[2025] UKUT 294 (LC)

In Barker v Richardson (1821) 106 ER 1048, a case preceding the Prescription Act 1832, the plaintiff had complained of the defendant’s interference with his right of light, but the defendant disputed that he had one. The plaintiff established 20 years’ user, but for the first 14 years of that, the defendant’s land had been glebe land, held by a rector who only had the powers of a tenant for life. He was not, therefore, a capable grantor for the purposes of prescription. The court held that in that case the grant, if presumed, must have been made by a tenant for life, who was not a capable grantor, and concluded that there was no right to light. It did not do so, however, on the footing that the rector was the only potential grantor because he had held the land at the beginning of the 20 year period; but on the footing that there was no evidence that the window was there before the adjoining land had been granted to the church.

Counsel for the appellant submitted that if the FTT had been right on the date point, the plaintiff in Barker v Richardson must have succeeded if the point had been taken that there must surely have been owner-occupation in fee simple of the defendant’s land at some earlier time; and that since the point cannot have been overlooked by the Court if it was a good one, it must have been a bad one.

However, this was a case in which there was no evidence of user “before the adjoining land [that is, the defendant’s land] had been granted to the church, nor was that point ever made.” In the circumstances, while the report can be read as suggesting that the court was proceeding on the basis that the relevant grantor was the person against whom user had been exercised, it is at least equally possible to read it as suggesting that the properties were in common ownership until the defendant’s land was granted to the church, so that there could be no competent grantor at any time. At any rate, the point was not raised. This case is therefore not an indication that the FTT was wrong on the Date Point.

TheRochdale Canal Company v Radcliffe (1852) 18 QB 287 was a case where a prescriptive right to draw water from a canal was asserted. The argument that the canal company might have granted such a right failed: it would have been ultra vires the company under the relevant Canal Act. Although one of the judges, Coleridge J, said that “if the acts of user would not be legal, the grant cannot be inferred from them,” the point was not the legality of the user but the impossibility of a grant. There was, of course, no question of a competent grantor preceding the Act under which the canal was constructed. The case does not assist.

The appellant relied on Staffordshire and Worcestershire Canal Navigation (Proprietors of) v Proprietors of Birmingham Canal Navigations (1866) LR1 HL 254 in relation to the Date Point. As the appellant’s skeleton argument states, the matter concerned the use of a connecting canal. A dispute arose whereby the respondent company proposed to construct machinery to pump back water which would affect water incidentally flowing to the appellant's canal, which the appellant alleged would convene a right alleged to be vested in it by user and prescription. The House held that the alleged right could not have any foundation in grant because such a grant by the respondent would exceed the powers over the canal afforded to the respondent by statute. In so holding the following statements were made.

This is said to support the proposition that the notional grantor is the servient owner at the beginning of, or during, the period of user relied on. However, this was, again, a canal case, and it is not at all clear from the report that there was any possibility of a capable grantor existing at any time before the relevant statutory prohibition. It was the respondent company or nothing. Moreover, the question of the time at which a grant might theoretically have been made was is not in issue. It does not assist the appellant on the Date Point.

The leading case on prescription is, of course, Dalton v Angus & Co (1881) 6 App.Cas. 740. It was the appeal reported at (1878) 4 QBD 162, however, which considered the question of what evidence might rebut the presumption of a lost modern grant. Among the circumstances were the incompetence of the grantor to make a grant. Thesiger LJ held (at 175) that

“These cases, therefore, as direct authorities go no further than to shew that a legal incompetence as regards the owner of the servient tenement to grant an easement, or a physical incapacity of being obstructed as regards the easement itself, or an uncertainty and secrecy of enjoyment putting it out of the category of all ordinary known easements, will prevent the presumption of an easement by lost grant…”

Similarly, Cotton LJ held ( at186) that

“The presumption may be rebutted by shewing that the owner of the servient tenement was not capable of making a grant.”

This does not identify any particular date, or any particular servient owner. At page 187 he applies the principle to the facts of the case, raising the question of evidence that ‘the adjoining owner’ was incapable of making a grant, but not identifying any particular owner or time. The case simply does not address the Date Point.

The appellant raises an argument in relation to the Date Point, however, on the basis of the observations of the Court in Dalton v Angus & Co (1881) 6 App.Cas. 740 on the nature of prescription, and its basis in acquiescence or estoppel. In that case, the judgment of Fry J. contained the following passage at p771.

“[T]he whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists.

In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, first, the doing of some act by one man upon the land of another; secondly, the absence of right to do that act in the person doing it; thirdly, the knowledge of the person affected by it that the act is done; fourthly, the power of the person affected by the act to prevent such act either by act on his part or by action in the courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the courts to say that he shall not afterwards interfere to stop the act being done.”[emphasis supplied]

And he relies on the passage of Thesiger LJ’s judgment in the 1878 case where he states (at 172)

“… the presumption cannot be rebutted by mere proof by the owner of the servient tenement, that no grant was in fact made either at the commencement or during the continuance of the enjoyment. I am not aware that this proposition has been in terms directly decided, but it is almost impossible to suppose that among the numerous cases in which easements have been held by the courts to have been acquired by uninterrupted user for 20 years only, there must not have been many in which the owner of the servient tenement at the time when the period commenced was alive when the action was tried to contradict, if such evidence had been admissible, the fact of a grant; and if such evidence were admissible, it is almost inconceivable that in the numerous cases, in which questions of easements have been discussed, no trace of an opinion to that effect should be found in the observations of the judges.

