B e f o r e :
LORD JUSTICE HARMAN
LORD JUSTICE SALMON
and
LORD JUSTICE CROSS.
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Between:
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GEORGE ARNOLD PUGH
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Plaintiff,
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-and-
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JOHN SAVAGE
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Defendant.
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, W.C.2).
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Mr MARTIN THOMAS (instructed by Messrs Peacock & Goddard, Agents for Messrs J.C.H. Bowdler & Sons, Shrewsbury) appeared on behalf of the Appellant (Defendant).
Mr W.R. STEWART-SMITH (instructed by Messrs Henry Lee, Bygott & Eccleston, Wem) appeared on behalf of the Respondent (Plaintiff).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE HARMAN: I will ask Lord Justice Cross to give the first Judgment.
LORD JUSTICE CROSS: This is an appeal from an Order of Judge Burrell made in the Shrewsbury County Court on the 5th March, 1969. The Plaintiff, George Arnold Pugh, who is the Respondent to the appeal, owns a farm called Church Villa Farm at Loppington, near Wem, in Shropshire. He bought that farm in 1950 from one Ralphs and has farmed it himself ever since then. The farm includes a field No. 457 on the Ordnance Survey which until recently was always pasture; but recently, owing to the foot-and-mouth disease, the Plaintiff has given up keeping cattle on it and has ploughed it up.
Access to the field is obtained along a lane which runs southwards from a point opposite the Blacksmith's Arms Inn, just outside Loppington, on the south-west; and before it reaches the north end of the field, that lane abuts on its west side on Ordnance Survey 454 and 458, which are also fields belonging to Church Villa Farm. So the Plaintiff presumably owns half the soil of the lane along that boundary. The lane ends at the north of 457, and thence a path runs, or used to run, diagonally across the field in a southerly direction to a gate 9 or 10 feet wide, with a stile beside it, between 457 and another field 547, which is not part of Church Villa Farm. The path then runs on across 457 to yet another field, 548, known as Bentley's Field. To the north-west of 547 there is a large field, 459, which has a long frontage to the highway, some distance to the south-west of the Blacksmith's Arms.
459 and 547 have at all material times formed part of a farm known as Factory Farm, owned by the Dickens Estate, and the tenant of those fields for many years prior to 1966 was a man also called Pugh, who was a relative of the Plaintiff. But until 1966, Field 548 (Bentley's Field) formed part — as I understand, an isolated part — of yet another farm, Church Farm, which belonged to Major Dickens personally and later for a short time to his daughter. The tenant of that farm from 1936 to 1966 was one Burden.
In 1966 the Dickens Estate bought the freehold of Bentley's Field and threw it into Factory Farm. At the same time Pugh and Burden gave up their respective tenancies; and the Defendant Savage, who was a stranger to the district, became tenant of Factory Farm, which then included 459 and 54-7, as it always had, and also 548. It is common ground that there is a public right of way on foot across 457 and then over the stile across 54? on to 548 and beyond.
When he took the tenancy of Factory Farm, Savage was, told by the agent of the Dickens Estate that in his capacity as tenant of 548 he would be entitled to a private right of way with vehicles over 457 and down the lane to the main road. But the Plaintiff, while not denying the existence of the public footpath, disputed the Defendant's right of way with vehicles.
The Defendant exercised his supposed right of way in 1966 and 1967, despite the Plaintiff's protests that he was not entitled to such a right; but by 1968 the Plaintiff had ploughed up 457) and the Defendant alleges that he had obstructed the lane where it abutted on 454 and 458 with hedge cuttings which made it impossible or at all events difficult to pass over it with vehicles.
In order, as he says, to overcome these difficulties, the Defendant took vehicles which had come down the lane from the main road over parts of 454 and 458 on lines marked on the plan annexed to the Particulars of Claim.
