LORD JUSTICE DILLON: This is an appeal by the first and second defendants in the action, Mr. Silver and Miss Davis, against a decision of His Honour Judge Micklem given on the 28th April 1989 at Birmingham where he was sitting as a Judge of the High Court in the Chancery Division. The principal question is whether the appellants are entitled to a right of way with vehicles between their property called Coed Major and the Hay-Craswall main road over a track referred to as "the disputed track" across the plaintiffs' land known as Parc-y-Meirch in the Parish of Craswall in the County of Hereford and Worcester between the points marked X-Y-Z on the plan annexed to the statement of claim. The judge held that they were not. The facts and the findings of the judge are set out very fully in his judgment, to which reference should be made; I do not propose to attempt to précis in this judgment.
Certain points taken below are not pursued on this appeal, viz:
(1) It was claimed below that the appellants are entitled to take advantage of a reservation in a Conveyance of the alleged servient tenement Parc-y-Meirch - dated the 8th April 1970. The judge rejected that on the ground that the reservation was not expressed to be in favour of the owners of the alleged dominant tenement Coed Major, and so could not be enforced by them, and on the further ground that anyhow the track referred to in the reservation was not the disputed track this action is about, but another track.
(2) It was claimed below that there is a public right of way with vehicles along the disputed track. That the judge rejected on the facts.
One new point is sought to be raised cm the appeal, viz that the judge's conclusions in favour of the plaintiffs were not open to him on the pleadings, because the plaintiffs had in their pleadings dealt with the appellants' assertion of a right of way by a general traverse and joinder of issue, and not by a particularised plea of licence or permission. That pleading point was not taken below and in my judgment it is far too late for the appellants to take it now, especially as the course of pleading followed by the plaintiffs was that approved by Harman J, on the then Rules of the Supreme Court, in R.P.C. Holdings Ltd. v. Rogers [1953] 1 All ER 1029 at 1036 A-B.
What is left therefore is a claim by the appellants to a private right of way by prescription with vehicles over the disputed track as appurtenant to Coed Major. The way is claimed, as in all such cases, by prescription at common law, by prescription on the basis of a presumption of a lost grant, and by prescription under the 1832 Act.
It is only necessary, however, to consider the claim founded on presumption of a lost grant.
The parties accept that in this, as in virtually every other case, the claim founded on prescription at common law - presumed use since 1189 - adds nothing to the claim of presumed lost grant; they stand or fall together.
As to the claim under the 1832 Act, the period of 20 years to found a prescriptive right under the Act has to be the 20 years next before action brought - i.e. up to the issue of the Writ which was in December 1987. On the facts of this case, there was very little use of the disputed track from the death of Joe Phillips on 23rd September 1981 until the appellants came on the scene in 1986. The judge held that this absence or intermission of use defeated any claim to a prescriptive right under the Act. Whether that conclusion was right or wrong does not matter. The appellants' case has to be founded on use of the disputed track with vehicles for access to and egress from Coed Major during the lifetime of Joe Phillips, who occupied Coed Major from 1922 until a few days before his death in 1981. If that use is sufficient to warrant the implication of a lost grant of a right of way with vehicles, discontinuance of the use after the death of Joe Phillips would not defeat that grant or amount to an abandonment of the right. Conversely if the use with vehicles during the lifetime of Joe Phillips was insufficient to warrant the presumption of a lost grant, it is equally insufficient to support a claim to a right of way under the 1832 Act, even if there had been no discontinuance of the use after Joe Phillips' death until the appellants came along.
The plaintiffs do not object to the appellants using the disputed track on foot - only to the use of vehicles. The appellants rashly bought Coed Major in reliance on a Statutory Declaration by Mrs. Olive Davies, a niece of Joe Phillips, as to access. That declaration was held by the judge to be inaccurate in various respects, and the judge also held that the access routes referred to in the statutory declaration did not include the disputed track. The appellants failed to take the elementary precaution of finding out from the plaintiffs, before their purchase, whether the plaintiffs accepted that there was a right of way with vehicles over the disputed track.
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The judge decided against the appellants' claim of lost grant on two grounds, which he set out in his judgment at page 66A-D as follows:
"I have come to the conclusion that such a user as there was by Joe Phillips and others was not sufficiently continuous to establish any prescriptive right to use the disputed track with vehicles. Equally fundamental, equally fatal to the defendant's claim is the nature and extent of that user. The use of the disputed track of which evidence has been given is at very least equally open to explanation as due to tolerance by James Price. That goes for all the evidence.
Taking the test as propounded by Lord Lindley in Gardner v. Hodgson's Kingston Brewery Company Limited, I do not find that the use of which evidence has been given is inconsistent with the reasonable inference that James Price tolerated the use of which he was aware. Indeed, I consider that toleration to be clearly the more likely explanation."
The appellants have to surmount both findings if they are going to succeed.
