Housden & Anor v Conservators of Wimbledon & Putney Commons

Wimbledon and Putney Commons, which were at one time waste of the manor vested in Earl Spencer and cover about 1,000 acres, are held by the respondent Conservators on the terms of the Wimbledon & Putney Commons Act 1871 (the 1871 Act), as amended.

Mr & Mrs Housden (the appellants) are the registered proprietors of No. 8 Southside Common, Wimbledon SW19 (No. 8), a house built between 1883 and 1893 on a plot of land lying south west of a larger property called “Laurel Grove” to which access was gained over a different way over the commons from that now claimed. The appellants claim that No 8 enjoys the benefit of a prescriptive right of way to and from the public highway called Southside Common on foot and with vehicles over a strip of land forming part of the commons (the Access Way). There is also a narrow strip of verge vested in the local authority. The appellants rely on uninterrupted user, openly and as of right, for a period of more than forty years next before the commencement of these proceedings.

On 12 September 2003 the appellants sought to register an easement over the Access Way. The application, which was opposed by the Conservators, was referred to the Adjudicator to HM Land Registry (Mr Edward Cousins). He dismissed the application on 11 July 2006.

This second appeal is brought from an order of Mr Roger Kaye QC (sitting as a Judge of the Chancery Division) dated 17 May 2007, dismissing with costs the appellants’ appeal from the Adjudicator to the High Court.

The two issues on this appeal are, first, whether the Conservators have power to grant an easement under the 1871 Act (the vires issue); and, secondly, if not, whether absence of a power to grant an easement is fatal to the appellants’ claim to a prescriptive easement of way under the Prescription Act 1832 (the 1832 Act). The prescription issue is whether a claim under the 1832 Act, which is based on more than forty years user, proceeds on the presumption or fiction of a grant. (A further question whether it matters that the owners of the commons only became incapable grantors on the statutory vesting in the Conservators under the 1871 Act was dealt with in the written submissions. As will appear, it is unnecessary to decide that question and I say nothing more about it.)

The Conservators accept that, if the appeal succeeds on either issue, No. 8 will have the benefit of an easement over the Access Way. If the appeal succeeds on the vires issue it will be unnecessary to express a concluded view on the questions raised by the prescription issue.

The Adjudicator and the judge reached the same conclusions on the vires and the prescription issues. They both held that, on the true construction of the 1871 Act, in particular sections 8 and 35, the Conservators have no power to grant an easement over part of the commons and that, on the true construction of the 1832 Act, in particular section 2, the Conservators’ inability to grant an easement was a bar to the acquisition of a prescriptive right of way.

I turn to the vires issue first. It turns on the construction of the 1871 Act.

The vires issue

The principal provisions governing the Conservators’ powers to dispose of land and to alienate the commons or any part of it are sections 8 and 35. Other provisions in the 1871 Act are part of the picture of the overall aim and scheme of the legislation by which the Conservators were established and within which they must operate.

First, the general scheme. Section 4 of the 1871 Act states that-

“For the purposes of this Act the commons shall be taken to be the open spaces known as Wimbledon Common with Wimbledon Green and Putney Heath included and Putney Lower Common, as the same respectively are particularly described in this Act.”

Section 32 is the vesting provision. The commons, with the buildings and enclosures comprised within the ambit of the commons, as shown coloured green on deposited plans and described in the third schedule to the Act “with their respective rights, members and appurtenances”, were vested in the Conservators. They were vested as on and from the passing of the Act for all the estate and interest which were, immediately before the passing of the Act, vested in or belonged to Earl Spencer.

Section 34 required the Conservators at all times to keep the commons

“open, uninclosed and unbuilt on except as regards such parts thereof as are at the passing of this Act inclosed or built on, and except as otherwise in this Act expressed, and shall by all lawful means prevent, resist and abate all encroachments and attempted encroachments on the commons, and protect the commons and preserve them as open spaces, and resist all proceedings tending to the inclosure or appropriation for any purpose of any part thereof.”

