Neutral Citation No:  NICty 2
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
2015 No. 102813
DEPUTY COUNTY COURT JUDGE DUNCAN
(a) a right to park at a particular location on the Avenue identified on the amended map attached to the civil bill;
(b) a right to launch boats, dinghies and to do other such recreational activities from the jetty (the quay referred to in paragraph 1 above and which for the sake of consistency in this judgment I will continue to refer to as "the quay");
(c) a right to launch boats, dinghies and to do other such recreational activities from or at the sandy beach lying to the south of the quay; and
(d) the right to use the quay and beach for all recreational activities.
Access permitted on foot only to cross directly to opposite stile.
No access to foreshore or quay."
THE DOMINANT TENEMENT
"The general right of way (in common with others) for all purposes and at all times for the Purchaser, his heirs, executors, administrators and assigns over and along the said roadway and TOGETHER ALSO with a right of way (in common with others) on foot only at all times for the persons aforesaid over and along that portion of the Avenue leading to Seaport Lodge and lying between the County Road and the premises hereby conveyed".
THE SERVIENT TENEMENT
(a) The southern section of the Avenue, referred to in paragraph 1 above, and coloured brown on the map at page 627 of the trial bundle, is currently owned by the first defendant having been conveyed by Elaine Hilary Thomas on 3rd May 2017. This section of Seaport Avenue runs from the County Road for a distance of approximately 80 to 90 metres in a northerly direction. This land was not vested in 1964, and following the conveyance to the first defendant is now comprised in Folio AN 231595 Co. Antrim.
(b) The middle section of the Avenue and forming by far the greater portion of the lands over which the plaintiffs' right of way is asserted is owned by the third defendant, the successor in turn of Antrim County Council and Coleraine Borough Council. This portion is shown coloured yellow on the map on page 627, and consists of land vested in the Administrative County of Antrim by the Ministry of Health and Local Government for Northern Ireland on 1st October 1964 in exercise of its powers under, inter alia, the Development of Tourist Traffic Act (Northern Ireland) 1948. The lands were therein described as vested in the Council "in fee simple discharged from all claims estates incumbrances and charges whatsoever in accordance with and subject to the provisions of the said Acts." The area shaded yellow on the map at page 627 includes all of the lands still vested in the third defendant at this location, but the plaintiffs' claim is now restricted to a lesser area illustrated by map B (dated 15th May 2018) attached to the plaintiffs' latest amended civil bill.
(c) The northern section of the Avenue is coloured green on the map on page 627. Mr Reilly, in his affidavit, and in his oral evidence to the court, avers that the title to these lands is vested in the first defendant. Certainly most of the lands coloured green on that map were conveyed in fee simple to the first defendant by Coleraine Borough Council by deed of conveyance dated 1st February 2013. The title to the lands comprised in that conveyance is now registered in the Land Registry under Folio AN 199186 Co. Antrim. However, the area shaded green in the map on page 627 exceeds the parcel of land conveyed to the first defendant by that conveyance. The area shaded green incorporates the western landward part of the quay which was not included in the 2013 conveyance. This portion of the quay appears to have been part of the lands vested in 1964, and ostensibly therefore is in the ownership of the third defendant. The first defendant contends, however, that this projection of the quay was constructed on land which had many years before accreted to and thus formed part of, the lands conveyed to the first defendant by the 2013 conveyance. However, that is an issue, the court was informed, on which the third defendant wishes to reserve its position and is not an issue on which the court has been invited to make any determination in these proceedings.
(d) Lands coloured red on the map on page 627 comprise the eastern, seaward part of the quay and a portion of the foreshore and sea bed. These lands are now held by the first defendant under a lease dated 31st July 2017 and made between Her Majesty the Queen of the first part, The Crown Estate Commissioners of the second part and the first defendant of the third part for a term of 125 years from 1st May 2017. This lease replaced a lease dated 25th August 2011 for a term of 25 years, and made between the same parties with the addition of the second defendant as a tenant. The second defendant transferred his interest under the earlier lease to the first defendant by a Land Registry transfer dated 8th January 2013.
