| EASEMENT — Prescription — Established use — Servient owner incapable of making grant — Whether servient owner’s incapacity preventing acquisition of right by prescription — Prescription Act 1832, s 2 — Wimbledon and Putney Commons Act 1871, s 35
Housden and another v the Conservators of Wimbledon and Putney Commons
Ch D: Judge Roger Kaye QC, sitting as a High Court judge: 17 May 2007
Where the capacity or power of the servient owner derived from a statute which rendered it unlawful for him to grant a particular easement no such right could be acquired by prescription under s 2 of the Prescription Act 1832.
Roger Kaye QC so held when sitting in the Chancery Division and dismissing an appeal by the applicants, Michael and Elizabeth Housden, against an order of the adjudicator for HM Land Registry who had dismissed their application to register the benefit of a private right of way over an access way leading to their property at Southside Common, Wimbledon.
The applicants’ property and the access way, which led from a public road to the property across a verge of land that formed part of Wimbledon Common, were built between 1883 and 1893, the applicants and their predecessors in title thereafter enjoying access to and egress from the property. The claim to the right of way was based on prescription under s 2 of the 1832 Act. The conservators objected on the ground that under the Wimbledon and Putney Commons Act 1871, which vested the commons in the conservators, they had no power to grant the right of way claimed.
JUDGE ROGER KAYE QC said that while s 8 of the 1871 Act enabled the conservators to acquire and hold land and dispose of it, s 35 prevented them from disposing in any manner of any part of the commons, which included preventing them from granting any easements over any land forming part of the commons. Therefore the conservators could not lawfully grant a private right of way of the kind sought and were not, and never could have been, capable grantors of a private right of way over or across any part of the commons. That prevented the applicants acquiring a prescriptive right based on 40 years’ user under s 2 of the 1832 Act, the basis being a presumption, assumption or acknowledgement that the fictional basis of the long user, a presumed grant, could not have been lawfully granted by reason of a statute.
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