The Conservators were granted express powers to “make and maintain such roads and ways as may be in their judgment necessary and proper”(section 39); and to purchase by agreement or accept a grant of any land having been or reputed to have been formerly part of or adjoining to Wimbledon Common or Putney Lower Common (section 68).

A saving provision in section 108 stated that

“Nothing in this Act or in any by-law of the Conservators shall take away, abridge, or prejudicially affect any right of common, commonable or other like right, right of way, or other right, in over, or affecting the commons, other than any right in, over, or affecting the same vested in or belonging to Earl Spencer.”

Two provisions have a direct bearing on the vires of the Conservators.

Section 8 of the 1871 Act provided for the incorporation of the Conservators with power to dispose of land-

“There shall be a body of Conservators … who are hereby incorporated … with power to take and hold and to dispose of (by grant, demise or otherwise) land and other property…”

Section 35 placed an important restriction on the Conservators’ powers to dispose of any part of the commons-

“It shall not be lawful for the Conservators, except as in this Act expressed, to sell, lease, grant or in any manner dispose of any part of the commons …”

The judge held (paragraphs 41 to 46 of his judgment) that the Conservators could not lawfully grant across part of the commons a private right of way of the kind claimed by the appellants. He held that section 8 did not assist the appellants, being an enabling provision akin to the Memorandum of Association of a company setting out the basic powers of the Conservators. They include the acquisition, holding and disposal of land. The powers were, however, expressly cut down by section 35 by restricting the exercise of the Conservators’ core powers under section 8, which could not be exercised lawfully to dispose of any part of the commons. The Access Way is part of the commons. The restriction on alienation prevented the Conservators from granting any easements over any land forming part of the commons. This construction, the judge held, accorded with the object of the 1871 Act, which was to preserve the commons as an open space. It fitted in with other provisions of the 1871 Act, such as those aimed at the prevention of encroachments on the commons.

The social value reflected in the 1871 Act was conservation of the natural environment in an urban locality for the benefit of an expanding local population. A scheme was established “with a view to preservation” of the commons as “open spaces of large extent, unenclosed and unbuilt on” for “great local and public advantage” by vesting them in an incorporated body of appointed and elected Conservators, on whom duties were imposed and powers conferred.

The environmental purpose can be protected and promoted without adopting a narrow, literal interpretation of the 1871 Act. The legislative text should be read sensibly in context. In this way full effect can be given, so far as a fair and reasonable reading of the statutory language allows, to the stated purpose and the scheme devised to attain it.

The excellent expert decisions of the Adjudicator and the deputy High Court judge deserve great respect. I hesitate to disagree with them. However, adopting the approach to the 1871 Act stated in the previous paragraph, I have arrived at a different result.

I accept that section 35 is a very wide prohibition against alienation of the commons by the Conservators. I also agree that there is a sense in which the grant of an easement over land is disposing of part of it. It is a disposal of a right over land which form the commons. There is a parcel of rights and interests in that land. However, on reading section 35 in the wider context of the Act as a whole, its apparent aim and its general scheme, I do not construe it as preventing the Conservators from lawfully granting an easement over the Access Way.

First, looking at the aim of the 1871 Act broadly, the grant would not be incompatible with the Conservators’ overriding duty to conserve the commons as an unenclosed, unbuilt-on, open space. The Access Way would not cease to be an open space if the appellants were granted an easement over it. The grant of an easement would not entitle them to enclose or build on the Access Way. The easement would not interfere with the ability of members of the public to continue enjoy the part of the commons across which the Access Way runs.

Secondly, looking at the detail of the matter, the wording of section 35 is, in my judgment, reasonably open to an interpretation enabling the Conservators to grant easements in circumstances consistent with the conservation of the commons in their existing state as an open space.

The question is whether the grant of the easement would be a disposal of part of the commons in breach of the prohibition in section 35. I begin by asking whether there is a possible reason for making it unlawful to grant the appellants a right of way over the Access Way. A grant would entitle the appellants to pass and re-pass over only a narrow strip of the commons running along side the verge of the highway. It would not give them exclusive possession of any part of the surface of the commons or detract from the openness of the space of the Access Way.

