Housden & Anor v The Conservators of Wimbledon and Putney Commons

A statutory body that cannot lawfully grant a private easement over protected common land cannot be treated as a competent grantor for prescription. The requirement in section 2 of the Prescription Act 1832 that the claim be lawfully made at common law applies to both 20-year and 40-year user. Forty years’ use therefore cannot create an absolute and indefeasible right where the governing statute prohibits the grant. A general corporate power to dispose of property is subject to a specific statutory prohibition on disposing of any part of protected commons.

The appellants sought registration of a private right of way over an access way crossing Wimbledon Common. They relied on more than 40 years’ user and section 2 of the Prescription Act 1832.

The Adjudicator dismissed the application. The issue on appeal was whether the Conservators had power under the Wimbledon and Putney Commons Act 1871 to grant the easement and, if not, whether 40 years’ user could nevertheless establish a prescriptive right.

1. Appeal dismissed. The Adjudicator correctly dismissed the application to register the claimed private right of way.
2. Section 8 of the Wimbledon and Putney Commons Act 1871 conferred a general corporate power to take, hold and dispose of land and other property. Section 35 qualified that power by providing that, except as authorised by the Act, it was not lawful to dispose of any part of the commons.
3. Section 35 included the grant of a private easement. The statutory scheme, including the Act’s purpose of preserving the Commons as an open space, showed that the Conservators were not lawful grantors of the claimed right of way. The power to make public roads did not alter that conclusion.
4. The opening words of section 2 of the Prescription Act 1832 governed the whole section, including the 40-year limb. A right could not be acquired by prescription where the alleged servient owner could not lawfully have granted it.
5. Proprietors of the Staffordshire and Worcestershire Canal Navigation v Birmingham Canal Navigations was binding and applied. The section 3 authorities, particularly Tapling v Jones, did not govern because section 3 lacked section 2’s opening limitation.
6. The fictional basis of prescription was a presumed lawful grant. That fiction could not operate where the governing statute made the grant unlawful. The appeal was dismissed.

High Court (Chancery Division): appeal from the Adjudicator to HM Land Registry under section 111 of the Land Registration Act 2002. The appeal was dismissed.