The Doctrine of Lost Modern Grant

-(2003) 38(1) JUR 225 Article: THE DOCTRINE OF LOST MODERN GRANT : ALAN DOWLING -Page1
(2003) 38(1) JUR 225 Article: THE DOCTRINE OF LOST MODERN GRANT
ALAN DOWLING Senior Lecturer in Law at Queen’s University, Belfast
The doctrine of lost modern grant will be familiar to students and practitioners of land law. Commonly
prayed in aid by those who are seeking to establish an easement by prescription, it usefully avoids
difficulties that exist in establishing prescription at common law or under the Prescription Act 1832 .
Developed in the eighteenth century and confirmed by the House of Lords in the nineteenth, [1] [
Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] it remains alive and well in the twenty-first, having
recently survived an attack on the ground that it was incompatible with the provisions of the European
Convention on Human Rights, [2] [ Mills v M.I. Developments Ltd. [2002] E.W.C.A. Civ. 1576 .]
and is arguably the means of choice for claimants asserting a legal right to carry on activity enjoyed
without interruption for years past, but unable to show a documentary title.
As its name suggests, where a claimant can rely successfully on the doctrine to establish the right
claimed, it is because a grant to him or his predecessor of that right is presumed to have been made,
but is now lost. From the number of cases in which the doctrine is relied on, it might be thought that
the doctrine is both uncontroversial and its ambit well-defined. Neither supposition would be correct.
As to the former, before the 18 judges who considered the dispute between Henry Angus & Co.,
Charles Dalton and the Commissioners of Her Majesty’s Works and Public Buildings [3] [ Angus &
Co. v Dalton (1877) 3 Q.B.D. 85 (Q.B.D.); (1878) 4 Q.B.D. 162 (C.A.) ; Dalton v Angus & Co.
(1881)6 App. Cas. 740 (H.L.) . Dalton was a builder employed by the Commissioners to take down a
building adjoining a coachworks owned by Angus & Co. In doing so the coachworks suffered damage.
Perhaps appropriately for a case which became important for the legal profession, the purpose of the
demolition was to clear the site for the erection of a new building to serve the profession, the
Newcastle Probate Office.] gave their opinions and settled the existence of the doctrine, judicial
opinion on the doctrine was divided, with both opponents and supporters expressing their views in
unequivocal terms. For Lush J., the doctrine was “a revolting fiction” [4] [ Angus & Co. v Dalton
(1877) 3 Q.B.D. 85.] ; others, such as Bayley B., [5] [ Day v Williams (1832) 2 Cr. & J. 461 .] Lord
Denman C.J., [6] [ R. v Scarisbrick (1837) 6 Ad. & E. 509; R. v President and Chapter of Exeter
Cathedral (1840) 12 Ad. & E. 512 .] Cockburn C.J. [7] [ Bryant v Foot (1867) L.R. 2 Q.B. 161;
Angus & Co. v Dalton (1877) 3 Q.B.D. 85 . ] and Farwell J., [8] [ Att.-Gen. v Simpson [1901] 2 Ch.
671 . For the case on appeal see [1904] A.C. 476.] had great difficulty in requiring juries to find on
oath that a grant had been made which they knew did not exist in fact, Cockburn C.J. describing the
practice as a scandal on the administration of justice. [9] [ Angus & Co. v Dalton (1877) 3 Q.B.D. 85
.] Outside the court criticism could also be found. Sir William Evans described the doctrine as a
perversion of legal principles. [10] [2 Evans’ Pothier 139, cited in Bryant v Foot (1867) L.R. 2 Q.B.
161 .]
Disapproval was not, however, universal. Channell J., echoing views expressed by O’Brien C.J., [11]
[ O’Kane v O’Kane (1892) 30 L.R. Ir. 489 .] considered the doctrine most useful, enabling the court
to avoid interfering with user and possession in cases not covered by the provisions of the Prescription
Act or the Statute of Limitations, though within the mischief such legislation was intended to remedy.
[12] [ East Stonehouse U.D.C. v Willoughby Brothers Ltd. [1902] 2 K.B. 318 .] In cases where
previous authority required a decision in a particular way, we can find judges following the earlier
decisions with undisguised reluctance and no wish to extend the ambit of the doctrine, [13] [
Macnaghten v Baird [1903] 2 I.R. 731; Doe d. Fenwick v Reed (1821)5 B. & AId. 232; Wheaton v
Maple [1893] 3 Ch. 48 .] and others who thought the doctrine should not be so constrained, but rather
should be extended. [14] [ Tennent v Neill (1870) I.R. 5 C.L. 418 .]
With regard to the doctrine being well-defined, the standard texts devote little to the theoretical basis
upon which the doctrine rests. This article is an effort to explain the doctrine and to essay some
conclusions as to the role of the courts in cases where they are asked to presume a grant, from which it
may appear that some of the difficulties in the doctrine may be avoided.
GENERAL PRINCIPLES
The explanation of the origin and development of the doctrine of lost modern grant given by Cockburn
C.J. is well-known: to atone, as he put it, for the supineness of the legislature in failing to protect long
usage, the judges set about remedying the defect by first holding that from the usage of a lifetime the
presumption arose that a similar usage had existed from time immemorial; and secondly by the
development of the doctrine of lost modern grant:
“Juries were first told that from user during living memory, or for twenty years, they might presume a
lost grant or deed; next they were recommended to make such presumption; and lastly, as the final
consummation of judicial legislation, it was held that a jury should be told, not only that they might,
but also that they were bound to presume the existence of such a lost grant, although neither the judge
nor jury, nor any one else, had the shadow of a belief that any such instrument had ever really
existed.” [15] [ Bryant v Foot (1867) L.R. 2 Q.B. 161 . In Deeble v Linehan (1860) 12 I.C.L.R. 1
Pigot C.B. referred to the lack of uniformity in the language used by judges in directing juries. In
Livett v Wilson (1825) 3 Bing. 115 Best C.J. explained that from uninterrupted usage for 20 years the
jury might be authorised to find it originated in a grant, but went on to say that the jury could only be
told that they might find a grant, not that they must. Shortly afterwards, in Tenny d. Whinnett v Jones
(1833) 10 Bing. 75 , Park J. said that while a direction that the jury were bound to presume, under
certain circumstances, would be wrong, they might be told that from certain circumstances they were
warranted in making certain presumptions. The proper course, according to Pigot C.B., was to direct
the jury that they were at liberty to presume that, where enjoyment for 20 years had been proved, such
enjoyment had its origin in legal title; that it could have its origin in a grant by deed; and “if not to
direct, at least to advise” them that, if there was nothing to contradict or explain the enjoyment, they
ought to refer it to a legal origin, and to presume that a grant had been made. In McAulay v
McDonald (1908) 4 E.L.R. 486 it was said that the jury ought to be directed that if they believed that
there had been the equivalent of 20 years adverse possession they ought to presume it originated
lawfully, in most cases by a lost grant.]
The explanation points to one problem which continues to exist and to make establishing a
prescriptive right at common law an uphill task, to put it at the least. The requirement at common law
that user should have commenced before legal memory, the year 1189, [16] [Statute of Westminster
1275.] is likely to be impossible in most cases. The practice of directing juries that from modern usage
they should find usage from time immemorial, unless there was evidence to the contrary, [17] [
Jenkins v Harvey (1835) 1 Cr. M. & R. 472; Darling v Clue (1864) 4 F. & F. 329; Shephard v Payne
(1864) 16 C.B. N.S. 132 . See also O’Neill v Allen (1859) 9 I.C.L.R. 132 .] clearly eased the burden,
but it was not enough to ensure protection in many instances. If, for example, in the case of the claim
to an easement both dominant and servient tenements were in common ownership and occupation at
any time since 1189, then the claim would be unsuccessful. Likewise, in the case of a claim to an
easement of light to a building, if the building did not exist in 1189, user from time immemorial would
not be shown and the claim would be defeated. The doctrine of lost modern grant got over these
problems by avoiding the necessity that user should have been from time immemorial. So long as the
user fulfilled the necessary qualities of being as of right, unexplained, uninterrupted and of sufficient
duration, a grant to the claimant could be presumed. It may well be, as Cockburn C.J. and others
thought, that the doctrine thus evolved amounted to a judicial usurpation of the function of the
legislature, [18] [ See Bryant v Foot (1867)L.R. 2 Q.B. 161; Angus & Co. v Dalton (1877) 3 Q.B.D.
85; Dalton v Angus & Co. (1881) 6 App. Cas. 740; Delohery v Permanent Trustee Co. of New South
Wales (1904) 1 C.L.R. 283 .] but the doctrine became established nonetheless, and came to be adopted
by the Court of Chancery in circumstances where a grant would have been presumed by a jury in a
court of law. [19] [ Jones v Turberville (1792) 2 Yes. Jr. 11; Pickering v Lord Stamford (1794) 2 Ves.
Jr. 581. ]
Before considering the details of the doctrine, it is convenient at this stage to consider how the
doctrine relates to prescription at common law, as it was the difficulties inherent in prescription at
common law that brought the doctrine into being. There are statements in some of the cases that the
doctrine is ancillary to prescription at common law, [20] [ Bryant v Lefever (1879) 4 C.P.D. 172;
Yong Joo Lin v Fung Poi Fong [1941-1] M.L.J. 63. ] and that accordingly, where the facts will justify
the claim succeeding at common law, the doctrine has no application, [21] [ Blewett v Tregonning
(1835) 3 Ad. & E. 554; Bryant v Lefever (1879) 4 C.P.D. 172; R.P.C. Holdings Ltd. v Rogers [1953] 1
All E.R. 1029 . See also Jenkins v Harvey (1835) 1 Cr. M. & R. 472 , Shephard v Payne (1864) 16
C.B. N.S. 132 and Darling v Clue (1864) 4 F.&F. 329 in which the correct direction to the jury was
held to be that from modern user they might find immemorial user.] and a determination by the jury
that the claimant succeeds under the doctrine would be wrong. [22] [ Blewett v Tregonning (1835) 3
Ad. & E. 554.] The difficulties already noted standing in the way of a claim succeeding at common
law make the significance of the doctrine being described as ancillary to prescription at common law
questionable, other than insofar as the difficulties hereinafter discussed inherent in the doctrine may be
avoided if the claim can be held to succeed at common law. In addition to the relation of the doctrine
to prescription at common law, the question arises as to how the Prescription Act 1832 was intended
to affect the operation of the doctrine. It was undoubtedly the intention of the Act to facilitate claims
based on long enjoyment, though the success of the Act in that regard is debatable. [23] [The Act
(extended to Ireland by the Prescription (Ir.) Act 1858 ) is notoriously badly drafted and difficult to
operate, making provision for claims based on shorter and longer periods of enjoyment (20 years and
40 years respectively for claims to easements; 30 years and 60 years for claims to profits (ss.1 and
2)), but requiring deductions to be made from the period of enjoyment relied on by the claimant in
certain circumstances (ss.7 and 8). Whether the claimant relies on the shorter or longer periods, the
Act operates only where there is litigation in which the claim is brought into question, as the period of
enjoyment is calculated with reference to that litigation (s.4). In cases where the claimant cannot meet
the requirements of the Act, he may yet succeed in establishing a right under the doctrine of lost
modern grant. For examples of claims based alternatively under the Act and under the doctrine see
Pugh v Savage [1970] 2 All E.R. 353; Tehidy Minerals Ltd. v Norman [1971] 2 All E.R. 475; Bowring
Services Ltd. v Scottish Widows Fund etc. [1995] 16 E.G. 206. ] Introducing provisions that ultimately
became the Prescription Act, Lord Tenterden referred to the doubts which existed in whether grants
would be presumed or not by the courts, and considered it better that the law should fix a period
during which enjoyment should be proved for a claim to be successful. [24] [3 H.L. Debs (3rd series)
col. 442 (March 15, 1831).] In Bright v Walker [25] [(1834) 1 Cr. M. & R. 211.] Parke B. identified
one reason for the Act as being to ease the consciences of jurors. [26] [cf. the purpose of the Rights of
Way Act 1932 in the case of highways: see Jones v Bates [1938] 2 All E.R. 237 and discussion below,
p.237.] Following the Act it seems to have been considered by some that the doctrine of lost grant had
been superseded by the provisions of the Act, [27] [See Bright v Walker (1834) 1 Cr. M. & R. 211;
Tapling v Jones (1865) 11 H.L.C. 290; Hyman v Van den Bergh [1908] 1 Ch. 167 . A recent revival of
the argument was unsuccessful in Mills v M.I. Developments Ltd. [2002] E.W.C.A. Civ. 1576. ] but
this view has not prevailed, [28] [See Hanmer v Chance (1865) 4 De G. J. & S. 625 , the court
holding that s.6 of the Prescription Act did not prevent use for a lesser period than that mentioned in
the section being the basis for the jury finding a grant.] and by 1875 it was said to be everyday
practice to plead prescription at common law, or alternatively under the Prescription Act, or under the
doctrine of lost modern grant. [29] [ Aynsley v Glover (1875) 10 Ch. App. 283. ] While it has recently
been said that rather stronger evidence is required in the case of a lost modern grant than in the case of
prescription under the statute, [30] [See Smith v Brudenell-Bruce (2001) (unreported, July 2, 2001,
H.C., Pumfrey J.). ] this can only mean that the statutory provisions require only proof of user without
the additional difficulty of having to rely on the court making a presumption that a grant had been
made to explain such user. [31] [ Bright v Walker (1834) 1 Cr. M. & R. 211. ]
It has been said that every prescription is based on the presumption of a grant. [32] [See Potter v
North (1669) 1 Vent. 383; 2 Bl Comm 265; 3 Cru. Dig. (3rd ed., 1824), p.482.] The basis of the
doctrine of lost modern grant is that a grant is presumed to have been made conferring the right long
enjoyed by the claimant. One question which had to be answered by the courts was whether the
presumption was a presumption of law, incapable of being rebutted, or one of fact, which could be
rebutted. On the basis that the presumption could be rebutted, the question arose as to what would be
required in order to rebut it. Although there are dicta that the presumption arising was conclusive, [33]
[ Bealy v Shaw (1805) 6 East. 208; Balston v Bensted (1808) 1 Camp 463 . Lewis v Price (1761) and