The plaintiffs take a further point by a respondent's notice. In November 1987 the third defendants, Nash Rock, Stone and Lime Co. Ltd., on the appellants' instructions and on their behalf, laid a stone road along the disputed track so as to make it passable by vehicles at all seasons. The plaintiffs say that even if the appellants are entitled to a prescriptive right of way over the disputed track with vehicles by the presumption of a lost grant (or under any other head of prescription) they were not entitled to improve it by laying the stone road so as to make the disputed track passable by vehicles at all seasons, since the laying of the stone road increases the burden on the servient tenement and in particular causes inconvenience to the plaintiffs in so far as the plaintiffs want to keep pedigree ponies on Parc-y-Meirch. The judge recorded this submission, and found that Mrs. Mills, the second plaintiff, was justified in her view that Parc-y-Meirch was unsuitable for grazing with the quality and type of pony which she was breeding so long as the stone road remains in place, and that while the road remains it is not practical to graze such ponies on Parc-y-Meirch as she did before the road was put down. The judge did not however rule on the submission in law, since it was not necessary for him to do so as he held that there was no right of way with vehicles at all to be improved. The laying of the stone road was therefore a trespass for which the judge awarded the plaintiffs damages.
I turn now to the judge's point of tolerance.
The question is whether the judge has correctly directed himself in law. To put it another way, did the tolerance of the successive servient owners - James Price until 1970 and in his case tolerance out of good neighbourliness and because the use was too insignificant to matter to him or cause him any inconvenience - of such vehicular use of the disputed track as there was in Joe Phillips' time preclude a prescriptive right being acquired, even though no express permission was ever granted to Joe Phillips and no reservations as to his use of the disputed track with vehicles were ever communicated to him by anyone.
The topic of tolerance has bulked fairly large in recent decisions of this court dealing with claims to prescriptive rights, since the decision in Alfred E. Beckett Ltd. v. Lyons [1967] Ch.449. If passages in successive judgments are taken on their own out of context and added together, it would be easy to say, as, with all respect, it seems to me that the judge did in the present case, that there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement in the particular manner for the appropriate number of years has been tolerated without objection by the servient owner.
But there cannot be any such principle of law because it is, with rights of way, fundamentally inconsistent with the whole notion of acquisition of rights by prescription. It is difficult to see how, if there is such a principle, there could ever be a prescriptive right of way. It follows that the various passages in the judgments in question cannot be taken on their own out of context. If each case is looked at on its own and regarded as a whole, none lays down any such far reaching principle. In my judgment, the learned judge in the present case has misapplied the authorities, by taking passages out of context, and misdirected himself in arriving at the supposed principle of law which he has sought to apply.
It is convenient to refer first to certain earlier cases of unquestioned authority where the elements of the doctrine of prescription in its relevant aspects are authoritatively laid down.
Sturges v. Bridgman 11 Ch.D. is a decision of this court where the reserved judgment of the court (James, Baggallay and Thesiger L.JJ.) was delivered by Thesiger L.J. who said at page 863:
"The question so far as regards this particular easement claimed, is the same question whether the Defendant endeavours to assert his right by Common Law or under the Prescription Act. That Act fixes periods for the acquisition of easements, but, except in regard to the particular easement of light or in regard to certain matters which are immaterial to the present inquiry, it does not alter the character of easements, or of the use or enjoyment by which they are acquired. This being so, the law governing the acquisition of easements by user stands thus: Consent or acquiescence of the owner of the servient tenement lies at the root of prescription and of the fiction of a lost grant, and hence acts of user, which go to the proof of either the one or the other, must be in the language of the civil law, nec vi, nec clam, nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive or which he contests and endeavours to interrupt or which he temporarily licenses."
This was cited by Morris L.J. in Davies v. Du Paver [1953] 1 QB 184 at 210 where he said: "Before Mr. Davies could establish a claim based on prescription the evidence would have to show that the owner of the servient tenement had knowledge of what was happening or as an ordinary owner must be taken to have reasonable opportunity of knowledge and that, having power to prevent it, he did not intervene."
If later judgments are in conflict with what was there said in Sturges v. Bridgman, I would prefer to follow Sturges v. Bridgman, as I believe we are entitled to, since Sturges v. Bridgman is, in my judgment, consistent with principle.
Gardner v. Hodgson's Kingston Brewery Co. Ltd. [1903] AC 229 is a decision of the House of Lords which is binding on us. There Lord Halsbury said at page 231-2, after referring to the words "as of right" in the Prescription Act:
"I cannot help thinking there has been a certain play upon words in commenting upon them. In a certain sense a man has a right to enjoy what he has paid for, and, therefore, if the appellant here at any time during the year when she had paid for the right to use this way had been hindered, she would have had a right to complain that what I will call her contract had been broken, and that during the year she had a right to use the way. I do not think that this would have established a right in the proper sense, because, being but a parol licence, it might be withdrawn, and her action would be for damages, but she would have no right to the way. And in no sense could the right be the right contemplated by the Act. That right means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought. At any time after the first year the owner of the Red Lion might refuse to renew the permission to use this way. I think, therefore, that there is no evidence whatever of an user 'as of right'."
Lord Lindley said at page 239, in an oft-quoted passage:
"I understand the words 'claiming right thereto' and the equivalent words 'as of right,' which occur in s.5, to have the same meaning as the older expression nec vi, nec clam, nec precario. A temporary permission, although often renewed, would prevent an enjoyment from being 'as of right'; but a permanent, irrevocable permission attributable to a lost grant would not have the same effect. The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place.
A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established; and this, I think, is the real truth in the present case.
The enjoyment is equally open to explanation in one of two ways, namely, by a lost grant of a right of way in consideration of a rent-charge on the plaintiff's land of 15s. a year, or by a succession of yearly licences not, perhaps, expressed every year, but implied and assumed and paid for."
