Gardner v Hodgson's Kingston Brewery
| Jurisdiction | UK Non-devolved |
| Year | 1903 |
| Court | House of Lords |
| Date | 1903 |
Easement - Way - Prescription - Inference from Facts - Payment for User - Enjoyment as of Right - Lost Grant -
For more than forty years without interruption the owner of a house used a cart way from his stables through the yard of an adjoining inn to the public road, paying each year 15s. to the owners of the inn yard. There was no agreement in writing, and no conclusive evidence as to the origin of or the consideration for the payment:—
Held, that the inference of fact this House drew from the evidence was that the payment was made for leave to use the way; that there had therefore been no enjoyment of right within the Prescription Act, 1832, s. 2; and that there was no ground for presuming a lost grant.
IN his judgment on this appeal Lord Ashbourne said:—
The facts in this case are meagre and inconclusive. They can be very shortly stated. For some seventy or eighty years the plaintiff's house has been occupied for business purposes with a yard and stables at its back. The only access to the yard and stables has been through a gateway from the plaintiff's yard opening into the Red Lion yard, and across that yard into High Street. During this period, at all events, the right of way has been openly, regularly, and uninterruptedly enjoyed. For the greater part of that time — it may possibly be for the entire period — the sum of 15s. a year has been paid by the plaintiff and her predecessors to the owner or occupier of the Red Lion. The payment has been proved to have been actually made since 1855. The plaintiff asserts that the payment has been made for the repair of the yard through which the way passed, but the evidence on the subject is very slender, indeed Cozens-Hardy J. says, “there is nothing to support the assertion.” The defendants, on the other hand, allege that this payment has been made by way of rent in respect of the right of way.
On March 31, 1898, the defendants served notice in writing upon the plaintiff, requiring her to give up the use of the yard of the Red Lion, and to close the gate. After some correspondence, on which the defendants placed no undue or unfair reliance, and on February 16, 1899, the defendants served notice to quit and discontinue the user of the yard “on the expiration of the year of your tenancy, which shall expire next after the end of one half-year from the service of this notice.”
The plaintiff, on August 11, 1899, instituted this action, claiming a declaration that she was entitled to the right of way referred to.
Cozens-Hardy J. held that the plaintiff had acquired an indefeasible right of way under s. 2 of the Prescription Act, 1832. The Court of Appeal (Vaughan Williams and Romer L.JJ., Rigby L.J. dissenting) reversed this decision and dismissed the action.
March 2, 3. E. H. Coumbe and M. A. Robertson, for the appellant, contended that the true inference from the evidence was that the 15s. was paid for repair of the road or use of the pump, or at all events not for the use of the way; but that however that might be the appellant had acquired an indefeasible right under the Prescription Act, 1832, or by a lost grant.
[Their contentions are set forth at length in the report below.]
Hon. E. C. Macnaghten, K.C., and G. Cave, for the respondents.
The House took time for consideration.
May 11. EARL OF HALSBURY L.C. My Lords, the appellant in this case claimed a right to pass through premises belonging to the respondents. The only proof given in support of the right claimed was the fact that for many years the appellant and those who preceded her in the ownership of the premises had crossed the respondents' yard along the same way to get to her own yard with carts and horses. The respondents' premises were occupied as a public-house, and the appellant could not get to her own yard with carts and horses from her own premises.
No evidence was given as to any change in the premises, or any definite evidence when what I will call the yard opening of the Red Lion was first made use of as a convenient access to the appellant's premises. But what is conclusive, to my mind, against the appellant is that during the whole period during which this convenient access was used a sum of 15s. a year was regularly paid in respect of the user of the way.
One of the most common modes of preventing such a user growing into a right is to insist upon a small periodical payment, and if such evidence as we have here were permitted to be evidence of a right, not only to the user upon terms of payment, but of a right to make the payment and continue the user in perpetuity, it would be a very formidable innovation indeed. Those who drafted the Prescription Act knew well what they were about when, in dealing with the consequences which have to follow from long-continued user, they used the words “as of right.”
I cannot help thinking there has been a certain play upon words in commenting upon them. In a certain sense a man has a right to enjoy what he has paid for, and, therefore, if the appellant here at any time during the year when she had paid for the right to use this way had been hindered, she would have had a right to complain that what I will call her contract had been broken, and that during the year she had a right to use the way. I do not think that this would have established a right in the proper sense, because, being but a parol licence, it might be withdrawn, and her action would be for damages, but she would have no right to the way...
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R (Lewis) v Redcar & Cleveland Borough Council and Another (No. 2)
... ... The decision of the House of Lords in Gardner v Hodgson's Kingston Brewery Co. [1903] AC 229 is one of the clearest: ... ...
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The Square Management Ltd v Dunnes Stores Dublin Company
...14 and Winterburn v. Bennett [2016] EWCA 482, and the long-ago decision of the House of Lords in Gardner v. Hodgson's Kingstown Brewery [1903] AC 229. 87 In Leopardstown Club, a case which involved a variety of issues, including alleged breaches of rights of way and to adverse possession of......
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R v Oxfordshire County Council, ex parte Sunningwell Parish Council
..."openly and in the manner that a person rightfully entitled would have used it …" and not by stealth or by licence. In Gardner v. Hodgson's Kingston Brewery Co. Ltd. [1903] A.C. 229, 239, Lord Lindley said that the words "as of right" were intended "to have the same meaning as the older ex......
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Easteye Ltd v Malhotra Property Investments Ltd
...burden, the legal burden of disproving the relevant circumstance is on those who claim the right; Gardner v Hodgson's Kingston Brewery Co [1903] AC 229 at 238. It is essential, therefore, that the claimant knows precisely what 20 year period is relied upon so that it can seek to establish t......
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Table of Cases
...JPL 630 327 Galloway v London Corporation (1866) LR 1 HL 34, 30 JP 580, 35 LJ Ch 477, HL 553 Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229, HL 509 Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1996) 71 P & CR 350, [1995] Env LR 37, [1994] 1......
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Town and Village Greens
...R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889 at [72] and [79]. 80 Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229. 510 Planning Law: A Practitioner’s Handbook Permission implied from conduct 26.49 In R (Beresford) v Sunderland City Council , 81 the House......
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Creation of Rights of Way
...held to amount to an implied permission. 36 30 Earl De la Warr v Miles (1881) 17 Ch D 535, 596; Gardner v Hodgsons’s Kingston Brewery Ltd [1903] AC 229, 239. 31 R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11; Powell and Irani v Secretary of State for the Environment, Food a......
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Table of Cases
...Council [2012] EWCA Civ 334, [2013] 1 WLR 808, [2012] 3 All ER 797, [2012] 2 P & CR 11, CA 89 Gardner v Hodgsons’s Kingston Brewery Ltd [1903] AC 229, 72 LJ Ch 558, 52 WR 17, HL 19 Gautret v Egerton (1867) LR 2 CP 371, 36 LJCP 191, 15 WR 638, Ct CP 57 Gerring v Barfield (1864) 16 CB (NS) 59......