The Plaintiff thereupon brought this claim in the Shrewsbury County Court in August, 1968, alleging trespass and claiming an injunction and damages. The Defendant admitted that he had crossed the Plaintiff's land as alleged. He claimed that he had a right of way for vehicles down the lane and along the line of the path across 457. He sought to justify his deviation from that line by reason of the alleged obstructions by the Plaintiff, and he counterclaimed for damages. He did not say in his Defence on what he based his claim to a right of way, and so he was asked for particulars. On the 25th October, 1968, he was asked to state the facts which were relied upon to establish the alleged right of way; if the right was alleged to arise under a deed, identifying it and giving details of the form of grant; and if the right was alleged to arise by prescription, giving details of the acts relied upon to establish the right. As he refused to give those particulars, an Order was made by the Registrar on the 13th December, 1968, telling him first to state on what grounds he alleged that he had a right of way, to which he answered:
"The Defendant's right of way arises by prescription";
and secondly, if he relied on prescription, saying on what grounds the right was said to arise by prescription, to which the answer was:
"A right of way with or without vehicles over the Plaintiff's land as shown by brown dotted lines on the plan attached to the Defence has been enjoyed without interruption by the Defendant and his predecessors the occupiers of Enclosure Number 548 shown on the said plan and his or their workmen for over thirty years immediately prior to the commencement of these proceedings".
The plan on the Defence shows that the right claimed is along the lane and along the line of the footpath from the end of the lane to the gate between 457 and 547.
At the trial, the Plaintiff and an employee of his gave evidence to the effect that prior to the Defendant becoming the tenant of Factory Farm no vehicles coming from 548 or going to 548 had crossed 457 and come up the lane. But the Judge did not accept that evidence. On the contrary, he accepted evidence given by the Defendant's witnesses to the effect that from about 1932 to 1966 the tenant of 548, who in 1932 was one Burks and from 1936 to 1966 was Burden, had regularly used the lane and the path over 457 with vehicles. The Judge found that there were indeed only two ways in which a tenant or owner of 548 could get to the road with vehicles. One was across 547 and then through the gate over 457 and the lane; the other way was to go into 457 and then to branch to the left, north-westwards, over 459. The evidence showed that the latter route was sometimes used, but only with the consent of Pugh, the tenant of 457 and 459) whose consent was by no means always forthcoming. On the other hand, Pugh never raised any objection to vehicles passing to and from 548 over 457) nor did the owner or occupier of 457) who, of course, from 1950 to 1966 was the Plaintiff himself, ever raise any objection.
The Judge expressed his view on the evidence as to facts of user as follows:
"As far as facts are concerned, I have no hesitation in coming to the conclusion that the right to a way by prescription, as asserted by the Defendant, had been fully made out if all that had to be considered was adequacy of the established user".
But he went on to hold (as he said, with regret) that, as a matter of law, the user proved did not establish a right of way in the Defendant. So he granted the Plaintiff the injunction which he asked for, and £11. 5. 0. damages, which was a little more than the £10 which the Defendant had paid into Court to answer damages; and he dismissed the counterclaim. The Defendant appeals from that Order.
I turn now to the legal position. One point of law to which the Judge alludes in his Judgment as possibly presenting a difficulty to the Defendant (though he does not purport to base his Judgment on it) was that the user proved was all user by tenants of the dominant tenement, 548. In my view, there is nothing in that point, and indeed Counsel for the Respondent did not himself seek to support it. Of course, a tenant cannot by user gain a prescriptive right of way for himself as tenant; but by user over land of a stranger he can gain a prescriptive right of way in fee for his landlord which he can use while he is tenant and which his landlord can grant to a subsequent tenant. Of course, a tenant cannot gain a prescriptive right for anyone by user over land which itself belongs to his own landlord, but here the acts of user by Burden from 1936 to 1966 were over 547, which belonged not to his landlord Major Dickens but to the Dickens Estate, and over 457 which belonged from 1950 to 1966 to the Plaintiff; from 1940 to 1950 to Ralphs; and in the 1930's to some person or persons unknown.