It is to be noted that a prescriptive right arises where there has been user as of right in which the servient owner has, with the requisite degree of knowledge (which is not an issue in the present case), acquiesced. Therefore mere acquiescence in or tolerance of the user by the servient owner cannot prevent the user being user as of right for purposes of prescription. Equally, where Lord Lindley says that the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense he has explained, he cannot be regarding user with the acquiescence or tolerance of the servient owner as an alternative reasonable inference which would preclude enjoyment as of right from being established. A priori, user in which the servient owner has acquiesced or which he has tolerated is not inconsistent with the concept of user as of right. To put it another way, user is not "precario" for the purposes of prescription just because until 20 years have run, the servient owner could stop it at any time by issuing his writ and asking for an injunction.
User under a temporary licence is, as Thesiger L.J. stated, not user as of right, because, as Lord Halsbury showed, the licence might not be renewed. Thus it has been held - in my view, rightly - that there has been no user as of right where the extent of the user has been controlled by the owner of the servient tenement, as where the user was along a path over the servient tenement across which there was a gate which the owner of the servient tenement kept locked when he did not want the path to be used. See e.g., the decision of Plowman J. in Lay v. Wyncoll [1966] 198 E.G. 887 and the unreported decision of this court in Goldsmith v. Burrow Construction Ltd., 16th July 1987: Court of Appeal Transcript 87/750. In the latter case May L.J. said at page 11: "I agree with Mr. Mowbray's submission that it is not merely a question of the servient owner saying that 'I could have locked the gate and therefore there was no permission;' the fact in this case is that he did lock the gate."
Where of course there has been a permanent, as opposed to a temporary, licence, the primary question is not one of prescription, but one of whether the user was within the scope of the licence or was treated as being within the scope of the licence - Thomas W. Ward Ltd. v. Alexander Bruce (Grays) Ltd. [1960] 2 Ll.Rep. 472; but that is not the present case.
Beckett v. Lyons, the first modern case which is relied on for the proposition that tolerance by the servient owner prevents user by the dominant owner being user as of right and so prevents any prescriptive right being acquired, was not a case of any claim to a private easement appurtenant to property at all. It was a claim to an alleged public right of the inhabitants of the County Palatine of Durham to pick up and take away for their own purposes coal which had been washed up by the sea on to the foreshore near Easington.
The decision is founded on earlier authorities concerned with alleged public rights, and particularly Fitzhardinge v. Purcell [1908] 2 Ch.139 and Blundell v. Catterall [1821] 5 B and Al 268. In Fitzhardinge v. Purcell the court rejected a claim to a public right to shoot wildfowl in the channel of a tidal navigable river, and held that the public have no rights over the foreshore of a tidal navigable river, when not covered by the tide, except such as are ancillary to their rights of fishing and navigation in the sea. In Blundelly. Catterall the court held, according to the headnote, that the public have no common law right of bathing in the sea and as incident thereto of crossing the seashore on foot or with bathing machines for that purpose.
In the course of his judgment in Blundell v. Catterall Holroyd J. commented at page 300 that "where the soil remains the king's and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is riot to be supposed that an unnecessary injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae". That was endorsed by Parker J. in Fitzhardinge v. Purcell and extended from the King to those subjects of the King to whom beds of navigable rivers have been granted. The essence of both decisions was however the limited nature of public rights in the foreshore.
Such being the previous authorities, in Beckett v. Lyons Russell L.J. at 475D stated that:
"... the evidence does not establish that the gathering of seacoal was from the earliest living memory done as of right as distinct from being merely a de facto practice which the gatherers rightly thought no one would find objectionable and which the owner of the foreshore in fact tolerated as unobjectionable."
A bit further down the page he said:
"It is a well-known aspect of English law that in relation to the foreshore a great many activities have been generally tolerated without giving rise to any legal right to continue them. It has never been established in English law that beachcombing can give rise to a legal right to frequent the foreshore for the purpose of beachcombing or require a presumption of a legal origin; and the early evidence in this case to my mind amounts to no more than beachcombing. For the same reasons it does not seem to me that the only reasonable conclusion from the evidence is that the practice must have had a legal origin ... I think that the only reasonable conclusion is mere tolerance of the unimportant."
Harman L.J. put the matter more widely. He said at 469 D-E:
"The authorities seem to show that when the law talks of something being done as of right it means that the person doing it believes himself to be exercising a public right: Jones v. Bates [1938] 2 All ER 237. So far as I can see, no witness was asked whether in picking up coal he believed himself to be exercising a right or was merely doing something which he felt confident that the owner would not stop, but would tolerate because it did no harm. Indeed as carried on up to the last war the practice was (except perhaps during the exceptional weeks of the strikes in 1921 and 1926) on so small a scale as to be a matter of indifference to the owner."
At 474A, however, after citing from Lord Lindley in Gardner v. Hodgson's Brewery he said:
"If it be clear that the usage has long been practised under a claim of right; then the court will be astute to find a legal origin for it; but where another explanation is equally possible, this principle does not prevail. Here, I think, toleration is a sufficient explanation."