Section 35 makes it unlawful for the Conservators to “dispose” of any part of “the commons” by sale, lease, grant and so on. A number of points arise on the language in which the prohibition is expressed. It is of some significance that the restriction relates to “the commons” rather than to “land” or to an “estate, interest or right in land.” The latter are the expressions apt to include rights in or over land and incorporeal hereditaments, such as a right of way, see Interpretation Act 1978, Schedule 2 paragraph 5(b). “The commons” refer not so much to the land itself or to the rights and interests in the land, as to the physical area of open space, which is to remain unenclosed and unbuilt on. The grant of a right of way to the appellants over the small defined Access Way would impose a legal burden on the land, but not one that would diminish the area of the commons as a physical area of open space or result in any physical enclosure of it or building on it. In these circumstances I do not think that the Conservators would be unlawfully disposing of or alienating part of the commons contrary to section 35.

I would add this footnote. The National Trust, which was re-incorporated by private Act of Parliament with power to purchase, take, hold, deal with and dispose of land, holds certain property subject to prohibition on alienation: s. 21(1) of the National Trust Act 1907 and s.8 of the National Trust Act 1939. It is well known that the property of the National Trust includes open spaces, such as farmland, stretches of the coastline and parks and gardens. The National Trust is, however, expressly permitted to grant an easement or right (not including a right to exclusive possession of the surface) over or in respect of its inalienable property: section 12 of the 1939 Act.

A point could be made that, in conferring an express power to grant easements, Parliament recognised that, but for that power, the grant of an easement over inalienable land might breach the prohibition on alienation. On the other hand, Parliament has recognised that the grant of an easement does not necessarily offend the purpose served by a statutory prohibition against alienation of open spaces.

Another footnote. During the course of the hearing there was discussion about the part of the common used as a golf course by the Wimbledon Common Golf Club and its predecessors since before the passing of the 1871 Act. The decision of the London South West Valuation Tribunal (31 May 2007), in which the restrictions on the commons were considered, was cited. It was a rating case. The Tribunal noted that the golf clubs using the course had no lease or licence to use the land for golf. There was no permission document. The use was with unwritten permission without payment, but accompanied by annual voluntary contributions. The Tribunal concluded that the course was sufficiently defined for it to be capable of being a hereditament for rating purposes, but the clubs did not have paramount or exclusive control and were joint occupiers. In my judgment the decision does not assist on the vires issue.

As I have concluded that the Conservators have power to grant a right of way over the Access Way, the appeal succeeds. It is agreed that the appellants are entitled to a prescriptive right of way over the Access Way if the Conservators have, as I hold they do, power to make such a grant.

On the prescription issue the court has heard full argument on the construction of the 1832 Act. Counsel have researched and argued the point in depth in their written and oral submissions and in further material submitted since the hearing. It is unnecessary to decide the issue for the purpose of disposing of the appeal. In general, it is unwise to deliver judgments on points that do not have to be decided. There is no point in cluttering up the law reports with obiter dicta, which could, in some cases, embarrass a court having to decide the issue later on.

There are, however, four reasons for departing from the general rule in this case. First, the judge’s conclusion on the vires issue meant that he had to deal with the prescription issue and he did so fully. The decision could be cited in future as a precedent on this point. It would be sensible for this court to say whether or not it thought that he had got it right. Secondly, this case may go further. Thirdly, the same point may well arise in other cases under the 1832 Act. Fourthly, prescription is topical. Litigation and law reform are in the air. This is the second appeal on the 1832 Act that I have heard in the last month. There have been two recent important decisions of the House of Lords and the Law Commission is in the process of reporting on the reform of this notoriously difficult branch of English land law.

Prescription issue

In his “Introduction to the History of the Land Law” (1961) Professor AWB Simpson wrote (page 251)-

“It need hardly be said that the present state of the law on the acquisition of easements and profits is a disgrace to the law. The nineteenth-century judges did their best to interpret the Prescription Act so as to avoid injustice, but it is hardly surprising that they produced a disorderly and uncertain body of laws, and that many simple and obvious points remain unsettled to this day. The Act is the classic example of an incompetent attempt to reform the law, and its retention on the Statute book is indefensible.”

