Massey v Boulden

Use of land in breach of a criminal statute cannot found a prescriptive vehicular right of way. Section 34(1)(a) of the Road Traffic Act 1988 applies to land of any description which does not form part of a road. Public access must be access to the relevant way as a road.

An easement benefiting an identified dominant tenement cannot ordinarily be used for the purposes of additional land. Use serving the additional land is nevertheless permissible where it is merely ancillary to the honest use of the original dominant tenement. The number of journeys is not decisive.

The owners of a village green appealed from Judge Poulton's decision in Canterbury County Court. The judge had declared that the owners of The Old School House possessed a prescriptive vehicular right of way over a track crossing the green and had awarded £3,500 damages for its obstruction.

The appellants contended that the driving had contravened section 34 of the Road Traffic Act 1988 and its predecessors, and therefore could not found prescription. They also argued that any easement acquired for School Cottage East could not benefit the larger property formed when adjoining parish rooms were incorporated into the house in 1977.

The principal issues were whether the historic driving was criminal and whether use of the track for the enlarged dominant tenement exceeded the permissible scope of the easement.

1. By a majority, the appeal was allowed on the illegality ground. Simon Brown LJ, with whom Sedley LJ agreed, held that the driving contravened section 34(1)(a) of the Road Traffic Act 1988 and the materially equivalent predecessor provisions. The words “land of any other description” were unambiguous and were not confined by the ejusdem generis principle. A village green would in any event fall within any plausible genus comprising common land and moorland.

2. The track was not land forming part of a “road” within section 34(1)(a), read with section 192. Although members of the public could walk over it while using the green, relevant public access required use of the track as a road. The historic vehicular use was therefore unlawful and could not establish a prescriptive easement.

3. The majority also held that the driving contravened section 34(1)(b). The documentary evidence established that the track crossed a public footpath, and driving across a footpath amounted to driving on it. Section 34(5) did not preserve the acquisition of prescriptive rights because prescription is distinct from the law of trespass.

4. Mantell LJ dissented on illegality. He considered that the track was a road to which the public had access and that section 34(1)(b), strictly construed as a penal provision, prohibited driving along a road which was a footpath rather than merely crossing one. He would have dismissed the appeal.

5. The enlargement ground was unanimously rejected. An easement granted or acquired for one dominant tenement cannot be used in substance for the purposes of additional land. The inquiry concerns the purposes and identity of the dominant tenement rather than merely the volume of traffic. On the judge's findings, however, any benefit to the added parish rooms was only ancillary to the use of the original cottage. It was immaterial that vehicles did not physically pass from the original land into the added land.

6. The respondents had no existing prescriptive easement. They were nevertheless entitled to acquire an equivalent statutory easement under section 68 of the Countryside and Rights of Way Act 2000 and the applicable 2002 Regulations. The appeal was accordingly allowed only on the issue of unlawful use.

1. Court of Appeal: By a majority, allowed the appeal on the illegality issue but unanimously rejected the challenge concerning enlargement of the dominant tenement. The respondents had no existing prescriptive easement but were entitled to acquire one under section 68 of the Countryside and Rights of Way Act 2000.
2. Canterbury County Court: Judge Poulton upheld the claim to a prescriptive vehicular right of way and awarded £3,500 damages for its physical interruption.