I must respectfully query that approach. But in the context of Beckett v. Lyons as a whole, I take the decision to come down to this that it is well-known that public rights in law over the foreshore are very limited and that everything else done on the foreshore is by tolerance or licence of the Crown; therefore no one can have supposed that he was exercising a public right when picking up coal or otherwise beachcombing on the foreshore. In that sense, tolerance was a sufficient explanation.
What was said in Beckett v. Lyons was however relied on in a case of a private easement in Ironside v. Cook [1978] 41 P & CR 326, also a decision of this court. What was in issue there was a claim that persons exercising a general right of way with vehicles under an express grant had acquired by prescription an ancillary right to pull off the track of the right of way on to the verge so as to get round vehicles coming in the opposite direction. The decision can stand on the ground put by Eveleigh L.J. at page 339 where he said that the "evidence does not create in my mind a picture of people asserting a right, but rather that of drivers, when constrained to do so, taking the liberty of pulling on to the verge in so far only as they had to." Buckley L.J. adopted the same view that the right alleged was one of an essentially casual nature, and he considered that the user was not a user asserting a right, but a user relying upon the neighbourly good nature of the owner of the verge to tolerate the sort of use which the evidence disclosed. As I read it, the casual nature of the user is the factor that indicates that it was not as of right; toleration and the assumption of good nature on the part of the owner of the verge do not per se bring about that the user was not as of right.
Goff L.J. concluded at 337 that as the verge was outside the servient owner's land and beyond her ditch the user of it was not such as to put her cm notice that a right was being asserted and could best be explained by tolerance. I do not see how tolerance can come into it if the owner did not have notice of the user.
There is then the case of Patel v. W.H. Smith (Eziot) Ltd. [1987] 1 WLR 853 where the defendants claimed a prescriptive right to park vehicles on the plaintiffs' property and the plaintiffs sought an interlocutory injunction. It appears from the judgment of Balcombe L.J. at 861 A-B that the plaintiffs had been persistently asserting in correspondence that the defendants had no right to park cars there and the defendants had been in the correspondence in practice conceding that and negotiating for a licence to park. Therefore it was held that the user by parking could not have been user as of right. That seems to me, with all respect, to be correct; it was difficult for the defendants to assert their user by parking had been as of right, when their solicitors had written in 1978 "Our clients appreciate that they do not have a right to park on the yard in question." The judgments do, however - unnecessarily in my view - accept submissions founded on Lord Lindley's speech in Gardner v. Hodgson's Kingston Brewery and on the passage in the judgment of Harman L.J. in Beckett v. Lyons at page 474 cited above and treat toleration as an answer to the prescriptive claim. With that, with respect and for the reasons given, I do not agree, and I prefer the statement of the law in Sturges v. Bridgeman.
Since the conclusion of the argument we have been referred by counsel to the case of Bridle v. Ruby [1989] 1 Q.B. 169 which was not referred to during the oral hearing. There are references in the judgments to neighbourly tolerance, but they are obiter, and do not affect the decision. The essence of the decision was that the mistaken belief of the plaintiff and his predecessors in title, in using a particular way, that they had an express grant of a right of way over the land in question did not prevent their use being as of right so as to enable them to establish a prescriptive right of way. That is of minimal, if any, relevance in the present case, since the only persons under a mistaken belief were the appellants who originally thought that they had a right of way over the disputed track by virtue of the reservation in the Conveyance of Parc-y-Meirch of the 8th April 1970.
On the facts of the present case as set out in the judgment of Judge Micklem it is, in my judgment, plain that James Price acquiesced in all use of the disputed track with vehicles. He knew of it, had power to prevent it, and did not intervene; see the words of Morris L.J. in Davies v. Du Paver. The same applies to his successors up to the death of Joe Phillips. There was no demur to it, and there is no suggestion in the evidence that permission was ever sought or granted. In my judgment, the user with vehicles for the purposes of Coed Major in Joe Phillips' time was user as of right, and the plaintiffs have no defence in law on the ground of tolerance to the appellants' claim to a prescriptive easement by the presumption of a lost grant. It matters not that other people may have taken vehicles over the disputed track for other purposes, viz to get up to the Black Mountain for their own purposes which had nothing to do with Joe Phillips or Coed Major, and it matters not that James Price would not always know whose vehicle it was that was using the disputed track, or what its destination was. He acquiesced in any user by anyone.
I turn then to the other point which the judge decided against the appellants, the extent or continuity of the use of the disputed track by vehicles in Joe Phillips' time. This is a question of fact which would have been left to the jury in the days when such actions were tried with a jury. The test to be applied is set out in the judgment of Lindley L.J. in giving the judgment of this court in Hollins v. Verney 13 QBD 304 at 315 where he said:
"It is sufficient for the present case to observe that the statute expressly requires actual enjoyment as of right for the full period of 20 years before action. No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute unless during the whole of the statutory term ... the use 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."
The judge directed himself in law in accordance with the law so laid down. See page 65B of his judgment. He decided against the appellants, but his decision was not a finding of primary fact, but an inference from the primary facts which he found. It is therefore the more readily open to review in this court; see Benmax v. Austin Motor Co. Ltd. [1955] 1 All ER 326 and Whitehouse v. Jordan [1981] 1 WLR 246 at 263F per Lord Fraser of Tullybelton. Moreover I have the feeling from a reading of the judgment of the learned judge as a whole that his approach to the facts was limited by his view on the law as to the validity of the defence of tolerance.
