On 31 Dec, 20:13, "Michael R N Dolbear" wrote:
Desmo Paul wrote

Can a legal easement be obtained over land owned by a railway

company? *Or rather could it be obtained say in 1955 whether latterly
repealed or not? *It seems railway land was curiously protected?

So are urban commons !

There was a legal case in May/June 2007 which held (for Wimbledon
Common) that since the trustees had no power to grant an easement it
could not be acquired by adverse possession (squatters rights) either.

--
Mike D


Thanks for that and have now read it - copied below.


THE registered proprietors of a house built in the late nineteenth
century
claimed that their property enjoyed the benefit of an easement,
being a pedestrian and vehicular right of way, over Wimbledon
Common. They contended that the easement had been acquired by
“long prescription” pursuant to section 2 of the Prescription Act
1832,
as it had been used openly and as of right for a period of more than
40
years next before the commencement of proceedings. The claim failed
before the Adjudicator to the Land Registry, and an appeal to the High
Court was dismissed (Housden v. Conservators of Wimbledon & Putney
Commons [2007] EWHC 1171, [2007] 1 W.L.R. 2543) on the grounds
that the Conservators in whom the common was vested lacked capacity
to grant an easement over the relevant land and that long
prescription,
being based on a presumed grant, could not therefore operate in favour
of the claim. However, the claimants succeeded before the Court of
Appeal ([2008] EWCA Civ 200, [2008] 1 W.L.R. 1172, Mummery,
Carnwath, Richards L.JJ.) which unanimously held that the Conservators
had power to grant an easement over the common.
The first issue, that of capacity, involved close interpretation of
the
Wimbledon and Putney Commons Act 1871, the statute which established
the Conservators and vested the common in them. Section 8
conferred on them the power “to take and hold and to dispose of (by
grant, demise, or otherwise) land and other property”, words which
without more would indicate that they had power to grant an easement.
However, section 35 provided that, “It shall not be lawful for the
conservators,
except as in this Act expressed, to sell, lease, grant or in any
manner dispose of any part of the commons.” This provision, held by
the Adjudicator and the High Court to deny the Conservators power to
grant an easement over the common, was given a more restrictive
interpretation
by the Court of Appeal. There can be no doubt that
granting an easement over land must amount to a disposal of part of
the land, as a new right is being created over land which affects the
use to which that land can now be put. However, granting an
easement would not necessarily be incompatible with the broad
objectives
of the 1871 Act to conserve the commons as an unenclosed, and
unbuilt on, open space. Adopting a purposive approach, the Court of
Appeal held that an express grant of the easement claimed would not
contravene section 35 as it would not amount to a disposal of “part of
the commons” (as opposed to a disposal of “land” or an “estate,
interest
or right in land”, words which if they had been used would
have clearly denied capacity to grant). That was enough to decide the
case.
The second issue was whether “long prescription” under section 2 of
the Prescription Act 1832 required proof of capacity to make a grant.
This much criticised provision states that on 40 years’ enjoyment
within
its terms “the right thereto shall be deemed absolute and
indefeasible”
save where it was so enjoyed “by some consent or agreement expressly
given or made for that purpose by deed or writing”. Similar words in
section 3 of the 1832 Act, which is concerned with prescriptive
acquisition
of rights of light, led the House of Lords in 1865 to decide that a
right of light could be acquired without any recourse to the fiction
of a
presumed grant, as the terms of the statute themselves conferred the
right: Tapling v. James 11 HL Cas 290. Megarry and Wade’s Law of
Real Property, (6th ed.) 18–160, considered that as a matter of
principle
it should therefore be possible for “long prescription” to be
effective
against servient owners, such as certain corporations, which have no
power to grant. In Housden, Mummery L.J. (giving the leading judgment
of the Court of Appeal) was sympathetic to this view, not only on
a true construction of the statute but also on policy grounds.
However,
adherence to precedent (the 1866 decision of the House of Lords in
Proprietors of Staffordshire and Worcestershire Canal Navigation v.
Proprietors of Birmingham Canal Navigations L.R. 1 H.L. 254) compelled
him to come down in favour of the alternative view that the
opening words of section 2 (the reference to “claims which may
lawfully
be made at the common law, by custom, prescription, or grant”)
“control the whole section” and import the common law presumption
of grant to both short and long prescription periods. It followed
that,
where a servient owner was legally incapable of granting the easement,
the claim must fail, however long the period of use which can be
established.
As the Court of Appeal noted in Housden, prescription is topical.
Not only is it a highly litigious area of the law which has been
considered
on a number of recent occasions by the House of Lords and the
Court of Appeal, it is one of the main items on the agenda of the Law
Commission in its current review of the law of easements, covenants
and profits a` prendre. The Law Commission’s Consultation Paper,
Law Com CP No 186 (2008), published a matter of days after Housden,
leaves the reader in no doubt of its provisional view that reform is
essential, although it maintains an open mind as to the best way
forward
for reform of prescriptive acquisition, in particular on the difficult
question whether prescription should be abolished outright or
whether it should be amended and put into coherent statutory form
(see paras. 4.175 to 4.193). The Commission’s tentative exposition of
a
replacement statutory scheme provisionally proposes the removal of
the “unsatisfactory” fiction of grant (see para. 4.171) and the
replacement
of acquiescence as the underlying basis of prescriptive acquisition
by long use. Not only would reform along such lines rid the law of
reliance on fictions which spawn the potential for injustice, it would
lay
the necessary foundations for “the simpler law of prescription” which
Mummery L.J. conceded has become, in modern conditions, “of more
rather than less concern.”