The correct view upon this point I take to be, that the presumption of acquiescence and the fiction of an agreement or grant deduced therefrom in a case, where enjoyment of an easement has been for a sufficient period uninterrupted, is in the nature of an estoppel by conduct, which, while it is not conclusive so far as to prevent denial or explanation of the conduct, presents a bar to any simple denial of the fact, which is merely the legal inference drawn from the conduct.”

The references, at the beginning of the latter passage, to proof that no grant was in fact made ‘at the commencement of or during the continuance’ of the enjoyment, cannot be taken to mean that what the learned judge was dismissing was the possibility that such evidence could negate a finding of a lost modern grant at the same time or times; and thus that he considered that a lost grant could only be presumed, if at all, as having taken place at those times: a lost modern grant supposed to have occurred during the minimum period of user required to found the presumption of such a grant makes no sense: if a grant was supposed to have taken place at that time, not enough time would remain on the basis of which to presume that it had come into existence at all. This passage, therefore, cannot assist with the Date Point. As to the passage starting “The correct view..,” it is worth noting that the learned judge does not distinguish between what he calls the presumption of acquiescence on the one hand and the fiction of a grant on the other, but refers to them without distinction as being in the nature of an estoppel by conduct. Moreover, it is not that he is saying that the doctrine operates by virtue of estoppel, rather than drawing an analogy. He is not addressing the Date Point. The context of that passage is a consideration of whether the notional grant was being inferred as a matter of fact or was being presumed, and, if the latter, by what evidence the presumption might be rebutted.

On the basis of these passages, however, the appellant’s argument is that in the present case the use relied on cannot be said to have been with the knowledge of the respondent’s pre-1967 predecessors in title (the use was not found to have started until 1977, long after they were gone); who necessarily cannot have had the power to prevent such action; and, most importantly, cannot be said to have abstained from any such interference – having never effectively been in a position to do so. On the footing that they cannot be said to have acquiesced in the user: the essential prerequisite of acquiescence, on which all prescription must rest, was absent during that whole period, for want of use on the part of the would-be dominant owner. And, similarly, there can have been no estoppel against them.

However, there is no requirement for an estoppel against the supposed maker of the fictitious grant. The estoppel (to use the language of estoppel) is against the person who can no longer deny the lawfulness of the use, and his successors. It arises from the acquiescence, obviously, of the person who acquiesced, who may or may not be the same person, and who may or may not be the supposed maker of the fictitious grant. It does not follow from anything in Dalton v Angus that it is the legal competence of the person who is the servient owner at the start of the prescriptive user period which counts, rather than whether a competent grantor can be found at all. The Tribunal is not persuaded by this argument, therefore.

Neaverson v Peterborough RDC [1902] 1 Ch. 557 is authority for the proposition that a lost grant cannot be presumed where such a grant would have been in contravention of a statute. In that case, the plaintiff owned a farm, and the defendants were, firstly, the rural District Council and the surveyors of highways for the parish and, secondly, the man to whom they had let the herbage of Moor Road, a private road set out by an 1822 award made under an Inclosure Act of 1812, and which bounded the farm. The plaintiff sought an injunction restraining them from grazing cattle contrary to that Act: the award had permitted the grazing of sheep, but since 1846 the council had let it for the pasturage of cattle and horses as well. At first instance the court held that an enlargement of the right to depasture the road by grant or release from the owners of the soil of the road, who were the owners of the allotments under the provisions of the Act and award, ought to be presumed on the basis of long enjoyment.

The plaintiff appealed on the basis that such a grant could not legally have been made, given the terms of the Act and award, which restricted the pasturage to sheep: no one could have made a grant, because the restriction to sheep was made in the public interest. The Court of Appeal held that,

“The question is whether [the long user] ought to be treated as evidence of a lost grant, which might have had legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”

The Court of Appeal concluded that in the face of the provision in the award, it would not be competent for anyone to grant a right to pasture cattle and horses, because it would be distinctly contrary to the purpose of the Act. The Master of the Rolls continued, at 571,

“It appears to me that the test, by which to determine whether the Court ought to presume a lost grant in this case, is to consider whether, immediately after the making of the award, the owners of the allotments, or any other persons, could legally have met together and agreed to grant the surveyor of highways the right to depasture cattle and horses on the roads. I think that such a grant would have been directly contrary to statutory provisions…” [emphasis supplied]

The appellant submits that the court was concerned only with use after the issue of grantor incapacity arose, not before; and that this supports it on the Date Point. Moreover, it is submitted, if it had been open to the court, on the basis of long user at a time when no grantor was competent to make a grant, to presume a grant at a time predating the 1812 Act (or perhaps the 1822 award), it would surely have done so.

