Oakley v Boston

This is an appeal against the judgment of Judge Harrison-Hall given in the Ashby-de-la-Zouch County Court on 19th December, 1974.

The plaintiffs, Mr. Harold Whittall Oakley and his wife Mrs. Hazel Louise Oakley, by an action which was started in the Chancery Division of the High Court and was transferred to the County Court, claimed an injunction against the defendant, Mr. Frederick John Boston, to restrain him from trespassing on the plaintiffs' land. The defence was that the defendant was not trespassing, because he was entitled to a right of way over that part of the plaintiffs' land ever which his alleged trespassing had taken place. The learned judge dismissed the claim, holding that the defendant had a right of way. The plaintiffs appeal.

The plaintiffs are the owners of a property known as the Old Rectory at Appleby Magna in Leicestershire. It consists of a house which was formerly used as the rectory, and a substantial area of land surrounding it. At the south- east corner of the land, there is a short and narrow projection, part of the plaintiffs' land, a tongue of land protruding in an easterly direction. At the tip of that tongue lies the boundary with the defendant's land. Immediately beyond the boundary at the tip of the tongue on the defendant's land there used to be a cottage, called Laundry Cottage. It has been demolished. The disputed right of way runs from the boundary at the tip of the tongue for the length of the tongue, between points "A" and "B" as marked on the plans annexed respectively to the statement of claim and the defence. At the western end of the tongue the alleged right of way abuts on to public footpaths which run to the west, and also to the east to the village of Appleby Magna, through the plaintiffs' land. The right of way claimed, if established, would enable the defendant to make his way from his own land over the plaintiffs' land without trespassing, so as to be able to use thepublic footpaths.

It is not necessary to go into detail as to the respective titles of the plaintiffs and the defendant. They are not in dispute. Until 1952, what is now the plaintiffs' land and glebe land. It was vested in the rector of Appleby Magna, in his capacity as corporation sole. On 27th June, 1952, the whole of that land was conveyed, no doubt with all necessary consents under statutory powers, to a Mr. Cooper. It thereupon ceased to be glebe land. The plaintiffs became the owners of the Old Rectory and the surrounding land on 8th April, 1965. The defendant became the owner of the land on which laundry Cottage had stood, with its small area of surrounding land, on 25th January, 1962. It had previously belonged to the defendant's father since 1956. The defendant was the owner, since 1956, also of another piece of land abutting on, and lying to the south of, the southern boundary of the Laundry Cottage property. It was, however, in respect solely of his ownership of the Laundry Cottage property that the defendant asserted his right of way. According to his defence in the action, the Laundry Cottage land had constituted the dominant tenement and the plaintiffs' land the servient tenement, in respect of the alleged right of way running for the short distance consisting of the length of the tongue of land which I have described. From the plans, it appears to me (though I do not think the detail matters) that the length of the right of way claimed is some 30 or 35 yards. It was nowhere near the house, the Old Rectory.

It is not necessary to go into the evidence. Indeed, it is not possible, as we have, rightly in the circumstances, not been provided with any note of evidence. The judge's findings of fact are not in dispute. He held that the defendant had established that from a date prior to 1927 (counsel before us agreed, I think, that on the evidence it went back at least to 1914) there was a continuous use of this way — that is, between points "A" and "B" — up to the year 1962; end that that use would have been sufficient to have established thedefendant's claim to a right of way under the provisions of the prescription Act, 1832, If the action had been commenced in 1962, But for purposes of the Prescription Act, 1832, it is necessary that the period of use should have continued up to the time when the action was commenced. That did not apply in this case, because the judge held that there had not been sufficient use of the way on the part of the defendant since 1962. So the defendant's claim, in so far as it was based on the Prescription Act, 1832, failed. The defendant has not served a cross-notice, or sought to Challenge that finding. As it was a finding of fact, it might well have been a difficult burden to undertake, just as it would have been difficult for the plaintiffs to challenge the finding of sufficient continuous user for many years up to 1962.

However, the defence asserted the claim to a right of way on another basis; on the doctrine of the lost modem grant. On that basis, on the judge's findings of fact, the defendant was not put out of court by reason of the inadequacy of the user in the last 11 years before the action was brought: that is, from 1962 to 1973. For, unlike the requirements of the Prescription Act, 1832, the doctrine of lost modem grant does not contain, as an essential element, proof of continued sufficient user up to the time of action brought, (we are not concerned here with any question such as abandonment). But, as regards the lost modem grant, the plaintiffs asserted that the defendant was unable to substantiate his claim for a different reason. It was contended that, since the plaintiffs' land, over Which the right of way was alleged, had been glebe land up to 1952 (and it is conceded that it was), the incumbent of the glebe land had no lawful power to grant an easement. Therefore the court could not presume a lost modem grant made at any time preceding the 27th June, 1952) and no such grant could be presumed to have been made, and lost, after that date, since the period would be quite inadequate.

Alternatively the plaintiffs contended that if, contrary to their primary submission, there was a power during the relevant period to grant an easement, each power, depending on statutory provision, could he exercised only if certain consents or approvals were given, in particular the approval of the Ecclesiastical Commissioners: and it was not open to the court to presume that such consents or approval, necessary for a valid grant, had been given.

The argument for the plaintiffs begins with the judgment of Chief Justice Abbott in Barker v. Richardson (1821) (4 Barnewall and Alderson 579). That appears to have been the only authority cited to the learned judge, and it is clear that he did not have the advantage of detailed exposition of statutes which has been developed before us. It may well be that the potential subtletics of argument had not been foreseen. The learned judge therefore did not have the books available, nor the advantage which we have had in being able to look at the text of statutes and decided cases and text-books.

In Barker v. Richardson it was held that a presumption of a grant of an casement — in that case, an casement of light — could not be made because the grant, if it had been made, would have been made by a rector who was described as "a mere tenant for life" and who had no power to make such grant. At page 582 of the report, Chief Justice Abbott said: "Admitting that twenty years' uninterrupted possession of an easement is generally sufficient to raise a presumption of a grant, in this case the grant, if presumed, must have been made by a tenant for life, who had no power to bind his successor; the grant, therefore, would be invalid, and consequently the present plaintiff could derive no benefit from it, against those to whom the glebe has been sold".

The learned judge in the present case expressed the plaintiffs' argument succinctly in these terms (I read from page 11 of the bundle before us): "Until 1952 the servient land was glebe land and accordingly the plaintiffs rely on the case of Barker v. Richardson. It is"thus argued that since it is essential to a lost modern grant that there be a capable grantor as well as a capable grantee the fact that the rector was the presumed granter made it impossible for a grant to be made. The rector as the owner of the parson's freehold had not power to dispose of the fee simple without the comments necessary for a disposal. If this case is right and is still sound law then it is accepted that the rector was not a capable grantor".

The judge want on to reject the plaintiffs' submission on the ground that subsequently to the decision in Barker v. Richardson power had been given by the Ecclesiastical Leasing Acts to incumbents "to sell convey or exchange there under any part of the land which belonged to the incumbent including glebe land, provided that certain provisions and consents to the sale took place".

Having dealt with the alternative submission on behalf of the plaintiffs as to the "certain…consents", to which submission I shall return later, the learned judge held that, on the basis of a lost modem grant, on the facts as found, the defendant had...