(e) The plaintiffs' map dated 15th May 2018 has shaded yellow two additional areas for which no title has been adduced during the course of these proceedings. The first is a small beach area lying immediately south of the quay and almost completely surrounded by the vested lands owned by the third defendant, the lands of the first defendant comprised in the 2013 conveyance and finally the foreshore leased to the first defendant by the leases of 25th August 2011 and 31st July 2017. The second area is a small beach lying immediately north of the quay and described by some of the witnesses as Shelly Beach. The title to neither area has been analysed in Mr Reilly's affidavit. Mr Shaw informed the court that this was because at the time Mr Reilly swore his affidavit on 16th June 2017 neither area had been identified by the plaintiffs on their maps as an area over which their prescriptive rights were being asserted. That is certainly correct in respect of the northern beach area which appears for the first time in the plaintiffs' amended map (Map B) dated 15th May 2018. However, in respect of the small beach area immediately south of the quay that does not appear to be the case. This beach area appears to have been shaded blue in a map attached to the first amendment of the civil bill on 7th November 2016 and identified in paragraph 4 of the civil bill as belonging to the third defendant. Mr Shaw asserted nonetheless that the first and second defendants lay claim to this beach. Mr Hunter, the solicitor for the third defendant, informed the court that although the Council was reserving its position on this issue, just as it was with other title issues between the first and second defendants and the Council, it was prepared to accept whatever ruling the court made on the plaintiffs' claims over these lands including the beach area where the ownership may be in dispute.
(a) Dr Steele is 64 years of age and his evidence regarding the use of the Avenue goes back to when he was approximately ten years old.
(b) His grandmother, Mary Steele, died in 1965 and after her death his family would have holidayed at 16 Seaport Avenue once a month during the summer practically every year. He recalled his father driving his car along the Avenue regularly during these periods to park at the front of the house.
(c) Dr Steele passed his driving test in 1970 and thereafter drove his own car to 16 Seaport Avenue using the Avenue intermittently but mainly using the rear entrance to the house.
(d) At all times 16 Seaport Avenue and the adjacent house, No.14, opened directly onto the Avenue making access by vehicles possible.
(e) In 1985 the family acquired a dog and to prevent it from running out onto the Avenue a fence was built which prevented vehicular access from the rear to the front of the house.
(f) When the family was entertaining visitors, family cars were regularly driven up the Avenue and parked at the front of the house to better accommodate visitors at the rear.
(g) Some visitors used the Avenue to visit the house as did occasional workmen and tradesmen delivering furniture. It was easier to manoeuvre larger items of furniture through the front door than through the rear of the house.
(h) From the age of ten years onwards he recalled walking up the northern part of the Avenue to go to the quay to fish with crab lines. Also from that time, he recalled his father, who enjoyed the sun, regularly walking up the Avenue to the little beach south of the quay to sit in the sun. The family regularly swam from the beach.
(i) In 1974 when he was 21 years old Dr Steele bought a small boat which he transported on the roof of his car along the Avenue to the beach. He parked in a small area just above the quay. He did this intermittently until 1980 when he got married.
(j) After his marriage he purchased in or about 1980 or 1981 a larger boat which he moored at the quay. Before doing so however he went to see Mr Hume Stewart-Moore, the then owner of Seaport Lodge, a large house at the northern end of the Avenue overlooking the quay. He knew Mr Stewart-Moore owned a large boat which was also moored at the quay and initially Dr Steele testified that he had gone to seek Mr Stewart-Moore's advice about mooring his new boat there. In cross examination however he agreed he had gone to ask Mr Stewart-Moore for permission to moor his boat at the quay. Mr Stewart-Moore gave him permission provided that he kept his boat out of the way of other boats which moored there.
(k) He agreed that as a boy he could remember Mr Stewart-Moore carrying out work to the quay, converting it from a stone built jetty to the concrete structure that exists today.
(l) He owned this boat until 1985 and frequently drove his car along the Avenue to the parking area above the quay during this period. He did so to transport lobster pots to the boat and also when his family went to the beach beside the quay to transport all the paraphernalia required by a young family. The parking area was large enough to accommodate four or five cars parked there.
(m) In the mid-1980s he acquired a wind surf board and frequently drove his car along the Avenue to the parking area to transport this board to the quay. The last occasion he did so was in 2011. Towards the end of August of that year having parked his car in the usual parking area above the quay he was approached by Mr Seymour Sweeney who said "It's alright, I see it is you Keith." Mr Sweeney went on to say that he was having trouble with people interfering with the ropes of the boats moored at the quay. Dr Steele responded that he would take great offence if stopped from using the Avenue.