On my appreciation of the primary facts found by the judge, there was during the lifetime of Joe Phillips from the early 1950s onward open use of the disputed track with vehicles for passing between Coed Major and the Hay Road whenever occasion arose and the surface of the disputed track was dry enough to be passable. It matters not, in my judgment, that when the disputed track was too wet to be passable, a different and longer track, the bridle way CZ 39, was used; both were easily definable tracks leading from Coed Major to different points on the Hay road. Although of course the amount of use was not as great as would be found on a main road, it was, in my judgment, sufficient on Lindley L.J.'s test to carry to the mind of any reasonable occupier of Parc-y-Meirch that a continuous right to enjoyment was being asserted.
Accordingly in my judgment the appellants succeed to the extent that there is to be presumed a lost grant before the death of Joe Phillips of a right, appurtenant to Coed Major, and which thus enures to the benefit of the appellants, to pass and repass with or without vehicles, but for domestic or agricultural purposes only, over the disputed track, in so far as its condition permitted passage, between Coed Major and the Hay Road.
There is then the question raised by the respondent's notice whether the appellants were entitled to improve the disputed track by laying the stone road so as to make the disputed track passable by vehicles at all times.
Several points are clear.
The first is that as grantees of a prescriptive right of way the appellants were entitled to repair, as opposed to improve the road, e.g. by putting a barrowload of stones to fill a rut as Joe Phillips in fact himself did. This is not disputed, and authority for it is to be found in the judgment of Lord Mansfield in Taylor v. Whitehead [1781] 2 Dougl.744. This is so even though repair may necessarily involve some temporary improvement of the track.
In the second place if the appellants or their predecessors had been expressly granted a right of way for all purposes with or without vehicles over the disputed track that would have entitled them not merely to repair the disputed track but to improve it to make it suitable for the accommodation of the dominant tenement even if the dominant tenement was to be used for some purpose not in contemplation at the time of the grant. See Newcomen v. Coulson 5 Ch.D. 133. This is founded on the presumed intention of the grant. In the simplest case, if a general right of way is granted with or without vehicles, which is to be the principle access to a house, it is permissible for the grantee to improve it by making it up as a carriageway. See for instance Gerrard v. Cooke [1806] 2 Bos & Pul. N. R. 109.
In the third place, however, a prescriptive right of way differs from a right of way by express grant in that the extent of a prescriptive right of way is limited by the nature of the user from which it has arisen. See Wimbledon & Putney Commons Conservators v. Dixon 1 ChD 362. If the dominant owner under a prescriptive grant cannot increase the burden on the servient tenement by building further buildings - e.g. additional houses - on the dominant tenement, I do not see why he should be entitled to increase the burden on the servient tenement by building a made road over the servient tenement, so as to make the way usable at times of the year and in weather conditions when it was not passable before. This is especially so when, as the judge has found, the existence of the stone road will, unless it is fenced, preclude grazing of Parc-y-Meirch by pedigree ponies as previously.
The making of the stone road involved the putting down of between 600 and 700 tons of stone along the disputed track; see the judgment at page 82H. That is an improvement of the track which in my judgment went far beyond mere repair. The prescriptive right to which the appellants were entitled did not authorise them to do that to the plaintiffs' detriment. Accordingly the laying of the stone road was a trespass to the plaintiffs' land.
Accordingly I would allow this appeal in part.
I would set aside the Declaration made by the judge that the appellants are not entitled to a right of way with vehicles over the disputed track, and the injunction he granted against the appellants, and I would set aside also the dismissal of the counterclaim. Instead I would declare that the appellants are entitled by prescription to a right appurtenant to Coed Major to pass and repass with or without vehicles, but for domestic and agricultural purposes only, over the disputed track, with power to repair the surface but I would declare further that the appellants were not entitled to lay the stone road.
I would leave the awards of damages against all three defendants standing.
LORD JUSTICE PARKER: I agree and have little to add. That I add anything is due partly to the fact that we are differing from the learned judge and partly because, in so doing, it may appear that we are differing from earlier pronouncements of this court or the House of Lords.
In Sturges v. Bridgman 11 Ch.D. 852 Thesiger L.J. giving the judgment of the court said:
"... the law governing the acquisition of easements by user stands thus: Consent or acquiescence of the owner of the servient tenement lies at the root of prescription and of the fiction of a lost grant, and hence acts of user, which go to the proof of either the one or the other, must be in the language of the civil law, nec vi, nec clam, nec precario; for a man cannot as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive or which he contests and endeavours to interrupt or which he temporarily licenses."
This passage is in my judgment of prime importance in the determination of the present appeal for it makes plain (1) that consent or acquiescence to the user asserted as giving rise to the easement is an essential ingredient of the acquisition of the easement and (2) that it is the nature of the acts of user which has to be examined in order to see whether the easement is established.
Unless the acts of user are of the requisite character, consent or acquiescence is irrelevant. If they are then consent or acquiescence is essential.
In Hollins v. Verney 13 QBD 304, Lindley L.J. giving the judgment of the court said at page 315:
"... no actual user can be sufficient to satisfy the statute unless during the whole of the statutory term ... the use 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."