A second point, which was not taken before the Judge but which the Respondent's Counsel took before us, was that there was no evidence upon which the Judge could properly find -and further that, on a true reading of his Judgment, he did not find - that any right of way had been acquired between 1936 and 1966 for the benefit of Field 548 over 547, since, for all that appeared, Pugh was all that time giving his consent to the user. On that footing, Counsel argued that a right of way over 457 and the lane could not have been acquired, since the owner of 548 would have had no right to get to the terminus of that way at the gate between 457 and 547, but depended on getting the consent of the tenant of 547. As I read the Judge's Judgment, he did find that a right of way over 547 would have been acquired but for the supposed legal difficulties, and I think that there was evidence on which he could so find. But, assuming that that is not so, the case of Todrick v. Western National Omnibus Company Limited (1934 Chancery 561) shows that a right of way may exist for the benefit of a dominant tenement although between the dominant tenement and the servient tenement there is some intervening land. In the case of Todrick itself, that intervening land was in fact owned by the owner of the dominant tenement, but all three members of the Court expressed the view that, providing that the dominant owner was able to get across the intervening land, though only by the consent of a third party, the way claimed might still be a good right of way if it was sufficiently close to the dominant land to be sensibly described as appurtenant to and for the benefit of the dominant land.
On page 574, Lord Hanworth says: "The fact that he" — that is the dominant owner —
"may have some difficulty in obtaining access to some intervening portion ought not to militate against his enjoyment of a right which is of such a nature that it is beneficial to the blue land which he occupies, and has a natural connection with the property as being for its benefit".
On page 580, Lord Justice Romer says:
"Supposing that that right 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";
and finally Lord Justice Maugham says at page 590:
"Can an owner of land not acquire a right of way leading to his tenement over two fields belonging to different owners?"
That, of course, is what was claimed here.
"I should imagine that such a right of way is constantly being acquired, and I can see no reason in common law why such an easement should not be acquired; but I am unable to see how, if the proposition to its full extent is to be accepted" —
that is the proposition that the terminus of the way must abut on the dominant tenement —
"such a right could be properly granted, because the way over the further field would not lead to the dominant tenement, but to another right of way";
and then Lord Justice Maugham adds the significant words,
"which might be, of course, of a precarious character".
So, even if Burden was passing over 547 with the consent of Pugh, that would not be fatal to the claim to a right of way over 457.
Then another possible legal objection was adverted to, which perhaps I should mention, though I do not think that the point commended itself to the Respondent's Counsel. When the Dickens Estate purchased 548 in 1966, any right of way over 547 which had previously been enjoyed by 548 necessarily came to an end, since both plots came into the ownership of the same person. It was suggested in argument that that fact might have automatically put an end to any right of way acquired by the owner of 548 over 457 and the lane. I do not think that that point is sound. Of course, the purchase of 548 by the owner of 547 could not enlarge the dominant tenement. It remained only 548, but equally that purchase did not destroy the right of 548, as the dominant tenement, to pass over 457 and the lane. It continued, in my judgment, to subsist (subject to the final point which I am coming to), though the dominant owner could, during the unity of ownership, get to the terminus of the right of way over his own land.
Now, at long last, I come to the point on which the Judge decided the case against the Defendant. Although no evidence was given about it, it was apparently agreed between the representatives of the parties in the County Court, who were the Solicitors for the parties and not the Counsel appearing before us, that Ralphs shortly after he had bought 457 in 1940 granted some sort of oral tenancy of it to his son, who made some payments of rent to him, and that this tenancy continued until 1950, when the son surrendered the tenancy at the time of the purchase of the farm by the Plaintiff from his father.
We do not know the terms of the tenancy; we do not know whether the father had power to resume possession at any moment; we do not know whether he lived in the neighbourhood and knew of Burden's acts.
The Judge, in view of that admission and in reliance on a passage in Megarry on Real Property, the 1955 edition, at page 457, held that the existence of this tenancy, which he described as "invading the prescription period", was necessarily fatal to the Defendant's claim. It is not clear whether, by those words "invading the prescription period", the Judge was referring to the period from 1932 or 1936 to 1968, or whether he was referring to the period of 20 years from 1948 to 1968.
