Pugh v Savage

Long user may establish a prescriptive easement where the user began against the fee simple owner, even though the servient land was subsequently let during part of the period. The later tenancy is relevant evidence, but it does not automatically prevent the presumption of a lost grant.

An easement may benefit land separated from the servient land by intervening property. It is sufficient that the dominant owner can cross the intervening property, even by permission, and that the easement is sufficiently close and naturally connected to the dominant land. A tenant’s user may acquire the easement in fee for the tenant’s landlord.

The defendant appealed from an order of the Shrewsbury County Court granting the plaintiff an injunction and damages for trespass and dismissing the defendant’s counterclaim. The defendant claimed a prescriptive vehicular right of way benefiting a field occupied by him. The county court judge found sufficient user from about 1932 but considered that a tenancy of the servient land between 1940 and 1950 prevented acquisition of the right.

The principal issues were whether the intervening tenancy was fatal to prescription, whether the defendant’s pleadings permitted reliance on common law prescription and the presumption of a lost grant, and whether intervening land between the dominant and servient tenements defeated the easement.

1. Appeal allowed unanimously. Cross LJ delivered the leading judgment. Harman and Salmon LJJ agreed. The county court judge had erred in treating the tenancy of the servient land between 1940 and 1950 as necessarily fatal to the claimed right of way.

2. A tenant cannot acquire a prescriptive easement merely for the duration of the tenancy. The tenant’s user over a stranger’s land may, however, acquire an easement in fee for the landlord. The tenant may use that easement while the tenancy continues, and the landlord may grant its benefit to a subsequent tenant.

3. Following Todrick v Western National Omnibus Company Ltd [1934] Ch 561, a right of way may benefit a dominant tenement despite intervening land. The right may remain appurtenant where the dominant owner can cross that land only by another person’s permission, provided that the way is sufficiently close to and naturally connected with the dominant tenement.

4. The subsequent acquisition of the dominant land by the owner of the intervening land did not extinguish the easement over the plaintiff’s land. Nor did it enlarge the dominant tenement. The easement continued for the benefit of the original dominant field.

5. Under the lost-grant doctrine, a tenancy beginning after user had commenced against an owner in fee was a matter to be weighed rather than an absolute bar. Palk v Shinner (1852) 18 Q.B. 568 and Cross v Lewis 2 B. & C. 686 demonstrated that the whole period of user could justify the presumption of a grant despite an intervening tenancy. Here, the evidence established about 36 years’ user, including periods against fee simple owners in possession.

6. The defendant’s plea of prescription and his particulars of more than 30 years’ user permitted reliance on common law prescription, presumed lost grant, or the Prescription Act 1832. The wording did not confine him to the Act. The strict approach to Chancery pleadings associated with Damper v Bassett [1901] 2 Ch 350 was not appropriate to the county court particulars.

7. The injunction was discharged. Whether the defendant’s deviation from the right of way was justified by the plaintiff’s hedge cuttings, and the parties’ respective claims for damages, had not been determined. Those issues and the costs below were remitted to the county court.

1. Court of Appeal: Allowed the defendant’s appeal unanimously, discharged the injunction and remitted the damages issues and costs below to the Shrewsbury County Court.

2. Shrewsbury County Court: Judge Burrell granted the plaintiff an injunction and £11 5s damages for trespass and dismissed the defendant’s counterclaim. Although he found the factual user sufficient, he held that an intervening tenancy prevented acquisition of the prescriptive right.