have made the fictitious grant was unable to do so, when everybody knows that he never made the grant at all. Why is legal

103Dalton v. Angus (1881).

104Oakley v. Boston (1976).

360

Chapter 7: The Law of Easements and Profits

incapacity a bar, when actual non-existence of the grant is not? Be that as it may, the doctrine of lost modern grant is sufficient in most cases to ensure that long use, as of right, matures into an easement.

7.11.3 The Prescription Act 1832

The Prescription Act 1832 is not a replacement for the common law (especially lost modern grant), and considering some of its mystifying language this is just as well. It is intended to bolster the common law principles, supplementing them where necessary, with the general aim of making it easier to establish an easement by prescription. It is doubtful whether it does this, but that is its purpose. The Act divides easements into two classes: easements of light and all other easements.

All easements except easements of light

Under section 2 of the Act, a period of 20 years’ use is sufficient to establish a prescriptive claim, provided that the ‘right’ was enjoyed ‘without interruption’ for that period (e.g. the successful claim of way in Denby v. Hussein (1999)). Evidence that the ‘right’ was not enjoyed, or lacked some other quality, in the period before commencement of the 20 years, cannot defeat the claim. Moreover, an interruption by the servient owner during the 20 years is sufficient to defeat the claim only if the alleged dominant owner tolerated the interruption for one year or more. However, the Act does not remove the need to satisfy the conditions for prescription during the 20-year period. Thus, any inability to meet the common law conditions during the 20 years’ use is fatal to the claim. Finally, there is a further practical limitation in that the alleged dominant owner cannot pick any 20 years’ use: the 20 years’ use must be calculated by reference to the 20 years immediately prior to ‘some suit or action’. This has the unfortunate consequence that no easement of prescription can arise if, say, the use has been enjoyed for 100 years, but no ‘suit or action’ is brought, or if the easement was enjoyed for 200 years in conformity with the common law conditions, but at some time in the last 20 years before a suit, one of the common law conditions was not met (e.g. the dominant and servient tenements came into common ownership).

In contrast to this, section 2 provides as an alternative that 40 years’ use without interruption ensures that the right is ‘absolute and indefeasible’ unless exercised with the consent of the servient owner. This effectively eases the conditions imposed by section 2 for 20 years’ use. It remains the case (with the same problems) that the 40 years’ use must be that which is immediately prior to a ‘suit or action’, and the same principles of ‘interruption’ apply. However, because 40 years’ use makes the right ‘absolute and indefeasible’, it seems that it does not matter that someone other than the fee simple owner (e.g. a tenant) was in possession of the land at the start of the period,

361

Modern Land Law

provided the period is completed. On the other hand, the remaining common law conditions appear to apply, save only that if the servient tenement’s consent is given at the start of the use (or possibly the start of the 40-year period – the Act is unclear), it must be in writing or by deed to negate the prescriptive claim. The issue of ‘consent’ occurring at any other time during the 40 years is determined by reference to the common law.

Easements of light

Under section 3 of the Act, use of light for a period of 20 years (probably that period prior to any ‘suit or action’ – again, the Act is unclear) ‘without interruption’ becomes ‘absolute and indefeasible’ unless the servient owner consents in writing or by deed. In particular, there is no provision in section 3 that preserves the conditions of the common law, so uninterrupted use for 20 years without written consent will mature into an easement even if there is some defect that would have defeated a common law claim. Note, however, that there can be ‘an interruption’ of light for the purposes of section 3 by the alleged servient owner without that owner actually physically blocking the light. The servient owner can take steps to register a notice in the local land charges register as provided by the Rights of Light Act 1959. This notice acts in law as an interruption and may prevent the acquisition of a right of light under section 3. Its purpose is to remove the need for the erection of numerous anti-light structures by potential servient owners as the end of a 20-year period approaches.

7.12 The extinguishment of easements

Given that an easement is essentially a right enjoyed by one landowner over the land of another, it is vital to its existence that the dominant and servient tenements are in separate ownership or occupation. Thus, the most common reason why easements cease to exist is that the dominant and servient land comes into the ownership and possession of the same person. Note that there must be unification of both ownership and possession, for it is perfectly possible for a tenant to enjoy an easement against their landlord and vice versa,105 although, as just noted, one such cannot be generated through prescription. Importantly, there is no statutory mechanism by which a person may apply for the judicial termination of an easement, unlike the position with restrictive covenants. Consequently, failing extinguishment through unification of the tenements, easements may only be terminated by a release of the easement by the current owner of the dominant tenement (express or

105 For example, Wright v. Macadam (1949).

362

Chapter 7: The Law of Easements and Profits

implied through conduct), by abandonment (mere non-use is not abandonment – Benn v. Hardinge (1992)), or by a specific Act of Parliament. Equitable easements may also become void and unenforceable against subsequent purchasers of the servient tenement by reason of a failure to register (if required) in registered or unregistered land.

7.13 A note on profits à prendre

Profits à prendre are often considered alongside easements, not least because they also give rights over land belonging to another. The essential nature of a profit is that it is a proprietary right to enter upon another’s land and take for oneself the profits of the land. For example, the profit of piscary entitles a person to enter another’s land and take fish, likewise with the profits of turbary (turf) and estovers (wood). Profits may also be legal or equitable and fall within the regime of the LRA 2002 in similar fashion to easements. Again, with the possible exception of the rule in Wheeldon v. Burrows (1879), profits may be created in the same ways as easements. However, there is one important difference that is worthy of note. Whereas an easement can exist only if there is a dominant and a servient tenement, a profit may exist ‘in gross’; that is, it exists over servient land, but the person entitled to the benefit of it does not have to own land of their own. The burden of a profit attaches to land (hence its proprietary status), but the benefit may be held by any person or indeed any number of persons. Profits can be commercially important, as with profits of piscary in salmon-rich waters. For this reason, the LRA 2002 enables legal profits to be registered with their own title.106

7.14 Reform

In March 2008, the Law Commission issued a consultation paper on

Easements, Covenants and Profits à Prendre.107 Much of the paper is taken up with proposed reform to the law of covenants, as these present more pressing problems.108 In respect of easements and profits, the proposals are modest and sensible and are directed more to ironing out the wrinkles in the law rather than to wholesale reform. Some are more tentative than others. The main proposals for consultation in respect of easements are: the abolition of the existing methods of prescription and their replacement with a single, statutory method; the rationalisation of the law on extinguishment of easements including the creation of a statutory jurisdiction to discharge or modify

106Section 3 of the LRA 2002.

107CP No. 186.

108See Chapter 8.

363