No attempt was made to reform it in the 1925 Property legislation, an omission that prompted Sir William Holdsworth to comment at page 286 of “An Historical Introduction to the Land Law”(1927) that

“It is odd that the branch of the land law which most requires to be restated should have been left wholly untouched by the Property Acts.”

Nor was it reformed after the 14^th report of the Law Reform Committee in 1966 (Cmnd 3100), in which leading lawyers of the day unanimously recommended the repeal of the 1832 Act in its entirety and that prescription at common law and under the doctrine of lost modern grant should be abolished. The Committee had no better view of the 1832 Act than Professor Simpson -

“40.The Prescription Act 1832 has no friends. It has long been criticised as one of the worst drafted Acts on the Statute book. Those whom we have consulted are unanimous in thinking that the Act should be repealed.”

The Committee was, however, deeply divided on what to put in its place, 8 of the Committee recommending that, as regards easements other than rights of support, no new system of prescription should be adopted, while the other 6 members recommended that a simplified and improved statutory system should be substituted for the existing forms of prescription.

On the particular question arising in this case the Committee, which listed in its report (paragraph 99 (6)) the methods which should be adopted, if it were decided to substitute a new system, recommended that

“(xi)

Incapacity to make a grant on the part of a servient owner should not bar a prescriptive claim.”

The recommendation reflected the view that the presumption of a grant should cease to be an essential part of the process of prescription with the consequence that the basis of the decisions which turned on their having been no competent grantor or grantee would disappear. Thus, the Committee concluded that

“53.

We do not think that a servient owner’s incompetence to make a grant should bar a prescriptive claim. The fact that a grant would be ultra vires a servient owner would not prevent him from protecting his title either by litigation or by interrupting the dominant owner’s enjoyment.”

We heard detailed arguments on the interpretation and application of the 1832 Act on this issue on the basis that the Conservators did not have legal power under the 1871 Act to grant an easement to the appellants over the Access Way.

In his excellent judgment HHJ Kaye QC referred to the relevant sections of the 1832 Act, cited the leading authorities, summarised the rival contentions and concluded that if, as he had held, the Conservators could not lawfully grant an easement over the Access Way, that fact prevented the appellants from acquiring a prescriptive right based on forty years user under s2 of the 1832 Act. As I shall explain, his conclusion was strongly influenced by his reading of the judgments of the House of Lords in the Staffordshire case cited and analysed later in this judgment.

Before examining the judge’s reasons for his conclusions and the criticisms of them on this appeal a general introduction to the 1832 Act is required. It was passed following the Report of the Real Property Commissioners (1829). They criticised, in particular, the judicial fiction of lost modern grant which was to be presumed on the basis of twenty years use rather than on enjoyment from time immemorial (1189), which would have been enjoyment for 640 years when the Real Property Commissioners reported. In the case of lost modern grant it was not open to the person against whom the claim was made to show that user commenced after 1189. The Commissioners proposed (page 51 of their report) that adverse enjoyment for a period of sixty years should be conclusive evidence of a right and that a period of twenty years enjoyment should be prima facie title. Neither the Commissioners’ Report nor the Hansard report of the debate on the Bill, which mention that uninterrupted enjoyment for a period of forty years “should not be effectually challenged”, throw light on the problem of prescribing against a grantor incapable of granting an easement.

The 1832 Act was aimed at shortening the time for common law prescription in some cases by preventing a defendant from showing that the user was first enjoyed prior to the period of twenty years next before the action was brought, which was one, but only one of the ways of defeating a claim to a prescriptive right at common law based on lost modern grant. See Gardner v. Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 at 236 per Lord Macnaghten.

As Sir William Holdsworth explained in his Historical Introduction at page 284 the 1832 Act did not reform the law by abolishing the existing common law methods of acquiring a title to an easement (apart from right to light) by prescription. It simply added one more method to the existing methods of uninterrupted user, openly and as of right, since 1189, and the doctrine of lost modern grant, under which a grant was presumed after twenty years. As I shall explain, that is the way in which the 1832 Act has been interpreted in the cases which treated the fiction of lost modern grant as surviving the reforms.