Dougal v Wilson (1769) both noted at 2 Wm. Saund. 175 were also considered authority for the
presumption being conclusive: see Angus & Co. v Dalton (1877) 3 Q.B.D 85. ] these were outweighed
from an early date by decisions showing the presumption would give way to evidence countering it.
[34] [ Keen v Earl of Effingham (1747) 2 Str. 1267; Goodtitle v Duke of Chandos (1760) 2Burr. 1065 ;
Mayor of Hull v Horner (1774) 1 Cowp. 102 ; Darwin v Upton (1785) 2 Wm. Saund. 175; Oswald v
Leigh (1786) 1 T.R. 272; Griffith v Matthews (1793) 5 T.R. 296; Goodtitle d. Jones v Jones (1796) 7
T.R. 43; Doe d. Fenwick v Reed (1821) 5 B. & AId. 232; Cross v Lewis (1824) 2 B. & C. 686; Tenny
d. Whinnett v Jones (1833) 10Bing. 75. ] The difficulty with classifying the presumption as one of
fact, however, is the refusal of the courts to allow the presumption to be rebutted by proof that no
grant was in fact made, [35] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740. ] so that even before
Dalton v Angus & Co [36] [(1881)6 App. Cas. 740.] the presumption was being described as neither
one of law nor one purely of fact. [37] [ Shephard v Payne (1864) 16 C.B. N.S. 132. ] In Dalton v
Angus & Co Bowen J. refers to the reluctance of the courts to treat the presumption as an ordinary one,
and their preference to leave the presumption in a “logical cloud”. That appears as accurate a
description of the position following the decision as it did before.
The difficulty in classifying the presumption as one of law or one of fact or something in between is
mirrored in the lack of clarity in the early authorities as to whether the doctrine was based on fact or
fiction. In Doe d Fenwick v Reed, [38] [(1821)5 B. & Ald. 232.] where there had been more than 70
years’ possession by the defendant in ejectment proceedings, the question whether a conveyance had
been made at some time in the past to his predecessor was considered purely as one of fact, despite the
attempts by counsel for the defendant to make it one of presumption based on long enjoyment. Again,
in Duke of Norfolk v Arbuthnot [39] [(1880) 5 C.P.D. 390.] Brett L.J. maintained the opinion he had
expressed in Angus & Co v Dalton [40] [(1878) 4 Q.B.D. 162.] that the question whether a lost grant
did once exist was one of fact for the jury, and went on to say that he was quite sure that as a matter of
fact there never had been a grant which was now lost. Even after Dalton v Angus & Co. [41] [(1881)6
App. Cas. 740.] the absence of a factual basis for a grant was hard for some to take. Farwell J.,
echoing sentiments expressed by others earlier, [42] [See Day v Williams (1832) 2 Cr. & J. 461;
Bryant v Foot (1867) L.R. 2 Q.B. 161. ] thought it could not be the duty of a judge to presume a grant
of the non-existence of which he was convinced. [43] [ Att.-Gen. v Simpson [1901] 2 Ch. 671. ] In
Wheaton v Maple [44] [[1893] 3 Ch. 48.] we find Lopes L.J. memorably saying that presuming a
grant in that case “would be overtaxing the credulity of the most credulous, and would be making a
demand too extravagant even for the elasticity of this patient and accommodating fiction”.
The absence of a formal record of the grant, which would have existed had a grant existed in fact, has
been the basis for the court’s reluctance to presume a grant in some instances. [45] [ Wheaton v
Maple [1893] 3 Ch. 48; Tyne Improvement Commissioners v Imrie (1899) 81 L.T. 174; Neaverson v
Peterborough R.D.C. [1902] 1 Ch. 557 . The absence of a record was noted in Representative Church
Body v Barry [1918] 1 I.R. 402 where the court was prepared to presume that a presentment by the
Grand Jury had been made stopping up a highway. The absence of any record of a grant was seen as
immaterial, however, in Somersetshire Drainage Commissioners v Corpn. of Dudley (1899) 81 L.T.
729. ] The difficulty has caused most unease where the court has been asked to presume that an Act of
Parliament existed authorising the user relied on, [46] [For the presumption of instruments other than
grants, see below, p.252.] but has been lost. So, for example, we find Lord Denman C.J. saying that no
judge would venture to direct a jury that they could affirm the passing of an Act of Parliament made
within the previous 250 years on an important subject of the most general interest, of which no vestige
can be found on the Parliament roll, in the journals of either House of Parliament, in any records of the
courts of law, in the numerous treatises of enlightened authors, or in the history of the country. [47] [
R. v President and Chapter of Exeter Cathedral (1840) 12 Ad. & E. 512 . See also Macdougall v
Purrier (1830) 2 Dow & Cl. 135; Clinton v Corpn. of London (1878) 7 Ch. D. 735; Neaverson v
Peterborough R.D.C. [1902] 1 Ch. 557; Harper v Hedges [1924] 1 K.B. 151. ]
These difficulties in making the presumption of a lost grant are obviated if all pretence that the grant
had in fact been made is abandoned. There are dicta even at an early date that the doctrine is based not
on the fact of a grant having been made, but rather on a fiction. [48] [See Eldridge v Knott (1774) 1
Cowp. 214; Hillary v Waller (1806) 12 Yes. Jr. 240 . In defence of the doctrine being based on a
fiction, see the explanation of Holmes L.J. in Hanna v Pollock [1900] 2 I.R. 664 , that a fiction
recognised by the court ceases to be a fiction and becomes the formal mode of expressing a reality,
and it is the reality of long enjoyment that is affirmed by the jury.] Later, at the same time as Cockburn
C.J. was lamenting the presumption of grants in which no-one believed, Lawson J. was making it clear
that in Dublin also everyone knew that in nine cases out of 10 no deed was in fact ever executed. [49]
[ Tennent v Neill (1870) I.R. 5 C.L. 418 .] By then, O’Brien J. had already considered a grant could be
presumed without the necessity of the jury believing in the existence of the grant as a matter of fact.
[50] [ Deeble v Linehan (1860) 12I.C.L.R. 1 . See also Tennant v Neill (1870) I.R. 5 C.L. 418 and
Renewable Leasehold Conversion Act ex p. Raymond (1874) I.R. 8 Eq. 231.]
If the presumption that a grant had been made were merely an inference of fact to be drawn by the jury
the criticisms directed against the doctrine would have been hard to justify, a point made in the
Canadian case of Ring v Pugsley. [51] [(1878) 18 N.B.R. 303.] An action had been brought by the
plaintiff as a result of obstruction by the defendant in 1874 of the light enjoyed by the plaintiff. The
plaintiff could succeed only on the basis of lost modern grant. [52] [The trial judge directed the jury
that the relevant law was the law applicable in England before the Prescription Act. A claim at
common law was bound to fail as the plaintiff’s house had not been built until 1853.] The judge
refused the defendant’s request to leave the question whether a grant should be presumed to the jury,
and a verdict was found for the plaintiff. The defendant obtained a rule nisi for a retrial and the
plaintiff showed cause. Duff J. held that the judge had been right in refusing to leave the matter to the
jury, saying that if the matter were really one for determination by the jury as a matter of fact, he
would be at a loss to understand Evans’ criticism [53] [See n.10 above.] that the doctrine was a
perversion of legal principles.
A means of resolving the confusion apparent from the cases in which the operation of the doctrine has
been questioned because of the knowledge that as a matter of fact no grant had ever been made, will
be found if the presumption of a lost grant is seen not as a matter of fact but as a conclusion to be
drawn in the absence of any other explanation for the existing state of affairs. [54] [ Deeble v Linehan
(1860) 12I.C.L.R. 1 (per Pigot C.B.); Att.-Gen. v Horner(No.2) [1913] 2 Ch. 140 (per Hamilton L.J.);
for rejection of this view, on the basis that it rendered the doctrine no different from prescription
under the Prescription Act, see Angus & Co. v Dalton (1878) 4 Q.B.D. 162 (per Brett L.J.).] What
must be proved is the enjoyment by the claimant for a sufficient length of time. [55] [The longer the
enjoyment, the easier it may be for the court to presume a grant in favour of the claimant: see Lysaght
v Rose (1861) 12 Ir. Ch. R. 444 .] That is a matter of fact and the onus is on the claimant to discharge
the burden in the usual way. [56] [For the requirement that the claimant adduce evidence of a state of
affairs upon which a presumption can be based, see Goodtitle v Duke of Chandos (1760) 2 Burr 1065;
Warren v Gunner (1798) 1 Hag. Con. 314; Campbell v Wilson (1803) 3 East 298; Doe d. Fenwick v
Reed (1821) 5 B. & Ald. 232; Gray v Bond (1821) 2 Brod. & B. 667; Doe d. Blackwell v Plowman
(1831) 2 B. & Ad. 573 .] Once that has been done, the question becomes what explanation can be
given for such enjoyment? If there is none, then the presumption of a lost grant can be made.
Presumption is therefore, as Hamilton L.J. explained in Attorney General v Horner (No.2), [57]
[[1913] 2 Ch. 140.] the opposite of proof, supplying the starting point for proof, and affording a
legitimate means of arriving at an affirmative legal conclusion, but giving way where proof exists.
[58] [See also Lord Chesterfield v Harris [1911] A.C. 623 (per Earl of Loreburn L.C.); Harris v
Knight (1890) 15 P.D. 170 (Lindley L.J.). According to Erskine L.C., it is because there is no means of
creating belief or disbelief that presumptions are applied: Hillary v Waller (1806) 12 Yes. Jr. 240 .] In
the same case Buckley L.J. said that if long user as of right is proved, the presumption arises without
further evidence: it then arises “not upon evidence, but for default of evidence. It may be displaced by
evidence, but requires no further evidence for its support”. According to this explanation, the doctrine
operates on both evidence and the absence of evidence: there must be proof of user for a sufficient
period and exhibiting the necessary qualities to found a claim based on prescription: for example, the
user must be as of right, but equally, there must be an absence of proof as to how such enjoyment
came about. [59] [ Fanshaw v Rotheram (1759) 1 Eden 276; Doe d. Fenwick v Reed (1821) 5 B. &
Ald. 232; Att.-Gen. v Simpson [1901] 2 Ch. 671; Att.-Gen. v Antrobus [1905] 2 Ch. 188; Lord
Chesterfield v Harris [1908] 2 Ch. 397; Hulbert v Dale [1909] 2 Ch. 570; Att.-Gen. v Horner (No.2)
[1913] 2 Ch. 140; Lyell v Lord Hothfield [1914] 3 K.B. 911; Earl of Dysart v Hammerton & Co.
[1914] 1 Ch. 822; Alfred E. Beckett Ltd. v Lyons [1967] 1 All E.R. 833; Baldwin v O’Brien (1917) 40
O.L.R. 24 .] If the long-enjoyed user can be explained, the presumption of a grant is displaced. [60]
[See further discussion below, p.248.] In other cases it has been said that a grant must be the most
reasonable explanation for the long enjoyment shown to exist. [61] [ Doe d. Putland v Hilder(1819) 2
B. & Ald. 782; Att.-Gen. v Simpson [1901] 2 Ch.671; Lord Chesterfield v Harris [1911] A.C. 623;
Att.-Gen. v Horner (No.2) [1913] 2 Ch. 140 .]
STRANDS IN THE DEVELOPMENT OF THE DOCTRINE
According to the explanation of the doctrine in Bryant v Foot, [62] [(1867) L.R. 2 Q.B. 161.] the
origins of the doctrine are to be found in the courts’ wish to remedy an injustice for which the
legislature had not provided in the Limitation Act 1623 . That Act had provided that parties who had
suffered others to be in possession of land for the period prescribed by the Act should thereafter be
prevented from asserting their rights. The Act did not provide for the case of enjoyment of incorporeal
rights such as easements, but in the doctrine of lost modern grant the courts were able to provide that
where long enjoyment of such rights was shown to exist, protection was established for those enjoying
the rights. The protection was different in that the Limitation Act prevented the owner of the land from
taking action against the person in possession, i.e. the Act operated against the title of the owner rather
than by conferring a title on the person in possession, whereas in the case of presumption of a lost
grant, protection took the form of establishing that the person who had proved long enjoyment had a
title to do so, [63] [See R. v Oxfordshire C.C. ex p. Sunningwell P.C. [2000] 1 A.C. 335 .] but the
practical effect in each case was to protect long enjoyment. Lord Blackburn considered the doctrine
must have come into existence in the century or so following the Act of 1623, and cited Lewis v Price
[64] [(1761) 2 Wm. Saund. 175.] in 1761 as the earliest example of the doctrine being applied in the
case of a claim to an easement. [65] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] As we will
see, the doctrine was known to the courts before then. Here, however, it is convenient to consider
some aspects of the relationship between the Limitation Act and the doctrine.
First, the presumption of a grant was made in circumstances in which the Limitation Act did not apply.
In Holcroft v Heel [66] [(1799) 1 Bos. & Pul. 400.] an action was brought in the Common Pleas by
the owner of a market. The defendant had held a rival market for the past 23 years. The court held that
the undisturbed possession of the rival market for that period was a bar to the plaintiff’s right of
action. In Campbell v Wilson [67] [(1803) 3 East. 298.] however, the court explained the earlier case
as one in which the defendant could have succeeded on the basis of the presumption of a grant from
the Crown, the Limitation Act not being a bar to the plaintiff. Similarly, though no limitation period
applied in the case of bonds, the courts were prepared to presume satisfaction of the bond if no
demand was shown to have been made for a long period. [68] [Anon (1703) 6 Mod. 22; Oswald v
Leigh (1786) 1 T.R. 272 .] An interesting illustration of the point that the doctrine applied in
circumstances where the Limitation Act did not is Doe d. Fisher v Prosser , [69] [(1774) 1 Cowp.
217.] where one co-owner of land had been in sole possession of the land for many years. Under the
law as it then stood, no co-owner of land could bar the title of his co-owners by adverse possession,
unless he had ousted them. Although therefore the defendant could not rely on the provisions of the
Limitation Act for protection, the court was prepared to presume either that there had been ouster, or
alternatively that there had been a conveyance to the defendant, thereby rendering his possession
secure. In Ireland, however, the view was taken that to presume a conveyance in such circumstances
would lead to a monstrous result. [70] [ Beauman v Kinsella (1858) 8 I.C.L.R. 291 .]
Second, it seems that the fixing of the rule that the claimant had to show 20 years’ enjoyment arose by
analogy with the limitation period of 20 years fixed by the Act of 1623 for actions to recover land.
[71] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 (per Bowen J.).] Although some of the early