The submission is misconceived. On the facts of the case, the road which was supposedly the subject matter of the grant had not come into existence until after the Act. It would make no sense to presume a grant of rights in relation to a road which did not exist; nor yet a grant of rights extending rights created by the award, but predating the award. The question of doing so did not arise. The FTT was right to say that there was nothing in Neaverson from which to glean the proposition that the Court or Tribunal must presume the date of the lost grant to have immediately preceded the period of use.

The first instance case of Palmer v Guadagni [1906] 2 Ch 494 was a case confirming that, under modern practice (that is, since 1852), lost modern grant might be pleaded without stating either the date of or the parties to the grant. However, particulars of whether such grant was alleged to have occurred in relation to a particular release and private Act were ordered on the ground that, as in Neaverson, it might be shown that there was no one capable of making a grant. The case makes it clear that it would be otherwise perfectly acceptable to plead a grant on a general statement that some former owner of the servient tenement granted the easement to some former owner of the dominant tenement. That is inconsistent with a restriction on the timing of any supposed grant such as that contended for by the appellant.

In Tehidy Minerals Ltd v Norman [1971] 2 QB 528 the question was identified (at 547) to be whether proof of user from 19 January 1920 (when the dominant and servient tenements ceased to be held in common and before which no grant could have been made) to 6 October 1941 (when the servient tenement was requisitioned, after which there was no capable grantor), a period of 21 years, 8 ½ months, could found a presumption of lost modern grant made after 19 January 1920 but before 6 October 1921 (being 20 years before 6 October 1941). It was answered in the affirmative. Buckley LJ expressed no qualms about presuming a grant during the period of user, so long as it was before the start of the minimum period of user capable of founding a prescriptive right. He defined the period within which such a grant might be presumed to have been made as extending 1 year 8 ½ months before the start of that minimum period of user. In other words, he assumed that there might be a gap in time before the supposed date of grant and the start of the minimum period of user relied on to establish the grant. He did not consider that any notional grant had to be made either immediately before the relevant user, or at its commencement, or during its continuance. The circumstance that in this case user had in fact extended right back to the earliest potential date of grant appears to have no bearing on the point, since that was not user relied on to establish the grant.

That is consistent with his conclusion about the effect of Angus v Dalton (552A-D)

“In our judgment Angus v. Dalton (1877) 3 Q.B.D. 85; (1878) 4 Q.B.D. 162; (1881) 6 App.Cas. 740 decides that, where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.

If this legal fiction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgment it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing a impossibility) should not be permitted to displace the fiction. Precisely the same reasoning must, we think, apply to a presumed lost grant of a profit a prendre as to an easement.”

In that passage, which may be regarded as the definitive statement of the doctrine, no restriction is placed on the date at which a grant might be presumed to have been made. The FTT was entirely justified in placing reliance upon it for the purpose of considering the Date Point.

Tremayne v English Clays Lovering Pochin [1972] 1WLR 657 was another case in which, although it would be ludicrous to require particulars of by whom, to whom, and exactly when the fictitious grant might be made, particulars were ordered as to whether the supposed lost modern grant was alleged to have been made before after certain dates which might be relevant to attempts to rebut the presumption. It does not appear to assist on the Date Point.

Oakley v Boston [1976] QB 270 has already been mentioned. Oxfordshire County Council ex p Sunningwell [2000] AC 335 contains a useful historical account of the development of the law of prescription but contains nothing bearing directly on the Date Point, save that the whole idea of lost ‘modern’ grant was that the grant was supposed to take place after 1189 - that is, there is nothing inherent in the doctrine which ties the date of grant to the commencement of user.

Bakewell Management Ltd v Brandwood [2004] UKHL 14 has no bearing on the Date Point, though it refers in passing to an ‘antecedent grant’ (that is, preceding the relevant user): it does not address the question about how much the supposed grant might precede the relevant user.

Housden v. Wimbledon and Putney Commons Conservators [2008] 1 WLR 1172 (CA) has already been considered in the context of the Vires Point. The appellant argues that in that case the Court of Appeal assumed that a lost grant could not long predate the relevant user, by repeatedly referring to the capacity of the owner of the servient land against whom enjoyment was had to make a grant. This was, however, a case in which the defendant conservators of Wimbledon Common had been established by a statute of 1871 which vested the servient land in them, and provided that it would not be lawful for them to dispose of any part of ‘the commons.’ They argued unsuccessfully that they could not have made a grant to the person claiming a right of way or his predecessors since they lacked capacity. The facts therefore dictated the way in which the court considered the matter. There is nothing about it to justify the conclusion that the Court made the assumption for which the appellant argues.

It is interesting to note that the question whether it mattered that the owners of the Commons only became incapable grantors on the statutory vesting in the Conservators under the 1871 Act was dealt with in written submissions, but did not have to be decided, and was not discussed (1175B).

On the case law, therefore, there is in the view of this Tribunal nothing to support the idea that the grant can only be presumed to have been made on the date at the commencement of the relevant user, so that if at that date the supposed grantor lacks capacity, a grant cannot be presumed. On the contrary, Palmer v Guadagni [1906] 2 Ch 494 is inconsistent with it; and Tehidy Minerals Ltd v Norman points in the other direction.