Muller and others v Smith and another

Easements – Right of way – Respondents claiming right over appellants’ land acquired by prescription or lost modern grant – Whether notional grant would have been unlawful as breach of statutory fencing obligation contained in 1804 inclosure award – Whether then holder of land having power to grant right of way and waive fencing obligation – Right of way upheld – Appeal dismissed The first respondent was the registered freeholder of a farm, which the second to fifth respondents farmed in partnership under an agricultural tenancy. The respondents claimed to be entitled to a prescriptive right of way in favour of their land over a track that ran across the appellants’ adjoining property. The appellants contended that a claim to a prescriptive right under the Prescription Act 1832, or the doctrine of lost modern grant, could not succeed since the claimed right could not lawfully have been granted by the notional grantors. They contended that the grant of a right of way would have been a breach of a permanent statutory fencing obligation, which they contended had been imposed in respect of the relevant part of the boundary by a 1804 inclosure award made, pursuant to a statute of 1798. The 1804 award concerned the grant of allotments to various parties; the fencing obligation had been imposed in respect of one such allotment for the benefit of the adjoining allotment, which had been granted to the local surveyor of highways for the purpose of sand extraction.Rejecting that argument, the judge held that the fencing obligation posed no obstacle to the claimed right, since it was a private right that could be waived, and the obligation would in any event be satisfied by the inclusion of a gate where the track met the boundary. He upheld the respondents’ claim to a right of way and granted declarations accordingly. The appellants appealed. They contended that the fencing obligation created by the 1804 inclosure award had been imposed for the benefit of the public such that the owners of the relevant land or their successors had no power to waive or release it so as to enable a right of way to be granted over the track.Held: The appeal was dismissed. Although the surveyors had, following the inclosure award, held the sandpit for public purposes, the 1798 statute did not require them to hold it forever for those purposes or render the fencing obligation, imposed upon their neighbour and his successors, incapable of disposal by release or waiver. It would have been foreseeable at the time of the award that the sandpit might in future fall into disuse and no longer be required to serve the public purpose for which it had been allotted to the surveyors. The evidence showed that this had happened by the late 19th century, upon which the track was extended over the old sandpit and became used for access to and egress from the respondents’ farm. That was the date when any notional grant of a right of way would have been made. Moreover, the surveyors had been legally competent to grant rights over the sandpit so far as they were not incompatible with its original use. They could, if necessary, have waived the benefit of the fencing obligation so as to enable the grant of a right of way over the track. The fencing obligations contained in the 1804 inclosure award, as with numerous similar inclosure provisions of the period, had been imposed for the primary purpose of enclosing the allotment required to be fenced, in order to mark the boundaries of the allotments and to keep livestock in their own territory, and not to exclude intruders from the sandpit. Consequently, the 1798 statute and 1804 award did not permanently prevent the grant of an easement over the track for the benefit of the respondents’ farm. The judge had correctly upheld their claim to such an easement.George Lawrence QC (instructed by Denison Till, of York) appeared for the appellants; Stephen Howd (instructed by Chattertons, of Boston) appeared for the respondents.Sally Dobson, barrister