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Diment v NH Foot Ltd [1974] 1 WLR 1427, ChD

Property law - Easement - Prescription - Right of Way - Knowledge of long user

Facts:

Diment was the owner of a farm from 1936 onwards. She rarely visited the farm, only once a year until 1967. In 1967 she returned to reside at the farm permanently. During her time away, agents let out the farm on her behalf. The farm adjacent to her land was rented by NH Foot. The owners of the adjacent land used her land to cross by foot 10-12 times a year. On Diment’s return, she discovered NH Foot were using part of her land for vehicular access which was causing damage to her land. Diment sought an injunction to prevent use.

Issue:

Whether the presumption of knowledge arising from long term use of the land amounted to a prescription right of way.

Held:

A long time user of an alleged right of way, acting on the presumption that the servient owner of the land had knowledge and either accepted the use or at least, tolerated it, did not create an entitlement of use of the land on such grounds. As Diment did not have actual knowledge of the use of her land as a vehicular right of way, there could be no presumption of use. NH Foot were also unable to prove the agent had knowledge of their use, so they could not claim a right of way by virtue of the doctrine of modern lost grants. The use was therefore held to be unauthorised and no cause of necessity was found in which the land needed to be used as a crossing.


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