(n) Dr Steele believed that the area at the northern end of the Avenue was fenced off approximately six months later blocking access to the parking area, the beach and the quay.
(o) Dr Steele refuted the suggestion that his use of the Avenue, whether pedestrian or vehicular or his use of the beach beside the quay, was in any way permissive. He considered that he had the legal right to do so.
(a) Dr Allistair Taggart, aged 64, had been a regular visitor to Portballintrae since the mid-1980s. He had been a friend of Dr Steele since 1984 and stayed with the Steeles for a week in 1986, rented other accommodation for a week in Portballintrae in 1987 and 1988 and ultimately purchased a bungalow in the village in 1988. Dr Taggart described this property as his second home, not just a holiday home. During the period from 1986 until 2012 he visited the Steeles regularly, often accessing their home via the Avenue and frequently driving his car over the Avenue to visit them. He also drove his car along the Avenue to access the quay in order to windsurf or to use a small dinghy which he owned. He recalled the existence of a T-bar (a rusty pipe with a cross bar on it) which could be slotted into a pipe in the ground in the middle of the Avenue just below Seaport Lodge. It was never locked and could be lifted by hand and placed to one side. It was not regularly in place and he personally had never had to remove the barrier at any time when he brought his car down the Avenue to the parking area. He never regarded his use of the Avenue as permissive. He assumed that he had a right of way. He stopped driving down the Avenue in 2012 when the Council erected their post and chain barrier. It never occurred to him to apply to the Council for a key. By that stage he was getting too old for windsurfing.
(b) Mr David Hopley testified that he had been a friend of David Smyth, the husband of the second plaintiff, from childhood days. He first visited the Smyths at 16 Seaport Avenue in 1979. He, his wife and their children would have regularly visited the Smyths, staying at 16 Seaport Avenue up until 1999 or 2000. On occasions he would have used the Avenue to park his car at the front of the house. He himself did not take his car down to the quay but did recall Dr Steele bringing his car to the quay area on 3 or 4 occasions over this period. Mr Hopley when going with his family to the quay to fish for crabs, or very occasionally to the beach beside the quay, always walked.
(c) Mrs Barbara Cooke testified that she had lived on Seaport Avenue all her life and was now almost 69 years old. Originally she lived with her parents at 12 Seaport Avenue but for the last 30 years or so she had lived at 10 Seaport Avenue. She recalled Dr Steele using his car to access 16 Seaport Avenue on occasion but she had no clear recollection of him using a vehicle to drive to the quay. Neither of the houses she had lived in had vehicular access to the Avenue and she did not pay particular attention to the use of the quay or beach by the residents of 16 Seaport Avenue.
(d) Miss Gail Morrow testified that she had lived at 12 Seaport Avenue all her life (she was 65 years old). She is the sister of Mrs Cooke. She had a clear recollection of Dr Steele using his car to access 16 Seaport Avenue and indeed of his father also using the Avenue to bring contents to his house. She regularly saw Dr Steele, when he was in residence, driving up the Avenue with his boat and later his windsurfer to the grassy area above the quay. Her recollection of this activity covered the period from when Dr Steele was 18 years old until access to the quay was fenced off.
(i) the plaintiffs reserved their position on the title to the portion of land coloured brown on the map, acquired by the first defendant by virtue of deed of conveyance dated 3rd May 2017 (referred to in paragraph 25(a) above);
(ii) the area of land shaded green on the map is more extensive than the portion of land conveyed by Coleraine Borough Council to the first defendant by deed dated 1st February 2013. Reference is made to this issue in paragraph 25(c) above. As already observed, the third defendant reserved its position on any issue which may arise in the future between the defendants in relation to the title to the lands shaded green; and
(iii) in their written closing submissions, the first and second defendants challenge the accuracy of the plaintiffs' map A attached to their most recently amended civil bill. This map incorporates as part of the lands owned by the third defendant a small portion of land abutting Seaport Avenue which actually belongs to the owner of 14 Seaport Avenue (Joyce Rankin). No evidence of Mrs Rankin's title has been furnished to the court but if the first and second defendants are correct in this assertion then it is an error which has also been replicated in Mr Reilly's map.
