The Law Relating to Adverse Possession and Prescription [Part Two]

These patterns were finally rationalised and the doctrine was upheld by the House of Lords in Dalton v Angus.

Under the doctrine, a claimant may seek a prescriptive easement based on 20 years’ uninterrupted use when there is no evidence that the putative grantor was legally incompetent.  Again, this relates to rights that are legally recognised as easements and will not apply to merely access to somebody’s property if the use and enjoyment of the access does not meet the acutely defined criteria of a legal easement. As previously mentioned, easements are often defined with rigorous certainty.

The doctrine applies only in those cases where the state of affairs between the parties cannot otherwise be explained.  However, the doctrine is not displaced by evidence that in fact there had been no grant in the 20-year period.

The doctrine was (and is) a judicial fiction.

Long user in itself was not a sufficiently convincing rationale for prescriptive acquisition. As such, judges conveniently hid behind a fiction. The doctrine of lost modern grant portrays the acquiescent servient owner as the active grantor of a deed which was lost. In fact, the active player is the dominant owner, who acquires an interest through a factual connection to the land and its de facto enjoyment. The other artifice is that only retrospective conduct matters. It is true that claimants must prove that the retrospective conduct of both parties was consistent with the fiction. Yet, it is clear that in most cases dominant owners would not pursue a claim for theoretical or historical reasons only. The physical connection to the land and the subject matter of the easement will have a present, prospective and practical utility for the dominant owner. This is also part of the contiguity and propinquity requirement of a legal easement as there can be no easement in gross.

The teleological utility of the doctrine is normally deployed in legal and judicial reasoning in the circumstances where:

• express conferment was complex and expensive;

• the servient owner refused to grant a formal easement over the land, even though the dominant owner had used the land in a certain way for a considerable period of time; or

• a dominant owner could not rely on alternative bases for a claim for an easement such as necessity, common intention or the principle in Wheeldon v Burrows

Note further that a claimant may also rely on the Prescription Act 1832 — although it has been criticised for being ill and poorly drafted. The real purpose of this legislation is no doubt to prevent the defeat of claims based on immemorial user.

But note that not all easement will operate in the context of the dominant owner being able to use the land of another to make ingress and egress from and to his property. In some instances, easement may be to support another’s property eg a neighbouring property or an adjoining land. We refer to this kind of easement as negative easement.

Negative easements entitle the dominant owner to receive something from or through the servient owner’s land. Accordingly the dominant owner may seek to restrain the servient owner from freely using the servient land. One problem is that courts did not consider that such negative rights were necessarily capable of grant. Another problem is that it is not incumbent upon the dominant owner to act positively and so reveal the existence or utility of the alleged easement. Negative prescriptive easements have been described as ‘an anomaly in the law’. Therefore it has been held that the categories of negative easements by prescription ought to be closed.

But note that while it is not possible to claim a prescriptive right to air generally, it is possible to do so where the access is through a specific aperture in the dominant land or a definite channel over the servient land.

Note further that, there is an automatic natural right of support between two parcels of land.

However, where it is established that adjacent land has supported a building for 20 years and the enjoyment has been as of right then the owner of the land on which the building stands has a prescriptive right to continued support.

In addition, generally a right of support by buildings for buildings on adjacent land can only arise by prescription.

Parties claiming a prescriptive easement must demonstrate that:

• the user was ‘as of right’;  

• the servient owner had knowledge, constructive knowledge, or means of knowledge, of the user;

• the servient owner acquiesced in the user;

• the user was against the fee simple owner; and

• the user was nec vi, nec clam, nec precario.

Note that nec vi, nec clam and nec precario simply means 'not by force, nor stealth, nor licence'. It is the principle by which rights may be built up over time, principally public or rights s of way under the English law. Specifically, if a path is used – openly, not against protests, and without permission of the landowner – for an extended period (20 years) then a permanent legal right to such use is established.

It is often referred to in the context of adverse possession and other land law issues. It is also relevant to the creation of easements whereby the law 'prescribes' an easement in the absence of a deed. In order for the law to do so the right of way or easement needs to have been enjoyed without force, without secrecy, and without permission for a period of time, usually 20 years.

To Be Continued

Clement Chigbo [esq], LLB [Hons], LLM [London], L.E.C, B.L, Dip.Lat, MCIarb, is a practising solicitor and a lecturer in law in UK. He is also a registered associate with Law Firm of C F Butler & Associates, Nassau, The Bahamas. Criticisms, suggestions and comments are welcome. He may be contacted at lawscholar2006@yahoo.com, clemsweiss@hotmail.com.