Odey & Ors v Barber [2006] EWHC 3109 (Ch) (29 November 2006)

Odey & Ors v Barber [2006] EWHC 3109 (Ch) (29 November 2006)

The claimants' use of the left-hand side of the Track was with the permission of the owner, Mr. Hubert Knight, and thus not 'as of right'; therefore, no prescriptive right of way arose. The right-hand side claim based on implied grant fails as the necessary conditions for section 62 and Wheeldon v Burrows were not met. No easement was acquired by prescription or implied grant.

Citation
[2006] EWHC 3109 (Ch)
Parties
Claimant: Robin Crispin William Odey; Claimant: Nichola Odey; Claimant: Trustcorp Limited; Defendant: Susan Barber
Jurisdiction
England and Wales
Judgment Date
29 November 2006
Procedural Posture
Civil Property Dispute / High Court Judgment
Outcome
Claim dismissed
Legal Topics
Easements, Right of Way, Prescription, Implied Grant, Lost Modern Grant
Property Law Easements Right of Way Prescription Implied Grant Lost Modern Grant

Case Brief

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Parties

Robin Crispin William Odey

Claimant

Nichola Odey

Claimant

Trustcorp Limited

Claimant

Susan Barber

Defendant

Procedural Posture

Civil Property Dispute / High Court Judgment

Legal Issues

  1. 1 Whether claimants have acquired a right of way over the left-hand side of the Track by prescription under the doctrine of lost modern grant
  2. 2 Whether claimants have acquired a right of way over the right-hand side of the Track by implied grant under section 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows
  3. 3 Whether any right of way has been abandoned or limited in scope

Ratio Decidendi

The claimants' use of the left-hand side of the Track was with the permission of the owner, Mr. Hubert Knight, and thus not 'as of right'; therefore, no prescriptive right of way arose. The right-hand side claim based on implied grant fails as the necessary conditions for section 62 and Wheeldon v Burrows were not met. No easement was acquired by prescription or implied grant.

Court Disposition

Claim dismissed

Orders

  • Claimants are not entitled to a declaration of right of way over either part of the Track.
  • No injunctive or other relief granted to claimants.