In fact, the law on this subject is put in a different way in the most recent edition of what is now "Megarry and Wade", where it is stated as follows, on page 840:
"The user must be by or on behalf of a fee simple owner against a fee simple owner.
'The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with anyone except an owner in fee'.
An easement or profit for life or for years, for example, may be expressly granted but cannot be acquired by prescription, for the theory of prescription presumes that a permanent right has been duly created at some unspecified time in the past. A claim by prescription must therefore fail if user can be proved only during a time when the servient land was occupied by a tenant for life or for years. But if it can be shown that user as of right began against the fee simple owner, it will not be less effective because the land was later settled or let".
Since, in this case, the user proved began against a fee simple owner in or about 1932 and so continued for eight years before this rather nebulous tenancy came into existence, it may well be that if the Judge had had the later edition referred to him, he would have reached a different conclusion from that which he did reach. But, of course, we must go behind the textbook and consider the relevant cases. The case which is referred to in connection with the last sentence which I have read is Palk v. Shinner, (1852) 18 Q.B., at page 568, more fully reported in 17 Jurist, 372. There, after user against an owner in fee since 1811, the land over which the right of way was claimed was demised in 1831 for a term of 14 years, and again in 1838, on surrender of that lease, by a fresh lease, for a term of eight years, ending in 1846. In 1851 the way was obstructed and proceedings were brought. The action was tried by Mr Justice Erle at the Exeter Assizes; and the Judge left it to the jury to say whether or not the plaintiff had enjoyed the right of way from time immemorial or for twenty years, as of right; and, as to the twenty years, he told them that the fact of such lease having existed during part of that period would not defeat the plaintiff's right of user, under the statute. The jury found that there had been a twenty years' user, and gave a verdict for the plaintiff.
The argument before the Court "in Banc" turned on whether Sections 7 and 8 of the Prescription Act, 1832, or either of them, applied to the case; and the Court held, as Mr Justice Erie had held at the trial at nisi prius, that they had no application. Those points, of course, have no bearing on this case at all. But all three Judges said that as those sections did not apply, the matter had to be decided as it would have been under the old law and that if the case had arisen before the statute, there would have been good evidence to go to the jury of a user as of right for twenty years from which they could infer a lost grant notwithstanding the existence of the tenancy for years. The same view was expressed by Mr Justice Littledale in Cross v. Lewis, a case before the 1832 Act, reported in 2 Barnewall & Cresswell, 686, where he said:
"It was proved that the windows had existed for thirty-eight years, and the tenancy for twenty. How the land was occupied for eighteen years before that time did not appear. I think that quite sufficient to found the presumption of a grant".
That a distinction may be drawn between cases where the tenancy was in existence at the beginning of the period of user and cases where the tenancy came into existence in the course of the period of user, is surely only common sense. If a tenancy is in existence at the beginning of a period of user, it may well be unreasonable to imply a lost grant by the owner at the beginning of the user. He might not have been able to stop the user, even if he knew about it. If, on the other hand, you get a period of user against an owner or owners without any evidence that they did not know about it when they were in possession, and then afterwards the grant of a tenancy, though undoubtedly such a tenancy during the period of user is a matter to be considered, it would be quite wrong to hold that it is a fatal objection to presuming a grant, or to a claim under the Prescription Act.
Of course, in this case there might have been evidence that the owner or owners of the Plaintiff's land in the 1930's did not know what Burks and Burden were doing. There might have been evidence that Ralphs did not know what Burden was doing, either in 1940 when he bought or between 1940 and 1950; but the facts proved were simply user for eight years or so against owners in fee; then this nebulous tenancy during a period of ten years, during which Ralphs senior may very well have known all about it and indeed may have been able to stop it if he had wished; and then a period of user for 18 years against an owner in fee in occupation. When long user — here user for 36 years — of a way has been shown, I think that the law should support it if it can, and that we ought to presume, in the absence of any evidence to the contrary, that the owners of 457 in the period 1932/1940 knew of the user and that Ralphs knew of it. Indeed, Counsel for the Respondent candidly admitted that that would have been the position on these facts before 1832, and that if it is competent for the Defendant Appellant to rely on the doctrine of lost grant, as opposed to the Prescription Act, 1832, then the Judge's decision was wrong. But he argued that, on the pleadings, the Defendant has limited himself to a claim under the Prescription Act, and he submitted that in considering a claim under the Act the Court can only look at the condition of affairs at the beginning of the 20-year period; and that, on the facts of this case, there was in 1948 a tenancy in existence which continued for a further two years. The Court, that is to say, must shut its eyes (the claim being simply under the Prescription Act) to the earlier user from 1932.
