In the past, English law has been underpinned by a strong and generally unifying desire to protect the rights of persons who could demonstrate a long established de facto enjoyment of land. Indeed, the Prescription Act 1832 legislatively entrenched prescription, and in particular, prescriptive easements. The underlying assumption was that the principle of prescription was necessary to reconcile the conflicting interests of landowners The basis of prescription is that if long enjoyment of a lawful right is shown, the courts will uphold the right by presuming it had a lawful origin. There are three types of prescription, namely, prescription at common law, prescription under the doctrine of lost modern grant and prescription under the Prescription act 1832. The following document will discuss the current short comings of the law of acquisition of easements by prescription and provide detailed study of recommended reforms.
The first area to discuss is the acquisition of easements by prescription at common law. To acquire an easement under common law, the claimant has to show that the easement has been enjoyed not just for a long period of time but since time immemorial, that is, since 1189. One of the first identified issues with acquisition under common law was the idea of time immemorial, the issue arose in Bryant v Foot , where a rector tried to establish a claim to a fee for marriages performed in his parish church. Early use was proved but it was held that the fee of 13 shillings could not have been so high in 1189 and therefore the right could not have existed since time immemorial. The presumption of time immemorial can be rebutted by the owner of the allegedly servient land demonstrating that this was not infact the case. This was demonstrated in the case of Duke of Norfolk v Arbuthnot where a claim to prescription failed upon proof that the church in question had been built around 1380 and therefore, even though the right had existed for centuries, it...
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