Leven Holdings Ltd v Johnston & Ors

An easement cannot be established by inference where the evidence does not prove the relevant conveyance, its date and terms, or the rights allegedly created by it. For prescription, use must be open and sufficiently apparent to indicate to a reasonable owner that a right is being asserted. Use with permission is not use as of right, and use becomes incapable of supporting prescription once it is contentious. If an access route changes during the prescriptive period, accrued use of the old route cannot generally be transferred to the new route. A prescriptive or presumed easement extends no further than the use proved. The court therefore rejected claims to express, implied, prescriptive and presumed rights of way over an estate service road.

Leven Holdings Ltd, proprietor of the Enstone Industrial Estate, sought a declaration that the defendants had no right of way over its estate service road, save for a limited agricultural right accepted by the claimant in relation to certain plots. The defendants relied on an alleged wartime acquisition and reconveyance, implied easements under Law of Property Act 1925, prescription, and lost modern grant.

The central issues were whether any relevant conveyance had occurred, whether it created an express or implied easement, and whether the defendants had proved the necessary period and quality of use for prescription or presumed grant.

1. Express or implied grant. The defendants bore the burden of proving the alleged reconveyance and its terms. The evidence did not establish that the Government had acquired the relevant land, when any reconveyance occurred, or that it contained an express right of way or preserved the operation of section 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows. The claim based on an express or implied easement therefore failed.
2. Change of access. The defendants could not rely on use of the former access to the public highway to establish rights over the later route. Keefe v Amor concerned interference with an existing easement, not the transfer of accrued prescriptive use to a new route. Any prescriptive period for the new access had to be proved afresh.
3. Use as of right. The relevant qualities were those expressed by nec vi, nec clam, nec precario. Use had to be sufficiently apparent to an objective bystander to indicate that a right was being asserted. Permission was inconsistent with prescription. Once the claimant had clearly objected to the use, it became contentious and could not count as use as of right.
4. Application. Agricultural use for plot 1 was sporadic and insufficiently apparent. Plot 6 use was undermined by the Parkers’ abandonment of their prescriptive claim and acceptance of a licence. Use benefiting plot 4 was in substantial part licensed, too sporadic or too short, insufficiently apparent, or contentious before twenty years had elapsed. The separate activities of rallying, timber storage, quarrying, stone storage, shooting and hunting did not establish the required user.
5. Extent and presumed grant. A presumed grant under lost modern grant requires at least twenty years’ uninterrupted enjoyment with the necessary qualities, subject to the doctrine’s legal fiction. Any right thereby established would extend no further than the use proved.
6. The defendants failed to establish any express, implied, prescriptive or presumed right of way over the estate service road. The claimant was entitled to a declaration reflecting that conclusion.