Rights of way - proving your point
This article was included in the spring 2011 issue of Informer - the real estate newsletter.
Two recent cases involving disputed rights of way have highlighted how disputes about easements can so easily arise. If a claim is brought, it is vital to support your claim with the right evidence.
Failure to do so can mean the difference between success or failure, and the loss of a right that is vitally important to the use of your property. The cases demonstrate why it is vital to seek early legal advice as your to rights and to properly prepare your case. Whilst the cases below concern easements, these principles apply to all claims.
In the first case, Campbell v Banks, the Campbells operated stables from their land. They had exercised their horses around the local lanes for several decades and appeared to have good grounds to claim a formal right of way. However, they chose to represent themselves at Court. They did not present their case properly (there being several different types of ways in which an easement can be acquired). As a result, their attempts to persuade the Court that they ought to be granted a right-of-way were unsuccessful.
The Campbells appealed and went back to court to ask it to re-consider, this time with legal representation. The court indicated that the Campbells appeared to have the elements of a valid claim (under section 62 of the Law of Property Act 1925). However, by this time it was too late to submit further evidence, and the evidence already submitted did not adequately support the claim. The court therefore rejected their claim and they lost the right to use the lanes to exercise their horses.
In the second case, Dewan v Lewis, the party seeking to establish a right-of-way was successful. However, on appeal the right-of-way was subsequently limited in extent, as the evidence presented did not support as wide an easement as the one originally claimed.
The case concerned a road leading up to a farm. At trial, the owners of the farm were able to show that they had accessed the farm in various ways, over both the road in question and other nearby paths, for a long time. These methods included access with horses, ponies and with vehicles. Additionally, they produced evidence that they had driven cattle to the farm along the right-of-way and over other routes. They were successful in acquiring a right-of-way through prescription (which broadly requires twenty years' user). The terms of the right initially granted by the court were wide - "at all times for agricultural purposes with or without animals and with or without vehicles".
However, on appeal, the court reduced the extent of the right-of-way and prevented the farm owners from driving cattle along it. The other side (who owned the road over which the right-of-way passed) were able to highlight that, despite all of the various uses to which the road had been put (including some evidence of the driving of cattle), there was insufficient evidence of the driving of cattle along the road for the requisite twenty year period. As a right-of-way acquired through prescription should only be as wide as the type of user which can be shown to have been enjoyed, the Court restricted the right-of-way to exclude cattle. The farm owners had hoped to farm cattle in the future, so the restriction imposed was therefore significant.
Whilst the facts of the two cases relate to cattle and horses, the principles apply to rights-of-way more generally as well as to other easements.
The cases show how it is always essential that proper advice is taken to precisely evaluate what rights a party may be entitled to and that very clear evidence needs to be compiled which supports the full extent of all of your claim. If a party fails to do so, it can very easily find itself failing to acquire the rights they are claiming - either in part or at all.
Our property litigation team's expertise includes advising easements, rights-of-way and all other real property issues. If you need advice on these matters please do get in touch.