I set out section 2 in full in the next paragraph of this judgment. A preliminary outline of its structure might ease the task of interpretation. The section opens by referring to claims “which may be lawfully made at the common law.” It then provides for two different periods of user. The first is the shorter period of twenty years user. It is stated that, if the way or other matter shall have been enjoyed by any person claiming right without interruption for the period of twenty years, no claim to it at common law shall be defeated by showing only that it was first enjoyed at any time prior to the period of twenty years. There is then added the provision that “nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated.” Subject to the previous modification of the common law, this provision preserved existing common law defences to a claim to a prescriptive easement falling within section 2. Following a semi-colon the next part of the section deals with the longer period of forty years user from which the right was deemed “absolute and indefeasible,” unless it was enjoyed with consent in writing.

So much for the structure of section 2. I now turn to the text itself.

“No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King … or being parcel of the duchy of Lancaster or of the duchy of Cornwall, or being property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as foresaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.”

Section 3 provided for the right to the use of light enjoyed for twenty years to be absolute and indefeasible, unless shown to have been by consent. The wording is very similar to that used in section 2 in relation to the forty year period for easements other than the right to light.

To fall within the 1832 Act the twenty years user had to be immediately before the action: section 4.

Section 7 made express provision for cases in which person was incapable of resisting a claim, for example an infant, a mental patient or a tenant for life. There was no express provision in the Act dealing with an incorporated body for which the grant of an easement would be ultra vires.

On the prescription issue the judge set out in detail the reasons for his conclusion and helpfully summed up the position as follows-

“81.

Thus on construction of the 1832 Act and the 1871 Act and on analysis of the authorities including at the very least, on the basis of the Staffordshire case, the position may be summarised thus: where the capacity or power of the alleged servient owner is shown to derive from a statute which would render it unlawful for the owner to grant an easement of the nature claimed then that will at least prevent a right being acquired by prescription under the second part of s.2 of the 1832 Act. The basis seems to be the presumption or acknowledgment that the fictional basis of long user, a presumed grant, could not have been lawfully granted by reason of a parliamentary statute. As I have said in relation to the first issue, s.35 of the 1871 Act expressly provided that “It shall not be lawful for the Conservators ” except as provided to grant easements.”

On a first trawl through section 2, which is not an easy read, one might be forgiven for thinking that, where a right of way has been enjoyed for forty years, as this right has, there is no obstacle, other than consent in writing, to establishing the existence of an easement by prescription under the Act: the right “shall be deemed to be absolute and indefeasible.” It is difficult to express the nature of the right acquired in stronger terms. According to his obiter dicta in Gardner v. Hodgson’s Kingston Breweries Co [1900] 1 Ch 592 at 595 Cozens-Hardy J seems to have thought that this was the statutory effect of the longer period. He was in good company, as this was also the view of Lord Selborne LC in Dalton v. Angus (1881) 6 HL 740 at 800.

According to Professor Simpson (page 249)

“..the object of this Statute was to do away with the need for the [lost modern grant] fiction, but to preserve the effect of it, and to render obsolete prescription at common law.”

Professor Simpson explained (page 250 of his book) that the forty year period was “intended to supplant prescription at common law.” That was certainly held by the House of Lords to be so with rights to light under section 3 of the 1832 Act. In Tapling v. Jones (1865) 9 HLC 290 Lord Westbury LC stated (at page 304) that the right

“to what is called an ancient light now depends upon positive enactment. It is matter iuris positivi, and does not require, and therefore ought not to be rested on any presumption of grant or fiction of a license having been obtained from the adjoining proprietor.”

He went on to emphasise that, after twenty years access of light without interruption, the right is declared by the statute to be absolute and indefeasible. Lord Cranworth and Lord Chelmsford agreed (pages 310 and 318) that the right was, by the express provision of section 3, absolute and indefeasible. See also Jordeson v. Sutton, Southcoates and Drypool Gas Co [1898] 2 Ch 614 at 626.