(a) One sworn on 22nd December 2016 by Moira Quinn, Director of Performance of the third defendant in which she averred inter alia that the third defendant owned and controlled Seaport Avenue. She also averred that when keys to the barrier which the Council had erected were provided to residents of the Avenue in 2012, that was to permit them to access their properties only. She quoted from a letter dated 9th June 2016 sent to the plaintiffs' solicitors by the solicitors for the third defendant in relation to this issue:
"This permission was granted without prejudice to, or acknowledgement of, any other potential rights, and to the exclusion of all others."
She further averred that in relation to the declaration sought by the plaintiffs in these proceedings in respect of access to their property from the County Road the third defendant regarded same as "unnecessary because the Council has never challenged that right."
(b) An affidavit by Niall McSorley, a digital services manager with the third defendant, also sworn on 22nd December 2016, averred to his preparation of maps and aerial photographs exhibited to the affidavit of Moira Quinn. Objection was taken by the first and second defendants to those maps and same were not, in fact, referred to during the course of the hearing.
(c) An affidavit by Andy Scott, a maintenance supervisor with the third defendant, sworn on 20th June 2017, averred to the maintenance of Seaport Avenue by the third defendant and its predecessor Coleraine Borough Council. He had carried out maintenance work to the Avenue from 1993 and during this time had seen local residents and members of the public using the Avenue for tourism and recreational purposes.
THE PLAINTIFFS' CLAIM OF A RIGHT OF WAY TO THE QUAY
"An easement, including a right of way, not by deed, may be acquired by prescription in three ways: (i) by reference to The Prescription Act 1832; (ii) under the doctrine of lost grant; or (iii) at common law. The Prescription Act 1832, c.71, by S.9 expressly did not extend to Ireland. However, the Act was extended to Ireland by An Act for Shortening of Prescription in Certain Cases in Ireland 1858 c.42. The single clause extends the 1832 Act to Ireland. It remains part of the statute law of Northern Ireland without significant amendment to this day."
Since the plaintiffs claim that all three methods of prescription are applicable in this case it is necessary to examine each in turn.
Prescription at Common Law
Lost Modern Grant
"In our judgment Angus v Dalton decides that, where there has been upwards of twenty years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the twenty year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made."
The Prescription Act 1832
"No claim which may be lawfully made at common law, by custom, prescription, or grant to any way or other easement….when such way….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….was first enjoyed at any time prior to such period of twenty years…"
The 1832 Act thus provides that a plaintiff may establish an easement by showing a period of twenty years user "without interruption". Section 4 of the Act clarifies that the twenty year period:
"shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which said period may relate shall have been or shall be brought into question and that no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have written notice thereof, and of the person making or authorising the same to be made."
(i) that the vesting order of 1964 did not completely extinguish any easement enjoyed by the plaintiffs' predecessors in title at the date of vesting; and
(ii) even if such easements were extinguished by the vesting order they could begin to accrue again by prescription thereafter.
The defendants do not demur, in principle, from the second submission and I accept the submission as an accurate statement of the law. The first submission however is not accepted by the first and second defendants and requires further analysis.
at A in support of his submission:
"Easements ….do not prevail against an acquiring authority where land compulsorily acquired is used for the statutory purposes of that authority. Unless specifically extinguished by the compulsory purchase, however, such interests may revive against a subsequent purchaser."
and at D:
"Unless the authorising Act provides to the contrary, where an acquiring authority compulsorily acquires a servient tenement it remains subject to any existing easement or other right over it for the benefit of other land (ie. the dominant tenement). There is no requirement to serve any notice to treat on the owner of the dominant tenement, assuming the dominant tenement itself is not required. The owner of the dominant tenement will not, however, be able to enforce such easement or other right against an acquiring authority acting in pursuance of its statutory powers; his rights are instead converted into a claim for compensation…. Where the acquiring authority later disposes of its interests in the servient tenement to a third party, any such adverse easement or other right may become enforceable again by the dominant tenement against the new owner of the servient tenement, except where this is prevented by express statutory provision."
Finally, he cites Gale on Easements, 20th Ed. at 12-13
"Where lands compulsorily taken under one of the numerous statutes giving compulsory powers are subject to an easement which is disturbed in exercise of statutory powers, the person entitled to the easement cannot in general bring an action for disturbance; nor is he entitled to be served with a notice to treat. However, the easement will not be completely extinguished and will bind the lands in the hands of persons other than the acquiring authority."
