Dewan & Ors v Lewis

The scope of a right of way acquired by prescription is measured by the extent of the use proved during the prescription period. The right may cover analogous uses or uses imposing no greater burden, but it is not enlarged by every use reasonably incidental to the dominant land. A right of way used by vehicles or ridden horses does not, without more, include a right to drive cattle, because driving stock may impose a more onerous burden on the servient tenement. Use of the dominant land may be relevant to excessive use, but it does not augment prescriptive rights. Where the evidence does not show driving stock during the relevant period, the declared right may exclude it.

Neighbours along Old Station Road sought to restrain the owners of agricultural land from using the road. The County Court rejected an implied-grant claim but held that a prescriptive right of way existed for agricultural purposes, with or without animals and vehicles.

The appeal concerned only whether the declaration included driving stock. The central issue was whether the scope of a prescriptive easement is defined by the use of the dominant tenement or by the type of use made of the way during the prescription period.

Carnwath LJ gave the leading judgment. Elias LJ agreed with his reasoning, and Pitchford LJ agreed. The appeal was therefore unanimous.

1. Scope of prescription. The extent of a prescriptive right is measured by the extent of the user proved during the relevant period. Prescription rests on acquiescence: the servient owner loses the right to object only to the burden actually accepted. The right is not confined to the precise physical manner of use proved, since analogous uses or uses imposing no greater burden may be included. This principle was consistent with R v Oxfordshire CC ex p Sunningwell PC [2000] 1 A.C. 335, Williams v James (1867) L.R. 2 C.P. 577 and Lock v Abercester Ltd [1939] Ch. 861.
2. Driving stock. Driving cattle is a more onerous mode of use than use by vehicles or riding horses. Ballard v Dyson (1808) 1 Taunt. 279, British Railways Board v Glass [1965] Ch 538 and White v Richards (1993) 68 P&CR 105 supported the distinction. The reasoning in White v Richards, although concerning an express grant, extended to a deemed grant arising by prescription.
3. Application. During the relevant period there was evidence of use by foot, vehicles and horseback, but no material evidence of driving cattle or an analogous use. The agricultural character of the dominant land did not itself enlarge the prescriptive right. The servient owners were therefore entitled to exclude driving stock.
4. Excessive user. Authorities on excessive use did not determine the issue, since that analysis is generally unhelpful until the nature and extent of the grant have been identified. A significant change in the use of the dominant land may increase or alter the burden, but cannot augment rights acquired by prescription.
5. Order. The declaration was amended to provide for a right of way for agricultural purposes, with or without animals, except for the purpose of driving stock, and with or without vehicles.

• Court of Appeal (Civil Division). Appeal allowed. The declaration was amended to exclude driving stock.
• Cardiff County Court (Cardiff Civil Justice Centre). HHJ Milwyn Jarman QC rejected the implied-grant claim but upheld a prescriptive right of way for agricultural purposes, with or without animals and vehicles.