Factual and Procedural Background
This appeal arises from an order dated 11 January 2006 by His Honour Judge Wyn Williams QC, dismissing a claim by the appellants, owners of a freehold property known as 20 Sandy Lane, Chester, seeking declarations of rights of way over neighboring land owned by the respondent company. The appellants were granted permission to appeal on 13 March 2006.
The land in dispute lies between Sandy Lane, a public road, and the River Dee. The respondent's land is immediately north of the appellants' property. A boathouse and a track leading from Sandy Lane across the respondent's land to the boathouse provide vehicular access to the appellants' property via what is called the "primary route".
The land on which the boathouse stands was originally let by the City Council under a 1908 memorandum of agreement, including a right of way from Sandy Lane. The appellants acquired 20 Sandy Lane in 1975 and made improvements including relocating the back door and erecting a fence and gate, which resulted in cessation of use of a previously used "secondary route" for access.
Use of the secondary route ceased in 1976, with the appellants thereafter using the primary route regularly on foot, by moped, and by car. The respondent company acquired the land from the City Council in 2003 and intends to develop it, which the claimed rights of way would impede.
The appellants commenced proceedings in 2004 seeking declarations of rights of way either by lost modern grant or under the Prescription Act 1832, and an injunction to prevent interference with those rights. The judge found a prescriptive right over the secondary route prior to 1976 but held it was abandoned, and dismissed the claim over the primary route due to lack of acquiescence by the servient owner, influenced by a 1990 lease containing a covenant to prevent acquisition of easements.
Legal Issues Presented
- Whether the appellants have acquired a right of way over the primary route by prescription or lost modern grant.
- Whether the prescriptive right over the secondary route was abandoned by the appellants.
- The effect of the 1990 lease covenant on the acquisition of a prescriptive right over the primary route.
- Whether the servient owner (the Council) had knowledge of and acquiesced in the use of the primary route.
- Whether the appellants are precluded from relying on a prescriptive right due to breach of covenant in the 1990 lease.
Arguments of the Parties
Appellants' Arguments
- The judge erred in concluding that the 1990 lease covenant prevented the Council's acquiescence in the use of the primary route.
- The judge wrongly found that part of the primary route fell within the 1908 agreement demise, and failed to provide sufficient reasoning on acquiescence absent the 1990 lease.
- The Council had constructive knowledge of the use of the primary route from at least 1984, following a letter asserting rights of way.
- The cessation of use of the secondary route was due to convenience, not abandonment of the right.
Respondent's Arguments
- The 1990 lease covenant obliges the tenant to prevent acquisition of easements, negating acquiescence by the Council.
- Part of the primary route was subject to tenancy, limiting the Council’s ability to prevent use.
- The appellants should not benefit from their own breach of covenant in the 1990 lease.
- Use of the secondary route ceased and the right was abandoned.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Tehidy Minerals Ltd v Norman [1971] 2 QB 528 |
Criteria for adopting the fiction of lost modern grant in easement claims. |
Used to confirm that open and uninterrupted use over 20 years can justify presumption of grant. |
| Dalton v Angus & Co (1881) 6 App Cas 740 |
Acquiescence is the foundation of prescription; elements required for prescriptive rights. |
Applied to analyze whether Council had knowledge and power to prevent use and abstained from interference. |
| Pugh v Savage [1970] 2 QB 373 |
Impact of tenancy on presumption of lost grant and acquiescence by freehold owner. |
Guided analysis on whether tenancy predated user and its effect on acquiescence and knowledge. |
| Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 |
Definition of constructive knowledge for prescriptive claims. |
Supported imputation of knowledge to the servient owner based on open user. |
| Diment v N H Foot Ltd [1974] 1 WLR 1427 |
Clarification on constructive knowledge and acquiescence in easement claims. |
Reinforced that constructive knowledge suffices for acquiescence. |
| Ward v Ward (1852) 7 Ex 838 |
Non-user alone does not result in abandonment of easement rights. |
Applied to reject abandonment based solely on non-use when a more convenient route existed. |
| Crossley and Sons Ltd v Lightowler (1867) LR 2 Ch App 478 |
Abandonment requires intention, not mere non-use. |
Supported the principle that intention to abandon must be proven. |
| James v Stevenson [1893] AC 162 |
Requirement of intention for abandonment of prescriptive rights. |
Reinforced that abandonment must be inferred from conduct indicating intent. |
| Bakewell Management Ltd v Brandwood [2004] UKHL 14 |
Public policy does not prevent unlawful use from giving rise to property rights. |
Applied to reject argument that breach of covenant precludes prescriptive rights. |
| Smirk v Lyndale Developments Ltd [1974] 2 All ER 8 |
Principles on encroachment and enlargement of demised land. |
Considered but no plea of encroachment was made; thus, no finding of enlargement was warranted. |
| Wheaton v Maple & Co [1893] 3 Ch 48 |
Prescription requires grant by freehold owner, not tenant. |
Confirmed that servient freehold owner’s acquiescence is necessary for prescriptive rights. |
Court's Reasoning and Analysis
The court analyzed the acquisition of rights of way by prescription through the lens of established principles, emphasizing that acquiescence by the servient freehold owner is essential. The court examined the historical use of two routes: the secondary route, used on foot until 1976, and the primary route, used thereafter by foot, moped, and car.
Regarding the secondary route, although the judge found a prescriptive right established by long use, he held it was abandoned due to a long period of non-use and acts indicating an intention to abandon, such as fencing, removal of a door, earthworks, and allowing vegetation to grow. The appellate court disagreed, finding insufficient evidence of intention to abandon, noting the cessation was due to convenience and that some of the judge's findings were unsupported or misapplied.
For the primary route, the court focused on whether the Council had knowledge of the use and the power to prevent it. The 1990 lease contained a covenant obliging the tenant to prevent acquisition of easements, which the judge found negated acquiescence. The appellate court held this was a misapplication of principle, as knowledge could be imputed to the Council from a 1984 letter asserting rights, and the Council had the ability to prevent use by enforcing the lease or other legal means.
The court rejected the notion that the presence of a tenancy over part of the land defeated acquiescence, clarifying that if the freehold owner had knowledge and power to prevent use over any part of the route, acquiescence could be established notwithstanding tenancy. The court also rejected the argument that the appellants should be barred from claiming rights due to breach of covenant, referencing public policy and precedent that unlawful use can give rise to property rights.
Finally, the court found that the judge erred in concluding that the land immediately east of the boathouse was subject to tenancy prior to the 1990 lease, as there was no evidence or pleaded case supporting enlargement of the original demise.
Holding and Implications
The court ALLOWED THE APPEAL.
The appellants are declared entitled to rights of way over both the primary and secondary routes claimed. The court remitted the matter to the trial judge to determine the precise extent of the land over which these rights may be exercised if the parties cannot agree.
This decision overturns the dismissal of the claims and clarifies the principles relating to acquiescence and prescription in the context of servient land subject to tenancy. It confirms that the existence of a tenancy does not preclude acquisition of rights of way by prescription where the freehold owner has knowledge and power to prevent use but fails to act. No new precedent was established beyond the application and clarification of existing principles.