EASEMENT AND PRESCRIPTION—CHANGING PERSPECTIVES IN CLASSIFICATION

DOIhttp://doi.org/10.1111/j.1468-2230.1975.tb01434.x
Published date01 November 1975
Date01 November 1975
AuthorStuart Anderson
EASEMENT
AND
PRESCRIPTION-CHANGING
PERSPECTIVES IN CLASSIFICATION
INTRODUCTION
ALTHOUGH
this article is concerned ostensibly with the historical
development of a narrow area of law, it is hoped that it will prove
to be of wider application. Its theme is that
a
backward-looking
system like the English system of precedent tends to produce distor-
tion and misunderstanding of earlier cases. This
is
because judges
are
often unaware of changes in approach and in assumptions that
have taken place since earlier decisions. When they look back at
an old case they do
so
with their own preconceptions, not with
those
of
the judge who heard the case. Yet because even an old
case has a present value as a precedent it must either be fitted into
the
modern law or discarded. The danger comes with the fitting in,
for
it is only too easy
for
a judge to say that an earlier case decided
something when
it
is
quite obvious from its historical context that
it
decided no such thing. It might have done
if
the deciding judge
had had the same preconceptions as the later judge; but he did not.
The
method will
be
to look at the changing perception of cases
involving the acquisition of rights through lapse of time. It is trite
theory that prescription presupposes grant, but the significance of
the theory has varied from time to time. However, an obvious
starting point is with cases involving lost grants
at
a time whan that
was an important part of this area of law. Eventually arguments
about lost grants will come
so
close
to
arguments about customary
rights, which are another example of rights acquired after long
user, that it will be necessary
to
break
off
the main argument to
look at custom
in
more detail. Then lost grants will be returned to,
and the interaction between grant and easement followed through to
its present conclusion.
PERCEPTIONS
OF
THE
PROBLEM
An established method of studying the historical development of a
concept is to investigate those cases in which judges have dis-
cussed it and to relate them to modern law dealing with the same
concept. Thus one could write a history
of
easements by taking
the
modern concept and working back, or more properly, by looking
at what earlier judges thought an easement was and then working
forwards. But either approach looks only at those cases perceived
at the time as concerning “easements” and not at the situations
which would be
so
perceived today but which at the time were
thought to be about something else. Particularly, it is easy to miss
the point that nineteenth-century judges dealing with claims to
rights by prescription thought primarily in terms
of
the mode
of
acquisition of the right, and regarded propositions about the nature
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THE
MODERN
LAW
REVIEW
[Vol.
38
of
the right as being a consequence of these rather than as a neces-
sary
precedent. Thus the question perceived would be whether a
right could be prescribed for, not whether it could exist as an
easement. There was no principle that easements existed as a legal
entity obtainable both by express grant and by prescription.’ Some
rights could be prescribed for, some granted. There was an overlap,
but it was not total. This approach had profound effects on the
nature
of
rights allowed to be prescribed for, but often these effects
were only seen afterwards and were difficult to remedy because
questions about the nature of the right had to be asked indirectly
through questions about the mode of acquisition. Eventually argu-
ments about the mode of acquisition
so
submerged policy arguments
about the desirability
of
recognising particular property rights that
the only solution was to reverse the whole process of argument.
This led
to
the present approach in which one asks
first
whether
the right claimed can exist at law, and
only
then
whether it has
been acquired in an approved way. But although the transition was
fairly smooth, scars remain, in that cases which the judges deciding
them thought were only about the mode of acquisition are now
treated as deciding something about the nature
of
easements
in
general.
But one must beware of exchanging one anachronism for,
another, for many cases which later judges thought were about
prescription were perceived at the time of their decision as being
about yet something else. These are the cases involving lost grants.
Today we still regard the presumption
of
a
lost modern grant as
a “fiction,” but
we
have no doubt that it is part of the law of
prescription.2
So
there is a tendency to look back at the early cases
and try to fit their results, sometimes even their reasoning, into our
conceptual framework
of
easements and prescription
or, simply
“easements.” What
is
missed
is
that in only some of these cases
did the judges think that they were dealing with prescription claims,
and therefore base their decision on the policy of prescription. Some
of the cases were perceived as dealing with
‘‘
evidence
or
pre-
sumptions.”
To
appreciate this it is necessary to distinguish between
presumptions of law and presumptions of fact.
For
present purposes
a
presumption of law may be described as a conclusion of law that
follows from the establishment of certain basic facts even though
a
reasonable man would not necessarily believe that the conclusion,
as a matter
of
fact, actually happened.
A
presumption
of
fact,
however, is merely an inference from all the facts coupled with a
general statement
of
probability drawn from general experience.3
~~~
1
e.g., Dyce
v.
Hay
(1852) 2 Macq. 305,
per
Lord
St.
Leonards:
Bailey
v.
Stephens
(1862)
12
C.B.(N.S.) 91,
115,
per
Byles
J.;
Bourke
V.
Davis
(1890)
44
Ch.D.
110,
121,
per
Kay
J.
a
e.g., Tehidy Minerals
v.
Norman
[I9711 2 Q.B. 528.
3
See
e.g., Cross on Evidence
(3rd ed.),
p.
101
et
seq.
The distinction
is
used
here
for
analytical reasons rather than in the cause
of
historical accuracy. However,

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