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Smith v Brudenell-Bruce [2002] 2 P & CR 51; [2001] 28 EG 143 (CS)

EASEMENTS, RIGHT OF WAY OVER A TRACK, LOST MODERN GRANT, PRESCRIPTION, USER AS OF RIGHT, HISTORIC USE

Facts

The defendants were trustees of an estate, part of SavernakeForest, Wiltshire, comprised within a conveyance of 1951. Most of the forest was subject to a lease for 999 years, granted by the Forestry Commission in 1938. By conveyance of 1975, the trustees sold a cottage situated on their land to the plaintiff. The right of way from the cottage to the public highway over a track (eastern track) was expressly conferred by the conveyance. The track continued from the cottage to the boundary with the Forestry Commission land (western track). After the relationships between the plaintiff and the defendants deteriorated in 1998, the plaintiff was prohibited from using the western track. The plaintiff contended that he had continuously used the track by foot or by car and thus, he had a right of way over it either by prescription under s. 2 and 4 Prescription Act 1832 or by virtue of the doctrine of lost modern grant.

Issue

Did the plaintiff have a right of way over the western track by virtue of prescription or lost modern title?

Held

The claim was allowed.

(1) Applying Dalton v Angus & Co (1881) 6 App Cas 740, the plaintiff had acquired the right of way by virtue of the doctrine of lost modern grant because his use of the western track was more intensive than that of the general public as he used it more often and used it for vehicular access as well as access on foot.

(2) Although the plaintiff had enjoyed the right of way for over 20 years as required by s. 2 Prescription Act 1832, there had been no use of the track ‘as of right’ in the year prior to the commencement of the instant proceedings as required by s. 4 Prescription Act 1832. Thus, the claim in prescription failed.


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