Cases - Housden v Conservators of Wimbledon and Putney Commons

Record details

Name

Housden v Conservators of Wimbledon and Putney Commons

Date

[2008]

Citation

EWCA Civ 200

Legislation

Wimbledon and Putney Common Act 1871

Keywords

Easements - Wimbledon and Putney Common Act 1871

Summary

Land forming part of Wimbledon and Putney Commons was vested in the respondent under the Wimbledon and Putney Commons Act 1871. The Act imposed a duty to conserve the commons. The appellant claimed to have acquired a prescriptive right of way on the basis of 40 years user. The judge held that the respondents had no power under the 1871 Act to grant easements and that the appellants could not acquire a prescriptive right in the absence of a capable grantor. On appeal the appellant argued that a prescriptive right based upon 40 years user was indefeasible. Accordingly no reliance was based upon a presumed grant.

The appeal was allowed. On a true construction of the 1871 Act the respondents did have the power to grant a right of way over the commons and were therefore competent grantors.

If that had not been the case the court would have been bound by authority to dismiss the appeal on the ground that even 40 years use can be defeated by showing that the owner of the land could not grant the easement.

A party claiming a right of way by prescription must establish that there was a grantor capable of granting the right claimed. If there was such a grantor it is not necessary to show an actual grant.

This is part of a string of cases that highlight the inadequacies of the present law of prescription and have led to calls that the law be modernised. As things stand, if a party claims to have the benefit of a prescriptive easement it must show that the use relied upon was not unlawful, either because of an express prohibition or because the relevant authority gave permission for the use.