Statutes of Property Common Law and Land Law

When applying the doctrine of prescription at common law, such an easement is only presumed where the appropriate user has existed from time immemorial. The limit of legal memory for this presumption was usage from 1189 but as it is normally impossible to supply actual proof dating this far back it has been commonly accepted on the basis of evidence as a long user3. The difficulty with this is that such a presumption can be rebutted as occurred in Hubert v Dale [1909]4 where the plaintiff was able to show that the right claimed had not existed or could not have existed since 1189. Due to the difficulties with the common law approach to prescription and the possibilities of rebuttal the principal of lost modern grant was formed. Under this heading, there is a presumption that if the user has used the easement for a period of 20 years that the deed of grant to use the land has been lost. This makes the presumption that a lawful grant was previously in existence and therefore the user should be entitled to continue using the land in the manner he has been doing. The case of Tehidy Minerals Ltd v Norman [1971]5 settled that the presumption cannot be rebutted even by direct evidence that no grant was ever made. If another explanation for the user is equally possible than a grant should not be presumed6. It was decided in Neaverson v Peterborough RDC [1902]7 that the presumption can be rebutted if it can be established that no lawful grant could have been made at any relevant time. The Prescription Act 1832 gives rights to subsequent purchasers of the land. Section 2 of the Act takes the view that if a user has enjoyed the right without interruption for 20years that a claim to continue using that right cannot be defeated by proof that the user began after 1189. The Act goes on further to state that claims for an easement where the user has enjoyed the right without interruption for 40 years is deemed as absolute and indefeasible.

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