cases suggest that a presumption could arise in a period less than 20 years, [72] [See England v Slade
(1792) 4 T.R. 682 (jury may be directed to presume surrender “in much less time than 20 years”);
Bealy v Shaw (1805) 6 East 208 (less than 20 years may or may not afford presumption “according as
it is attended with other circumstances to support or rebut [the right claimed]”); Oswald v Leigh
(1792) (satisfaction of bond might possibly be presumed after 18 or 19 years).] by the beginning of
the nineteenth century the requirement of 20 years’ enjoyment seems to have been settled. [73] [
Campbell v Wilson (1803) 3 East 298; Bealy v Shaw (1805) 6 East 208; Hillary v Waller (1806) 12
Ves. Jr. 240 . For earlier authorities proceeding on a basis of 20 years’ enjoyment see Anon. (1703) 6
Mod. 22; Lewis v Price (1761) 2 Wm. Saund. 175 . See also Goodtitle v Baldwin (1809) 11 East 488;
Doe d. Foley v Wilson (1809) 11 East. 56 (no grant presumed within 12 or 13 years); see also Rees d.
Chamberlain v Lloyd (1811) Wight 123 (livery of seisin presumed after 20 years, by analogy to the
Limitation Act, rather than after 30 years, being the period after which deeds did not require proof);
Doe d. Wilkins v Marquis of Cleveland (1829) 9 B. & C. 864; Doe d. Lewis v Davies (1837) 2 M. &
W. 503 (livery not presumed within 20 years).] That itself posed an interesting question in Riddiford v
The King, [74] [[1905] A.C. 147.] namely, whether a grant could be presumed to have been made by
the Crown, on the basis that 20 years enjoyment had been proven, in an action by the Crown, to which
a longer limitation period applied. [75] [See also Lopes v Andrews (1826) 5 L.J. K.B. 46 .] The Privy
Council considered no grant could be presumed in such circumstances. [76] [See also Eldridge v
Knott (1774) 1 Cowp. 214 .] Despite the reduction of the limitation period in ordinary cases to 12
years, the requirement of proving 20 years’ enjoyment for the presumption to arise has remained.
Finally, one view of the effect of the Limitation Act was that the doctrine of lost modern grant could
be discarded, [77] [ Angus & Co. v Dalton (1877) 3 Q.B.D. 85 .] the effect of the Act being that an
easement was gained after 20 years’ enjoyment, without the need for any grant to be presumed.
However attractive that view of the effect of the Act might be as a matter of principle, it was rejected
as a matter of law by Lord Blackburn in Dalton v Angus & Co . , [78] [(1881)6 App. Cas. 740.] and
far from being discarded, the doctrine thrived.
Cases in which the courts developed the presumption of a lost grant by analogy to the provisions of the
Limitation Act for quieting titles show one of the various strands in the development of the doctrine of
lost modern grant. Another is a line of cases in which the courts used presumptions to avoid having to
non-suit plaintiffs in ejectment actions because a term of years was shown to be outstanding, or
because the fee simple estate was shown to be in the hands of trustees for the plaintiff. In Doe d.
Hodsden v Staple [79] [(1788) 2 T.R. 684.] Lord Kenyon C.J. reports Lord Mansfield as saying in an
unreported case, Lade v Holford, that he would not suffer a plaintiff to be non-suited by a term
outstanding in a trustee, or a satisfied term set up by a mortgagor, but would direct a jury to presume a
surrender. [80] [See also Doe d. Bowerman v Sybourn (1796) 7 T.R. 2 .] In fact, courts had presumed
surrenders of terms from an early date, where long possession had been shown by someone other than
the termor. [81] [Anon (1674) 1 Vent. 257; Warren v Greenville (1740) 2 Str. 1129 . See, however,
the comments on the latter decision in Goodtitle v Duke of Chandos (1760) 2 Burr. 1065 .] Equally,
where it appeared the legal estate was in the hands of trustees, a conveyance by the trustees could be
presumed, at any rate when the court was satisfied that it was the duty of the trustees to convey the
lands to the person who had shown possession for a long time. [82] [ Lady Stafford v Llewellin (1682)
Skin. 77; England v Slade (1792) 4 T.R. 682; Hillary v Waller (1806) 12 Ves. Jr. 240; Townsend v
Champernown (1827) 1 Y. & J. 538; Hozier v Powell (1841) 3 Ir. L.R. 395; Harris v Harris (1868)
I.R. 3 C.L. 294. For cases where the court refused to make a presumption of a surrender or
conveyance see Goodright v Swymmer (1756) 1 Keny 385; Doe d. Hodsden v Staple (1788) 2 T.R.
684; Goodtitle d. Jones v Jones (1796) 7 T.R. 43; Keene v Deardon (1807) 8 East 248; Doe d.
Hammond v Cooke (1829) 6 Bing. 174 .] In Doe d. Putland v Hilder [83] [(1819) 2 B. & Ald. 782.]
Abbott C.J. explained that where acts had been done or omitted by the owner of the inheritance and
persons dealing with him which ought not to have been done or omitted if the term existed in a trustee,
and if there did not appear anything to prevent a surrender, in such cases the things done or omitted
might most reasonably be accounted for by supposing a surrender, and a surrender would accordingly
be presumed. [84] [See also Bartlett v Downes (1825) 3 B. & C. 616.] Presuming surrenders or
conveyances in such circumstances was controversial however, [85] [See Doe d. Blacknell v
Plowman (1821) 2 B. & Ad. 573; Doe d. Earl of Egremont v Langdon (1848) 12 Q.B. 711 .] Lord
Eldon and others making their criticism of the practice known. [86] [ Aspinall v Kempson (1821) 3
Sugden, A Practical Treatise on the Law of Vendors and Purchasers of Estates (10th ed., 1839) p.65;
see also criticism by Sugden at 3 op. cit. p. 196. ] The issue was addressed in the Bill introduced into
Parliament by Lord Tenterden in 1831, on which the Prescription Act 1832 was based. [87] [See 3
H.L. Debs (3rd series) col. 442 (March 15, 1831).] Although the provisions of the Bill dealing with
satisfied terms were not enacted in the Prescription Act, the matter was eventually dealt with by
Parliament in the Satisfied Terms Act 1845 .
Long before its application in the law of easements in 1761, [88] [ Lewis v Price (1761) 2 Wm.
Saund. 175 .] the doctrine of lost grant was known to the courts in disputes regarding tithes. The issue
in these disputes was whether a discharge from liability to pay tithes could be acquired from non-
payment of tithes for many years. If an owner of land was liable for tithes, yet the land had been
enjoyed for many years without tithes being paid, could immunity from payment be established? The
problem was the rule that no prescription could be obtained by a layman in non decimando . [89] [See
Slade v Drake (1618) Hob. 295; Fanshaw v Rotheram (1759) 1 Eden 276 .] The fact that tithes had
not been paid in the past did not confer any immunity from payment in the future. The rule was
intended to protect the income of the Church. [90] [See discussion in Slade v Drake (1618) Hob. 295;
Aldermen etc. of Bury St. Edmunds v Evans (1739) 2 Gw. 757 .] After the dissolution of the
monasteries tithes became capable of ownership by lay improprietors, and it was argued that the rule
did not apply in such cases. That argument was, however, rejected, the courts holding that there was
no difference between a spiritual improprietor and a lay improprietor so far as prescription claims in
non decimando were concerned. [91] [ Lady Charlton v Charlton (1732) Bunb. 325; Jennings v Lettis
(1755) 3 Gw. 952; Meade v Norbury (1816) 2 Price 338 .] Next, however, it was argued that although
a claim could not be made in non decimando, an exemption could be established on the basis of a lost
grant by the lay improprietor, in the same way as any other grant by him could be presumed. That
argument fared no better, [92] [ Aldermen etc. of Bury St. Edmunds v Evans (1739) 4 Gw. 757;
Fanshaw v More (1743) 2 Gw. 780; Jennings v Lettis (1755) 3 Gw. 952; Nagle v Edwards (1796) 3
Anst. 702 .] despite criticism by judges and recognition that failure to apply the doctrine in the case of
tithes was anomalous. [93] [ Fanshaw v More (1743) 2 Gw. 780; Lord Petre v Blencoe (1797) 3 Anst.
945; Meade v Norbury (1816) 2 Price 338; Norbury v Meade (1821) 3 Bli. 211 .] The position, though
doubted, [94] [ Rose v Calland (1800) 5 Yes. Jr. 186 .] became established that no grant could be
presumed to establish a discharge from liability to pay tithes. [95] [ Andrews v Drever (1835) 3 Cl. &
Fin. 314 . The refusal to presume a discharge from liability to pay tithes did not, however, mean all
was lost. In some instances bills for accounts of tithes were dismissed on the basis of the long
possession without demand being made, or on the ground that the plaintiff had not proved his title to
the tithes. See Fanshaw v Rotheram (1759) 1 Eden 276; Scott v Airey (1779) 3 Gw. 1174; Edwards v
Lord Vernon (1781) 3 Gw. 1177; Lord Petre v Blencoe (1797) 3 Anst. 945; Norbury v Meade (1821) 3
Bli. 211 .] A remedy ultimately came in the Tithe Prescription Act 1832 , which contained provisions
allowing discharge from liability to pay tithes to be established after non-payment for 30 years, [96]
[Like the Prescription Act, the Tithe Prescription Act provided an alternative longer period (60 years)
upon which a claim could be based.] corresponding in principle to the provisions for establishing
easements and profits contained in the Prescription Act 1832 . The two sets of provisions, along with
provisions to deal with surrender of outstanding terms, had all been contained in the one Bill originally
introduced by Lord Tenterden into Parliament in 1831, [97] [See 3 H.L. Debs (3rd series) Col.442
(March 15, 1831). The proposals of the Bill were based on the recommendations of the Real Property
Commissioners: see First Report of the Real Property Commissioners (1829) H.C.P. x. 1, p.51 et
seq. ] Lord Tenterden thought the provisions as to tithes the most important part of the Bill, [98]
[ibid. In this regard see the reference in the House of Commons to 222 suits having been instituted in
one parish alone in which tithes had not been demanded for a long time: 3 H.C. Debs (3rd series) Col.
1190 (July 13, 1831).] and opposition to the Bill centred on those provisions. The Bill was lost when
the parliament was dissolved, but ultimately the provisions of the Bill relating to tithes and to
easements and profits were enacted, albeit in not one but two measures. [99] [Prescription Act 1832 ;
Tithe Prescription Act 1832 .]
A grant is the means by which a private right of way is created. Where such a right of way is
established by prescription, it is because a grant is presumed to have been made. Public rights of way
do not arise by grant, but by dedication of the way to the public. Once the presumption of dedication
arises, the onus is on the party seeking to deny a public right of way exists to show that there was no-
one capable of dedicating the way. [100] [See Att.-Gen. v Watford R.D.C. [1912] 1 Ch. 417; R. v West
Sussex Quarter Sessions Ex p. Albert & Maud Johnson Trust Ltd. [1973] 3 All E.R. 289 .] Presuming
dedication from long enjoyment of a way by members of the public has taken place in many instances,
[101] [To name but a few: R. v Lloyd (1808) 1 Camp. 260; R. v Barr (1814) 4 Camp. 16; R. v East
Mark (Inhabitants) (1848) 11 Q.B. 877 ; R. v Petrie (1855) 4 E. & B. 737; Winterbottom v Lord
Derby (1867) L.R. 2 Ex. 316; Vernon v Vestry of St James, Westminster (1880) 16 Ch. D. 449; Turner
v Walsh (1881) 6 App. Cas. 636; Att.-Gen. v Esher Linoeleum Co. Ltd. [1901] 2 Ch. 647; Att.-Gen. v
Tasker (1928) 92 J.P. 157; Hue v Whiteley [1929] 1 Ch. 440; Williams-Ellis v Cobb [1935] 1 K.B.
310; Browne v Dowie (1959) 93 I.L.T.R. 179 . See also Mann v Brodie (1885) 10 App. Cas. 378 .] in
the same way as the presumption of a grant has been made in the case of a private right of way. As in
the case of establishing private rights of way, it seems that the period of enjoyment which needed to be
shown was 20 years. [102] [ Dawes v Hawkins (1860) 8 C.B. N.S. 848 . The period of 20 years was
the period chosen in the Rights of Way Act 1932 . See below, p.238.] As in the case of private rights of
way, judges have said that where long enjoyment by the public has existed, a presumption that the way
has been dedicated to the public ought to be made. [103] [ Turner v Walsh (1881) 6 App. Cas. 636;
Att.-Gen. v Esher Linoleum Co. Ltd. [1901] 2 Ch. 647. ] And as in the case of private rights of way, no
presumption will be made if an alternative explanation for the long enjoyment of the way exists. [104]
[ Dawes v Hawkins (1860) 8 C.B.N.S. 848; Att.-Gen. v Manchester Corpn. [1931] 1 Ch. 254. ] The
comparison can be carried further: in the same way as a grant will not (in England anyway) be
presumed against a tenant for life, dedication will not be presumed against a tenant for life, though
Farquhar v Newbury R.D.C. [105] [[1909] 1 Ch. 12.] shows the court able to get over the difficulty
by presuming dedication by the tenant for life and the remainderman together. [106] [For an
unsuccessful attempt to get over the difficulty that at the time dedication could have taken place the
land was in strict settlement by recourse to the doctrine of lost grant, see Att.-Gen. and Newton Abbot
R.D.C. v Dyer [1947] Ch. 67 . A public right of way was found however to exist on other grounds.] It
is therefore tempting to think that presuming the grant of a right of way after 20 years’ enjoyment was
no different in the cases of private rights of way and public rights, save that in the one case what was
presumed was a grant, whereas in the other it was dedication. It seems, however, that to do so would
be wrong. That a distinction between public rights of way and private rights of way exists in this
context was pointed out recently by Lord Hoffmann. [107] [ R. v Oxfordshire CC Exp. Sunningwell
P.C. [2000] 1 A.C. 335. ] His Lordship explained that the law did not supplement the rule that public
ways could be established by usage from time immemorial by fictitious grants or user which the jury
were instructed to presume. Despite evidence of user as of right, the jury were free to infer that this
was not because there had been dedication, but because the landowner had merely tolerated such use.
The authority cited for the latter proposition is Folkestone Corpn v Brockman [108] [[1914] A.C.
338.] in which Lord Atkinson had said he was unable to find any case in which there was even a
suggestion that where evidence of user was of the strongest kind and unrebutted, the judge was
entitled to direct the jury to find a verdict in favour of dedication. Lord Atkinson went on to say that
the inference must always be drawn by the judges of fact (i.e. the jury). It was for the judge to
determine as a matter of law whether there was evidence from which an intention to dedicate could be
drawn, but for the jury to determine whether it should be drawn. [109] [The difficulty that despite long
established user by the public the jury might find that dedication had not taken place was eventually
