Jones v Scott

A prescriptive easement requires 20 years’ qualifying use ending when proceedings commence. The claimant bears the burden of proving that period. Where physical access to the alleged easement was impossible during part of the relevant period, the claim fails. If an easement to manoeuvre vehicles had been established, its scope would be determined by the ordinary and reasonable use to which the servient land might be put when the right arose. The court may grant declaratory relief clarifying that no easement exists, while dismissing a separate damages claim where trespass is not proved.

The claimant owned a house and garage opposite a hard standing forming part of the defendant’s property. He claimed a prescriptive right, or a right arising from presumed lost modern grant, to drive over the hard standing to enter and leave his garage. The defendant disputed the alleged period and extent of use and sought a declaration that no right existed, together with damages for alleged damage to posts and a chain.

The central issues were whether the claimant and his predecessors could have used the land for the required 20 years, whether they had in fact done so, what relief should follow, and whether the defendant had proved trespass.

1. Claim dismissed. The claimant failed to establish 20 years’ use of the hard standing ending with the commencement of proceedings on 18 November 2005.
2. The court preferred the evidence of the defendant’s predecessor and the builder that a boundary wall remained until 1987 and that the garage and hard standing were created during that year. The claimant and his predecessors therefore could not physically have used the relevant land before 1987. That finding alone defeated the claim.
3. The claimant bore the burden of proving the prescriptive easement. The evidence also did not establish that access to the garage required use of the hard standing. The court declined to conduct its own experiment and noted that no expert evidence had been called on vehicle manoeuvrability.
4. A declaration was made that the claimant’s property had no right of way or other right over the defendant’s property, including the hard standing.
5. On the assumed scope of the claimed right, the court accepted the approach stated by Sir Martin Nourse in McAdams Homes Ltd v Robinson [2004] EWCA Civ 21 at paragraph 82: the scope of an easement is assessed by reference to the ordinary and reasonable use to which the servient property might be applied when the right arose. Any right here would, in any event, have been limited to turning a vehicle onto the hard standing to enter or leave the garage, at reasonable times. This was an alternative and hypothetical observation.
6. The defendant’s Part 20 claim for damages for alleged damage to the posts and chain was dismissed. The claimant was found to be an honest witness, and the evidence did not establish that he caused the damage. The claimant was ordered to pay the defendant’s costs on the standard basis.

Not stated in the judgment.