Mills and Another v Silver and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date06 July 1990
Judgment citation (vLex)[1990] EWCA Civ J0706-4
Date06 July 1990
Docket Number90/0713

[1990] EWCA Civ J0706-4





(His Honour Judge Micklem)

Royal Courts of Justice


Lord Justice Dillon

Lord Justice Parker


Lord Justice Stocker


(1) Ronald Mills
(2) Robina Mills
Respondents (Plaintiffs)
(1) Alan Geoffrey Silver
(2) Alison Una Kennard Davis
Appellants (Defendants)
(3) Nash Rocks Stone and Lime Company Limited

MR. ROBERT WAKEFIELD and MR. MARK ANDERSON (instructed by Messrs Pettit and Westlake) appeared on behalf of the Respondents (Plaintiffs).

MR. WILLIAM HUNTER (instructed by Messrs Gamlens; London Agents for Messrs E. Ann Davies and Davies) appeared on behalf of the Appellants (First and Second Defendants).

MR. MARK ANDERSON (instructed by Messrs Pinsent & Co.) appeared on behalf of the Third Defendants.


This is an appeal by the first and second defendants in the action, Mr. Silver and Miss Davis, against a decision of His Honour Judge Micklem given on the 28th April 1989 at Birmingham where he was sitting as a Judge of the High Court in the Chancery Division. The principal question is whether the appellants are entitled to a right of way with vehicles between their property called Coed Major and the Hay-Craswall main road over a track referred to as "the disputed track" across the plaintiffs' land known as Parc-y-Meirch in the Parish of Craswall in the County of Hereford and Worcester between the points marked X-Y-Z on the plan annexed to the statement of claim. The judge held that they were not. The facts and the findings of the judge are set out very fully in his judgment, to which reference should be made; I do not propose to attempt to precis in this judgment.


Certain points taken below are not pursued on this appeal, viz:

  • (1) It was claimed below that the appellants are entitled to take advantage of a reservation in a Conveyance of the alleged servient tenement—Parc-y-Meirch—dated the 8th April 1970. The judge rejected that on the ground that the reservation was not expressed to be in favour of the owners of the alleged dominant tenement Coed Major, and so could not be enforced by them, and on the further ground that anyhow the track referred to in the reservation was not the disputed track this action is about, but another track.

  • (2) It was claimed below that there is a public right of way with vehicles along the disputed track. That the judge rejected on the facts.


One new point is sought to be raised on the appeal, viz that the judge's conclusions in favour of the plaintiffs were not open to him on the pleadings, because the plaintiffs had in their pleadings dealt with the appellants' assertion of a right of way by a general traverse and joinder of issue, and not by a particularised plea of licence or permission. That pleading point was not taken below and in my judgment it is far too late for the appellants to take it now, especially as the course of pleading followed by the plaintiffs was that approved by Harman J, on the then Rules of the Supreme Court, in R.P.C. Holdings Ltd. v. Rogers [1953] 1 All ER 1029 at 1036 A-B.


What is left therefore is a claim by the appellants to a private right of way by prescription with vehicles over the disputed track as appurtenant to Coed Major. The way is claimed, as in all such cases, by prescription at common law, by prescription on the basis of a presumption of a lost grant, and by prescription under the 1832 Act.


It is only necessary, however, to consider the claim founded on presumption of a lost grant.


The parties accept that in this, as in virtually every other case, the claim founded on prescription at common law—presumed use since 1189—adds nothing to the claim of presumed lost grant; they stand or fall together.


