Williams & Anor v Sandy Lane (Chester) Ltd

Prescription of a right of way rests on acquiescence by the freehold owner, requiring actual or imputed knowledge, power to prevent the user, and prolonged abstention. A tenancy does not automatically defeat prescription: the analysis depends on when it began, the freeholder’s knowledge, and whether the freeholder retained power to stop the use. A freeholder who receives information sufficient to trigger inquiry cannot rely on a tenant’s covenant to prevent easements if it could enforce that covenant or otherwise restrain the route. Non-use alone does not abandon an easement. Abandonment requires an intention to give up the right, and a more convenient route is not enough.

The appellants owned 20 Sandy Lane, Chester. They claimed rights of way over land formerly owned by Chester City Council and later acquired by the respondent. The claim concerned a primary route used from 1976 and a secondary route used until 1976.

The High Court found that the secondary route had been acquired by prescription but abandoned, and that the primary route had not been acquired because the Council had not acquiesced in its use, particularly in light of a 1990 tenancy. The claims were dismissed. The appeal concerned prescription where the servient land was tenanted, the effect of the tenancy covenant, the alleged unlawful use, and whether the secondary right had been abandoned.

Lord Justice Chadwick gave the leading judgment. Lord Justice Wilson and Mr Justice Lindsay agreed. The appeal was allowed.

1. Acquiescence and prescription. Acquisition of a right of way by prescription rests on acquiescence by the freehold owner. The relevant considerations include user without right, actual or imputed knowledge, power to prevent the user or sue, and abstention for a sufficient period. The principles stated in Dalton v Angus & Co (1881) LR 6 App Cas 740 and applied in Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 were adopted.
2. Tenanted servient land. The analysis depends on the timing and terms of the tenancy. Where the tenancy predates the user, the court must ask whether the freeholder could nevertheless prevent the use and whether the freeholder had actual or imputed knowledge. Where user preceded the tenancy, knowledge at or before the grant is generally decisive. These principles were derived from and applied to Pugh v Savage [1970] 2 QB 373.
3. Primary route. The Council had imputed knowledge from Miss Hibbitt’s 1984 letter and the physical features of the land. The Council could have stopped use of the track and could also have enforced the tenant’s covenant, terminated the tenancy under Part II of the Land and Tenant Act 1954, and sought an injunction. The fact that a small part of the route may have been tenanted did not defeat the claim to the route as a whole.
4. Unlawful use. A prescriptive claim is not barred merely because the use was tortious, a breach of contract, or criminally illegal. The court applied the observations in Bakewell Management Ltd v Brandwood [2004] UKHL 14.
5. Secondary route. Non-use alone does not establish abandonment. An intention to abandon must be inferred from the circumstances. The more convenient primary route, removal of the former back door, vegetation, and minor physical obstruction did not establish that intention. The judge had also failed to take account of the 1984 letter asserting the right.

The court declared that the appellants were entitled to rights of way over both routes. If the parties could not agree the routes’ precise definition, the matter was remitted to the judge.

1. Court of Appeal (Civil Division) — In [2006] EWCA Civ 1738, the appeal was allowed. Rights of way over both the primary and secondary routes were declared, subject to possible remission for definition of the routes.
2. High Court of Justice, Chancery Division, Chester District Registry — His Honour Judge Wyn Williams QC dismissed the claim by order dated 11 January 2006. He found the secondary right abandoned and the primary right unacquired because of absence of acquiescence.