(i) The process of vesting in Northern Ireland differs from that in England and Wales and I concur with the submissions of Mr Shaw in this regard. In Northern Ireland upon the vesting declaration all interests in the subject land are extinguished and transferred to the compensation fund. In my judgment it is irrelevant that the plaintiffs' father may or may not have chosen to encash any cheque issued to compensate him for the loss of his rights. By that stage the lands had already vested in the Council.
(ii) The wording of the 1964 vesting order in this case expressly states that the lands acquired compulsorily were vested in the Council:
"…..in fee simple discharged from all claims estates incumbrances or charges whatsoever….".
(iii) Mr Orr concedes that there are no Irish authorities that support the proposition that following the vesting of land in the terms adopted in this case, a subsequent sale of all or part of the lands to a third party acts to revive the easements extinguished by the vesting order.
(iv) I accept as a fact the evidence of Mr Reilly that in Northern Ireland the medium of compulsory acquisition by vesting order is from time to time utilised to create a new statutory fee simple extinguishing all putative or express easements or other rights which might inhibit future or contemplated development of the lands in question. Mr Reilly gave the example of the Castlecourt development in Belfast, with which he was personally involved, where the lands were vested by the Department of the Environment for Northern Ireland under the Planning legislation at the request of the developer in order, inter alia, to clear the lands of all pre vesting easements, interests and claims. Such an exercise would in my judgment be rendered otiose if Mr Orr's contention that such rights could be resurrected again by the subsequent disposal of the vested lands to the developer or other third parties, was sustainable.
(i) a dominant and servient tenement. It is not disputed that this characteristic is satisfied in this case;
(ii) accommodation of the dominant tenement;
(iii) ownership or occupation by different persons. Again this is not an issue in this case; and
(iv) the right is capable of forming the subject matter of a grant.
(i) as of right i.e. "nec vi, nec clam, nec precario "; and
Accommodation of the dominant tenement
"a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and it is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties."
Mr Orr contends that the right of way claimed to the quay clearly accommodates and benefits the dominant tenement, a seaside dwelling house, allowing the dominant tenement to enjoy common law and customary rights to the seashore. In response Mr Shaw submits that the plaintiffs' claim is based not on a customary right but on a prescriptive right connected to 16 Seaport Avenue. Whereas I accept that the court is not dealing with customary rights in this case I am also prepared to accept that the prescriptive private rights for which the plaintiffs contend are rights which are capable of attaching to the dominant tenement.
Subject Matter of a Grant
User "as of right"
"….the legal meaning of the expression 'as of right' is, somewhat counterintuitively, almost the converse of 'of right' or 'by right'. Thus, if a person uses privately owned land 'of right' or 'by right', the user will have been permitted by the landowner - hence the use is rightful. However, if the use of such land is 'as of right' it is without the permission of the landowner, and therefore is not 'of right' – hence 'as of right'. The significance of the little word 'as' is therefore crucial, and renders the expression 'as of right' effectively the antithesis of 'of right or 'by right'."
"…. So long as land is held under a provision such as section 12(1) of the 1985 [Housing] Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land "by right" and not as trespassers, so that no question of user "as of right" can arise."
And at paragraph 23:
"When land is held for that purpose, and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct. Of course, a local authority would be entitled to place conditions on such use – such as on the times of day the land could be accessed or used, the types of sports which can be played and when and where, and the terms on which children or dogs could come onto the land."
"It is true that this case does not involve the grant of a right in private law, which is the normal issue where the question whether a use is precario arises…the right alleged by the council to be enjoyed by members of the public over the field is not precisely analogous to a public or private right of way."
Nonetheless in the same paragraph he goes on to state:
"However, I do not see any reason in terms of legal principle or public policy why that should make a difference. The basic point is that members of the public are entitled to go onto and use the land provided they use it for the stipulated purpose….namely recreation…".
(a) acquire 245 acres of land;
(b) develop and maintain the lands as open spaces, walks, shelters, parking spaces, provide recreational and sanitary facilities and, with the consent of the Minister of Health and Local Government, appropriate lands for such other purpose as it thought fit;
(c) generally undertake works or provide further facilities or improve any amenities or services calculated to promote the development of tourist traffic in the area; and
(d) make by-laws for inter alia regulating the use and management of any lands or buildings provided under the Scheme.
