Easements – Right to drive cattle
Dewan & Ors v Lewis: CA (Civ Div) (Lords Justices Carnwath, Elias, Pitchford): 9 December 2010
The appellants (D) appealed against a decision that a right of way to which the respondent (L) was entitled was not subject to a limitation, excepting the driving of stock.
The appeal concerned the extent of the rights attached to L’s land, the dominant tenement, over a private road which provided access to an area of agricultural land and thence to the rest of the dominant tenement. Houses had been built beside the road which was mainly unfenced. The frontages of the houses to the private road had been laid out with lawns and ornamental trees and the owners were anxious to limit the scope for potential disturbance by unrestricted use of the road for driven animals. D and other neighbours sought an injunction prohibiting any use of the private road by L. L counterclaimed for a right of way, either by implied grant by virtue of a conveyance in 1970; or by prescription or lost modern grant, arising from use between 1986 and 2006. The judge rejected the first ground, but upheld the second. He made a declaration that L was entitled by way of prescription to a right of way at all times for agricultural purposes with or without animals and with or without vehicles. He declined to include in the declaration an exception for the driving of stock. D appealed on that issue alone. D submitted that there was no material evidence of use of the road to drive livestock in the relevant period 1986 to 2006. L argued that although actual use for driving stock was limited, there was evidence of other use by animals, including horseback and ponies, and having established use for agricultural purposes, there was no justification for excluding the driving of stock, which was a normal incident to the use of agricultural land.
Held: (1) The general rule as stated in Gale on Easements (18th edition, 2008) was that where a right was acquired by user, the extent of the right had to be measured by the extent of the user. Such a right was a restriction on the rights of the owner of the servient tenement. The justification was that by acquiescence over a long period, he had lost the right to object to it. By the same token, he should not be taken to have lost the right to object to a user more onerous than that which had in fact taken place. In the present case, the user over the relevant period, 1986 to 2006, included access by foot, by vehicles and on horseback. There was no material evidence of use for driving cattle during the period (see paragraph 24 of judgment).
(2) There was authority for the proposition that a right of way for vehicles or riding horses was not to be taken, without more, as including a right to drive cattle, Ballard v Dyson 127 ER 841 CCP considered and White v Richards (1993) RTR 318 CA (Civ Div) followed. The owner of the servient tenement should not be burdened with a use more onerous in nature than that which he and his predecessors had accepted in fact. In the present case, the use shown over the relevant 20-year period did not include use for driving cattle. The servient owners were therefore entitled to exclude it from the right as declared. The declaration should therefore be amended by addition of the words ‘except for the purpose of driving stock’ (paragraphs 30, 31).
Matthew Wales (instructed by R George Davies & Co) for the appellants; Graham Walters (instructed by Keppe Rofer) for the respondent.