This shows clearly that the crucial matter for consideration is whether for the necessary period the use is such as to bring home to the mind of a reasonable person that a continuous right of enjoyment is being asserted. If it is and the owner of the allegedly servient tenement knows or must be taken to know of it and does nothing about it the right is established. It is no answer for him to say, "I 'tolerated' it". If he does nothing he will be taken to have recognised the right and not intended to resist it. He will have consented to it or acquiesced in it.
For the respondent it was submitted that this apparently simple position had been altered or modified by later cases. I do not consider that it has. Certainly there are statements in speeches in the House of Lords and the judgments of this court in later cases which might appear to suggest that a claim will be defeated if there are two possible explanations of the situation or if it is riot shown that the user is against the will of the owner or if the user has been 'tolerated'. Such statements however were in my judgment not statements of principle but statements relating to the particular facts of the cases under consideration.
I instance but one of such cases by way of example, namely Gardner v. Hodgson's Kingston Brewery Co. Ltd. [1903] AC 229. In that case the owner of a house had for more than 40 years used a cart way from his stables through the yard of an adjoining inn. He paid 15 shillings a year to the owners of the yard but there was no conclusive evidence as to the origin of this payment. The owners of the yard contended that the payment was for rent or for a series of annual licences. The owner of the house contended that it was more probably a perpetual payment attached to some original grant of the alleged right of way. The observations in their Lordships speeches must therefore be considered in the light of these facts and contentions.
At page 231 Lord Halsbury said:
"... the right contemplated by the Act ... means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought."
In my view when Lord Halsbury uses the words "against the will of the person" he means no more than without the licence of the owner. He is doing no more than contrasting the position where there is a licence for consideration and where there is no such licence.
Lord Ashbourne at pp.232 and 233 said:
"In the absence of direct evidence, all that can be said is that the payment is consistent with inferences which have been drawn by both sides.
The defendants insist that the most obvious and natural inference is that it was made for rent, or for a series of annual licences, given possibly by implication. The plaintiff, on the other hand, urges that it was more probably a perpetual payment attached to some original grant of the right of way. Rigby L.J. has speculated with persuasive force on the probability of such a hypotheses. If I felt free to speculate on the possible and probable origin of this payment, I would be glad to draw the same inference. The onus of explanation is, however, I think on the plaintiff ...
I do not say that the case is free from difficulty, but I am unable to arrive at the conclusion that the plaintiff has discharged the onus which lay upon her of satisfactorily explaining that this payment of 15s. a year was consistent with her claim. I therefore think that the appeal should be dismissed."
He thus put the matter simply on onus of proof.
To the like effect is Lord Davey at page 238:
"To put the case most favourably for the appellant, the payment is of an ambiguous character, and capable of either explanation. But one explanation is inconsistent with an enjoyment as of right, while the other is not so, and it is for the appellant to make out that she and her predecessors in title have enjoyed "as of right", and for that purpose to shew which is the true explanation of the annual payment, and this she has not done."
I come finally to the speech of Lord Lindley at page 239:
"A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established; and this, I think, is the real truth in the present case.
The enjoyment is equally open to explanation in one of two ways, namely, by a lost grant of a right of way in consideration of a rent-charge on the plaintiff's land of 15s. a year, or by a succession of yearly licences not, perhaps, expressed every year, but implied and assumed and paid for."
In my judgment that passage is of no assistance to the respondent. There being one of two possible explanations of the annual payment of 15s. one of which would and the other of which would not establish the easement claimed and the plaintiff being unable to prove which was the correct one, she simply failed to make out the case.
The statement made must be related to the facts and cannot be regarded as a statement of principle for if it were no-one could as it seems to me ever establish an easement by prescription or by the fiction of lost modern grant.
On examination none of the other cases cited, in my judgment, detract from the principles so clearly stated in Sturges v. Bridgman and Hollins v. Verney.
The true approach is to determine the character of the acts of user or enjoyment relied upon. If they are sufficient to amount to an assertion of a continuous right, continue for the requisite period, are actually or presumptively known to the owner of the servient tenement and such owner does nothing that is sufficient, as May L.J. said in Goldsmith v. Burrow Construction Ltd. [1987] C.A. Transcript 87/850, "I agree with Mr. Mowbray's submission that it is not merely a question of the servient owner saying 'I could have locked the gate and therefore there was no permission'. The fact in this case is that he did lock the gate." Every servient owner can always say, until it is too late: "I could have stopped it". That is not enough.
I add only this, that any statement that the enjoyment must be against the will of the servient owner cannot mean more than "without objection by the servient owner". If it did, a claimant would have to prove that the right was contested and thereby defeat his own claim.
For the above reasons and for the reasons given in the judgments of Dillon and Stocker L.JJ, which I have had the opportunity to read in draft, I would allow this appeal in part and, subject to any further argument as to the precise form of declaration required to give effect to the judgments I agree with the order proposed by Dillon L.J.
LORD JUSTICE STOCKER: I agree, and add observations of my own since we are differing from the learned judge upon an important aspect of his findings expressed in a careful and exhaustive judgment.
The learned judge seems to have based his decision in part upon the proposition that "toleration" of a user is insufficient to establish a user as of right. It seems to me implicit from the terms of his judgment that he considered that there was a distinction between "toleration" and "acquiescence" for the purpose of establishing a right of way by prescription or a lost modern grant, even if the facts concerning the nature and extent of the user might otherwise have supported an easement of a right of way over the disputed track. The validity of this conclusion is one of the issues which arise on this appeal.
