Orme v Lyons

MR JUSTICE NEWEY: I have before me an appeal from a decision of Mr Michael Michell, sitting as a Deputy Adjudicator to HM Land Registry.

The case concerns a track in Trewassa, a hamlet in Cornwall. The track runs north-south immediately to the east of the appellant’s home, Harley Cottage. At its southern end, the track meets a public highway. At the other end, there is a metalled road and, across the road, a property known as Lowertown Farm, which the respondents own. The metalled road goes only as far as Lowertown Farm. There is a footpath continuing to the east.

The dispute between the parties relates to whether the respondents have the benefit of a vehicular right of way over the track. The Adjudicator concluded that they did, and so directed the Chief Land Registrar to give effect to an application for the registration of such a right of way. The appellant challenges that decision.

The basis for the respondents’ claim is the doctrine of lost modern grant. The Adjudicator summarised the relevant legal principles in paragraphs 22 to 24 of his decision with which neither side disagreed. As the Adjudicator explained, the grant of an easement will be presumed from long user “as a right”. 20 years’ user will generally suffice to raise the presumption of a lost modern grant, and the user need not have continued up to the “action or suit” in which the claim to the easement is brought into question.

I should perhaps read paragraph 24 of the decision in full. It is in these terms:

“The amount or regularity of use that must be shown to give rise to a prescriptive claim to the easement is a question of fact. Guidance as to the amount or regularity of use that must be shown can be found in Hollins v. Verney (1884) 13 QBD 304 at 315 in which it was said that the user must be user which is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement the fact that a continuous right to enjoyment is being asserted and ought to be resisted if such right is not recognised and if resistance to it is intended. In White v Taylor (No 2) [1969] 1 Ch 160 at 192-195, Buckley J., dealing with a prescriptive claim to a profit a prendre for grazing said

‘User must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right and of a right of the measure of the right claimed.’

This statement was approved by the Court of Appeal in Ironside & Crabb v. Cook & Barefoot. If long user of sufficient character, degree and frequency is shown then the burden is on the owner of the servient tenement to prove that he did not in fact know of the user – Diment v Foot [1974] 1 WLR 1427 at 1434, 1435.”

In the section of the decision headed “Findings of Fact”, the Adjudicator reviewed the evidence before saying this (in paragraph 31):

“The question then arises whether the use by Mr and Mrs Lyons [i.e. the respondents] was of such a character degree and frequency as to carry to the mind of a reasonable person in possession of the Strip that a continuous right to enjoyment of the Strip was being asserted and ought to be resisted. It is relevant to the consideration of whether the user would have carried to the mind of a reasonable person in possession of the Strip that the Strip has every appearance of being a lane. It is open at both ends. It is of a width typical of country lanes. It is bordered on both sides by hedges or buildings except where the tractor shed stands. It has and had, as the aerial photographs show, wheel tracks or ruts along its length. Given the appearance of the Strip, I consider that the use by Mr and Mrs Lyons with vehicles was sufficient in regularity or amount to indicate an assertion by them of a continuous right to drive over the Strip and to indicate to a reasonable person in possession of the Strip that the assertion should be resisted if he did not wish them to acquire a right.”

Mr William Hansen, who appeared for the appellant, argued that the views expressed by the Adjudicator in this paragraph were not justified by the evidence. Although three grounds of appeal were initially put forward, Mr Hansen developed two. He expressed the issues to which these grounds of appeal give rise in these terms:

“a.

whether the Adjudicator was right to hold that the user [of the track] from 1989, which he found was occasional, when the metalled road leading from the Farm was temporarily blocked by a vehicle delivering building materials to [the] Farm, was as of right and/or sufficiently continuous in it[s] character to found a prescriptive right (‘Ground 1’);

b.

whether, in such circumstances, the Adjudicator was right to hold that the user from 1989 was of such a character, degree and frequency as to carry to the mind of the servient owner the fact that a continuous right to enjoyment was being asserted and/or to put him on notice that such a right was being asserted (‘Ground 2’);”

As Mr Hansen recognised, the two grounds are closely related. They both reflect Buckley J’s comment in White v Taylor (No 2) that the user must be shown to have been of such a character, degree, and frequency as to indicate an assertion by the claimant of a continuous right and of a right of the measure of the right claimed.

The thrust of Mr Hansen’s case was that, for an easement to be established, the respondents had to show use of the requisite frequency and quality between 1971 and 1991. For much of this period, Lowertown Farm was owned by a Mr and Mrs Hayne who, as the Adjudicator found, made quite extensive use of the track. The Adjudicator concluded that Mr Hayne drove along the track on average at least once a month over the whole period from 1971 to 1988. The Adjudicator went on to say that it seemed to him that 12 times a year was the minimum that Mr Hayne drove over the track.