Speaking for myself, I doubt very much whether that is so and I observe that - according to the report in the Jurist -the lease in Palk v. Shinner was granted in June, 1831, whereas the 20-year period did not start until September, 1831. But it is not a point on which it is necessary to express a concluded view, because, as it seems to me, in this case the Defendant is, on the pleadings, entitled to rely not only on the Prescription Act, 1832, but on other modes of prescription, namely, common law prescription or prescription by means of a lost grant.
In his answers to the Order for particulars, he first said that he claimed a right of way by prescription, which, standing alone, would cover all three modes of prescription. But it is said that the answer to the second part of the Order cut that down, because there he said that he and his predecessors had exercised the right for over 30 years immediately prior to the commencement of the proceedings. The number 30 years certainly does not lead one to think of the Prescription Act, where the periods for rights of way are 20 and 40. So the argument really is that the addition of the words "immediately prior to the commencement of these proceedings" is an unequivocal reference to the Act and cuts down the prima facie wide meaning of the word "prescription" in the answer to the first part of the Order. That argument does not appeal to me.
Counsel referred us to a case in the Chancery Division before Mr Justice Joyce, Damper v. Bassett, in 1901 2 Chancery at page 350, as authority to induce us to hold that the Defendant here is limited to a defence under the Prescription Act. But I cannot think that it would be right for us to deal with particulars of Defence ordered in the Shrewsbury County Court in 1969 by the standard applied to Chancery pleadings in the year 1901.
It was further urged that the County Court Judge had dealt with the matter solely under the Prescription Act; but I am far from convinced that that was so. The evidence was directed to the whole period from 1932 to 1966. The passage which I quoted from the Judgment, "invading the prescription period", is ambiguous, but I think is more likely to mean the period from 1932 to 1966 than the period from 1948 to 1966, and I very much doubt whether the distinction between the two possible modes of claiming a right by prescription was present to the minds of the Solicitors arguing the case, or, indeed, to the Judge.
Therefore, as I see it, having regard to the findings of fact which he made as to the user of the way, the Judge was wrong in concluding that he was precluded in law from holding that the Defendant had made out his case for a right of way.
It follows that he was wrong in granting an injunction to the Plaintiff. It does not, on the other hand, follow that he was wrong in granting damages to the Plaintiff. That would depend on whether or not the admitted deviation from the right of way over 454 and 458 was or was not justified. The Judge did not really direct his mind to that point. He said that the difficulty of getting down the lane was caused partly by clippings from the hedge which had been thrown into the lane, or allowed to fall into the lane, by the Plaintiff, and partly by standing water, for the presence of which, of course, the Plaintiff is not in any way responsible. He did not decide whether or not, if there had only been the clippings, and not also the water, the Defendant could or could not have got through.
So, as it seems to me, the question of those damages and of any damages that the Defendant may have suffered, which he claims by his counterclaim, and also the question of costs below, will have to go back to the County Court Judge for him to decide. But, to the extent of the injunction, my view is that this appeal should succeed.
LORD JUSTICE HARHAN: I agree. The learned County Court Judge felt himself bound in law to refuse to the Defendant a grant of a right of way, which he thought proved in fact by user, because of his view of the law. That has been the burden of the present appeal.
I am not going to re-state the facts. They are very confusing, owing to the way Her Majesty's Ordnance numbers fields, and I have never been able to be sure that I am talking about the right one. But the user was admitted on the Respondent's part to be enough to justify the Judge's decision on the facts; and, therefore, with that, I leave it.
