Case Summary: Easements - Right Of Way

Summary

In this case, the Adjudicator found that a barn enjoyed a right of way for residential purposes arising from the fact that it had previously been part of a larger dominant tenement which included a residential farmhouse. Noting that the Council had failed to take any substantive action to enforce its view that the Applicants were trespassers, the Adjudicator concluded that there had been insufficient efforts to interrupt the use so as to show user by force.

Facts

The Applicants owned and occupied Foxhalls Barn. The Applicants had acquired the barn in 1988 by way of a Conveyance which included a right of way over a specified track to the extent "hitherto...exercised by the Vendor and his predecessors in title for the benefit of the said property". This track gave the only means of vehicular access to the barn and, for much of its length, to a nearby farmhouse. The Conveyance was supported by a Statutory Declaration made by the vendor, who declared that the track had been used since at least 1954 "as of right" for all purposes connected with the barn. Following the Applicants' acquisition of the barn, they converted it from agricultural to residential use.

The track is part of Brinsty Common, an unregistered title owned by the Respondent Council. As a result of the decision in Hanning v Top Deck Travel (1993) 68 P&CR...