Mills v Silver
Use of a track that the owner merely tolerated, without objection, can give rise to a prescriptive easement.
Facts
For many years, the owners of a hill farm used a track over neighbouring land to reach their farm, without permission, but without objection from the owner. The use was only occasional and only when the weather allowed, because the track was unmade. A later owner of the farm laid a stone road on the track, and the neighbouring owners objected. The farm owners claimed that they had acquired a right of way by prescription.
Legal principle
The Court of Appeal held that the farm owners had acquired a prescriptive right of way. Dillon LJ said that mere tolerance by the servient owner of use of a track does not prevent the use from being as of right, and so does not prevent a prescriptive right from arising. However, the right was to use the track as it was, and it did not include a right to improve it by laying a stone road, so the farm owners had committed a trespass by doing so.
Related cases on easements
- Batchelor v Marlow [2001] EWCA Civ 1051, [2003] 1 WLR 764
- Copeland v Greenhalf [1952] Ch 488
- Dalton v Angus & Co (1881) 6 App Cas 740
- Re Ellenborough Park [1956] Ch 131
- Hill v Tupper (1863) 2 H & C 121
- Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620
- Nickerson v Barraclough [1981] Ch 426
- Phipps v Pears [1965] 1 QB 76
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