remedied by legislation. Section 1 of the Rights of Way Act 1932 provided that where a way was
shown to have been enjoyed as of right by the public for 20 years, the way would be deemed to have
been dedicated unless there was evidence showing there had been no intention to dedicate the way or
unless during the 20 years there was no-one in possession of the land capable of dedicating the way.
The provisions are now contained in s.31 of the Highways Act 1980 . For the purpose and effect of the
provisions see Jones v Bates [1938] 2 All E.R. 237; Jaques v Secretary of State for the Environment
[1995] J.P.L. 1031 . On the provisions of the section see also Merstham Manor Ltd. v Coulsdon and
Purley U.D.C. [1937] 2 K.B. 77; Att.-Gen. and Newton Abbot R.D.C. v Dyer [1947] Ch. 67; Fairey v
Southampton C.C. [1956] 1 All E.R. 419 . For the differences between establishing dedication at
common law and following the enactment of the provisions see Sydenham, Public Rights of Way and
Access to Land (Jordan Publishing Ltd, Bristol, 2001), p.37.]
QUESTIONS AND DIFFICULTIES
An examination of the decisions in which the doctrine has been relied on to support a claim based on
long enjoyment of an activity by the claimant reveals a number of unanswered questions and
difficulties with the doctrine. The existence of these would seem to require consideration whether the
doctrine can be supported in the form in which it is usually expressed, or whether some alternative
explanation is needed for what the courts are doing when they uphold claims to carry on activity on
the basis of long enjoyment. The difficulties are discussed in this and the following section;
consideration of an alternative explanation will be found thereafter.
In some jurisdictions provision exists for registration of deeds creating interests in land, with the
penalty that if a deed is not registered, it will be void against a later deed which is registered. The
register of deeds is intended to provide a means by which purchasers of land can ensure protection
against unknown interests. Grants presumed to exist do not fit comfortably into this system, and, not
surprisingly, questions as to how the doctrine of lost modern grant applies in such cases have arisen in
jurisdictions in which registration provisions exist. One possibility is that if the grant is presumed to
exist, it must also be presumed to be registered, as otherwise those claiming under later registered
deeds will take priority. Yet the whole purpose of the legislation is to provide that interests created by
grant will be disclosed by a search, which will plainly be impossible in the case of a grant which is
presumed but does not exist in fact. Even where legislation for registration of deeds does not exist, a
similar problem arises in cases where provisions exist requiring enrolment of instruments. If it is
proved that as a matter of fact no instrument has been enrolled, can the presumption of an instrument
existing be made? The authorities both in England and elsewhere show the difficulties of fitting the
doctrine into situations where registration or enrolment provisions exist. In England, the absence of
proof of enrolment defeated claims based on the presumption of a grant in both Wright v Smythies
[110] [(1809) 10 East 409.] and Doe d. Howson v Waterton, [111] [(1819) 3 B. & Ald. 149. See also
Att.-Gen. and Newton Abbot R.D.C. v Dyer [1947] Ch. 67. ] yet in a number of later cases courts have
upheld claims based on presumed grants, the absence of enrolment notwithstanding, with the courts
prepared to presume enrolment if need be. [112] [ Macdougall v Purrier (1830) 2 Dow. & Cl. 135;
Att.-Gen. v Moor (1855) 20 Beav. 119; Williams v Eyton (1858) 2 H. & N. 771; Haigh v West [1893]
2 Q.B. 19 . Compliance with statutory formalities including enrolment was also presumed in Leigh
U.D.C. v King [1901] 1 Q.B. 747 though the correctness of the decision has been doubted: see Cabab
v Walton-on-Thames D.C. [1914] A.C. 102; Stockwell v Southgate Corpn. [1936] 2 All E.R. 1343 .
More recently, where an enclosure award had been acted on for over 135 years, the Court of Appeal
in Enifer v Brentwood D.C. (1993) (unreported, C.A., July 14, 2000) rejected a defence based on
alleged non-compliance with formalities contained in statutory provisions under which the award had
been made.]
Ireland has long had a registry of deeds, and it might be expected that the problem of fitting the
doctrine of lost modern grant into a registration system would have been solved there. In fact, although
the difficulties were recognised in Lysaght v Royse [113] [(1861) 12 Ir. Ch. R. 444.] the court
managed to avoid the problem by presuming a grant before the Registration Act came into force.
Likewise, in Ontario, the court in Watson v Jackson [114] [(1914) 19 D.L.R. 733.] was able to dispose
of the case without tackling the problem. Other courts have not been so fortunate. Two decisions in the
former Straits Settlements exist in which the courts refused to presume grants in favour of claimants
relying on long enjoyment, on the basis that registration was required to make the deed effective, and
had not been shown to exist. [115] [ Att.-Gen. v Lin Chin Swi (1904) 9 S.S.L.R. 6; Angullia v Ong
Boon Tat (1921) 15 S.S.L.R. 190. ] These, however, represent a minority view, an alternative analysis
being that the presumed grant being fictitious simply does not come within the registration legislation
and as such does not threaten the integrity of the system established by the legislation. [116] [
Delohery v Permanent Trustee Co. of New South Wales (1904) 1 C.L.R. 283; Goldring v Tanner
(1991) 56 S.A.S.R. 482; see also Vannini v Public Utilities Commission of Sault Ste. Marie [1973] 2
O.R. 11. ] In a number of instances judges have expressed views, with varying degrees of patience,
that arguments based on the registration legislation are technical and inappropriate. [117] [ Goldring v
Tanner (1991) 56 S.A.S.R. 482; Yong Joo Lin v Fung Poi Fong [1941-1] M.L.J. 63; Yim Yip Kae v
Kwong Hoek Cheong Sawmill & Co. Ltd. [1954-1] M.L.J. 21. ]
If a claimant intends to rely on the doctrine of lost modern grant to establish a right, the question arises
whether he must plead that a grant was made and is lost, and if pleading is required, what degree of
particularity is required in such pleading. As to the former, the position is unclear. In Hyman v Van
den Bergh [118] [[1908] 1 Ch. 167.] Cozens-Hardy M.R. held that the plaintiff there could succeed in
his claim only under the Prescription Act, as he had not pleaded a title by lost grant. [119] [See also
Damper v Bassett [1901] 2 Ch. 350 , where the court refused to allow the defendant to amend the
pleadings to include a claim based on lost grant, though the amendment was sought after the trial had
begun and where the court thought there was no chance of the claim succeeding. Contrast Gardner v
Hodgson’s Kingston Brewery Co. [1900] 1 Ch. 592 where an amendment to include a claim based on
lost grant was permitted.] Idington and Davis JJ., dissenting in Tweedie v The King, [120] [(1915)52
S.C.R. 197.] were prepared to dismiss a claim based on lost grant for want of pleading. [121] [The
majority decision proceeded on other grounds, though Anglin J. was prepared to presume a grant,
raising no difficulty about the pleadings.] On the other hand, in Smith v Baxter [122] [[1900] 2 Ch.
138.] Stirling J. was willing to allow the plaintiff to proceed at trial on the footing that his claim could
be established under the doctrine, even though it had been pleaded as arising under the Prescription
Act. Two Commonwealth authorities support the view that so long as the pleadings show long
enjoyment, actual reference to a lost grant is unnecessary. In Tuckett v Brice , [123] [[1917] V.L.R.
36.] in which a claim to enjoyment of air was asserted by the defendant, Madden C.J. held that
although the defendant had not expressly referred in the pleadings to a lost grant, he had shown the
date on which his building had been constructed and that his claim was based on user as of right since
then, and that such averments were sufficient to allow the defendant to rely on the doctrine. Similarly,
in McAuley v McDonald [124] [(1908)4 E.L.R. 486.] the court held that a pleading alleging an
easement arising from user as of right for 40 years was sufficient, as it disclosed all that it was
necessary to prove in support of the claim based on a lost grant. It was not necessary to refer to the
fiction of a lost grant, as this was not a matter for proof.
In a number of other cases questions have arisen based on the particularity required in pleading where
the pleadings do allege a grant has been made and lost. [125] [The argument that a plea of a lost grant
was bad because the deed could not be produced was rejected in Reed v Brookman (1789) 3 T.R. 151.
] In Hendy v Stephenson [126] [(1808) 10 East 55.] the defendant pleaded simply that by deed now
lost the owner of the plaintiff’s land had granted the right to the defendant’s predecessor. The plaintiff
complained that the pleading did not disclose the parties to the deed alleged, nor when it was made.
Lord Ellenborough C.J. agreed, saying that the material terms of the deed must be disclosed so that the
court might see what the grant really was. In more recent times the court has been asked to order
particulars to be given of the grant alleged, in order that the opposing party could raise a defence. It
seems, though not without doubt, that if the court is asked to order the claimant to say whether the
grant was made before or after a particular date, it will do so. [127] [ Tremayne v English Clays
Lovering Pochin & Co. Ltd. [1972] 2 All E.R. 234 . See also Palmer v Guadagni [1906] 2 Ch. 494 .
For the view that particulars of the grant will not be ordered, see Gabriel Wade & English Ltd. v
Dixon & Cardus Ltd. [1937] 3 All E.R. 900 . A question as to whether the pleadings were sufficient to
allow a claim to proceed on the basis of lost grant also arose in Pugh v Savage [1970] 2 All E.R. 353.
] The claimant has the choice of pleading that the grant was made during a specified period, or of
pleading alternatively that it was made before or after the date in question, though in the latter case he
will do so at his own risk as to costs. [128] [ Palmer v Guadagni [1906] 2 Ch. 494; Tremayne v
English Clays Lovering Pochin & Co. Ltd. [1972] 2 All E.R. 234 .]
Determining a date before or after which the grant may be presumed to have been made may be
important for another reason. According to Bowen J. in Dalton v Angus & Co., [129] [(1881)6 App.
Cas. 740.] the presumption is that the grant presumed to have been made was made before the
commencement of the user relied on by the claimant. The same view was expressed in the Canadian
case of Abell v Village of Woodbridge. [130] [(1917)37 D.L.R. 352 (on appeal on grounds not
relevant to this point at (1919) 46 D.L.R. 513 and (1920) 57 D.L.R. 81).] The user arises, in other
words, because a grant has already been made authorising it. Hence the relevance of the period
between January 1920 and November 1921 in Tehidy Minerals Ltd. v Norman, [131] [[1971] 2 All
E.R. 475.] the former date being the date before which no grant could have been made (the dominant
and servient tenements being until then in common ownership and occupation), the latter being the last
date on which a grant could have been made, and being 20 years before user ceased on the land being
requisitioned. A different view is possible, however, on the basis of Halliday v Philips, [132] [(1889)
23 Q.B.D. 48. For the case on appeal see [1891] A.C. 228.] where the question was whether a faculty
could be presumed conferring an exclusive right to a pew. There Bowen L.J. (apparently having
changed his mind since Dalton v Angus & Co.) said that in the case of a lost deed the law did not
require going back to the very earliest trace of user: rather “[y]ou must take things as a whole, and, if
the bulk of the user can be explained by the grant of a faculty at some time or other” [133] [Emphasis
added.] it was no answer to the application of the presumption that the right did not exist at the
moment user commenced, but could have shortly afterwards. [134] [See also Angus v Dalton & Co.
(1878) 4 Q.B.D. 162 where Thesiger L.J. says that the presumption of a grant cannot be rebutted by
mere proof that no grant was made either at the commencement or during the continuance of the
enjoyment.]
The position in England is that no grant can be presumed against someone who is not the owner in fee
simple of the land over which the right is claimed. Although it was accepted in Bright v Walker [135]
[(1834) 1 Cr. M. &R. 211.] that before 1832 a grant could be presumed against a lessee, the position
was seen as otherwise following the Prescription Act passed that year. Though the reasoning was
questioned recently in Simmons v Dobson , [136] [[1991] 4 All E.R. 25.] the position was seen as
established so that the grant of an easement could not be presumed against a lessee. [137] [See,
however, Bosomworth v Faber (1992) 69 P. & C.R. 288 where the court held that the rule preventing
presumption of a grant against a lessee had no application where the lessee had a statutory right to
enlarge his estate into an estate in fee simple, without the consent of the lessor. Elsewhere it has been
held that a 999-year lease was sufficiently close to an estate in fee simple to allow prescriptive rights
to be acquired: Ohna Mohamed Abubaker v Tho Yan Poh 13 S.S.L.R. 39 . See also Yong Joo Lin v
Fung Poi Fong [1941-1] M.L.J. 63 .] The explanation given in Wheaton v Maple [138] [[1893] 3 Ch.
48.] for the rule is that prescription at common law required user against the fee simple estate. The
position is similar in the case of a tenant for life under a settlement. [139] [See Barker v Richardson
(1821) 4 B. & Ald. 579 ; Roberts & Lovell v James (1903) 89 L.T. 282 . Cf. Oakley v Boston [1975] 3
All E.R. 405 .] There is, however, the difficulty with this view that it is accepted by those subscribing
to it that the holder of a lesser estate than the fee simple can expressly create an easement for the
duration of his own estate. If such a grant can be made expressly, it seems illogical to say that it cannot
be presumed to exist. In Ireland and elsewhere the courts have taken a different, and it is thought
preferable, view as to presuming grants against lessees. [140] [ Hanna v Pollock [1900] 2 I.R. 664 .
For relevant earlier authorities see Wilson v Stanley (1861) 12 I.C.L.R. 345 ; Beggan v McDonald
(1877) 2 L.R. Ir. 560 ; Clancy v Byrne (1877) I.R. 11 C.L. 355 ; Timmons v Hewitt (1888) 22 L.R. Ir.
627 ; O’Kane v O’Kane (1892) 30 L.R. Ir. 489 . See also Flynn v Harte [1913] 2 I.R. 322 ; Delany,
“Lessees and the Doctrine of Lost Grant” (1958) 74 L.Q.R. 82; Chua, “Easements: Termors in
Prescription in Ireland” (1974) 15 N.I.L.Q. 489. The Irish authorities have recently been followed in
