Summary

Owners of a property had failed to prove that they had a right of way over land adjoining their property either by way of an express grant or by prescription by reason of their long use.

Facts

The claimants (L) claimed a right of way over an area of land owned by the defendants (D).

L had purchased property in 1969 which adjoined land and property owned by D. The title to the parcels of land had been severed by a conveyance in 1920. It was L's case that they had a right of way, with or without vehicles, over a lane and an area of land owned by D. Around 2003, when D's farmhouse property was empty, L placed logs to prevent access being gained until removed in 2004. A builder moved into the farm house to complete building works. The building works resulted in a blockage of the route and a trench was built for the erection of a permanent fence. L informed D that they were content with a temporary gate but were not abandoning their right of way. They acquiesced for some time until eventually making requests for the removal of the obstructions. L subsequently issued proceedings.

L contended that (1) under the Conveyancing Act 1881 s.6 the 1920 conveyance, had effect as if it contained an express grant of the right of way; (2) they had acquired the right claimed by prescription by reason of their long use.

Held

(1) Whether under s.6 of the 1881 Act the conveyance had the effect of containing an express grant of the right turned on whether the right was enjoyed with the land and buildings at the time of the 1920 conveyance. It was a matter of speculation as to whether the right of way claimed by L was enjoyed with the property at the date of the 1920 conveyance. On the evidence, L had failed to establish that the claimed right was enjoyed at the date of the 1920 conveyance. As L had failed to prove that the claimed right was used and enjoyed or was continuous and apparent at the time of the 1920 conveyance, they had failed to bring their case within the rule of Wheeldon v Burrows (1879) L.R. 12 Ch. D. 31, Wheeldon considered (see paras 58, 62-63, 69 of judgment). (2) On the evidence, at an early point following L's purchase of their property, an agreement was reached with D's predecessor that each would have permission to use a way through the other's property. Accordingly, the use of the route was with permission and was not prescriptive use. Insofar as L sought to rely on the Prescription Act 1832 they were unable to do so by reason of the fact that the use of the way was interrupted between 2004 and the commencement of the action by the blockage of access to which L acquiesced. As such, they were unable to establish either 20 or 40 years uninterrupted use. Accordingly, L failed to show they had acquired a right of way by reason of the doctrine of lost modern grant or by reason of a period of use under s.2 of the 1832 Act (paras 101, 104, 108).

Judgment for defendants