Summary

Where a potential servient owner was prevented by statute from disposing of land, there could be no capable grantor of an easement, and so the potential dominant owner could not acquire a right by prescription based on 40 years' user under the Prescription Act 1832 s.2.

Facts

The appellants (H) appealed against an adjudicator's refusal of their application to register the benefit of a private right of way over an access way forming part of Wimbledon Common. The respondents were appointed conservators of the common pursuant to the Wimbledon and Putney Commons Act 1871, and s.35 prohibited them from making disposals of any part of the subject land. H owned a property that was built between 1883 and 1893 and they gained access to it over a strip of land that formed part of the common. They sought to register their right over the strip on the basis of having acquired a prescriptive right by long user, but the adjudicator refused their application. H argued that an absolute and indefeasible right of way could be acquired under the Prescription Act 1832 s.2 by 40 years' user even where it was shown that there was no capable grantor.

Held

At common law all prescription presupposed a grant; but since the prohibition against disposal in s.35 of the 1871 Act included the granting of an easement, there was no-one who could have lawfully granted H an easement, and so they were prevented from acquiring a prescriptive right based on long user under s.2 of the 1832 Act, Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations (1866) LR 1 HL 254 HL applied. Thus, where a potential servient owner's capacity derived from a statute which would render the grant of an easement unlawful, then no right could be acquired by prescription under the second part of s.2 of the 1832 Act.

Appeal dismissed