Professor Simpson also explains that the common law methods of prescription survived the Act in relation to easements other than light, certainly as regards the twenty year period of user. Common law prescription could be based on user, open and as of right from before the time of legal memory and on a presumed grant made before that date. There was also the fiction of lost modern grant after twenty years user. Following through the logic of a grant presumed by the common law from long user, the position was that “no prescriptive title can be acquired unless a grant of the thing is legally possible”: see Holdsworth (see above) at page 282. It would not be possible if the right in question was not capable of existing as an easement at common law or if the owner of the servient tenement had no legal power to make the grant.

Accordingly, the case for the Conservators is that if, contrary to my view, the prohibition on alienation prevented them from granting a right of way over the Access Way to the appellants, that, by the same token, prevented the acquisition of an easement by prescription at common law over the Access Way. It would have been unlawful, and therefore legally impossible, for the Conservators to have made a grant which was prohibited by section 35 of the 1871 Act. It was submitted that this is the case with both the twenty year period and the forty year period, both being in the section 2 and, it is submitted, both being governed by the opening words, which refer to claims that could be lawfully made at common law. No such claim could be made if it was ultra vires the owner of the servient tenement to make a grant of the easement claimed.

This submission was strongly disputed by Mr Dutton for the appellants. He adopted the passage in Megarry & Wade on the Law of Real Property (6^th Edition) at page 1137 paragraph 18-160, repeating the views in earlier editions that, in principle, it should be possible under the forty year period to prescribe against corporations which have no power of grant. In the case of the forty year period, the last part of section 2, like the similarly drafted section 3 relating to rights of light, positively conferred an absolute and indefeasible right. Thus, the right did not proceed on the basis of a presumption of a grant by the servient owner. It was accomplished by the clear terms of the statute itself, without the need for the fiction of a presumed grant. Thus, even in the case of the servient owner without power to grant an easement, a prescriptive right could be acquired based on forty years user.

We were taken through the authorities on this point which, as Megarry &Wade observe, are conflicting. Like section 2 itself they are certainly not free from difficulty. A detailed analysis of the judgments of the House of Lords in The Proprietors of the Staffordshire and Worcestershire Canal Navigation v. The Proprietors of the Birmingham Canal Navigation (1866) LR 1 HL 254 was required. As the Adjudicator commented in his decision (paragraph 34) “It is a case which is somewhat complex to interpret.” The relevant passages are at pages 268, 273 and 278.

The three judgments were given by the same three as sat on the appeal in Tapling v. Jones (see above) the year before. The only difference was that the intervening period had witnessed the drama of Lord Westbury’s downfall, following inept handling of an official’s misappropriation of public funds and criticisms of his appointment of members of his family to public office. So in Staffordshire Lord Westbury was no longer Lord Chancellor. Lord Chelmsford had replaced him.

Although the claim in Staffordshire was to the use of a watercourse by forty years user and was based on section 2, the Attorney General (and future Lord Selbourne LC) Sir Roundell Palmer QC for the appellant claimants cited (at page 260) the right to light case of Tapling for the proposition that no presumption of a grant was now required to establish the prescriptive right, which was deemed by the section to be absolute and indefeasible. This submission was not expressly addressed either in the reported argument of the respondents or in any of the judgments of the Lord Chancellor or the two ex-Lord Chancellors. The respondents and the judges concentrated on two other points: first, that the respondents had no power to make the grant claimed by the appellants; and, secondly, that there was nothing which constituted an enjoyment in the character of an easement. All three judgments decided against the appellants. Lord Chelmsford LC said at page 268

“To impose such a servitude upon the water in their canal as that contended for by the Appellants would have been ultra vires of the Respondents, and consequently length of user could never confer an indefeasible claim upon the Appellants under the Prescription Act, as no grant to the use of the water could have been lawfully made by the Respondents.”

Lord Cranworth said at page 273

“Of the existence of such a grant or covenant there is no trace whatever, and it cannot be presumed. To have entered into any such engagement would have been a clear breach of duty on the part of the Respondents.”

