[2025] UKUT 294 (LC)

Megarry & Wade, The Law of Real Property (10th ed, para. 27-065) states

“But it is a good defence that during the entire period when the grant could have been made, there was nobody who could lawfully have made it,”

citing Neaverson and Tehidy. The FTT relied strongly on this passage. But then it goes on.

“Thus the court has refused to presume a lost grant of a way where the land had been in strict settlement (under which there was no power to grant in fee simple) from the time when the user began, down to the time of action.”

As Counsel for the appellant points out, at least one of the editors of Megarry & Wade has expressed a view consistent with the latter but not (perhaps) the former passage, in an earlier textbook: see M Dixon, Principles of Land Law (4th Ed.) at 7.11.2 (seemingly not cited to the FTT) where it is said:

“Indeed, it seems that the one way in which the servient owner can defeat the claim [under the doctrine of lost modern grant] is if he shows that the servient owner who is assumed to have made the grant (that is, the owner at the commencement of 20 years’ use) was legally incompetent at the time […]

But it is not stated why the grantor has necessarily to be the owner at the commencement of the 20 years use, though no doubt he or she often will be.

Gale on Easements (22nd Ed.) 2024 at 4-101 states

“It will have been seen that as a general rule the enjoyment of an easement as against an owner of the servient tenement who is unable to dispose of the fee is not sufficient to give rise to a prescriptive title, and that the ordinary cause of such an inability arises from a deficiency of estate, as where a servient owner is tenant for life or tenant for years. The inability to dispose of the fee may, however, arise from other causes, for instance by reason of the doctrine of ultra vires or where the owner of the servient tenement is restrained from alienation.

Thus, where the owner of the servient tenement is a company whose powers of disposition are limited, and a grant of the easement by such company would be ultra vires, it seems that no prescriptive title will arise…” [emphasis supplied]

This passage was set out in the decision of the FTT, but not, apparently, regarded as supporting the appellant on the Date Point. Counsel for the appellant argues that these passages cast the matter of competence to make a grant in terms of the capacity of the servient owner against whom the would-be right is enjoyed. But, correctly understood, they do not in fact support the appellant’s case.

The passage in Gale from which it is said ‘it will have been seen’ appears to be 4-82, and the authority cited is Daniel v North (1809) 11 East 372 (which was not cited before me). In that case Lord Ellenborough said,

“The foundation of presuming a grant against any party is, that the exercise of the adverse right on which such presumption is founded was against the party capable of making the grant; and that cannot be presumed against him unless there were some probable means of his knowing what was done against him.”

Although the first part of that sentence might sound initially as if it supports the appellant’s case, it is clear from the second part of it that the learned judge is referring not to requirement that there be a competent grantor for the notional grant (the ‘competent grantor’ rule), but to the rule that user cannot found a presumption of such a grant by the fee simple owner (or cannot ‘bind’ the fee simple owner) unless by the acquiescence of the fee simple owner (‘user against the fee simple’ rule).

They are different rules. The point in the former is that no grant could have been made, so that presuming a grant would not serve the purpose of supplying a lawful origin for the user; the point in the latter is that no acquiescence capable of binding the relevant estate has occurred, so that there is no basis for the presumption.

In Daniel v North itself, acts of prescription could only be shown during a time when the land over which the claim was made was subject to a tenancy, and since during that time the landlord was not able to interfere with the user (and there was no evidence he knew about it anyway), the claim based on prescription failed. This was an application of the ‘user against the fee simple’ rule, not the ‘competent grantor’ rule.