Mills v Silver

A private right of way may be acquired by prescription where the use is open, peaceable and without licence, and is sufficiently continuous to indicate to a reasonable servient owner that a continuing right is being asserted. Mere tolerance or acquiescence by an owner who knows of the use and does not stop it does not make the use permissive.

The character of the use remains decisive. Casual, trivial or controlled use, or use under a temporary licence, will not establish a right. A prescriptive way is confined to the use from which it arose. It permits reasonable repair, but not an improvement that materially increases the burden on the servient land, such as making a seasonally impassable track usable by vehicles at all times.

Mills v Silver [1991] Ch 271 concerned access by vehicle over a track crossing the respondents’ land. The appellants claimed that a vehicular right of way had arisen by prescription as appurtenant to their property.

His Honour Judge Micklem, sitting in the Chancery Division, rejected the claim. He held that the historical vehicular use was insufficiently continuous and was explicable as neighbourly tolerance. The appellants appealed. The respondents contended by respondent’s notice that, even if a way existed, the appellants had no right to lay a substantial stone road over it.

The central issues were whether acquiesced-in use could be user as of right for a lost modern grant, whether the historical use was sufficiently continuous, and whether the claimed easement authorised the improvement of the track.

1. The appeal was allowed in part unanimously. Lord Justice Dillon, with whom Lord Justices Parker and Stocker agreed, held that a lost modern grant of a limited vehicular right of way should be presumed.

2. The judge had misdirected himself by treating the servient owner’s tolerance as a general answer to prescription. Per Dillon LJ, acquiescence by an owner with knowledge of open use is an essential element of prescription. Use is not precario merely because the owner could have stopped it before the prescriptive period expired. The material question is whether the use was under a temporary licence, controlled by the owner, casual or too trivial to amount to an assertion of a right.

3. Per Parker LJ, if the acts of use sufficiently assert a continuous right, are known or should be known to the servient owner, and the owner does nothing effective to resist them, it is no answer that the owner merely tolerated the use. Per Stocker LJ, no general legal distinction can be drawn between toleration and acquiescence; references to toleration in earlier cases were confined to their particular facts.

4. The historical vehicular use, from the early 1950s until 1981 whenever the track was passable, was open and sufficiently continuous to inform a reasonable occupier that a continuing right was asserted. The court declared a right appurtenant to Coed Major to pass and repass, with or without vehicles, for domestic and agricultural purposes, while the track’s condition permitted.

5. The right was limited by its historical user. It included a power to repair the surface, but did not authorise laying 600 to 700 tons of stone to create an all-weather road. That was an improvement going beyond repair, increased the burden on the servient land, and was a trespass. The damages awards remained in force.

• Court of Appeal (Civil Division) allowed the appeal in part. It set aside the declaration that no vehicular right of way existed and declared a limited prescriptive right, but upheld the conclusion that laying the stone road was unauthorised and a trespass.
• High Court, Chancery Division His Honour Judge Micklem had rejected the claimed prescriptive vehicular right of way, dismissed the counterclaim, granted an injunction, and awarded damages for the laying of the stone road.