Dewan and another v Lewis and another

Easements – Right of way – Acquisition of right by prescription – Respondents held to have acquired right of way over private road to their agricultural grazing land with or without animals and vehicles – Appellants seeking to exclude use of way for purpose of driving stock on ground that no such use during period relied on to establish right – Whether right of way including any purpose reasonably incidental to agricultural use of respondents’ land – Appeal allowedThe appellants and their neighbours lived in properties that were accessed by way of a private road that linked with the highway. The respondents also used the private road to access their agricultural grazing land via a gate.In proceedings between the parties, the appellants and other neighbours sought an injunction to prevent the respondents from using the private road and the respondents counterclaimed for a declaration that they had acquired a right of way over the road by, inter alia, prescription or lost modern grant arising from use between 1986 and 2006. The appellants disputed the existence of the right but further argued that, if it existed, it should exclude any use for the purpose of driving stock, in the absence of any evidence that the road had been used in that way during the relevant period. The respondents contended that, once use for agricultural purposes was established, there was no justification for excluding the driving of stock, which was a normal incident of the use of agricultural land. Dismissing the claim and allowing the counterclaim, the judge declared that the respondents had acquired a prescriptive right of way at all times for agricultural purposes with or without animals and with or without vehicles. He declined to exclude use for driving stock, holding that all he could do was to indicate that although the right included stock, the use of the road had to be related to the use that had been made of it in the past and there should be no excessive user.The appellants appealed. They no longer disputed the existence of a right of way but challenged the judge’s finding that it included use for the driving of stock. Held: The appeal was allowed. Where a right was acquired by user, the rule was that its extent had to be measured by the extent of the user. Any such right was a restriction on the rights of the owner of the servient tenement and its justification was that by acquiescence over a long period that owner had lost the right to object. By the same token, the servient owner should not be taken to have lost the right to object to a user that was more onerous that that which had taken place. There was no material evidence of the use of the private road to drive livestock during the relevant period from 1986 to 2006. In considering the acceptable use of a way, a distinction was been drawn between a right of way for vehicles or the riding of horses, on the one hand, and a right for driving cattle, on the other; the former was not to be taken, without more, as including the latter, which was regarded as being more onerous: Ballard v Dyson (1808) 1 Taunt 279, British Railways Board v Glass [1965] Ch 538 and White v Richards (1994) 68 P&CR 105 applied. The owner of the servient tenement should not be burdened with a use that was more onerous than that which it and its predecessors had accepted in fact. Since the use of the private road over the relevant 20-year period had not included use for driving cattle or anything analogous to such use the servient owners were entitled to exclude that use from the right as declared. This was so even though such use could be said to be “fairly related” to the use of grazing land such as that owned by the respondents: Williams v James (1867) LR 2 CP 577 distinguished.It was not the case that, once there had been sufficient user had established a right of way, the way could be used for any purpose that was reasonably incidental to the agricultural, and more specifically grazing, use of the respondents’ dominant tenement. Although an easement acquired by implied grant might be defined largely by reference to the use to which the dominant land was put, prescriptive easements focused on the use to which the right of way had been put. The use of the dominant tenement could be an important consideration where an easement arose by implied grant, owing to the assumption that the easement would include such rights as were necessary for the reasonable enjoyment of that land. Different considerations applied to easements acquired by prescription, which focused, not on the use that was necessary to facilitate the activity carried on at the dominant tenement, but on what had been happening.Matthew Wales (instructed by R George Davies & Co, of Abergavenny) appeared for the appellants; Graham Walters (instructed by Keppe Rofer Solicitors, of Breacon) appeared for the respondent.Sally Dobson, barrister