Definition of user: the exercise of a right to the enjoyment of property
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- Prescription at common law
- Prescription under the doctrine of the loss modern grant
- Prescription under the Prescription Acts
- Extent of Easements
| User in fee simple
The user cannot ripen into an easement unless it is by or on behalf of a fee simple owner against another fee simple owner. Methods of prescription There are three methods whereby an easement may be acquired by prescription. These methods are cumulative and it is common for claimants to rely upon all three simultaneously Prescription at common law In order to acquire an easement by prescription at common law, the claimant must show that he has enjoyed the user since time immemorial- that is, from the time at which legal memory is taken to have begun. The date from which legal memory begins was fixed at 1189 by the Statute of Westminster 1275. The claimant must, therefore, show enjoyment since 1189. In order to relieve the claimant from discharging this impossible burden of proof, the courts are willing to presume that enjoyment has lasted from 1189, if proof is given for an actual enjoyment for twenty (20) years (Darling v Clue). However, the presumption that the user has been since time immemorial can be rebutted by proof that the easement could not possibly have existed since 1189. Example, if easement of light to a building is claimed, the servient owner can rebut the presumption of user from 1189 by proving that the building was constructed in 1975. For this reason claimed to prescription at common law rarely succeed, and claimants prefer to rely on the other two methods. However, it seems that in the Commonwealth Caribbean jurisdiction there could never be a presumption of user since 1189.9 Prescription under the doctrine of the loss modern grant In order to avoid the difficulty that a claim to prescription at common law could be defected by proof that the easement could not have been enjoyed since 1189, the courts have developed the doctrine of loss modern grant. Under this doctrine, if the claimant can show actual enjoyment of an easement for at least 20 years,10 the court will presume that actual grant was made at the time when the enjoyment began, but that the deed had been lost. In Tehidy Minerals Ltd v Norman, it was held the presumption of lost modern grant cannot be rebutted by evidence, that no such grant, was in fact, made. The doctrine is a pure legal fiction. Prescription under the Prescription Acts The Prescription Act has the following effect: 2. Where any profit or benefit, easement, a claim to which may lawfully be made at common law, by any person claiming right there to, enjoyed without interruption for the full period of twenty years, the right shall be deemed to indefeasible and absolute, unless the same was enjoyed by some consent or agreement expressly made for that purpose by deed or writing. 3. When the access and use of light or air to and for any dwelling house, workshop or other buildings, enjoyed without interruption for the full period of twenty years, the right shall be deemed to indefeasible and absolute, unless the same was enjoyed by some consent or agreement expressly made for that purpose by deed or writing. 4. When any beach has been used by the public or any class of the public for fishing, or for bathing or recreation, and any road, track… without interruption for the full period of twenty years, the public shall have absolute and indefeasible right to use such beach, land, road, track or pathway as aforesaid, unless the same was enjoyed by some consent or agreement expressly made for that purpose by deed or writing. NB. Hart v Pierce, it was held that the plaintiff was entitled to a right of way and that uncertainty as to the precise path uses by the plaintiff was not fatal to the claim, and the path which they would be entitled to use would be the nearest way they could take to the beach. Extent of Easements Having established that an easement has been acquired, it may be necessary to decide how extensive that easement is. A person who, in purported exercise of a right of way, makes an ‘extensive user’ of the servient tenement (for e.g. where he drives his vehicle on a way that is restricted o pedestrian access) commits a trespass and may restrain from so doing at the instance of the servient owner (Wellington v Grant). Download 50.55 Kb. Share with your friends:
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