Gilks & Anor v Hodgson & Anor

The presumption that land adjoining a right of way extends to the centre line applies only where the conveyed land abuts the way. An intervening ditch that is not part of the way prevents the presumption from extending across it. The boundary must be determined from the conveyance, its plan and the physical evidence.

A prescriptive agricultural right of way may be established by intermittent use dictated by agricultural needs, provided the use is as of right, without permission and without interruption for the requisite period. An appellate court should generally respect a trial judge’s reasoned credibility findings. A claimed route fails where qualifying use is unsupported and the route is unnecessary for reasonable enjoyment.

The claimants owned Fiveacres and the defendants owned adjoining land and part of Clay Lane. Following a ten-day trial, His Honour Judge Keith Armitage QC made declarations about the eastern boundary of Fiveacres and the claimants’ entitlement to vehicular access over Clay Lane, with consequential damages orders.

The defendants appealed. The central issues were whether the 1950 conveyance carried the boundary to the centre line of Clay Lane, whether a vehicular right of way to the east had been acquired by prescription or implied grant, and whether a claimed route to the south was established.

Disposition. Sir Stanley Burnton gave the leading judgment. Lord Justice Bean agreed with his reasons. Lord Justice Christopher Clarke agreed with both judgments and added a separate clarification. The appeal was allowed on the boundary issue and on the claimed right of way to the south, but dismissed in relation to the prescriptive vehicular right of way to the east. Costs were to be determined on written submissions.

1. Boundary. The presumption usque ad medium filum viae depends on the conveyed land abutting the way. The western ditch was not part of Clay Lane: it departed from the line of the way, drained land to the north and appeared as a boundary on earlier evidence. The carefully drawn plan to the 1950 conveyance excluded the ditch, and the qualification that the plan was for identification did not justify ignoring it. The boundary therefore did not extend to the centre line.
2. Eastern access. The trial judge was entitled to accept the relevant witnesses and reject unreliable evidence. Although the evidence of vehicular use was light, it established agricultural use of the access over the requisite period. The use was as of right, without permission and uninterrupted by challenge. The finding of a prescriptive vehicular right of way to the east was therefore upheld. It was unnecessary to determine the alternative implied-easement claim under the rule in Wheeldon v Burrows.
3. Southern access. There was no evidence of vehicular use in 1950, or of such use approaching the requisite period before the dispute. The southern route was also not necessary for the reasonable enjoyment of Fiveacres. The appeal was therefore allowed in relation to that route.
4. Separate clarification. Lord Justice Christopher Clarke stated that prescription is founded on acquiescence rather than licence, and that passive toleration is sufficient for acquiescence. Neighbourly tolerance is not, by itself, inconsistent with use as of right: [2014] UKSC 31.

1. Court of Appeal (Civil Division). Allowed the appeal on the boundary issue and the claimed southern route, while dismissing it in relation to the eastern prescriptive vehicular right of way.
2. Manchester County Court. On 30 December 2013, His Honour Judge Keith Armitage QC made declarations concerning the boundary and rights of way and awarded consequential damages.