Odey & Ors v Barber

A right of way cannot be acquired by prescription where use of the servient land has been permitted by its owner. An unsolicited licence is as effective for this purpose as permission given after a request. The permission need not be limited to the uses made when it was granted.

The extent of an easement arising by implied grant or prescription is determined by the circumstances at the date of the deemed grant, including the ordinary and reasonable use of the dominant land and the burden on the servient land. Abandonment requires conduct showing a firm intention that neither the owner nor successors will use the easement; non-user, obstruction by the servient owner and construction of an alternative route are insufficient without more.

The claimants owned Eastbach Court and claimed rights of way over a track belonging to the defendant. They claimed a prescriptive right over the left-hand part of the track, leading to the road, based on more than 20 years’ use. They claimed an implied right over the right-hand part, leading to Scramble Field, under section 62 of the Law of Property Act 1925.

The defendant denied the prescriptive right, contended that the implied right was limited and abandoned, and argued that damages rather than an injunction should be awarded. The central issues were whether permission defeated prescription, whether the implied right had been abandoned, its extent, and the appropriate remedy.

1. Left-hand part of the track. The claimants failed to establish a prescriptive right. Prescription requires use nec vi, nec clam, nec precario. The Symonds brothers had received a clear and unrestricted licence from Hubert Knight, the owner of the track. That permission made the use permissive and prevented time from running towards a lost modern grant.
2. An unsolicited permission has the same effect as permission requested by the user. The court adopted the reasoning in O’Mara v Gascoigne and found no principled distinction between volunteered and requested permission. The authorities relied on by the claimants did not decide otherwise. The claim relating to the left-hand part was dismissed.
3. The later use for calves and other agricultural activities did not amount to a radical change in the character or identity of the use, or to a substantial increase or alteration in the burden. In any event, the licence was unconditional and covered the relevant agricultural use.
4. Right-hand part of the track. Under sections 62(1) and 62(4) of the Law of Property Act 1925, an implied right of way arose on the conveyance of Scramble Field. Applying the approach in McAdams Homes Ltd v Robinson, its scope was limited to agricultural and recreational purposes, including motor-bike scrambling, and included use by vehicles and animals.
5. The right had not been abandoned. Abandonment is a question of fact and requires conduct making clear a firm intention that neither the dominant owner nor successors will use the easement. Non-user, delay, the defendant’s obstructions and construction of an alternative track did not satisfy that high threshold. The claimants and their predecessors had repeatedly asserted the right.
6. The claimants remained entitled to the right-hand easement. The question whether injunctive relief or damages in lieu should be granted was adjourned for a further hearing, at which further evidence on damages could be adduced. Costs were reserved.

First-instance judgment of the High Court (Chancery Division). The judgment records no earlier judicial decision in the same proceedings.