The question whether or riot there has been over the relevant period such use of a disputed right of way as to give rise to the conclusion that the owner of the servient tenement acquiesced in it so as to give rise to a presumption of a lost modern grant and thus to justify the existence of the right as an enforceable easement is a matter which inevitably involves retrospective conclusions from the evidence related to a long period of time. To draw a distinction between "Acquiescence" on the one hand and "toleration" on the other seems to me an impossible exercise unless the word "toleration" is used simply as a convenient label to apply to factual situations where the user claimed, as of right, was too casual or trivial to give rise to any legal obligation or where the user is to be explained on the basis of permission or consent. The terms "acquiescence" and "toleration" are not wholly synonymous, but are sufficiently nearly so as to convey virtually the same meaning. Thus the shorter Oxford Dictionary states as one of the meanings of "acquiesce" as being "To agree tacitly to, or concur in'' and one of the meanings of "tolerate" is "To allow exist, or to be done or practised, without authoritative interference or molestation". Without more it seems to me that no general principle of law can be derived from the cases cited since broadly speaking the two words mean the same thing. In each of the cases upon which reliance has been placed the facts do not justify so broad a conclusion, thus in Alfred E. Beckett Ltd. v. Lyons [1967] Ch.449 the word "tolerate" is used in a special sense where the question in issue was a claim by a wide section of the public to a public right to glean coal from the foreshore vested in the Crown. It was not concerned with a private easement such as a right of way and the case does not seem to me to be relevant to the issue in the instant case. The "toleration" in question related to the harmless use by the public which no one would have thought objectionable.
In Ironside v. Cooke [1978] 41 P & CR 326, Goff L.J., in the context of a claim to a right of way over a grass verge abutting a lane which was a right of way, said at page 337:
"But it seems to me having regard to the unusual circumstances ... that it was not such as to put her on notice that a right was being asserted and can best be explained by tolerance."
The right claimed was based upon the fact that cars being driven over the acknowledged right of way, in order to pass each other, if occasion so required, were driven upon the grass verge in order to do so. Eveleigh L.J., and Buckley L.J. took the more robust view cited by Dillon L.J. in his judgment. It seems at least doubtful if the owner of the servient tenement, that is to say the grass verge, even knew of the practice which was clearly casual and intermittent. In Patel v. W.H.Smith (Eziot) Ltd.[1987] 1 WLR 853 Balcombe L.J., after considering the earlier cases inter alia the case of Beckett v. Lyons in which the word "toleration" figures in a passage in his judgment said:
"The parking is equally consistent with toleration or a licence and cannot be shown to have arisen against the will."
On one view of his judgment he seems to accept that "toleration" and "acquiescence" might be separate and distinct concepts in a general sense, but he clearly based his judgment on the fact that the claimants had acknowledged the fact that they were not entitled to park vehicles and were engaged in trying to obtain a licence so to do and the owner of the servient tenement was disputing the right to park vehicles, as indicating that the existence of the right was not established. Thus it seems to me that the apparent generality of Balcombe L. J.'s remarks as above cited in the context in which he used them clearly limited the application of the word "toleration" to the facts of the case in which the ratio of the case was that there was no user as of right established.
In Goldsmith v. Burrow Construction Ltd. (unreported), Transcript 16th July 1987, May L.J. said at page 10:
"I think the user was permissive, not in the sense that permission was granted expressly or by necessary inference, but because the use was tolerated in the sense that the word is used in the passages in the authorities and text books to which I have referred."
May L.J. had, in an earlier passage on the same page, said:
"Nor is one required to infer the existence of a lost modern grant because it was not a user as of right acquiesced in by the servient owners."
Thus it seems to me clear that May L.J. used the words "tolerated" in the very limited sense he has indicated since the finding of fact was that the owner of the servient tenement locked the gates giving access to the disputed right of way on any occasion where he considered it appropriate to do so and thus was not acquiescing in any claim of right by the owner of the dominant tenement.
I do not think that the other cases cited to this court in support of the existence of a distinction, in general terms, between acquiescence and toleration carry the matter any further. However, the judge in the passage from his judgment at page 66A-D cited by Dillon L.J. seems to have relied upon a passage in a speech of Lord Lindley in Gardner v. Hodgson's Kingston Brewery Co. Ltd. [1903] A.C.229. For my part I cannot see how Lord Lindley's speech can be read as affording any support to the judge's conclusion. The inconsistent inferences to which Lord Lindley was referring were the acquisition of a right of way by prescription or lost modern grant on the one hand and the right exercised by virtue of payment of rent on the other. The decision, therefore, turns solely upon the resolution of the issue whether the annual payment by the plaintiff was paid by way of rent, as the defendants contended, or as a contribution towards the upkeep of the way or a perpetual rent charge based on a presumed lost grant. Their Lordships were unanimously of the view that the payments were by way of rent and that accordingly the user of the way was not "as of right" for the purposes of prescription but only as a matter of contract derived from the payment of rent for such user. No question of any distinction between "acquiescence" and "toleration" arose and I am unable to accept that the case afforded any support for the proposition that toleration is an explanation capable of raising an inference which could offset a finding of acquiescence if that were to be the proper finding upon the evidence.