Lord Westbury at page 278 dealt with both points taken by the Respondents. He said

“In my opinion it is a mistake to suppose that the second section of the Prescription Act is applicable to the circumstances of this case. There is no existing stream or body of water, either natural or artificial, the use of which has been, is, or can be, claimed by the Appellants.”

In the concluding paragraph of his opinion Lord Westbury added his opinion on the vires point

“But if the Prescription Act had been at all applicable it would be incumbent on the Appellants to prove that the right founded on the claim by user might, at the beginning of, or during that user, have been lawfully granted to them by the Respondents’ company. No such proposition can be maintained. Had any grant been made at any time by the Respondents’ company, now alleged by the Appellants to have been acquired against them by user, such grant would have been ultra vires and void, as amounting to a contract by the Respondents not to perform their duty by improving their navigation, and conducting their undertaking with economy and prudence.”

As to the ratio of Staffordshire a different view from that in Megarry & Wade is taken by the editors of Gale on Easements (17^th Edition) at paragraph 4-64 at page 205 and also in Cheshire & Burn’s Modern Law of Real Property (17^th Ed) at pages 621-622 where the case is cited for the proposition that a claim based on the longer period, as well one based on the shorter period, can be defeated by the common law defence that the right is prohibited in law, because the grant would have been ultra vires the grantor. The passage on page 278 of the report is cited in the footnote, along with Rochdale Canal Co v. Radcliffe (1852) 18 QB 287 at 315 (a case on the shorter period). See also Neaverson v. Peterborough RDC [1902] 1Ch 557 at 579 to the effect that a legal origin for a user could not be inferred which would involve illegality, in that case in violation of the provisions of a statute.

If free to choose I would have preferred Megarry & Wade’s statement of the legal position, though it was noted that the authorities were not at one on the point. The similarity in the language in sections 2 and 3 relating to the acquisition of absolute and indefeasible rights under the statute would indicate to me that the longer forty year period of user in section 2 does not proceed on the common law presumption of a grant, but was a creation of statute according to its terms.

Further, like the Law Reform Committee, I find it difficult to see what sensible or practical reason might exist for denying the acquisition of an easement by long user in such circumstances.

However, with considerable reluctance, I am compelled by precedent to the conclusion that the judges in the Staffordshire case were unanimous (a) in not accepting the Attorney-General’s submission on the application of Tapling to a section 2 case and (b) in holding that, in a section 2 case, even a forty year period of user could be defeated by showing that it was ultra vires the owner of the servient tenement to grant the easement claimed. The three judges must, I think, have proceeded on the basis that the opening words of section 2, which are absent from section 3, control the whole section. They apply the common law presumption of grant to both the shorter and the longer period of user.

A number of other cases have been cited. They are neither directly in point nor do they decide anything that undermines the authority of the decision of the House of Lords in Staffordshire, which is binding on this court. Like the judge I derived no assistance from Lemaitre v. Davis (1881) 19 Ch D 281, a case of a claim based on prescription against an ecclesiastical corporation under a restraint against alienation, in which Staffordshire was not cited.

Two recent cases of the House of Lords on prescription should be mentioned. In R v. Oxfordshire CC, Ex p. Sunningwell Parish Council [2000] 1 AC 335 at 349-351 Lord Hoffmann analysed the law of prescription explaining how it proceeded on the basis of attributing a lawful title to long uninterrupted user as of right by the use of the legal fiction of a presumed grant before 1189 or by presumption of a lost modern grant. He did not deal specifically with the impact of the 1832 Act in a case where the owner of a servient tenement lacked the legal power to grant an easement. The point did not arise in the case.

Bakewell Management Ltd v. Brandwood [2004] 2 AC 519 is closer to this case, as some of the claims to a prescriptive vehicular right of way over common land were based on forty years user. The claims to a prescriptive right of way were advanced under section 2 of the 1832 Act and on lost modern grant. That was not, however, a case in which it was ultra vires or unlawful for the servient owner to grant the easement or vest any right in the grantee. As explained by Lord Scott at page 342, the issue was whether a claim to a right of way could be made in reliance on user which was itself unlawful and criminal because it was without consent and in contravention of a statutory prohibition forbidding particular use of land without the consent of the owner. It was unanimously held that a right of way could be acquired by prescription in such a case. Acquisition by prescription was not prevented by any requirement of public policy.

