Loder v Gaden & Ors

A prescriptive right of way is limited by the use proved to have occurred while the dominant land was in its existing condition. The doctrine of lost modern grant and common-law prescription assist in finding a legal basis for established long use; they do not create rights for uses that were never proved.

A later use which substantially changes the character of the dominant land, or materially increases the burden on the servient land, falls outside the prescriptive right. Improvements to the way do not themselves enlarge the easement. The same principles apply whether the right is claimed under the Prescription Act 1832, lost modern grant or common-law prescription.

The defendants appealed from declarations made by His Honour Judge Weeks QC in the Bristol County Court sitting at Gloucester concerning their rights of way over Sydenham Lane. The judge limited the right to use connected with the agricultural use of specified land, excluded the grass verges and part of the lane, and held that it did not extend to a proposed dwelling or the defendants’ haulage business.

After earlier judgments dismissing challenges based on the alleged highway status of the lane and the extent of the private right, the Court of Appeal considered the lane’s width, residential use and haulage use. The defendants sought a retrial involving the whole history of the lane and alternative bases of prescription.

1. Appeal dismissed. The court upheld the factual finding that the private right of way did not extend beyond the established track, including the grass verges and the area identified in the judge’s declaration. Occasional use of verges did not establish a prescriptive right to drive over them: Ironside, Crabb and Crabb v Cook, Cook and Barefoot (1971) 41 P & CR 326.
2. The presumption normally associated with a highway was irrelevant to the determination of the defendants’ private prescriptive right. The trial judge was entitled to prefer Mrs Loder’s evidence about the lane’s configuration. The defendants’ expenditure on improving and raising the surface did not enlarge their rights: Mills v Silver [1991] Ch 271.
3. Prescriptive rights depend on proved use. The extent of a prescriptive way is limited by the nature of the user from which it arose and by the reasonable use of the dominant land in the condition in which it was during the relevant period: Williams v James (1867) LR 2 CP 577; Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362.
4. The three methods of prescription may differ in other respects, but none permits the court to infer uses which were not actually proved. The use established before the end of 1976 was predominantly agricultural. The proposed dwelling and the haulage business would substantially change the use of the dominant land and impose an additional burden on the servient land.
5. The historical presumptions underlying common-law prescription and lost modern grant do not justify a new inquiry into unproved ancient uses. The request for a retrial was therefore misconceived or an attempt to relitigate matters already decided. Any uncertainty in the declaration could be clarified by reference to the use actually made of the land and lane at the relevant time. Appeal dismissed with costs; leave to appeal to the House of Lords refused.

• Court of Appeal (Civil Division): dismissed the appeal from declarations made by His Honour Judge Weeks QC on 22 April 1998 in the Bristol County Court sitting at Gloucester.
• Court of Appeal (Civil Division): earlier judgments handed down on 20 April 1999 had dismissed challenges concerning the alleged highway status of the lane and the extent of the private right.