Hong Kong ( Chung Yeung Hung v Law Man Nga [1997-2] H.K.C. 406 , not following Tang Tim Fat
v Chan Fok Kei [1992-2] H.K.C. 623 ) but not in Australia ( Sunshine Retail Investments Pty Ltd. v
Wulff [1999] V.S.C. 415 ).]
Lessees and tenants for life aside, there are others against whom the presumption of a grant presents
difficulties. It appears that a grant will not be presumed against a landlord to allow his tenant to
acquire an easement over land owned by the landlord. Although concerned with a claim under the
Prescription Act rather than under the doctrine of lost grant, Gayford v Moffatt [141] [(1868) 4 Ch.
App. 133. See also Bailey v Great Western Railway Co. (1884) 26 Ch. D. 434 ; Kilgour v Gaddes
[1904] 1 K.B. 457 .] has been applied to prevent acquisition of an easement by a tenant against his
landlord under the doctrine of lost grant. [142] [ Macnaghten v Baird [1903] 2 I.R. 731 . The court
recognised that to allow presumption of a grant against a tenant of the lessor while not allowing it
against the lessor himself was illogical.] In other instances, however, notably where breach of a
covenant by the tenant is concerned, courts have presumed releases of the covenant by landlords in
favour of tenants. [143] [Below, p.245.]
The basis of the acquisition of prescriptive rights is acquiescence on the part of the owner of the land
over which user has been enjoyed. [144] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 .]
Acquiescence presupposes knowledge of, and the ability to prevent, the activity which has been
enjoyed. [145] [ Daniel v North (1809) 11 East 372 ; Webb v Bird (1862) 13 C.B. N.S. 841 .] In the
case of land in the possession of lessees or tenants for life, reversioners or remaindermen may well
lack any knowledge that a third party has been enjoying some activity on the land on which the
prescriptive claim is based, and even if they are aware of it, it is doubtful that they would be able to
prevent what is going on. Presuming that a reversioner or a remainderman has made a grant therefore
presents some difficulties. It appears that the courts may be prepared to make presumptions against
reversioners and remaindermen, if there is positive proof that there has been acquiescence on their
part, [146] [ Deeble v Linehan (1860) 12 I.C.L.R. 1 .] though this does not answer the question how a
right can be acquired if the supposed grantor could not have prevented the user relied on. [147] [See
Webb v Bird (1862) 13C.B.N.S. 841 ; Roberts & Lovell v James (1903) 89 L.T. 282 ; Oakley v Boston
[1975] 3 All E.R. 405 .]
Finally, there may be difficulties in presuming grants against fiduciaries such as trustees. In Oakley v
Boston [148] [[1975] 3 All E.R. 405.] Goulding J. thought that there were considerable difficulties in
applying a doctrine of acquiescence to fiduciaries because of the duties they owed to others before
they could exercise their powers. [149] [That the putative grantor was a company established for
making and maintaining a canal, and owing duties to the public, was a consideration leading the
court to refuse to presume a grant in Rochdale Canal Co. v Radcliffe (1852) 18 Q.B. 287 .] Leaving
aside the question whether the grant is within the powers of the trustee, presumption of a grant against
a trustee must affect the beneficiaries also. Nonetheless, the court has presumed a grant against
trustees, notwithstanding that such grant would amount to a breach of trust. [150] [ Tuckett v Brice
[1917] V.L.R. 36 . Contrast Thwaites v Brahe (1895) 21 V.L.R. 192 . See discussion below, p.248.]
All the cases hitherto considered have involved acquisition of rights rather than their extinguishment.
From the fertility of the courts’ imagination [151] [See below, p.252.] it might be thought that in the
same way as the court will presume from long usage that a grant has been made to carry on the activity
in question, so there should be no reason why the court should not presume a release or
extinguishment of rights which claimants have failed to exercise. Apparently this is not so, at least in
the case of easements. Despite early dicta suggesting that a presumption arises from absence of
enjoyment over a long period as it does in enjoyment itself, [152] [See Hillary v Waller (1806) 12
Ves. Jr. 240 ; Doe d. Putland v Hilder (1819) 2 B. & Ald. 782 ; Moore v Rawson (1824) 3 B. & C.
332 ; Crossley & Sons Ltd. v Lightowler (1867) 2 Ch. App. 478 .] it has recently been determined by
the Court of Appeal that extinguishment of an easement will not be presumed from mere failure to
exercise it. [153] [ Benn v Hardinge (1992) 66 P. & C.R. 246 .] The reason given is that failure alone
to exercise a right does not mean it has been abandoned: an intention to abandon must be proved. It is
difficult, however, to see why the requirement of an intention to abandon should prevent a
presumption arising from non-use for a long period. It would seem equally possible to presume
intention as it is to presume anything else.
In the case of highways, the maxim “once a highway always a highway” is used to signify that mere
non-user will not extinguish public rights of way. [154] [ Dawes v Hawkins (1860) 8 C.B. N.S. 848 .]
The prospect that long disused public ways should be capable of being pressed again into service
would, it is thought, alarm many a landowner. In some instances where long non-use has been proven
the courts have held public rights to have been extinguished by presuming that the proper procedure
for extinguishment has been followed. In both Williams v Eyton [155] [(1858) 2 H. & N. 771.] and
Leigh U.D.C. v King [156] [[1901] 1 Q.B. 747.] the court was prepared to presume that the necessary
formalities had been observed for the stopping up of public rights of way. Similarly, in Representative
Church Body v Barry [157] [[1918] 1 I.R. 402.] the court was prepared to presume that a presentment
by the Grand Jury had been made, this being the appropriate means of stopping a right of way in
Ireland at the time. To like effect is R. v Montague , [158] [(1825) 4 B. & C. 598.] in which the court
was prepared to presume from non-use that a public right of navigation had been extinguished, either
by an Act of Parliament, or by a writ of ad quod damnum.
In the case of covenants, the courts have presumed release or abandonment of a covenant where there
has been a breach and the person entitled to enforce the covenant has failed to take action for a long
period of time. Thus in Gibson v Doeg [159] [(1857) 2 H. & N. 615.] a licence from the lessor was
presumed where premises had been used for more than 20 years in breach of a covenant in the lease,
Pollock B. saying that it was a maxim of the law to give effect to everything which appeared to have
been established for a considerable period of time, and to presume that what had been done had been
done of right rather than in wrong. Similar views were expressed by Farwell J. in Hepworth v Pickles .
[160] [[1900] 1 Ch. 108. See also Re Summerson [1900] 1 Ch. 112 ; Tennent v Neill (1870) I.R. 5
C.L. 418 .] In a recent case, the Privy Council has upheld a decision in which the Court of Appeal in
Hong Kong held that a covenant in a lease by the Crown controlling building on the demised land had
been abandoned where buildings not complying with the covenant had existed on the land for over 40
years. [161] [ Att.-Gen. for Hong Kong v Fairfax Ltd. [1997] 1 W.L.R. 149 .] In other situations also
the court has been prepared to presume the extinguishment of rights. In Re Houghton , [162] [(1860)
11 Ir. Ch. R 136.] where a lease provided that before any assignment would take place the lessee
should first offer the property back to the lessor, the court was prepared to presume that the covenant
had been complied with, or alternatively that the lessor had waived his rights under it, where an
assignment had been made many years earlier. Again, disclaimer of an interest in land was presumed
in McKenna v Eager , [163] [(1875) I.R. 9 C.L. 79.] where the land had been enjoyed for many years
without any assertion of their interest by the parties entitled thereto.
FURTHER PROBLEMS
Further problems with the doctrine can be found when the decisions which have dealt with how the
presumption of a grant can be rebutted are considered. Some of the principles which have emerged
appear unobjectionable. Other bases on which the courts have held that grants cannot be presumed in
the circumstances of the case show how the courts have struggled with the doctrine and its application.
Beginning with the unobjectionable, it is clear that where the activity enjoyed by the claimant is
prohibited, it will not be rendered lawful by the presumption of a grant authorising it. Although in
cases of prescription the enjoyment relied on is unlawful in the sense of having been carried on
without an express grant of the right and without the permission of the owner of the land over which
the enjoyment has taken place, this unlawfulness does not prevent a claim on the basis of prescription.
If, however, the enjoyment is unlawful because it is prohibited by statute, it cannot be relied on in
order to maintain a claim that a grant of the right to carry on such activity has been made. [164] [
Hulley v Silversprings Bleaching & Dyeing Co. Ltd. [1922] 2 Ch. 268 ; Green v Matthews & Co.
(1930) 46 T.L.R. 206 ; Hunter v Richards (1912) 5 D.L.R. 116 (affirmed 1913, 12 D.L.R. 503). Cf
Stevenson v Parker [1895] 2 I.R. 504 (release of covenant prohibiting subletting not presumed where
subletting in breach of statutory prohibition). Note, however, reference by Lord Maugham in George
Legge & Son Ltd. v Wenlock Corpn. [1938] A.C. 204 to cases (unspecified) in which by lost grant,
lost patent or some other presumption individuals had notwithstanding the terms of a statute acquired
rights apparently in contradiction of it.] The implication of a lost grant does not arise to do an act
forbidden by law. [165] [ Hunter v Richards (1912) 5 D.L.R. 116 (per Clute J.).] In a number of
recent cases the courts have affirmed the principle in the case of claims to vehicular rights of way,
where vehicular use is prohibited. [166] [ Hanning v Top Deck Travel Group Ltd. (1994) 68 P. & C.R.
14 ; Robinson v Adair (unreported, H.C., Dyson J., February 16, 1995); City Council of Bristol v
Jenkins (unreported, C.A., September 30, 1999); Bakewell Management Ltd. v Brandwood [2003]
E.W.C.A. Civ. 23 ; Massey v Boulden [2003] 11 E.G. 154 . See now the Countryside and Rights of
Way Act 2000 , s.68 .] Where, however, enjoyment of the activity began before the statutory
prohibition came into being, it may be possible for the court to presume a grant. [167] [ Leconfield v
Lonsdale (1870) L.R. 5 C.R 657 ; Somersetshire Drainage Commissioners v Corpn. of Dudley (1899)
81 L.T. 729 ; Tweedie v The King (1915) 52 S.C.R. 197 . Cf. Turner v Walsh (1881) 6 App. Cas. 636
(dedication of highway presumed to have been made before statutory prohibition). See also Hunter v
Richards (1912) 5 D.L.R. 116 ; Cargill v Gotts [1981] 1 All E.R. 682 ; Ward (Helston) Ltd. v Kerrier
D.C. (1981) 42 P. & C.R. 412 .]
Equally uncontentious is the principle that no grant will be presumed where to do so would effectively
abrogate rights conferred by custom on the owner of the land over which the right is claimed. The
cases have invariably involved claims to easements of light over land in London, where a custom
exists that a landowner may build on his land notwithstanding that by doing so he blocks the light to
adjoining buildings. [168] [ Wynstanley v Lee (1818) 2 Swans 333 ; Perry v Eames [1891] 1 Ch. 658
; Bowring Services Ltd. v Scottish Widows Fund etc. [1995] 16 E.G. 206 .] Similarly, where a grant of
the right claimed would involve interference with rights of the public, no grant will be presumed.
[169] [ Rochdale Canal Co. v Radcliffe (1852) 18 Q.B. 287 ; Abell v Village of Woodbridge (1917) 37
D.L.R. 352 (on appeal (1919) 46 D.L.R. 513; (1920) 57 D.L.R. 81).]
The presumption that a grant was made authorising the activity long enjoyed by the claimant logically
presupposes a grantor able to make the grant in question. No grant can therefore be presumed to have
been made and lost unless at the time the grant could have been made there was someone capable of
making a grant. If, for example, in Tehidy Minerals Ltd. v Norman [170] [[1971] 2 All E.R. 475.] the
land had been owned between 1920 and 1921 by someone incapable of making a grant of the rights
claimed, no grant could have been presumed. Incapability may arise in various ways. The court has
refused to presume a grant where the grant would be outside the powers of a corporation, [171] [ Re
Canadian Southern Railway and Lewis (1884) 20 C.L.J. 241 ; Tyne Improvement Commissioners v
Imrie (1899) 81 L.T. 174 .] and where land was held by a tenant for life incapable of making a grant
binding the inheritance. [172] [ Barker v Richardson (1821) 4 B. & Ald. 579 ; Roberts & Lovell v
James (1903) 89 L.T. 282 . See also In re Bomford’s Estate [1904]1 I.R. 474 .] If the supposed
grantor is under a legal disability, such as being a minor, [173] [ Creagh v Blood (1845) 8 Ir. Eq. R
688 .] or being of unsound mind, the court will not presume a grant has been made. [174] [ Angus &
Co. v Dalton (1878) 4 Q.B.D. 162 ; Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] Questions as to
whether the grantor has power to make a grant also arise in the case of trustees and other fiduciaries.
[175] [[1917] V.L.R. 36.] In Abell v Village of Woodbridge [176] [(1917) 37 D.L.R. 352 (on appeal at
(1919) 46 D.L.R. 513; (1920) 57 D.L.R. 81).] the court was asked to presume a grant of an easement to
discharge water across a road. The court held that if the road in question had been a public highway at
the time the grant could have been made, no grant would have been presumed as the grantor would
have had no power to grant a right which would interfere with the rights of the public. In Tuckett v
Brice , [177] [[1917] V.L.R. 36.] however, the court held that there was nothing to prevent a grant
being presumed against a trustee who had the fee simple estate, though the grant would be a breach of
trust.
In Tuckett v Brice Madden C.J. based his decision on the absence of any incapacity on the part of the
trustee to make the grant, the trustee being clothed with the full legal estate in fee simple in the land.
In an earlier case involving land held by trustees, Thwaites v Brahe , [178] [(1895)21 V.L.R. 192.] the
same judge refused to presume a grant against the trustees in that case on the ground that any grant
made by the trustees would lead to the forfeiture of their estate. In the opinion of the Chief Justice,
incapacity extended not only to the insufficiency of the estate held by the putative grantor, but also to
its quality. Any grant by the trustees would have rendered their title void. The court has similarly