I would allow the appeal on the vires issue. The Conservators have power under the 1871 Act to grant to the appellants a right of way over the Access Way.

Had I decided that the appeal on the vires point should be dismissed, I would also, though with reluctance, have dismissed the appeal on the prescription issue.

Finally, I wish the Law Commission well in its deliberations. It is better equipped than the courts to recommend improvements in this area of the law, though prescription is low down in the priorities for law reform. Nevertheless, the rapid expansion of home ownership, the increasing pressures on land available for development and the almost universal reliance on cars for travel outside the city all mean that the need for a simpler law of prescription has become of more rather than less concern. The experience of the courts is that bitter and unaffordable neighbour disputes sometimes stem from claims to user of a way as a means of access to, and for parking close by, a private house, and from complaints of increased and excessive user of an existing access.

My mind has shifted several times during the argument. This is both a tribute to the quality of the submissions, and also symptomatic of the difficulties of interpreting two obscure nineteenth century statutes, each passed in an unfamiliar social and legal context.

On the 1871 Act, I have come to the conclusion that the simplest approach is best: that is, to apply the operative provisions in accordance with their own terms. Section 8 permits the disposal of “land”. “Land” includes “hereditaments of any tenure” (Interpretation Act 1978 Sch 2 para 5(b)), and thus includes incorporeal hereditaments such as easements. Section 35 prohibits disposal of “parts of the commons”. In ordinary language the words “part of the commons” denote a physical concept, not a legal right. It is natural to talk of selling, leasing or granting a part of the commons. But an easement is not a part of the commons; it is a right granted over the commons. There is no corresponding definition of “commons” to stretch the ordinary meaning to include such rights. Nor does the purpose of the Act require such an extension. Any easements granted by the Conservators would have to be consistent with their overall objectives, and they have full control of the nature of any easements and the conditions under which they are granted.

In summary, section 8 permits the grant of easements, and section 35 does not prohibit it. On these short grounds, I would allow the appeal. I am encouraged to see that the same result follows from the more analytical approach adopted by Mummery LJ, with which I also agree.

This makes it strictly unnecessary to consider the second issue under the 1832 Act. However, in view of the extensive arguments we have heard, I would add a brief comment. We have spent much time seeking to analyse the Staffordshire Waterworks case, and have found difficulty in arriving at a clear view of its ratio. In this we have shared the experiences of generations of judges and textbook-writers. Ultimately, I am persuaded that the extracts quoted by Mummery LJ are sufficient to constrain us to the view adopted by the Adjudicator and the Judge.

In any event, one point that does stand out clearly is that their Lordships, in spite of having the previous year been involved in a rights of light case under section 3 (Tapling), and in spite of it having been relied on in argument, did not regard it as deserving of a mention in their speeches. It must be inferred that they did not regard it as assisting the determination of the apparently similar issue which arose in the later case under section 2. The only significant difference between the two sections is in the introductory words of section 2, not found in section 3, referring to claims which may be “lawfully made at common law, by custom, prescription or grant…” Lord Chelmsford referred to these words, commenting:

“Custom and prescription are here out of the question, and if the Respondents could not have granted the use of the water to the Appellants, the Act is wholly inapplicable…” (p 267)

This passage provided the context for the passage (on p 268) quoted by Mummery LJ.

At the highest from the appellants’ point of view, one is left with the position that, almost two centuries after the passing of the 1832 Act, there is no clear authority for the application of the section 2 in the way they propose, and a striking lack of consensus among the text-book writers. Given the relative obscurity of the Act, I would be very cautious about extending it beyond its established ambit. I also have in mind that the Law Commission are currently reviewing the law of easements, and can better consider what place, if any, the provisions of the 1832 Act should have in modern conditions.

For these reasons, in agreement with Mummery LJ, I would allow the appeal on the first ground.

I agree with both judgments.