THE PLAINTIFFS' CLAIM TO A RIGHT OF WAY FROM THE COUNTY ROAD
(a) The court must be satisfied that the nature and extent of the user by the occupiers of 16 Seaport Avenue is in fact sufficient to acquire any prescriptive right. Mr Shaw makes reference to the letter written by David Smyth to the Council on 1st June 2001 in which he accepted that the vehicular use of the Avenue was "limited to a small number of car journeys per year". This submission also applies to the brown lands.
(b) Any right of way enjoyed by the plaintiffs, whether express or otherwise, was extinguished by the vesting order in 1964. For the reasons given in paragraph 41 I accept that submission. I also however accept Mr Orr's submission that prescriptive rights can begin to be acquired afresh after the vesting order i.e. after 1964.
(c) Any user of the yellow lands by the plaintiffs to pass and repass was with the consent of the third defendant and their predecessor councils and since such use was permissive no prescriptive rights can be legitimately claimed.
(d) The user by the plaintiffs has not been established as being "nec clam".
(a) The express vehicular right of way granted by the 1946 conveyance to Mary Steele was conditional upon the intended roadway to upgrade the Avenue being constructed. Since those works were never undertaken the vehicular right of way never came into existence. The only unconditional express right of way was pedestrian.
(b) Following the vesting of the yellow land in 1964 both the express, but conditional, vehicular right of way and the pedestrian right of way over the yellow land were extinguished. Since a right of way must exist to service the dominant tenement, and since the brown land, after the vesting of the yellow land in 1964, no longer served or provided access to the dominant tenement, the express rights of way over the brown land terminated once the vesting order became operative.
(c) Even though the Council did not in fact own the brown land, access over that land was only undertaken with the permission of the Council. The plaintiffs' use of the brown land was therefore permissive. This is reflected by the terms on which the Council furnished keys to the plaintiffs to access their property in 2012 and confirmed by the presence of the signs erected by the Council. The latter, Mr Shaw submits, are sufficient to prevent prescriptive rights being established.
"If land to which a right purports to be annexed is in fact accommodated by the use of the right, the right qualifies as an easement whether the dominant and servient tenements are contiguous or not. A right of way, not ending anywhere on the land to which it is annexed, will be a valid easement, if the owner of the land owns, or otherwise has the right to pass over, the intervening lands."
In the Todrick case the owner of the intervening lands was in fact the owner of the dominant tenement, but Romer L.J. (at page 580) considered that the law encompassed a more extensive application:
"Supposing that that right to be a right to maintain some erection such as a sign upon a servient tenement, I see no reason why that should not be a good easement merely because to get to the servient tenement the owner of the dominant tenement has to go over land which does not belong to him, if and so long as he can get a right or permission to go to the servient tenement."
"In my judgment, there is no warrant in the authorities or in principle for an owner of land to take these steps in order to prevent the wrongdoer from acquiring a legal right. In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be 'as of right'."
"No actual user can be sufficient to satisfy the statute unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, that the fact that a continuous right to enjoyment is being asserted, and ought to be restricted if such right is not recognised and if resistance to it is intended."
It is explicit in my findings set out in paragraph 62 that the user exercised by the plaintiff was overt and by my findings in paragraph 66 that that use was in fact distinct from the consensual rights afforded by the Council to the general public under the scope of the Scheme. The additional issue raised by Mr Shaw here is whether that user was capable of being distinguished by the Council from the general public user to such an extent that it ought to have alerted the Council to the fact that prescriptive rights were in the course of being accrued and required action on its part if that user was not to crystallise into acquired prescriptive rights.
(a) dismiss the plaintiffs' claim seeking the declaration and associated rights in paragraphs 10(1)(a) to (d) of the amended civil bill;
(b) grant the declaration sought by the plaintiffs in paragraph 10(2) of the amended civil bill against the first and third named defendants;
(c) decline to grant the injunction sought by the plaintiffs in paragraph 10(3) of the amended civil bill. No evidence has been adduced of any wrongful interference with or obstruction of the rights of the plaintiffs by any of the defendants in relation to that section of the Avenue in respect of which the declaration has been granted nor has any suggestion been made that those rights will be wrongly interfered with by the defendants in the future; and finally
(d) will hear counsel on the issue of costs.