refused to presume grants in a number of cases where the making of a grant would have contravened
statutory provisions. [179] [See Goodtitle d. Parker v Baldwin (1809) 11 East 488 ; Neaverson v
Peterborough R.D.C. [1902] 1 Ch. 557 ; Hunter v Richards (1912) 5 D.L.R. 116 (affirmed 1913, 12
D.L.R. 503).] It seems the same would be true where the grant would be contrary to public policy.
[180] [See Mayor etc. of Penryn v Best (1878) 3 Ex D. 292 ; Hunter v Richards (1912) 5 D.L.R. 116
(affirmed 1913, 12 D.L.R. 503).]
PROBLEM CASES
The waters become muddier, however, when we consider other bases upon which the courts have
refused to make the presumption of a lost grant in support of long enjoyment shown by the claimant.
We have seen that the presumption arises only where there is no explanation for the long enjoyment
shown by the claimant. Courts have found alternative explanations, thereby defeating claims based on
the doctrine, in circumstances where: enjoyment was referable to a natural right rather than an
easement; [181] [ Palmer v Bowman [2000] 1 All E.R. 22 .] a licence granted by the owner of the
servient tenement; [182] [ Gardner v Hodgson’s Kingston Brewery Co. Ltd. [1903] A.C. 229 .] an
uncompleted agreement for partition between co-owners of the land; [183] [ Doe d. Millett v Millett
(1848) 11 Q.B. 1036 .] and the right of the public to deviate from a highway. [184] [ Dawes v
Hawkins (1860) 8 C.B. N.S. 848 .] In Attorney General v Horner [185] [(1884) 14 Q.B.D. 245.] the
court refused to presume a grant of the right to hold a market every day of the week on the ground that
a charter did exist conferring the right to hold a market on some days of the week only. More
problematic are cases where the courts found an alternative explanation in the liberality of the owner
of the land over which the right was claimed, [186] [ Att.-Gen. v Antrobus [1905] 2 Ch. 188 .] or
tolerance. [187] [ Alfred F. Beckett Ltd. v Lyons [1967] 1 All E.R. 833 ; Bridle v Ruby [1989] Q.B.
169 .] It now appears that tolerance will not prevent acquisition of an easement by lost grant, on the
ground that so to hold would effectively render acquisition of an easement by prescription impossible.
[188] [ Mills v Silver [1991] Ch. 271 ; Samuel v Fatih (unreported, C.A., June 20, 2000); Smith v
Brudenell-Bruce (unreported, H.C., Pumfrey J., July 2, 2001). Contrast the acquisition of public
rights of way: R. v Oxfordshire C.C. Ex p. Sunningwell P.C. [2000] 1 A.C. 335 . See discussion above,
p.237.] Neither will a mistaken belief that the claimant is entitled to do what he has been doing be an
alternative explanation so as to prevent a grant being presumed. [189] [ Bridle v Ruby [1989] Q.B. 169
; Bosomworth v Faber (1992) 69 P. & C.R. 288 ; Dawson v McGroggan [1903] 1 I.R. 92 . For earlier
decisions supporting the contrary view see Campbell v Wilson (1803) 3 East 298 ; Lyell v Lord
Hothfield [1914] 3 K.B.911 . See also Hamilton v Joyce [1984] 3 N.S.W.L.R. 279 .]
Even where an alternative explanation does exist for the user, it appears that, if minded to do so, it is
not beyond the power of the court to overcome the problem for the claimant. The point can be
illustrated by the cases in which the courts have been prepared to make presumptions in favour of
claimants who can show evidence of title to the right claimed, but where that title is shown to be
defective. [190] [See Halliday v Phillips (1889) 23 Q.B.D. 48 .] So, for example, confirmatory
endowments have been presumed to cure shortcomings in endowments relied on in suits for tithes,
[191] [See Parsons v Bellamy (1817) 4 Price 190 ; Wolley v Brownhill (1824) 13 Price 500 .] and the
Privy Council has said that confirmatory grants by the Crown might be presumed where actual grants
were void for uncertainty. [192] [ Doe d. Devine v Wilson (1855) 10 Moo P.C. 502 . See also Simpson
v Mayor of Godmanchester [1896] 1 Ch. 214 , where the court was prepared to presume a grant if,
contrary to its finding, an actual grant relied on was bad as creating an easement in gross. Compare
Bosomworth v Faber (1992) 69 P. & C.R. 288 where it seems the court was prepared to presume a
grant despite the existence of an actual grant which was void for perpetuity had it not been for other
circumstances.] In one Irish case the court was prepared to presume a supplemental deed transferring
the liability to pay a quit rent to B, where for many years the rent had been paid by B, although the
documents of title produced to the court showed the rent was payable by A. [193] [ Re Bomford’s
Estate [1904] 1 I.R. 474 .] In all these instances the evidence of title produced seems to be an
explanation of the right enjoyed by the claimant which can displace the presumption of a grant: the
fact that the title is defective does not change that. Yet the courts have been prepared to circumvent
this by the presumption of a deed notwithstanding the documentary explanation. The same point can
be seen in another context. In Goodman v Mayor of Saltash [194] [(1882)7 App. Cas. 633.] Lord
Selborne L.C. declared his view that no trust could have been presumed in the earlier case of Lord
Rivers v Adams , [195] [(1878) 3 Ex. D. 361.] as the title deeds produced would have shown no trust
existed. Leaving aside any other difficulty with this, [196] [Below, p.251.] the problem could be
solved by the presumption of a trust of later origin and now lost. [197] [ Hammerton v Earl of Dysart
[1916] 1 A.C. 57 ; R. v Doncaster M.B.C. Ex p. Braim (1986) 57 P. & C.R. 1 .] Even where a licence
has been shown to exist at the inception of the user, so that user would not be user as of right, the court
may presume that the licence has been superseded by a grant. [198] [ Harrison v Harrison (1883) 16
N.S.R. 338 .]
Whether the presumption of a lost grant can be rebutted by proof that no grant was in fact made was
one of the matters settled in Dalton v Angus & Co. [199] [(1881) 6 App. Cas. 740.] As Gale points
out, [200] [Gale on Easements (17th ed., Sweet & Maxwell Ltd, London, 2002) para. 4-13.] the effect
of the decision of the House of Lords was to confirm the views of Thesiger and Cotton L.JJ. in the
Court of Appeal. [201] [(1878) 4 Q.B.D. 162.] Those views, shared by Lush J. at first instance, [202]
[(1877) 3 Q.B.D. 85. Giving the majority view, Cockburn C.J. (Mellor J. concurring) thought that
nothing could be more certain than that the presumption could be rebutted by proof that no grant had
in fact been made. See also the judgment of Brett L.J. in the Court of Appeal ((1878) 4 Q.B.D. 162)
and Bowen J.’s opinion on the Lords’ questions ((1881) 6 App. Cas. 740).] were that proof that no
grant was in fact made is not sufficient to rebut the presumption arising from long enjoyment. The
explanation given by Thesiger L.J. for this view is that the presumption arising from long enjoyment
and acquiescence is in the nature of an estoppel by conduct which, while not conclusive so far as to
prevent denial or explanation of the conduct, presents a bar to any simple denial of the fact which is
merely the legal inference drawn from the conduct. Lindley J., giving his opinion on the questions put
to the judges by the House of Lords, thought it would be contrary to the reason for the theory of a lost
grant to allow enjoyment to be disturbed simply by proof that no grant had ever in fact been made.
[203] [(1881)6 App. Cas. 740.] The result of the confirmation of this view by the House of Lords is the
rather strange situation already noted that the presumption is a rebuttable presumption of fact which
cannot be rebutted by showing that in fact no grant existed.
Such being the view, one proposition put forward by Lord Selborne L.C. in Goodman v Mayor of
Saltash [204] [(1992)7 App. Cas. 633.] is puzzling. Speaking of Lord Rivers v Adams , [205] [(1878)
3 Ex D. 361.] his Lordship said that in the earlier case it would not have been possible to presume that
Lord Rivers held land on trust to give effect to the right claimed by long usage, for the reason that any
such allegation would be met by the production of Lord Rivers’ title deeds which did not reveal any
trust. Against such a title a trust could not be presumed from the evidence of user relied on. The
production of the title documents would not, however, have amounted to more than evidence that as a
matter of fact there was no trust, and would seem therefore to be inadmissible to rebut the presumption
of a trust. Apart from that, production of the documents should not have prevented the court from
presuming a trust was created by Lord Rivers at a later date. [206] [See Hammerton v Earl of Dysart
[1916] 1 A.C. 57 ; R. v Doncaster M.B.C. Ex p. Braim (1986) 57 P. & C.R. 1 .]
In some instances judges have refused to presume grants on the ground of unreasonableness or
improbability. Thus in Lord Rivers v Adams [207] [(1878) 3 Ex. D. 361.] Kelly C.B. refused to
presume a grant to the inhabitants of a parish in such form as made them a corporation, on the ground
that to do so would have been “most unreasonable”. In other cases the likelihood or probability of a
grant has been the determining factor in whether the court will presume a grant. It was the
unlikelihood of a grant of an easement in perpetuity as a small annual payment which led Lord
Macnaghten to refuse to presume such a grant in Gardner v Hodgson’s Kingston Brewery Co Ltd
[208] [[1903] A.C. 229.] and the extreme improbability of a grant by the Crown influenced Farwell J in
Attorney General v Simpson . [209] [[1901] 2 Ch. 671.] An attempt to show how probability fits into
the doctrine of lost modern grant was made in Attorney General v Horner (No.2) , [210] [[1913] 2 Ch.
140.] Hamilton L.J. saying that where the existence of the lost grant is improbable by reason of
circumstances proved or inferred, “the matter becomes one for consideration against the presumption”.
The relevant question is whether the facts are more consistent with the theory of a lost grant, or are
equally consistent with that theory and with the theory that possession has been unlawful throughout.
[211] [ Halliday v Phillips (1889) 23 Q.B.D. 48 (Fry J.).] In most if not all cases in which grants had
been presumed, said the Lord Justice, a lawful origin was a matter of proved probability. Despite this,
improbability continued to be a matter of concern to judges asked to presume grants. In White v
Taylor (No.2) , [212] [[1969] 1 Ch. 160.] Buckley J., echoing the views expressed in Wheaton v
Maple , [213] [[1893] 3 Ch. 48.] said his credulity would be stretched beyond all reasonable limits if
he were asked to infer that five grants had been made, all of which had been lost and of which nothing
was known. [214] [ Cp Tilbury v Silva (1890) 45 Ch. D. 98 and Kemp v Pike (1959) 173 E.G. 391 .]
Yet his Lordship later accepted that in the light of Dalton v Angus & Co. [215] [(1881) 6 App. Cas.
740.] this line of reasoning was no longer open, and accordingly presumed that four grants of grazing
rights had been made and lost, though the combination of circumstances was “exceedingly
improbable”. [216] [ Tehidy Minerals Ltd. v Norman [1971] 2 All E.R. 475 .]
A WIDER PRINCIPLE
Hitherto what we have been considering is the presumption the court may make that a grant has been
made authorising activity proved to have been enjoyed over a long period of time. There are many
cases, however, in which instruments other than grants have been presumed on the basis of long
enjoyment. The extent to which the courts will go in making presumptions in favour of long
enjoyment can be seen in dicta in various cases, in the variety of instruments which the courts have
been prepared to presume, and most clearly of all in a series of decisions involving fluctuating bodies
of individuals. As to dicta, Lord Kenyon is reported as having said that he would presume not one but
100 grants [217] [ Roe d. Johnson v Ireland (1809) 11 East 280 .] (or was it 200?) [218] [ Lady
Dartmouth v Roberts (1812) 16 East 334 .] to support a long enjoyment. Willes J. certainly said he
would presume anything in favour of the plaintiff in Rogers v Brooks [219] [(1783) 1 T.R. 431.] after
possession of a pew had been shown for 36 years. Likewise in Roe d. Johnson v Ireland [220] [(1809)
11 East 280.] Lord Ellenborough C.J. said he would presume anything capable of being presumed
after enjoyment for over a century and a half had been shown. [221] [For similar views see Foley’s
Charity Trustees v Dudley Corpn. [1910] 1 K.B. 317 ; Lady Dartmouth v Roberts (1812) 16 East 334
.] Anything capable of being presumed includes Acts of Parliament, [222] [For dicta, rather than
decisions, in support of the proposition see Lady Stafford v Llewellin (1682) Skin 77 ; Fanshaw v
Rotheram (1759) 1 Eden 276 ; Cocksedge v Fanshaw (1779) 1 Doug. 119 ; Morse v Royal (1806) 12
Ves. Jr. 355 . See, however, also Delarue v Church (1833) 20 L.J. Ch. 183 . Harper v Hedges [1923] 2
K.B. 314 is, however, directly in point, though the case on appeal was reversed and contains
statements doubting the proposition. The ability to presume an Act of Parliament has been questioned
in other cases: see discussion above, p.230.] byelaws, [223] [ Cocksedge v Fanshaw (1779) 1 Doug
119 ; Att.-Gen. v Wright [1897] 2 Q.B. 318 .] charters and grants by the Crown, [224] [ Mayor of
Hull v Horner (1774) 1 Cowp. 102 . By 1809 the courts were said to be in the daily habit of
presuming grants from the Crown: Goodtitle d. Parker v Baldwin (1809) 11 East 488 .] faculties
[225] [ Philips v Halliday [1891] A.C. 228 ; Stileman-Gibbard v Wilkinson [1897] 1 Q.B. 749 ; Re St.
Martin le Grand, York [1990] Fam. 63 . For earlier decisions in which the court refused to presume a
faculty see Stocks v Booth (1786) 1 T.R. 428 ; Griffith v Matthews (1793) 5 T.R. 296 ; Warren v
Gunner (1798) 1 Hag. Con. 314 . The principle that a faculty could be presumed was not questioned,
however.] and endowments, [226] [ Crimes v Smith (1588) 12 Co. Rep. 4 ; Twisse v Brazen-Nose
College (1663) Hard. 328 .] as well as surrenders of terms, [227] [Anon. (1674) 1 Vent. 257; Warren v
Greenville (1740) 2 Str. 1129 ; Goodtitle d. Jones v Jones (1796) 7 T.R. 43 ; Doe d. Burdett v Wright
(1819) 2 B. & Ald. 710 ; Doe d. Putland v Hilder (1819) 2 B. & Ald. 782 ; Creagh v Blood (1845) 8
Ir. Eq. R. 688 .] conveyances or reconveyances, [228] [ Bedle v Beard (1607) 12 Co. Rep. 4 ; Lady
Stafford v Llewellin (1682) Skin. 77 ; England v Slade (1792) 4 T.R. 43 ; Oxenden v Skinner (1798) 4
Gw. 1513 ; Foley’s Charity Trustees v Dudley Corpn. [1910] 1 K.B. 317 ; Hozier v Powell (1841) 3
Ir. L.R. 395 ; Ecclesiastical Commissioners v Holmes (1855) 4 I.C.L.R. 603 ; Harris v Harris (1868)
I.R. 3 C.L. 294 ; Mason v Lewis Miller & Co. Ltd. [1925] 2 D.L.R. 209 .] licences [229] [ Doe d.
Foley v Wilson (1809) 11 East. 56 .] and the confirmatory instruments already noted. Nor is the court
limited to presuming the existence of instruments: livery of seisin has been presumed in cases ancient