It seems clear from the passage in the judgment cited by Dillon L.J. that the learned judge in the instant case failed to recognise the very limited circumstances in which the word "toleration" has been used in the cases cited which might be summarised as relating to the exercise of a purported right which was casual or trivial or in respect of which some form of consent for the user was established so that acquiescence did not arise. In so far as the judge was basing his decision on a general distinction in principle between toleration and acquiescence I consider he was wrong and decided this issue on an erroneous basis.
However, it may be from the structure of his judgment that he may have been applying the concept of toleration in a wider sense than is justified by the cases by reference to local factors or custom prevailing in a hill farming community. The evidence does suggest that in some respects neighbouring farmers do "tolerate" on a reciprocal basis certain use of their land inconsistent with their legal rights. Thus it might be said that the rigours of hill farming dictate that infringement of strict legal rights should be tolerated and accepted in the interest of the survival of all without giving rise to any claim to or establishment of legal rights as a result of such infringements. In other words, local custom in the community might justify a more general interpretation of the word "tolerate" than would arise from the cases cited and thus be an appropriate word to describe long user based on local custom rather than upon any claim of right.
Summarising the evidence of Mr. Wyatt, an expert called cm behalf of the plaintiff, the judge said at page 8E to 9E of his judgment:
"The Abbey Farm and Parc-y-Meirch in particular are situated on one of the highest points of agricultural land in England. They immediately abut the open common land of the Black Mountains rising to 2,500 feet. Farming practice at this altitude which is 1,450 feet is therefore peculiar to upland regions. Rainfall is high, well over 40 inches per annum, and the winters are long and often severe. So the only method of agriculture capable of being sustained is the grazing of hill sheep and to a lesser extent cattle. The quality of the soil together with the climate renders it unsuitable for cultivation and growing crops and indeed has to be crossed with care during the greater part of the year. The enclosed land of this area is only economic to farm with the benefit of hill rights. These are ancient rights of grazing administered commercially over many square miles of open land adjacent to the farms. The rules and traditions of the land owners are dependant on adherence to the traditional rules of neighbourly husbandry. The flocks of sheep belonging to each farm are "settled" that is, they part lived on the same area of unfenced hill for many generations, so that they do by habit remain generally on that section of hill. These set units do not generally mix or stray into neighbours sheep; however it is a fact that such mixing does regularly occur. The ancient customs recognise it is impossible to manage the hill without agreement that the whole mountain is cleared from sheep on set days of the year, principally for dipping or shearing, weaning of lambs and culling. At these times all farmers work in unison and it is common, indeed the custom on this land, to cross one another's land at will to take up and exchange strays and in many cases communally to tend the flocks. When heavy snows are expected hill gates are open so that the stock may seek shelter irrespective of their ownership. Farmers accept other peoples' sheep as a matter of course and there are set procedures for their return to their owners."
In a later passage at page 15G-H the judge said:
"The general evidence of neighbourly tolerance of one farmer going over another's land in the valley, establishes beyond this that such a general tolerance existed with regard to specific events in the sheep farming year, culling, sheep dipping, lambing, and so forth, and to emergencies."
At some stage in the argument I was impressed by this line of argument. It is clear from the passage in the judgment above cited that hill farmers for certain purposes do not stand on their rights when necessity dictates and infringement of them by a neighbour is accepted and is tolerated, nor do the neighbours claim that any legal right vests in them as a result of taking advantage of such indulgence. The custom, however, does not seem to relate to any specific rights of way over any particular route, indeed it does not seem to be related to rights of way at all. Thus I do not consider there was any evidence which would have entitled the judge - if in fact he did so - to enlarge the ambit of "toleration" beyond the very limited sphere which in the cases it seems to have been used as a convenient label for usage too trivial to found a legal right or to casual user or as a synonym for permission.
Accordingly I agree that unless the judge found as a fact that the extent and continuity of the user was insufficient to establish a prescriptive right by lost modern grant that his conclusion in favour of the plaintiffs was unjustified. I agree with Dillon L.J. that the finding of the judge to the effect that the extent and continuity of the user was insufficient for this purpose was an inference from facts and not a finding of primary fact itself and that such inference is open to review by this court and for the reasons he has given I agree with his conclusion that the judge's inference from the primary facts cannot be sustained and that the only appropriate conclusion upon the evidence is that there is to be presumed a lost modern grant for the right of way as defined and limited by him and thus would reverse the findings accepted by the learned judge.
I also agree with his reasons and conclusions with regard to the laying of the stones upon the disputed right of way. This was an improvement which went far beyond repair and amounted to replacing a track with a metalled road. This the defendants were not entitled to do and in so acting they were trespassers. Save that the form of the declaration he proposes may require some refinement after hearing further argument I agree with the orders proposed by Dillon L.J. and I would allow this appeal in part.
Orders for the Third Defendant's costs in the court below to stand. No order in respect of the Third Defendant's costs of the appeal, but as the Third Defendant was not given notice of today's fixture, the order shall lie in the office for seven days to enable them to apply if they seek some other order.
Plaintiffs to have their costs of the action up to 25th January 1989; thereafter no order as to costs as between the Plaintiffs and the First and Second Defendants in the court below or the Court of Appeal save legal aid taxation of the First and Second Defendants' costs since the issue of their Legal Aid Certificate. Application for leave to appeal to the House of Lords refused.
