Orme v Lyons

For a prescriptive easement based on lost modern grant, 20 years’ use as of right will generally suffice. The use need not continue until the action or suit in which the easement is challenged. Whether use has the necessary character, degree and frequency is a question of fact. The relevant inquiry is whether it would alert a reasonable owner of the servient land that a continuous right, corresponding to the right claimed, was being asserted. An appellate court should respect an adjudicator’s fact-sensitive assessment, particularly where the adjudicator has relevant expertise, saw the witnesses and inspected the land.

The claimant appealed from a decision of Mr Michael Michell, sitting as a Deputy Adjudicator to HM Land Registry. The Adjudicator had directed the Chief Land Registrar to register a vehicular right of way over a track in Trewassa, Cornwall, for the benefit of the defendant’s property, Lowertown Farm.

The claim was based on lost modern grant. The Adjudicator found that the previous owners had used the track regularly between 1971 and 1988, while the defendant’s use after 1988 was only occasional and often occurred when another route was blocked. The central issues were whether that later use was sufficiently continuous and whether it was of sufficient character, degree and frequency to give notice of an asserted right.

Appeal dismissed.

1. The relevant legal principles were not disputed. An easement may be presumed from long user as of right. Twenty years’ use will generally suffice to raise the presumption of lost modern grant, and the use need not continue until the action or suit in which the claim is challenged.

2. Whether use is sufficient is fact-sensitive. It must have such character, degree and frequency as to indicate an assertion of a continuous right and a right of the measure claimed. The question is whether the use would carry to the mind of a reasonable person in possession of the servient land that the right was being asserted and ought to be resisted if it was not to be recognised.

3. The appellate court should not interfere merely because it might have reached a different view. Although greater caution may be appropriate where the complaint concerns inferences or the application of law to facts rather than primary findings, weight remains due to the adjudicator’s expertise and fact-based assessment. The adjudicator had seen the witnesses and inspected the track. This approach was consistent with Wilkinson v Farmer, [2010] EWCA Civ 1148.

4. The Adjudicator was entitled to find that the defendant’s less frequent use after 1988 was sufficient. The fact that use commonly occurred when the alternative route was blocked did not prevent a reasonable servient owner from being alerted to it. The use could be viewed as a continuation of the previous owners’ use. The track’s physical appearance, including its ruts and lane-like character, supported the inference that vehicles travelled to and from Lowertown Farm.

The Adjudicator was therefore entitled to direct registration of the vehicular right of way.

• High Court (Chancery Division): On appeal from the Deputy Adjudicator to HM Land Registry, the decision directing registration of the vehicular right of way was upheld and the appeal was dismissed.