[230] [ Jackson v Jackson (1730)Fitzg. 146 ; Reesd. Chamberlain v Lloyd (1811) Wight 123 ; Doe d.
Wilkins v Marquis of Cleveland (1829) 9 B. & C. 864 ; Doe d. Lewis v Davies (1837) 2 M. & W. 503
.] and modern, [231] [ Carson v McMahon [1940] 4 D.L.R. 249 .] as has the ouster by one co-owner
of another where the former had been in sole possession of the land jointly owned. [232] [ Doe d.
Fisher v Prosser (1774) 1 Cowp. 217 . Contra, however, Beauman v Kinsella (1858) 8 I.C.L.R. 291 .]
The foregoing is not intended as an exhaustive list of what may be presumed, but it should suffice to
show that the doctrine extends far beyond the acquisition of easements.
The full blossoming of the courts’ ability to make presumptions in support of long enjoyment is to be
found in the series of cases mentioned above in which the rights of fluctuating bodies of individuals,
such as the inhabitants of a parish, were concerned. Although long user by the body in question may
be established, the difficulty of presuming a grant of the right in question arises because a grant to a
fluctuating body of individuals cannot be made. [233] [ Goodman v Mayor of Saltash (1882) 7 App.
Cas. 633 .] The problem arises also where the right claimed is a profit a prendre, such as the right to
gather wood, [234] [ Willingdale v Maitland (1866) L.R. 3 Eq. 103 ; Chilton v Corpn. of London
(1878) 7 Ch. D. 735 .] or to take oysters from the shore of a river, [235] [ Goodman v Mayor of
Saltash (1882) 7 App. Cas. 633 .] because of the rule preventing a fluctuating body relying on custom
as the origin of such a right. [236] [Gateward’s Case (1607) 7 Co. Rep. 59b.] By the use of
presumptions, however, courts wishing to uphold long established user by fluctuating bodies have
been able to do so, notwithstanding these rules. One means of doing so is by presuming that the body
in question had been incorporated. In Willingdale v Maitland [237] [(1866) L.R. 3 Eq. 103.] Lord
Romilly M.R. took it as indisputable that although a private individual might be unable to make a
grant to a fluctuating body, the Crown might do so, the distinguishing feature being that in the latter
case the Crown had the right to create corporations, and the court would, if need be, treat the grantees
as a corporation quoad the grant. As Megarry and Wade point out, however, [238] [Megarry and
Wade, The Law of Real Property (6th ed., Sweet & Maxwell Ltd, London, 2000) para. 18-088.] the
presumption of incorporation has been rarely made, [239] [Neville J. was prepared to presume
incorporation of freeholders of a manor as one ground for his decision in Lord Chesterfield v Harris
[1908] 1 Ch. 230 . His decision was reversed, however, by the Court of Appeal ([1908] 2 Ch. 397),
whose own decision was upheld by the House of Lords ([1911] A.C. 623) by a majority of 4:3. The
Earl of Loreburn L.C. and Lord Ashbourne (both dissenting) were prepared to presume the fishing
rights claimed could have been granted by the Crown to the freeholders, and that the latter could have
been incorporated. See also In the Company of the Free Fishermen of Faversham (1887) 36 Ch. D.
329. Note, however, the difficulty pointed out in Chilton v Corpn. of London (1878) 7 Ch. D. 735 , that
if the fluctuating body is presumed to have been incorporated, any action brought on the basis of the
right presumed granted should be brought by the corporation rather than an individual member of it.]
and courts have refused to make it where there has been no evidence of activity as a corporation rather
than as individuals. [240] [ Lord Rivers v Adams (1878) 3 Ex. D. 361 ; Goodman v Mayor of Saltash
(1882) 7 App. Cas. 633 .]
A second possible means of getting over the difficulties of presuming grants in favour of fluctuating
bodies is for the court to presume that the owner of the land over which the right is claimed holds the
land on trust or subject to a condition requiring him to permit the claimants to exercise the right
claimed. Thus in Goodman v Mayor of Saltash , [241] [(1882) 7 App. Cas. 633. See also In the
Company of the Free Fishermen of Faversham (1887) 36 Ch. D. 329.] although the court was unable
to presume that the inhabitants of a borough had been incorporated for lack of evidence of corporate
activity, the inhabitants of the borough were held entitled to dredge for oysters in a river vested in the
corporation of the borough after having proved enjoyment of such activity over a long period. [242]
[In Lord Fitzhardinge v Purcell [1908] 2 Ch. 139 the court considered it extremely doubtful that the
principle could be extended to presume that the grant of a manor was impressed with a trust in favour
of the inhabitants of the manor to shoot duck on the foreshore of a river, but was able to avoid having
to determine the issue. See also Alfred F. Beckett Ltd. v Lyons [1967] 1 All E.R. 833 where at first
instance the court gave judgment for the defendant in an action to stop him removing sea-coal from
foreshore owned by the plaintiff, applying the principle in Goodman. The Court of Appeal considered
Goodman distinguishable and allowed the plaintiff’s appeal. In Lord Chesterfield v Harris [1911]
A.C. 623 by a majority of 4:3 the House of Lords affirmed the decision of the Court of Appeal that no
legal origin could be found for the right claimed (a commercial right of fishing). Of the dissenting
judges, both the Earl of Loreburn L.C. and Lord Ashbourne thought that such a legal origin could be
found in the form of a grant from the Crown. Lord Shaw, also dissenting, considered the case one for
application of the principles on Goodman, and refused to hold that the right asserted for centuries
had to be declared void on the ground that it was inconsistent with legal concepts.]
Perhaps, however, the two cases which illustrate best the extent to which the courts will allow their
imagination to roam in supporting long enjoyment are Attorney General v Lord Hotham [243] [(1823)
T. & R. 209.] and Haigh v West . [244] [[1893] 2 Q.B. 19.] In each case the inhabitants of a parish had
long enjoyed the rents of land let by the churchwardens and overseers of the parish. In each case the
right of the parish to the lands was upheld by the court on the basis of a presumption that at some time
the land had been conveyed to a trustee for the benefit of the parish. The identity of the trustee was of
course not specified; neither was that of the grantor; nor were the terms of the trust. That is of course
not surprising if it is accepted that the whole process is based not on the fact of a grant having been
made in fact, but on a different ground.
BASES FOR THE DOCTRINE
The general principle on which the courts act in presuming grants and other instruments is that of
quieting titles. [245] [ Hillary v Waller (1806) 12 Ves. Jr. 240 ; Shephard v Payne (1864) 16 C.B.
N.S. 132 .] As we have seen, however, whereas the Limitation Act achieves this purpose by
extinguishing the title of the landowner who has suffered possession of his land by an intruder for the
period prescribed in the Act, the doctrine of lost grant operates by conferring a title on claimants who
have shown long enjoyment. The doctrine operates by clothing with a legal title that which has been
long acted on by the parties as if such title existed. [246] [Renewable Leasehold Conversion Act Ex p.
Raymond (1874) I.R. 8 Eq. 231; Keene v Deardon (1807) 8 East 248 .] There are in fact two separate
principles being applied in the authorities. In some, where the problem has been the non-compliance
with some statutory formality or defect in the claimant’s title the courts have upheld the title by
application of the maxim omnia praesumuntur rite esse acta. [247] [ Crimes v Smith (1588) 12 Co.
Rep. 4 ; Goodtitle v Duke of Chandos (1760) 2 Burr 1065 ; Sawbridge v Benton (1793) 2 Anst. 372 ;
Keene v Deardon (1807) 8 East 248 (no presumption made); R. v Montague (1825) 4 B. & C. 598 ;
Macdougall v Purrier (1830) 2 Dow. & Cl. 135 ; Williams v Eyton (1858) 2 H. & N. 771 ; Leigh
U.D.C. v King [1901] 1 Q.B. 747 (doubted in Cabab v Walton-on-Thames D.C. [1914] A.C. 102 ,
Lord Dunedin considering the question whether compliance with the statutory formalities of the
Highways Act 1835 was not one to which the brocard omnia praesumuntur, etc. had any application.
See also Stockwell v Southgate Corpn. [1936] 2 All E.R. 1343 .) See also Representative Church Body
v Barry [1918] 1 I.R. 402 . For the maxim see Harris v Knight (1890) 15 P. D. 170 (Lindley L.J.).] In
others, the courts have proceeded on the basis that from the long enjoyment shown a legal origin may
be presumed to exist. [248] [ Lord Pelham v Pickersgill (1787) 1 T.R. 660 (“the rule with regard to
prescriptions is, that every prescription is good, if by any possibility it can be supposed to have had a
legal commencement”); cited with approval in Duke of Beaufort v Smith (1849) 4 Ex. 450 ;
Macdougall v Purrier (1830) 2 Dow & CI. 135 ; Simpson v Wilkinson (1844) 7 Man. & G. 50 ;
Shephard v Payne (1864) 16 C.B. N.S. 132 ; Gann v Free Fishers of Whitstable (1865) 11 H.L.C. 192
; Bass v Gregory (1890) 25 Q.B.D. 481 ; Tilbury v Silva (1890) 45 Ch. D. 98 ; Philips v Halliday
[1891] A.C. 228 ; Stileman-Gibbard v Wilkinson [1897] 1 Q.B. 749 ; London and Northwestern
Railway Co. v Fobbing Levels Sewage Commissioners (1897) 75 L.T. 629 ; East Stonehouse U.D.C. v
Willoughby Brothers Ltd. [1902] 2 K.B. 318 ; Brockebank v Thompson [1903] 2 Ch. 344 ; Att.-Gen. v
Horner (No.2) [1913] 2 Ch. 140 ; General Estates Co. v Beaver [1914] 3 K.B. 918 ; Hammerton v
Earl of Dysart [1916] 1 A.C. 57 ; Egerton v Harding [1974] 3 All E.R. 689 ; Deeble v Linehan (1860)
12 I.C.L.R. 1 ; Renewable Leasehold Conversion Act Ex p. Raymond (1874) I.R. 8 Eq. 231 ; Re
Bomford’s Estate [1904] 1 I.R. 474 .] “May” might not be the correct word here: in some of the cases
it has been said that the court ought to find a legal origin for the long enjoyment proved. [249] [
Shephard v Payne (1864) 16 C.B. N.S. 132 ; Bass v Gregory (1890) 25 Q.B.D. 481 ; Tilbury v Silva
(1890) 45 Ch. D. 98 ; Simpson v Mayor of Godmanchester [1896] 1 Ch. 214 ; Stileman-Gibbard v
Wilkinson [1897] 1 Q.B. 749 ; East Stonehouse U.D.C. v Willoughby Brothers Ltd. [1902] 2 K.B. 318
.] In others still, judges have said the court is under a duty to find a legal origin for the enjoyment
shown. [250] [ Gann v Free Fishers of Whitstable (1865) 11 H.L.C. 192 ; Philips v Halliday [1891]
A.C. 228 ; Leigh U.D.C. v King [1901] 1 Q.B. 747 ; Antrim C.C. v Trustees of Gray (1930) 64
I.L.T.R. 71 . The different descriptions of the role of the court mirror the progression described by
Cockburn C.J. whereby juries were told they might, should, or were bound to presume a grant (see
above, p.226).] It is the willingness or otherwise with which judges have embraced this duty that
distinguishes the cases in which the courts have made presumptions to support long enjoyment from
those in which claims based on long enjoyment have failed. On the side of the willing was Le Blanc J.,
whose view was that if there were any way by which the long enjoyment shown might have taken
place, the court would presume that was the way, in favour of the enjoyment. [251] [ Lady Dartmouth
v Roberts (1812) 16 East 334 .] Wills and Wright JJ. showed the same attitude in London and North-
Western Railway Co. v Commissioners of Sewers of Fobbing Levels , [252] [(1896) 75 L.T. 629.]
when asked to find a legal origin for the long-standing obligation of landowners to repair sea defences
which had been shown to exist. The court found that it was possible such an obligation could have a
legal origin in custom or by reason of a grant, and that difficulties standing in the way of each
possibility could be overcome. Wills J. thought that once “in the land of presumptions, and things that
ought to be supported” any difficulties such as user clearly not being from time immemorial could be
overcome, and that where the obligation to repair had been shown to have existed for a long time,
“you are bound to presume everything which is not manifestly absurd which will support and give a
legal origin to the practice”.
This view, that the basis on which the court acts in cases of this sort is that it attributes the enjoyment
shown to have existed for a long period to a lawful origin, indicates that emphasis on a lost grant is
misleading. A grant is but one of the means by which long enjoyment can be explained, and a lawful
origin found for it. In the words of Hamilton L.J., it is “merely the legal garb in which the inferred
legal origin is invested”. [253] [ Att.-Gen. v Horner (No.2) [1913] 2 Ch.140 .] Other means may exist,
and where for whatever reason the presumption of a grant cannot be made, then if such other means
are possible, the enjoyment can be upheld as having a legal origin. The point can be illustrated, albeit
in reverse, by Somersetshire Drainage Commissioners v Corpn of Bridgewater , [254] [(1899) 81 L.T.
729. Cf. decisions in which courts have held difficulties as to the particular nature of the grant
presumed could be overcome by presuming a grant on different terms. In Dawson v McGroggan
[1903] 1 I.R. 92 the court said that if the presumption of a grant arose, there was no difficulty in
suggesting a lawful means of giving effect to it, suggesting three different possibilities. In Re St.
Martin le Grand, York [1990] Fam. 63 the court was unable to presume a faculty conferring an
easement, the servient tenement being consecrated land, but made the presumption that a faculty
conferring a licence had been granted. Compare Att.-Gen. of Southern Nigeria v John Holt & Co.
(Liverpool) Ltd. [1915] A.C. 599 , where the Privy Council was unable to presume a grant of the land
in question from the Crown, but was prepared to presume instead a licence from the Crown.] where
the question was whether the defendant had a right to discharge pollution into a watercourse, on the
basis of ancient usage. The Court of Appeal held that it had, on the basis of custom. The House of
Lords agreed with the decision, but on a different ground, Lord Davey preferring to base the legal
origin of the usage on a fictional grant from the Crown. He went on to say that the difference was one
of form only: the substance was to give effect to ancient and continuous usage. [255] [ cf. Egerton v
Harding [1974] 3 All E.R. 689 where the court considered there were several possible origins for the
right there claimed and was not prepared to fault the trial judge who had found the origin to be
custom. See also Lawrence v Hitch (1868) L.R. 3 Q.B. 521 where the court was able to find a lawful
origin for a toll either in immemorial enjoyment or alternatively by presuming that dedication of
roads within legal memory had been subject to a reservation of the toll.] The difference between the
substance of the doctrine on which the court acts, and the form in which it gives effect to its decision,