As to the claim under the 1832 Act, the period of 20 years to found a prescriptive right under the Act has to be the 20 years next before action brought—i.e. up to the issue of the Writ which was in December 1987. On the facts of this case, there was very little use of the disputed track from the death of Joe Phillips on 23rd September 1981 until the appellants came on the scene in 1986. The judge held that this absence or intermission of use defeated any claim to a prescriptive right under the Act. Whether that conclusion was right or wrong does not matter. The appellants' case has to be founded on use of the disputed track with vehicles for access to and egress from Coed Major during the lifetime of Joe Phillips, who occupied Coed Major from 1922 until a few days before his death in 1981. If that use is sufficient to warrant the implication of a lost grant of a right of way with vehicles, discontinuance of the use after the death of Joe Phillips would not defeat that grant or amount to an abandonment of the right. Conversely if the use with vehicles during the lifetime of Joe Phillips was insufficient to warrant the presumption of a lost grant, it is equally insufficient to support a claim to a right of way under the 1832 Act, even if there had been no discontinuance of the use after Joe Phillips' death until the appellants came along.


The plaintiffs do not object to the appellants using the disputed track on foot—only to the use of vehicles. The appellants rashly bought Coed Major in reliance on a Statutory Declaration by Mrs. Olive Davies, a niece of Joe Phillips, as to access. That declaration was held by the judge to be inaccurate in various respects, and the judge also held that the access routes referred to in the statutory declaration did not include the disputed track. The appellants failed to take the elementary precaution of finding out from the plaintiffs, before their purchase, whether the plaintiffs accepted that there was a right of way with vehicles over the disputed track.


The judge decided against the appellants' claim of lost grant on two grounds, which he set out in his judgment at page 66A-D as follows:

"I have come to the conclusion that such a user as there was by Joe Phillips and others was not sufficiently continuous to establish any prescriptive right to use the disputed track with vehicles. Equally fundamental, equally fatal to the defendant's claim is the nature and extent of that user. The use of the disputed track of which evidence has been given is at very least equally open to explanation as due to tolerance by James Price. That goes for all the evidence.

Taking the test as propounded by Lord Lindley in Gardner v. Hodgson's Kingston Brewery Company Limited, I do not find that the use of which evidence has been given is inconsistent with the reasonable inference that James Price tolerated the use of which he was aware. Indeed, I consider that toleration to be clearly the more likely explanation."


The appellants have to surmount both findings if they are going to succeed.


The plaintiffs take a further point by a respondent's notice. In November 1987 the third defendants, Nash Rock, Stone and Lime Co. Ltd., on the appellants' instructions and on their behalf, laid a stone road along the disputed track so as to make it passable by vehicles at all seasons. The plaintiffs say that even if the appellants are entitled to a prescriptive right of way over the disputed track with vehicles by the presumption of a lost grant (or under any other head of prescription) they were not entitled to improve it by laying the stone road so as to make the disputed track passable by vehicles at all seasons, since the laying of the stone road increases the burden on the servient tenement and in particular causes inconvenience to the plaintiffs in so far as the plaintiffs want to keep pedigree ponies on Parc-y-Meirch. The judge recorded this submission, and found that Mrs. Mills, the second plaintiff, was justified in her view that Parc-y-Meirch was unsuitable for grazing with the quality and type of pony which she was breeding so long as the stone road remains in place, and that while the road remains it is not practical to graze such ponies on Parc-y-Meirch as she did before the road was put down. The judge did not however rule on the submission in law, since it was not necessary for him to do so as he held that there was no right of way with vehicles at all to be improved. The laying of the stone road was therefore a trespass for which the judge awarded the plaintiffs damages.


I turn now to the judge's point of tolerance.


The question is whether the judge has correctly directed himself in law. To put it another way, did the tolerance of the successive servient owners—James Price until 1970 and in his case tolerance out of good neighbourliness and because the use was too insignificant to matter to him or cause him any inconvenience—of such vehicular use of the disputed track as there was in Joe Phillips' time preclude a prescriptive right being acquired, even though no express permission was ever granted to Joe Phillips and no reservations as to his use of the disputed track with vehicles were ever communicated to him by anyone.


The topic of tolerance has bulked fairly large in recent decisions of this court dealing with claims to prescriptive rights, since the decision in Alfred E. Beckett Ltd. v. Lyons [1967] Ch.449. If passages in successive judgments are taken on their own out of context and added together, it would be easy to say, as, with all respect, it seems to me that the judge did in the present case, that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the...

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