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Prescription

This page deals with:
  • The basic point - prescription is based on user of the servient land

  • The position where the owner of the land has no power to grant an easement - can a prescriptive easement arise?

  • Acquisition of prescriptive easements where the servient land is subject to a tenancy

  • "Without force, openly and continuously"


See also "Parking"; and the "Noise" page in the nuisance section of the site in relation to a prescriptive right to commit a nuisance.


Based on user of the servient land

Right of way

Dewan v Lewis
[2010] EWCA Civ 1382

Summary

The extent of a prescriptive right of way is defined by reference to the historic use of that way, rather than according to the use of the dominant land. A right, which permits access by vehicles and horses, does not necessarily extend to allow the driving of cattle, as the latter is generally considered to be more onerous.

Facts

This case concerned the existence and extent of rights of way enjoyed by the respondents’ agricultural land over a private road. In response to the appellants’ claim for an injunction to prevent any use of the private road by the respondents, the respondents counterclaimed for a declaration that their land enjoyed a right of way over the road.

First instance

The trial judge found that the respondents were entitled to a right of way by prescription. The judge declared that the right was enjoyed “at all times for agricultural purposes with or without animals and with or without vehicles”. The appellants appealed against the decision on the basis that the interpretation of the right should have been limited by the insertion of the words “(except for the purpose of driving stock)”. The judge had declined to make any such exclusion.

Decision on appeal

The Court of Appeal briefly reviewed the history of the ownership and use of the relevant area, noting that the private road was not the only access to the fields making up the dominant land owned by the respondents. Eviden ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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