had been pointed out earlier by Bowen J. in his opinion in Dalton v Angus & Co. [256] [(1881) 6 App.
Cas. 740.] The best account, however, of how the presumption of a legal origin for activity long
enjoyed came to be expressed as the presumption of a lost grant is to be found in Delohery v
Permanent Trustee Co. of New South Wales . [257] [(1904) 1 C.L.R. 283.] Making the same
distinction between substance and form, Griffith C.J. explained that the usual means by which an
easement was created being by grant, it became the practice to plead a lost grant. The issue of a grant
having then been formally raised, it became a matter for the jury, who would be directed to the effect
that if the facts showed 20 years’ enjoyment, the law inferred a legal origin, and that they should
accept the allegation of a grant in that sense. It was quite plain, the Chief Justice explained, that the
doctrine of lost grant was “never regarded as anything more than an artificial and subsidiary rule
designed for the purpose of giving effect to a substantial right.”
A useful modern illustration of how the doctrine operates, and in which the strands of the doctrine are
explained, is Calder Gravel Ltd. v Kirklees M.B.C . [258] [(1989) 60 P. & C.R. 322.] The case has
nothing do to with easements, but shows how the presumption of a lawful origin applies. In 1946 an
application for planning permission had been made to the planning authority. By virtue of the
legislation then in force, any permission granted was required to be in writing and four copies should
have existed of the document. Although there was evidence that the application had been approved by
the planning authority, neither the document granting permission nor any copy of it could be found. It
appeared that up until 1984 the planning authority had proceeded on the assumption that permission
had been granted following the application, but until then no-one had raised the point that in the
absence of a document granting permission, no permission existed. The matter came before Browne-
Wilkinson V.-C. when the owner of the land sought a declaration that permission had been granted.
The Vice-Chancellor granted the declaration sought, explaining and applying the principle omnia
praesumuntur rite esse acta:
“[t]he presumption is that where there has been a long-term enjoyment of a right which can only have
come into existence by virtue of a grant or some other legal act, then the law presumes, in the absence
of proof to the contrary, that there was a lawful origin. This is the historical basis from which the
doctrine of lost modern grant was developed in relation to easements.”
The case is helpful for a number of reasons. First, it shows the difference between inference of a fact
arising from the evidence on the balance of probabilities and presumption. The fact that the parties had
proceeded on the assumption that permission had been granted was not sufficient, the court held, for it
to be a necessary inference that the document existed. The situation was simply that there was no
evidence to establish either that the document existed or that it did not. That being the case, the
claimant gets as it were the benefit of the doubt, the court holding that user is lawful rather than
unlawful. Secondly, the case shows the relation of the presumption to the onus of proof. Although the
burden of proof rested on the plaintiff, the effect of the presumption was to shift the onus onto the
planning authority to show on the balance of probabilities that the presumption was incorrect. [259]
[The situation is the same where dedication of a highway is presumed, the onus shifting to the person
seeking to deny a highway exists to show that dedication could not have taken place: see Att.-Gen. v
Watford R.D.C. [1912] 1 Ch. 417 ; R. v West Sussex Quarter Sessions Ex p. Albert & Maud Johnson
Trust Ltd. [1973] 3 All E.R. 289 .] Finally, the case shows the presumption of a lost grant is a
development of the presumption that rights long enjoyed have a lawful origin, in the same way as they
do the earlier cases mentioned.
CONCLUSIONS
It would seem from the above discussion that a number of conclusions can be drawn about the
doctrine of lost modern grant, which may explain some of the difficulties and criticism which surround
it. First, the doctrine does not proceed on the basis that as a matter of fact a grant was made. The
doctrine operates to give a possible explanation of how a state of affairs came about, rather than as an
account of how it did come about. This being so, belief in the existence of a grant is beside the point,
and neither the consciences of jurors nor the reluctance of judges to put questions to them should stand
in the way of the doctrine being applied to uphold long enjoyment which has been shown to exist. It
may be, however, that the questions for the court could and should be put in a way which would avoid
any question of offending consciences. This is considered later.
Secondly, and proceeding from the first, the fact that no grant existed is equally beside the point and
the courts are correct not to allow the claimant to be defeated on this ground.
Thirdly, and a question of more difficulty, it is questionable whether the courts should allow the claim
to be defeated on the basis that a grant was impossible, because there was no competent grantor. There
are in fact two issues here. The first is the question whether it should be possible for the court to
presume a grant against a lessee or tenant for life, the effect of which will be to create a right that is
good so long as the estate of the lessee or tenant for life endures. We have seen that a difference of
opinion exists between the courts in England and those in Ireland on this point. The better view seems
to be that the Irish view is preferable. The second issue, however, is more fundamental. If a grant was
impossible, for example because at the time the grant could have been made the supposed grantor was
legally incapable of making a grant, it would still be possible to hold that the enjoyment has a legal
origin, if that is the correct question. The same is true if the difficulty is that a grant to give effect to
the enjoyment shown to exist is not recognised by the law, or because the person(s) to whom the grant
would have had to be made are such that the law does not recognise a grant to them as possible. In all
these cases the difficulty can be surmounted, and the enjoyment upheld as lawful, if the true question
is not whether a grant could have been made, but rather whether a lawful origin can be found for the
enjoyment shown. The judges who dissented in Lord Chesterfield v Harris [260] [[1911] A.C. 623.]
were able to get over the difficulty perceived by the majority of the court that no grant of the right
claimed was known to the law by an application of the principles in Goodman v Mayor of Saltash .
[261] [(1882)7 App. Cas. 633.] A more straightforward means of overcoming this and similar problems
standing in the way of presuming a grant exists would be to presume that there was statutory authority
for the activity carried on. [262] [See Chilton v Corpn. of London (1878) 7 Ch. D. 735 .] Admittedly,
some judges have expressed reluctance to presume an Act of Parliament has been made and lost, but
such reluctance proceeds from the same difficulty which other judges have had in presuming a grant,
namely, because they believed no grant existed in fact. We have already noted this to be based on an
erroneous understanding of how the doctrine operates.
The real difficulty with the doctrine of lost modern grant is more fundamental than the question of
trying to reconcile the presumption of a grant where it can be proven that no grant exists or indeed
could have existed. The fundamental problem with the doctrine is that it is based on judicial
legislation. The courts have developed a doctrine which upholds long enjoyment where the legislature
has failed to act to do so. That of course was one of the criticisms levelled by Cockburn C.J. at the
doctrine, and has been recognised by other judges since. In developing the doctrine the courts have
striven to quiet titles by attributing a lawful origin to the long enjoyment shown, and conferring a title
on the party in question, in some cases by expressed analogy to the Statute of Limitations. The
desirability of such action on the part of the judiciary is perhaps a question more for constitutional
lawyers rather than property lawyers and will not be debated here. Taking it, however, that this
judicial usurpation of the function of the legislature has taken place and we must live with it, [263]
[The wider question whether acquisition of easements and profits by prescription should be possible is
also outside the scope of this discussion. On this see Law Reform Committee, Acquisition of
Easements and Profits by Prescription (1966, Cmnd. 3100); Q.U.B. Land Law Working Party, Survey
of the Land Law of Northern Ireland (1971); Land Law Working Group, Final Report of the Land
Law Working Group (1990); Law Reform Commission, Report on the Acquisition of Easements and
Profits a Prendre by Prescription (L.R.C. 66-2002).] there remain aspects of the doctrine on which
further comment may be made.
The doctrine can be supported on the basis that, absent any evidence to explain the enjoyment which
has taken place for a long period, it preserves the status quo by upholding that enjoyment as lawful
rather than requiring it to cease. The essential criteria for this to happen are that enjoyment has existed
for a long period, and is unaccounted for. An explanation, other than tolerance, why enjoyment has
occurred will preclude application of the doctrine. Insofar as no explanation is forthcoming, the courts
allow user to continue rather than require its cessation, on the basis that the activity will be deemed
lawful rather than unlawful. To that extent the doctrine is unobjectionable. The law after all presumes
innocence rather than guilt. Where the objections come in is in the devices used to explain the
enjoyment. It is difficult in this day and age to defend an Alice in Wonderland explanation [264] [See
Jaques v Secretary of State for the Environment [1995] J.P.L. 1031 .] for allowing enjoyment to
continue when it can be proven as fact that the explanation is simply not true. “These presumptions in
our law of evidence need careful watching” was the comment of Dodd J. in Representative Church
Body v Barry , [265] [[1918] 1 I.R. 402. The dangers inherent in the misuse of presumptions were
pointed out by Eyre B. in Scott v Airey (1779) 3 Gw. 1174 : “The arguments at the bar have run wild
on the head of presumption. We are to presume so much as to destroy the whole law. For if upon mere
possession every thing is to be presumed to maintain that possession, there was no necessity for the
statutes of limitation. It will be better for every person in possession to burn his title deeds, and rest
wholly on presumption.”] and this seems to be the gist of the trouble. By referring to the doctrine of
lost grant, attention is directed to a means by which the court gives effect to maintaining the status quo
which the party against whom the presumption is made has allowed to come about (by failing over a
long period to exercise his power to prevent it), rather than to the basis on which the court is acting.
If the baggage of the doctrine were to be stripped away, what would remain? That where A is shown
to have carried on an activity over many years, and where no explanation can be given for how this
state of affairs came about, then the courts, faced with a choice between saying A may continue the
activity in question, or alternatively that B, whose interests are prejudiced by the activity, may prevent
it, will allow things to go on the way they have for years past. No doubt in so doing, the courts favour
A, who by definition cannot prove documentary title to the activity in question, over B, who does have
documentary title which is clear of the right asserted. If justification for that preference is required, the
reason is that if B had the better right, he should not have allowed A to carry on his activity so long
without defending his right. If the reason for B’s failure to take action to stop A is that B was under
some legal disability, then there is an explanation which is sufficient to account for the enjoyment and
tip the scales in B’s favour.
Approaching situations in which the doctrine applies by asking the question whether there is an
explanation for the long enjoyment shown, rather than by asking whether a grant could be supposed to
have been made, means that some of the issues discussed above can be simplified. There should be no
need to raise a grant in the pleadings as the basis of a claim. All that the claimant needs to plead is the
facts upon which his claim is based. A lost grant is not one of the facts: rather it is an explanation
which the court may put upon those facts to account for the enjoyment. If the claimant pleads that for
upwards of 20 years he has been enjoying access over his neighbour’s land as of right and without
interruption, he has made out a prima facie case that he has an easement. There is, in other words, a
presumption that the claimant has a lawful right to cross the land. If his neighbour cannot provide an
explanation to account for the user, the court will declare the claimant has the easement claimed.
The authorities on the doctrine of lost modern grant do not reveal a uniform approach to situations
such as that described. Some show judges who have understandably perhaps sought to avoid what may
be seen as a make-believe world where rights are based not on the facts known to exist but on whether
some hypothesis can be constructed upon which a right could have come into existence. Others show
judges concerned more with upholding the enjoyment and prepared to give free rein to their ingenuity
in order to get over any difficulties in the way. If the premise that the courts should uphold user which
has been shown to have existed for a long period be accepted, the doctrine misleadingly called lost
modern grant affords a means of doing so. Understanding the true basis upon which the doctrine
operates should do something to restore its tarnished reputation.
Alan Dowling is senior lecturer in law at Queen’s University, Belfast.

The Doctrine of Lost Modern Grant

Enviado por

Dados do documento

Descrição original:

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

The Doctrine of Lost Modern Grant

Enviado por

Direitos autorais:

Formatos disponíveis

-(2003) 38(1) JUR 225 Article: THE DOCTRINE OF LOST MODERN GRANT : ALAN DOWLING -Page1

ALAN DOWLING Senior Lecturer in Law at Queen’s University, Belfast

STRANDS IN THE DEVELOPMENT OF THE DOCTRINE

QUESTIONS AND DIFFICULTIES

BASES FOR THE DOCTRINE

Alan Dowling is senior lecturer in law at Queen’s University, Belfast.

Você também pode gostar