In 1988, however, Lowertown Farm was sold to the respondents, and they made much less use of the track. The Adjudicator said this about their user:

“Mr and Mrs Lyons, in my judgment, drove over the Strip only on odd occasions from April 1989 until the late 1990s. I accept that there were some occasions when the lane to Lowertown Farm was blocked by delivery vehicles and Mr and Mrs Lyons wanted to go out in their car. Having seen the lane into Lowertown Farm, it is obvious to me that if a lorry delivering building materials to Lowertown Farm stopped in the lane, it would block the entrance to and exit from Lowertown Farm. I also accept that on some of the occasions when the lane was blocked, Mr and Mrs Lyons drove down the Strip to go out from Lowertown Farm. However, I do not accept that this occurred as often as twice or even once a week. It is highly unlikely that as often as once or twice a week the lane was blocked by a delivery lorry at the very time that Mr and Mrs Lyons wanted to go out in a car. On some of the occasions when a delivery was being made and Mr or Mrs Lyons wanted to go out, they would have waited until the delivery had been made. On other occasions, they no doubt could have asked the delivery vehicle driver to move his vehicle to allow them to get past. Mr and Mrs Lyons did not have a four wheel drive car. I accept the evidence of Mrs Dawson that she was nervous of driving down the Strip but having seen the Strip myself in winter (the view being on 1^st March) I do not accept that it was not possible to drive a car down the Strip. Although I consider that driving down the Strip in an ordinary car was possible, it would have required care and would have taken up time. Mr and Mrs Lyons would have had to balance the extra time and trouble involved in driving down the Strip against the time they would have had to wait for the delivery lorry to leave or be moved. I do accept that building works were going on at Lowertown Farm from April 1989 until the late 1990s and that deliveries of building materials would have been made over the whole of this period. The building works on the farmhouse began in 1989 and on the two storey barn began after May 1992. However, the fact that deliveries were made of building materials would not have required Mr and Mrs Lyons to drive over the Strip as often as once a week over this period. I consider that what Mr Lyons put in his witness statement, namely that he had to use the Strip to exit Lowertown Farm ‘sometimes’, was more accurate than his statement in cross-examination that he drove over the Strip on ‘numerous’ times.”

Mr Hansen argued that the respondents’ user, as found by the Adjudicator, was not such as to sustain a finding of lost modern grant.

Mr Rawdon Crozier, who appeared for the respondents, took issue with the proposition that only user since 1971 was relevant. He pointed out that there was evidence before the Adjudicator going back rather earlier than this: in particular, an ordnance survey map indicates that a track was already in existence by 1906. However, it is not apparent to me that the Adjudicator attached any weight to pre-1971 user. It seems to me, therefore, that I must focus on the period between 1971 and 1991.

On the other hand, I accept Mr Crozier’s submission that an appellate court should not interfere with an Adjudicator’s finding simply because it might have taken a different view. In this context, Mr Crozier drew my attention to a passage from Mummery LJ’s judgment in Wilkinson v Farmer [2010] EWCA Civ 1148. At paragraph 25 Mummery LJ said this:

“The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions.”

Mr Hansen made the point that his complaints do not relate to primary findings of fact but rather to inferences from them (compare Mills v Silver [1991] Ch 271 at 286). However, Mr Hansen did not suggest that the Adjudicator misunderstood the law; his complaints relate to the Adjudicator’s application of the law to the facts. While I should be more ready to interfere than would be the case were the appellants attacking findings of primary fact, I must, I think, recognise not only the Adjudicator’s expertise (as Wilkinson v Farmer shows), but also that his decision is rooted in fact and that he was better placed than I am to assess factual questions. He saw the witnesses. He visited the site.

Was then the Adjudicator entitled to take the view that the respondents’ user of the track after 1988 was of sufficient frequency and quality to sustain their case? In the end, I have concluded that he was. It may well be that the Adjudicator could also properly have arrived at a different conclusion, but it seems to me that he was justified in taking the view that he did.

The respondents used the track, albeit much less frequently than Mr and Mrs Hayne had. It may be, as Mr Hansen pointed out, that their user was essentially in circumstances where the other route was blocked, but I do not see that fact as of any great importance: it will not have prevented a reasonable servient owner from being alerted to the user. It seems to me that in the context the respondents’ user was capable of being seen as carrying to the mind of a servient owner that a continuous right to enjoyment was being asserted. A servient owner could be expected to have seen the respondents’ user as a continuation of that of the Haynes. He could, moreover, have been expected to be alerted to user for the benefit of Lowertown Farm by the physical nature of the track, to which the Adjudicator referred. In particular, the ruts in the track would have suggested vehicular use, and it would have been hard for a servient owner to imagine the vehicles going anywhere other than to and from Lowertown Farm.

In all the circumstances, despite Mr Hansen’s very attractive advocacy, I have concluded that the Adjudicator was entitled to arrive at his decision and that I should, therefore, dismiss the appeal.