It was said that the Judge decided the matter on the view that what he called "the period of prescription" was interrupted by a letting which was conceded apparently during the course of the hearing in a way I can only regard as too indulgent, even for the laxity of procedure in the County Court. What sort of concession was made, what sort of a tenancy was intended, who knew of it, who was bound by it, for how long it lasted - all these things were completely unknown. Nevertheless, the Judge held that there was from 1940 to 1950 a period during which the field 457 was let, and he concluded that therefore there could not run a period of prescription. It is not easy to see on what basis he made that conclusion. The edition of the book on which he relied has been superseded, and the new version which my Lord has read does not seem quite consistent with it. But, nevertheless, I think he must have come to the conclusion that, as a claimant must prove either as freeholder or on behalf of a freeholder and against a freeholder that if there is no freeholder in possession at the time when the period of prescription should begin, he cannot start getting any advantage from it because the person against whom it would be made has not of necessity any knowledge of it, or, indeed, any power to prevent it, he being out of possession. If the case be limited in its effect to the Prescription Act of 1832, I think there is a great deal to be said for that proposition, and it was the chief point made by the Respondent here, that on the pleadings as they stood, the Defendant had nailed his flag to the one mast, namely, the Prescription Act of 1832, and could not rely on any other.
I follow my Lord in holding that, at any rate in a County Court, where ideal pleadings are not to be expected (there used not to be any at all very often, when I was young), the particulars given are sufficient to allow the defendant to rely on any mode of prescription which the law allows him; that is to say, prescription at common law, from time immemorial, prescription on the theory of a fictitious lost grant, or thirdly prescription under the Act.
The case in 18 Queen's Bench, cited by my Lord, satisfies me that if the claim were made under the lost grant theory, the fact that there had been an interruption by a tenancy such as the present would in effect have been put to the jury as one of the matters for them to consider but did not debar them from coming to the conclusion, taking all facts into consideration and considering the period before as well as after the date when the tenancy existed, there ought to be held to have been at some time or other a grant in the terms necessary to provide the way.
Therefore, it seems to me that the learned County Court Judge, who did not consider this point, has misdirected himself to that extent, and that he was not precluded by the existence of the ten-year period of tenancy from holding what otherwise he would have held on the facts as he found them, as has been admitted he would have been justified in doing.
I would therefore agree with my Lord in discharging the injunction and remitting the case to the County Court Judge to settle the matters of damages between the parties on the basis that it is still uncertain whether or no the acts of deviation admittedly committed by the Defendant were justified by the state of things which he found before him. One may hope, with perhaps not very sanguine feelings, that the parties will feel they have had enough litigation and they had better get on with their job and agree between themselves. But, if they cannot do that, the only thing to do is to send it to the Judge; and, to that extent, the case must go back, the injunction being discharged. That is all the Order we make.
LORD JUSTICE SALMON: I agree with both Judgments that have been delivered, save that, like my brother Cross, I doubt whether the learned Judge's Judgment was founded on the Act of 1832. Like my brother Cross, I incline to the view, on the note of what happened in the County Court, that neither of the Solicitors concerned, nor the learned Judge, really drew any precise line between a way acquired under the Prescription Act of 1832 or at common law or by the presumption of lost grant. Indeed, I think that when the learned Judge talked about the prescriptive period being invaded by the lease, the very nebulous lease which appears to have run between 1940 and 1950, he was referring to the period of prescription from 1932 to 1968. On the law as set out in the Second Edition of Megarry, which was the only edition which was before the learned County Court Judge, I can quite understand how the learned Judge came to the decision at which he arrived. I am confident that if he had had the benefit of having the Third Edition before him, in which the relevant passage has been completely revised, he would have decided the case in the same way as this Court has decided it.
I agree that the appeal should be allowed.
Order:- Appeal allowed with costs; Case remitted to the County Court on question of damages; Liberty to apply to the County Court Judge for an injunction on the counterclaim; Costs below reserved to the County Court Judge.
