Mills & Anor v Silver & Ors [1990] EWCA Civ 12 (06 July 1990)

Mills & Anor v Silver & Ors [1990] EWCA Civ 12 (06 July 1990)

The Court of Appeal held that the use of the disputed track with vehicles during Joe Phillips' lifetime was open, continuous, and sufficient to establish a prescriptive right of way by the presumption of a lost grant. Tolerance by the servient owner did not defeat the claim, as the use was acquiesced in and not merely permitted or licensed. However, the right acquired was limited to the nature and extent of the historic user and did not entitle the appellants to improve the track by laying a stone road, which constituted trespass.

Citation
[1990] EWCA Civ 12
Parties
First Defendant / Appellant: Mr. Silver; Second Defendant / Appellant: Miss Davis; Third Defendant: Nash Rock, Stone and Lime Co. Ltd.; Second Plaintiff / Respondent: Mrs. Mills; Plaintiffs / Respondents: (Unnamed Plaintiffs)
Jurisdiction
England and Wales
Judgment Date
06 July 1990
Procedural Posture
Appeal (chancery Division, High Court) / Court of Appeal Judgment
Outcome
Appeal allowed in part.
Legal Topics
Prescriptive Easements, Right of Way, Lost Modern Grant, Toleration Vs Acquiescence, Trespass, Repair Vs Improvement of Easements
Property Law Easements Real Property Prescriptive Easements Right of Way Lost Modern Grant Toleration Vs Acquiescence Trespass +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 22 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Mr. Silver

First Defendant / Appellant

Miss Davis

Second Defendant / Appellant

Nash Rock, Stone and Lime Co. Ltd.

Third Defendant

Mrs. Mills

Second Plaintiff / Respondent

(Unnamed Plaintiffs)

Plaintiffs / Respondents

Procedural Posture

Appeal (chancery Division, High Court) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the appellants are entitled to a right of way with vehicles over the disputed track by prescription (lost modern grant)
  2. 2 Whether tolerance by the servient owner precludes acquisition of a prescriptive easement
  3. 3 Whether the appellants were entitled to improve the track by laying a stone road

Ratio Decidendi

The Court of Appeal held that the use of the disputed track with vehicles during Joe Phillips' lifetime was open, continuous, and sufficient to establish a prescriptive right of way by the presumption of a lost grant. Tolerance by the servient owner did not defeat the claim, as the use was acquiesced in and not merely permitted or licensed. However, the right acquired was limited to the nature and extent of the historic user and did not entitle the appellants to improve the track by laying a stone road, which constituted trespass.

Court Disposition

Appeal allowed in part.

Orders

  • Declaration that appellants are entitled by prescription to a right appurtenant to Coed Major to pass and repass with or without vehicles, but for domestic and agricultural purposes only, over the disputed track, with power to repair the surface.
  • Declaration that appellants were not entitled to lay the stone road; laying the stone road was trespass.