COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
HHJ ROGER KAYE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE RICHARDS
| MICHAEL HOUSDEN & ANR
|- and -
|THE CONSERVATORS OF WIMBLEDON AND PUTNEY COMMONS
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Guy Fetherstonhaugh QC (instructed by Gregsons) for the Respondents
Hearing dates: 5th and 6th February 2008
Crown Copyright ©
Lord Justice Mummery :
A. The vires issue
The 1871 Act
"For the purposes of this Act the commons shall be taken to be the open spaces known as Wimbledon Common with Wimbledon Green and Putney Heath included and Putney Lower Common, as the same respectively are particularly described in this Act."
"open, uninclosed and unbuilt on except as regards such parts thereof as are at the passing of this Act inclosed or built on, and except as otherwise in this Act expressed, and shall by all lawful means prevent, resist and abate all encroachments and attempted encroachments on the commons, and protect the commons and preserve them as open spaces, and resist all proceedings tending to the inclosure or appropriation for any purpose of any part thereof."
"Nothing in this Act or in any by-law of the Conservators shall take away, abridge, or prejudicially affect any right of common, commonable or other like right, right of way, or other right, in over, or affecting the commons, other than any right in, over, or affecting the same vested in or belonging to Earl Spencer."
"There shall be a body of Conservators … who are hereby incorporated … with power to take and hold and to dispose of (by grant, demise or otherwise) land and other property…"
"It shall not be lawful for the Conservators, except as in this Act expressed, to sell, lease, grant or in any manner dispose of any part of the commons …"
Discussion and conclusion on vires issue
B. Prescription issue
"It need hardly be said that the present state of the law on the acquisition of easements and profits is a disgrace to the law. The nineteenth-century judges did their best to interpret the Prescription Act so as to avoid injustice, but it is hardly surprising that they produced a disorderly and uncertain body of laws, and that many simple and obvious points remain unsettled to this day. The Act is the classic example of an incompetent attempt to reform the law, and its retention on the Statute book is indefensible."
"It is odd that the branch of the land law which most requires to be restated should have been left wholly untouched by the Property Acts."
"40.The Prescription Act 1832 has no friends. It has long been criticised as one of the worst drafted Acts on the Statute book. Those whom we have consulted are unanimous in thinking that the Act should be repealed."
"(xi) Incapacity to make a grant on the part of a servient owner should not bar a prescriptive claim."
"53. We do not think that a servient owner's incompetence to make a grant should bar a prescriptive claim. The fact that a grant would be ultra vires a servient owner would not prevent him from protecting his title either by litigation or by interrupting the dominant owner's enjoyment."
"No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King … or being parcel of the duchy of Lancaster or of the duchy of Cornwall, or being property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as foresaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."
"81. Thus on construction of the 1832 Act and the 1871 Act and on analysis of the authorities including at the very least, on the basis of the Staffordshire case, the position may be summarised thus: where the capacity or power of the alleged servient owner is shown to derive from a statute which would render it unlawful for the owner to grant an easement of the nature claimed then that will at least prevent a right being acquired by prescription under the second part of s.2 of the 1832 Act. The basis seems to be the presumption or acknowledgment that the fictional basis of long user, a presumed grant, could not have been lawfully granted by reason of a parliamentary statute. As I have said in relation to the first issue, s.35 of the 1871 Act expressly provided that "It shall not be lawful for the Conservators " except as provided to grant easements."
Discussion and conclusion on prescription issue
"..the object of this Statute was to do away with the need for the [lost modern grant] fiction, but to preserve the effect of it, and to render obsolete prescription at common law."
"to what is called an ancient light now depends upon positive enactment. It is matter iuris positivi, and does not require, and therefore ought not to be rested on any presumption of grant or fiction of a license having been obtained from the adjoining proprietor."
"To impose such a servitude upon the water in their canal as that contended for by the Appellants would have been ultra vires of the Respondents, and consequently length of user could never confer an indefeasible claim upon the Appellants under the Prescription Act, as no grant to the use of the water could have been lawfully made by the Respondents."
"Of the existence of such a grant or covenant there is no trace whatever, and it cannot be presumed. To have entered into any such engagement would have been a clear breach of duty on the part of the Respondents."
"In my opinion it is a mistake to suppose that the second section of the Prescription Act is applicable to the circumstances of this case. There is no existing stream or body of water, either natural or artificial, the use of which has been, is, or can be, claimed by the Appellants."
"But if the Prescription Act had been at all applicable it would be incumbent on the Appellants to prove that the right founded on the claim by user might, at the beginning of, or during that user, have been lawfully granted to them by the Respondents' company. No such proposition can be maintained. Had any grant been made at any time by the Respondents' company, now alleged by the Appellants to have been acquired against them by user, such grant would have been ultra vires and void, as amounting to a contract by the Respondents not to perform their duty by improving their navigation, and conducting their undertaking with economy and prudence."
Lord Justice Carnwath:
"Custom and prescription are here out of the question, and if the Respondents could not have granted the use of the water to the Appellants, the Act is wholly inapplicable…" (p 267)
This passage provided the context for the passage (on p 268) quoted by Mummery LJ.
Lord Justice Richards: