-(2003) 38(1) JUR 225 Article: THE DOCTRINE OF LOST MODERN GRANT : ALAN DOWLING -Page1

(2003) 38(1) JUR 225 Article: THE DOCTRINE OF LOST MODERN GRANT ALAN DOWLING Senior Lecturer in Law at Queens University, Belfast

The doctrine of lost modern grant will be familiar to students and practitioners of land law. Commonly prayed in aid by those who are seeking to establish an easement by prescription, it usefully avoids difficulties that exist in establishing prescription at common law or under the Prescription Act 1832 . Developed in the eighteenth century and confirmed by the House of Lords in the nineteenth, [1] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] it remains alive and well in the twenty-first, having recently survived an attack on the ground that it was incompatible with the provisions of the European Convention on Human Rights, [2] [ Mills v M.I. Developments Ltd. [2002] E.W.C.A. Civ. 1576 .] and is arguably the means of choice for claimants asserting a legal right to carry on activity enjoyed without interruption for years past, but unable to show a documentary title. As its name suggests, where a claimant can rely successfully on the doctrine to establish the right claimed, it is because a grant to him or his predecessor of that right is presumed to have been made, but is now lost. From the number of cases in which the doctrine is relied on, it might be thought that the doctrine is both uncontroversial and its ambit well-defined. Neither supposition would be correct. As to the former, before the 18 judges who considered the dispute between Henry Angus & Co., Charles Dalton and the Commissioners of Her Majestys Works and Public Buildings [3] [ Angus & Co. v Dalton (1877) 3 Q.B.D. 85 (Q.B.D.); (1878) 4 Q.B.D. 162 (C.A.) ; Dalton v Angus & Co. (1881)6 App. Cas. 740 (H.L.) . Dalton was a builder employed by the Commissioners to take down a building adjoining a coachworks owned by Angus & Co. In doing so the coachworks suffered damage. Perhaps appropriately for a case which became important for the legal profession, the purpose of the demolition was to clear the site for the erection of a new building to serve the profession, the Newcastle Probate Office.] gave their opinions and settled the existence of the doctrine, judicial opinion on the doctrine was divided, with both opponents and supporters expressing their views in unequivocal terms. For Lush J., the doctrine was a revolting fiction [4] [ Angus & Co. v Dalton (1877) 3 Q.B.D. 85.] ; others, such as Bayley B., [5] [ Day v Williams (1832) 2 Cr. & J. 461 .] Lord Denman C.J., [6] [ R. v Scarisbrick (1837) 6 Ad. & E. 509; R. v President and Chapter of Exeter Cathedral (1840) 12 Ad. & E. 512 .] Cockburn C.J. [7] [ Bryant v Foot (1867) L.R. 2 Q.B. 161; Angus & Co. v Dalton (1877) 3 Q.B.D. 85 . ] and Farwell J., [8] [ Att.-Gen. v Simpson [1901] 2 Ch. 671 . For the case on appeal see [1904] A.C. 476.] had great difficulty in requiring juries to find on oath that a grant had been made which they knew did not exist in fact, Cockburn C.J. describing the practice as a scandal on the administration of justice. [9] [ Angus & Co. v Dalton (1877) 3 Q.B.D. 85 .] Outside the court criticism could also be found. Sir William Evans described the doctrine as a perversion of legal principles. [10] [2 Evans Pothier 139, cited in Bryant v Foot (1867) L.R. 2 Q.B. 161 .] Disapproval was not, however, universal. Channell J., echoing views expressed by OBrien C.J., [11] [ OKane v OKane (1892) 30 L.R. Ir. 489 .] considered the doctrine most useful, enabling the court to avoid interfering with user and possession in cases not covered by the provisions of the Prescription Act or the Statute of Limitations, though within the mischief such legislation was intended to remedy. [12] [ East Stonehouse U.D.C. v Willoughby Brothers Ltd. [1902] 2 K.B. 318 .] In cases where previous authority required a decision in a particular way, we can find judges following the earlier decisions with undisguised reluctance and no wish to extend the ambit of the doctrine, [13] [ Macnaghten v Baird [1903] 2 I.R. 731; Doe d. Fenwick v Reed (1821)5 B. & AId. 232; Wheaton v Maple [1893] 3 Ch. 48 .] and others who thought the doctrine should not be so constrained, but rather should be extended. [14] [ Tennent v Neill (1870) I.R. 5 C.L. 418 .] With regard to the doctrine being well-defined, the standard texts devote little to the theoretical basis upon which the doctrine rests. This article is an effort to explain the doctrine and to essay some conclusions as to the role of the courts in cases where they are asked to presume a grant, from which it may appear that some of the difficulties in the doctrine may be avoided.

GENERAL PRINCIPLESThe explanation of the origin and development of the doctrine of lost modern grant given by Cockburn C.J. is well-known: to atone, as he put it, for the supineness of the legislature in failing to protect long usage, the judges set about remedying the defect by first holding that from the usage of a lifetime the presumption arose that a similar usage had existed from time immemorial; and secondly by the development of the doctrine of lost modern grant: Juries were first told that from user during living memory, or for twenty years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither the judge nor jury, nor any one else, had the shadow of a belief that any such instrument had ever really existed. [15] [ Bryant v Foot (1867) L.R. 2 Q.B. 161 . In Deeble v Linehan (1860) 12 I.C.L.R. 1 Pigot C.B. referred to the lack of uniformity in the language used by judges in directing juries. In Livett v Wilson (1825) 3 Bing. 115 Best C.J. explained that from uninterrupted usage for 20 years the jury might be authorised to find it originated in a grant, but went on to say that the jury could only be told that they might find a grant, not that they must. Shortly afterwards, in Tenny d. Whinnett v Jones (1833) 10 Bing. 75 , Park J. said that while a direction that the jury were bound to presume, under certain circumstances, would be wrong, they might be told that from certain circumstances they were warranted in making certain presumptions. The proper course, according to Pigot C.B., was to direct the jury that they were at liberty to presume that, where enjoyment for 20 years had been proved, such enjoyment had its origin in legal title; that it could have its origin in a grant by deed; and if not to direct, at least to advise them that, if there was nothing to contradict or explain the enjoyment, they ought to refer it to a legal origin, and to presume that a grant had been made. In McAulay v McDonald (1908) 4 E.L.R. 486 it was said that the jury ought to be directed that if they believed that there had been the equivalent of 20 years adverse possession they ought to presume it originated lawfully, in most cases by a lost grant.] The explanation points to one problem which continues to exist and to make establishing a prescriptive right at common law an uphill task, to put it at the least. The requirement at common law that user should have commenced before legal memory, the year 1189, [16] [Statute of Westminster 1275.] is likely to be impossible in most cases. The practice of directing juries that from modern usage they should find usage from time immemorial, unless there was evidence to the contrary, [17] [ Jenkins v Harvey (1835) 1 Cr. M. & R. 472; Darling v Clue (1864) 4 F. & F. 329; Shephard v Payne (1864) 16 C.B. N.S. 132 . See also ONeill v Allen (1859) 9 I.C.L.R. 132 .] clearly eased the burden, but it was not enough to ensure protection in many instances. If, for example, in the case of the claim to an easement both dominant and servient tenements were in common ownership and occupation at any time since 1189, then the claim would be unsuccessful. Likewise, in the case of a claim to an easement of light to a building, if the building did not exist in 1189, user from time immemorial would not be shown and the claim would be defeated. The doctrine of lost modern grant got over these problems by avoiding the necessity that user should have been from time immemorial. So long as the user fulfilled the necessary qualities of being as of right, unexplained, uninterrupted and of sufficient duration, a grant to the claimant could be presumed. It may well be, as Cockburn C.J. and others thought, that the doctrine thus evolved amounted to a judicial usurpation of the function of the legislature, [18] [ See Bryant v Foot (1867)L.R. 2 Q.B. 161; Angus & Co. v Dalton (1877) 3 Q.B.D. 85; Dalton v Angus & Co. (1881) 6 App. Cas. 740; Delohery v Permanent Trustee Co. of New South Wales (1904) 1 C.L.R. 283 .] but the doctrine became established nonetheless, and came to be adopted by the Court of Chancery in circumstances where a grant would have been presumed by a jury in a court of law. [19] [ Jones v Turberville (1792) 2 Yes. Jr. 11; Pickering v Lord Stamford (1794) 2 Ves. Jr. 581. ] Before considering the details of the doctrine, it is convenient at this stage to consider how the doctrine relates to prescription at common law, as it was the difficulties inherent in prescription at common law that brought the doctrine into being. There are statements in some of the cases that the

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doctrine is ancillary to prescription at common law, [20] [ Bryant v Lefever (1879) 4 C.P.D. 172; Yong Joo Lin v Fung Poi Fong [1941-1] M.L.J. 63. ] and that accordingly, where the facts will justify the claim succeeding at common law, the doctrine has no application, [21] [ Blewett v Tregonning (1835) 3 Ad. & E. 554; Bryant v Lefever (1879) 4 C.P.D. 172; R.P.C. Holdings Ltd. v Rogers [1953] 1 All E.R. 1029 . See also Jenkins v Harvey (1835) 1 Cr. M. & R. 472 , Shephard v Payne (1864) 16 C.B. N.S. 132 and Darling v Clue (1864) 4 F.&F. 329 in which the correct direction to the jury was held to be that from modern user they might find immemorial user.] and a determination by the jury that the claimant succeeds under the doctrine would be wrong. [22] [ Blewett v Tregonning (1835) 3 Ad. & E. 554.] The difficulties already noted standing in the way of a claim succeeding at common law make the significance of the doctrine being described as ancillary to prescription at common law questionable, other than insofar as the difficulties hereinafter discussed inherent in the doctrine may be avoided if the claim can be held to succeed at common law. In addition to the relation of the doctrine to prescription at common law, the question arises as to how the Prescription Act 1832 was intended to affect the operation of the doctrine. It was undoubtedly the intention of the Act to facilitate claims based on long enjoyment, though the success of the Act in that regard is debatable. [23] [The Act (extended to Ireland by the Prescription (Ir.) Act 1858 ) is notoriously badly drafted and difficult to operate, making provision for claims based on shorter and longer periods of enjoyment (20 years and 40 years respectively for claims to easements; 30 years and 60 years for claims to profits (ss.1 and 2)), but requiring deductions to be made from the period of enjoyment relied on by the claimant in certain circumstances (ss.7 and 8). Whether the claimant relies on the shorter or longer periods, the Act operates only where there is litigation in which the claim is brought into question, as the period of enjoyment is calculated with reference to that litigation (s.4). In cases where the claimant cannot meet the requirements of the Act, he may yet succeed in establishing a right under the doctrine of lost modern grant. For examples of claims based alternatively under the Act and under the doctrine see Pugh v Savage [1970] 2 All E.R. 353; Tehidy Minerals Ltd. v Norman [1971] 2 All E.R. 475; Bowring Services Ltd. v Scottish Widows Fund etc. [1995] 16 E.G. 206. ] Introducing provisions that ultimately became the Prescription Act, Lord Tenterden referred to the doubts which existed in whether grants would be presumed or not by the courts, and considered it better that the law should fix a period during which enjoyment should be proved for a claim to be successful. [24] [3 H.L. Debs (3rd series) col. 442 (March 15, 1831).] In Bright v Walker [25] [(1834) 1 Cr. M. & R. 211.] Parke B. identified one reason for the Act as being to ease the consciences of jurors. [26] [cf. the purpose of the Rights of Way Act 1932 in the case of highways: see Jones v Bates [1938] 2 All E.R. 237 and discussion below, p.237.] Following the Act it seems to have been considered by some that the doctrine of lost grant had been superseded by the provisions of the Act, [27] [See Bright v Walker (1834) 1 Cr. M. & R. 211; Tapling v Jones (1865) 11 H.L.C. 290; Hyman v Van den Bergh [1908] 1 Ch. 167 . A recent revival of the argument was unsuccessful in Mills v M.I. Developments Ltd. [2002] E.W.C.A. Civ. 1576. ] but this view has not prevailed, [28] [See Hanmer v Chance (1865) 4 De G. J. & S. 625 , the court holding that s.6 of the Prescription Act did not prevent use for a lesser period than that mentioned in the section being the basis for the jury finding a grant.] and by 1875 it was said to be everyday practice to plead prescription at common law, or alternatively under the Prescription Act, or under the doctrine of lost modern grant. [29] [ Aynsley v Glover (1875) 10 Ch. App. 283. ] While it has recently been said that rather stronger evidence is required in the case of a lost modern grant than in the case of prescription under the statute, [30] [See Smith v Brudenell-Bruce (2001) (unreported, July 2, 2001, H.C., Pumfrey J.). ] this can only mean that the statutory provisions require only proof of user without the additional difficulty of having to rely on the court making a presumption that a grant had been made to explain such user. [31] [ Bright v Walker (1834) 1 Cr. M. & R. 211. ] It has been said that every prescription is based on the presumption of a grant. [32] [See Potter v North (1669) 1 Vent. 383; 2 Bl Comm 265; 3 Cru. Dig. (3rd ed., 1824), p.482.] The basis of the doctrine of lost modern grant is that a grant is presumed to have been made conferring the right long enjoyed by the claimant. One question which had to be answered by the courts was whether the presumption was a presumption of law, incapable of being rebutted, or one of fact, which could be rebutted. On the basis that the presumption could be rebutted, the question arose as to what would be required in order to rebut it. Although there are dicta that the presumption arising was conclusive, [33] [ Bealy v Shaw (1805) 6 East. 208; Balston v Bensted (1808) 1 Camp 463 . Lewis v Price (1761) and Dougal v Wilson (1769) both noted at 2 Wm. Saund. 175 were also considered authority for the

presumption being conclusive: see Angus & Co. v Dalton (1877) 3 Q.B.D 85. ] these were outweighed from an early date by decisions showing the presumption would give way to evidence countering it. [34] [ Keen v Earl of Effingham (1747) 2 Str. 1267; Goodtitle v Duke of Chandos (1760) 2Burr. 1065 ; Mayor of Hull v Horner (1774) 1 Cowp. 102 ; Darwin v Upton (1785) 2 Wm. Saund. 175; Oswald v Leigh (1786) 1 T.R. 272; Griffith v Matthews (1793) 5 T.R. 296; Goodtitle d. Jones v Jones (1796) 7 T.R. 43; Doe d. Fenwick v Reed (1821) 5 B. & AId. 232; Cross v Lewis (1824) 2 B. & C. 686; Tenny d. Whinnett v Jones (1833) 10Bing. 75. ] The difficulty with classifying the presumption as one of fact, however, is the refusal of the courts to allow the presumption to be rebutted by proof that no grant was in fact made, [35] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740. ] so that even before Dalton v Angus & Co [36] [(1881)6 App. Cas. 740.] the presumption was being described as neither one of law nor one purely of fact. [37] [ Shephard v Payne (1864) 16 C.B. N.S. 132. ] In Dalton v Angus & Co Bowen J. refers to the reluctance of the courts to treat the presumption as an ordinary one, and their preference to leave the presumption in a logical cloud. That appears as accurate a description of the position following the decision as it did before. The difficulty in classifying the presumption as one of law or one of fact or something in between is mirrored in the lack of clarity in the early authorities as to whether the doctrine was based on fact or fiction. In Doe d Fenwick v Reed, [38] [(1821)5 B. & Ald. 232.] where there had been more than 70 years possession by the defendant in ejectment proceedings, the question whether a conveyance had been made at some time in the past to his predecessor was considered purely as one of fact, despite the attempts by counsel for the defendant to make it one of presumption based on long enjoyment. Again, in Duke of Norfolk v Arbuthnot [39] [(1880) 5 C.P.D. 390.] Brett L.J. maintained the opinion he had expressed in Angus & Co v Dalton [40] [(1878) 4 Q.B.D. 162.] that the question whether a lost grant did once exist was one of fact for the jury, and went on to say that he was quite sure that as a matter of fact there never had been a grant which was now lost. Even after Dalton v Angus & Co. [41] [(1881)6 App. Cas. 740.] the absence of a factual basis for a grant was hard for some to take. Farwell J., echoing sentiments expressed by others earlier, [42] [See Day v Williams (1832) 2 Cr. & J. 461; Bryant v Foot (1867) L.R. 2 Q.B. 161. ] thought it could not be the duty of a judge to presume a grant of the non-existence of which he was convinced. [43] [ Att.-Gen. v Simpson [1901] 2 Ch. 671. ] In Wheaton v Maple [44] [[1893] 3 Ch. 48.] we find Lopes L.J. memorably saying that presuming a grant in that case would be overtaxing the credulity of the most credulous, and would be making a demand too extravagant even for the elasticity of this patient and accommodating fiction. The absence of a formal record of the grant, which would have existed had a grant existed in fact, has been the basis for the courts reluctance to presume a grant in some instances. [45] [ Wheaton v Maple [1893] 3 Ch. 48; Tyne Improvement Commissioners v Imrie (1899) 81 L.T. 174; Neaverson v Peterborough R.D.C. [1902] 1 Ch. 557 . The absence of a record was noted in Representative Church Body v Barry [1918] 1 I.R. 402 where the court was prepared to presume that a presentment by the Grand Jury had been made stopping up a highway. The absence of any record of a grant was seen as immaterial, however, in Somersetshire Drainage Commissioners v Corpn. of Dudley (1899) 81 L.T. 729. ] The difficulty has caused most unease where the court has been asked to presume that an Act of Parliament existed authorising the user relied on, [46] [For the presumption of instruments other than grants, see below, p.252.] but has been lost. So, for example, we find Lord Denman C.J. saying that no judge would venture to direct a jury that they could affirm the passing of an Act of Parliament made within the previous 250 years on an important subject of the most general interest, of which no vestige can be found on the Parliament roll, in the journals of either House of Parliament, in any records of the courts of law, in the numerous treatises of enlightened authors, or in the history of the country. [47] [ R. v President and Chapter of Exeter Cathedral (1840) 12 Ad. & E. 512 . See also Macdougall v Purrier (1830) 2 Dow & Cl. 135; Clinton v Corpn. of London (1878) 7 Ch. D. 735; Neaverson v Peterborough R.D.C. [1902] 1 Ch. 557; Harper v Hedges [1924] 1 K.B. 151. ] These difficulties in making the presumption of a lost grant are obviated if all pretence that the grant had in fact been made is abandoned. There are dicta even at an early date that the doctrine is based not on the fact of a grant having been made, but rather on a fiction. [48] [See Eldridge v Knott (1774) 1 Cowp. 214; Hillary v Waller (1806) 12 Yes. Jr. 240 . In defence of the doctrine being based on a fiction, see the explanation of Holmes L.J. in Hanna v Pollock [1900] 2 I.R. 664 , that a fiction recognised by the court ceases to be a fiction and becomes the formal mode of expressing a reality,

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and it is the reality of long enjoyment that is affirmed by the jury.] Later, at the same time as Cockburn C.J. was lamenting the presumption of grants in which no-one believed, Lawson J. was making it clear that in Dublin also everyone knew that in nine cases out of 10 no deed was in fact ever executed. [49] [ Tennent v Neill (1870) I.R. 5 C.L. 418 .] By then, OBrien J. had already considered a grant could be presumed without the necessity of the jury believing in the existence of the grant as a matter of fact. [50] [ Deeble v Linehan (1860) 12I.C.L.R. 1 . See also Tennant v Neill (1870) I.R. 5 C.L. 418 and Renewable Leasehold Conversion Act ex p. Raymond (1874) I.R. 8 Eq. 231.] If the presumption that a grant had been made were merely an inference of fact to be drawn by the jury the criticisms directed against the doctrine would have been hard to justify, a point made in the Canadian case of Ring v Pugsley. [51] [(1878) 18 N.B.R. 303.] An action had been brought by the plaintiff as a result of obstruction by the defendant in 1874 of the light enjoyed by the plaintiff. The plaintiff could succeed only on the basis of lost modern grant. [52] [The trial judge directed the jury that the relevant law was the law applicable in England before the Prescription Act. A claim at common law was bound to fail as the plaintiffs house had not been built until 1853.] The judge refused the defendants request to leave the question whether a grant should be presumed to the jury, and a verdict was found for the plaintiff. The defendant obtained a rule nisi for a retrial and the plaintiff showed cause. Duff J. held that the judge had been right in refusing to leave the matter to the jury, saying that if the matter were really one for determination by the jury as a matter of fact, he would be at a loss to understand Evans criticism [53] [See n.10 above.] that the doctrine was a perversion of legal principles. A means of resolving the confusion apparent from the cases in which the operation of the doctrine has been questioned because of the knowledge that as a matter of fact no grant had ever been made, will be found if the presumption of a lost grant is seen not as a matter of fact but as a conclusion to be drawn in the absence of any other explanation for the existing state of affairs. [54] [ Deeble v Linehan (1860) 12I.C.L.R. 1 (per Pigot C.B.); Att.-Gen. v Horner(No.2) [1913] 2 Ch. 140 (per Hamilton L.J.); for rejection of this view, on the basis that it rendered the doctrine no different from prescription under the Prescription Act, see Angus & Co. v Dalton (1878) 4 Q.B.D. 162 (per Brett L.J.).] What must be proved is the enjoyment by the claimant for a sufficient length of time. [55] [The longer the enjoyment, the easier it may be for the court to presume a grant in favour of the claimant: see Lysaght v Rose (1861) 12 Ir. Ch. R. 444 .] That is a matter of fact and the onus is on the claimant to discharge the burden in the usual way. [56] [For the requirement that the claimant adduce evidence of a state of affairs upon which a presumption can be based, see Goodtitle v Duke of Chandos (1760) 2 Burr 1065; Warren v Gunner (1798) 1 Hag. Con. 314; Campbell v Wilson (1803) 3 East 298; Doe d. Fenwick v Reed (1821) 5 B. & Ald. 232; Gray v Bond (1821) 2 Brod. & B. 667; Doe d. Blackwell v Plowman (1831) 2 B. & Ad. 573 .] Once that has been done, the question becomes what explanation can be given for such enjoyment? If there is none, then the presumption of a lost grant can be made. Presumption is therefore, as Hamilton L.J. explained in Attorney General v Horner (No.2), [57] [[1913] 2 Ch. 140.] the opposite of proof, supplying the starting point for proof, and affording a legitimate means of arriving at an affirmative legal conclusion, but giving way where proof exists. [58] [See also Lord Chesterfield v Harris [1911] A.C. 623 (per Earl of Loreburn L.C.); Harris v Knight (1890) 15 P.D. 170 (Lindley L.J.). According to Erskine L.C., it is because there is no means of creating belief or disbelief that presumptions are applied: Hillary v Waller (1806) 12 Yes. Jr. 240 .] In the same case Buckley L.J. said that if long user as of right is proved, the presumption arises without further evidence: it then arises not upon evidence, but for default of evidence. It may be displaced by evidence, but requires no further evidence for its support. According to this explanation, the doctrine operates on both evidence and the absence of evidence: there must be proof of user for a sufficient period and exhibiting the necessary qualities to found a claim based on prescription: for example, the user must be as of right, but equally, there must be an absence of proof as to how such enjoyment came about. [59] [ Fanshaw v Rotheram (1759) 1 Eden 276; Doe d. Fenwick v Reed (1821) 5 B. & Ald. 232; Att.-Gen. v Simpson [1901] 2 Ch. 671; Att.-Gen. v Antrobus [1905] 2 Ch. 188; Lord Chesterfield v Harris [1908] 2 Ch. 397; Hulbert v Dale [1909] 2 Ch. 570; Att.-Gen. v Horner (No.2) [1913] 2 Ch. 140; Lyell v Lord Hothfield [1914] 3 K.B. 911; Earl of Dysart v Hammerton & Co. [1914] 1 Ch. 822; Alfred E. Beckett Ltd. v Lyons [1967] 1 All E.R. 833; Baldwin v OBrien (1917) 40 O.L.R. 24 .] If the long-enjoyed user can be explained, the presumption of a grant is displaced. [60]

[See further discussion below, p.248.] In other cases it has been said that a grant must be the most reasonable explanation for the long enjoyment shown to exist. [61] [ Doe d. Putland v Hilder(1819) 2 B. & Ald. 782; Att.-Gen. v Simpson [1901] 2 Ch.671; Lord Chesterfield v Harris [1911] A.C. 623; Att.-Gen. v Horner (No.2) [1913] 2 Ch. 140 .]

STRANDS IN THE DEVELOPMENT OF THE DOCTRINEAccording to the explanation of the doctrine in Bryant v Foot, [62] [(1867) L.R. 2 Q.B. 161.] the origins of the doctrine are to be found in the courts wish to remedy an injustice for which the legislature had not provided in the Limitation Act 1623 . That Act had provided that parties who had suffered others to be in possession of land for the period prescribed by the Act should thereafter be prevented from asserting their rights. The Act did not provide for the case of enjoyment of incorporeal rights such as easements, but in the doctrine of lost modern grant the courts were able to provide that where long enjoyment of such rights was shown to exist, protection was established for those enjoying the rights. The protection was different in that the Limitation Act prevented the owner of the land from taking action against the person in possession, i.e. the Act operated against the title of the owner rather than by conferring a title on the person in possession, whereas in the case of presumption of a lost grant, protection took the form of establishing that the person who had proved long enjoyment had a title to do so, [63] [See R. v Oxfordshire C.C. ex p. Sunningwell P.C. [2000] 1 A.C. 335 .] but the practical effect in each case was to protect long enjoyment. Lord Blackburn considered the doctrine must have come into existence in the century or so following the Act of 1623, and cited Lewis v Price [64] [(1761) 2 Wm. Saund. 175.] in 1761 as the earliest example of the doctrine being applied in the case of a claim to an easement. [65] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] As we will see, the doctrine was known to the courts before then. Here, however, it is convenient to consider some aspects of the relationship between the Limitation Act and the doctrine. First, the presumption of a grant was made in circumstances in which the Limitation Act did not apply. In Holcroft v Heel [66] [(1799) 1 Bos. & Pul. 400.] an action was brought in the Common Pleas by the owner of a market. The defendant had held a rival market for the past 23 years. The court held that the undisturbed possession of the rival market for that period was a bar to the plaintiffs right of action. In Campbell v Wilson [67] [(1803) 3 East. 298.] however, the court explained the earlier case as one in which the defendant could have succeeded on the basis of the presumption of a grant from the Crown, the Limitation Act not being a bar to the plaintiff. Similarly, though no limitation period applied in the case of bonds, the courts were prepared to presume satisfaction of the bond if no demand was shown to have been made for a long period. [68] [Anon (1703) 6 Mod. 22; Oswald v Leigh (1786) 1 T.R. 272 .] An interesting illustration of the point that the doctrine applied in circumstances where the Limitation Act did not is Doe d. Fisher v Prosser , [69] [(1774) 1 Cowp. 217.] where one co-owner of land had been in sole possession of the land for many years. Under the law as it then stood, no co-owner of land could bar the title of his co-owners by adverse possession, unless he had ousted them. Although therefore the defendant could not rely on the provisions of the Limitation Act for protection, the court was prepared to presume either that there had been ouster, or alternatively that there had been a conveyance to the defendant, thereby rendering his possession secure. In Ireland, however, the view was taken that to presume a conveyance in such circumstances would lead to a monstrous result. [70] [ Beauman v Kinsella (1858) 8 I.C.L.R. 291 .] Second, it seems that the fixing of the rule that the claimant had to show 20 years enjoyment arose by analogy with the limitation period of 20 years fixed by the Act of 1623 for actions to recover land. [71] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 (per Bowen J.).] Although some of the early cases suggest that a presumption could arise in a period less than 20 years, [72] [See England v Slade (1792) 4 T.R. 682 (jury may be directed to presume surrender in much less time than 20 years); Bealy v Shaw (1805) 6 East 208 (less than 20 years may or may not afford presumption according as it is attended with other circumstances to support or rebut [the right claimed]); Oswald v Leigh (1792) (satisfaction of bond might possibly be presumed after 18 or 19 years).] by the beginning of the nineteenth century the requirement of 20 years enjoyment seems to have been settled. [73] [ Campbell v Wilson (1803) 3 East 298; Bealy v Shaw (1805) 6 East 208; Hillary v Waller (1806) 12 Ves. Jr. 240 . For earlier authorities proceeding on a basis of 20 years enjoyment see Anon. (1703) 6

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Mod. 22; Lewis v Price (1761) 2 Wm. Saund. 175 . See also Goodtitle v Baldwin (1809) 11 East 488; Doe d. Foley v Wilson (1809) 11 East. 56 (no grant presumed within 12 or 13 years); see also Rees d. Chamberlain v Lloyd (1811) Wight 123 (livery of seisin presumed after 20 years, by analogy to the Limitation Act, rather than after 30 years, being the period after which deeds did not require proof); Doe d. Wilkins v Marquis of Cleveland (1829) 9 B. & C. 864; Doe d. Lewis v Davies (1837) 2 M. & W. 503 (livery not presumed within 20 years).] That itself posed an interesting question in Riddiford v The King, [74] [[1905] A.C. 147.] namely, whether a grant could be presumed to have been made by the Crown, on the basis that 20 years enjoyment had been proven, in an action by the Crown, to which a longer limitation period applied. [75] [See also Lopes v Andrews (1826) 5 L.J. K.B. 46 .] The Privy Council considered no grant could be presumed in such circumstances. [76] [See also Eldridge v Knott (1774) 1 Cowp. 214 .] Despite the reduction of the limitation period in ordinary cases to 12 years, the requirement of proving 20 years enjoyment for the presumption to arise has remained. Finally, one view of the effect of the Limitation Act was that the doctrine of lost modern grant could be discarded, [77] [ Angus & Co. v Dalton (1877) 3 Q.B.D. 85 .] the effect of the Act being that an easement was gained after 20 years enjoyment, without the need for any grant to be presumed. However attractive that view of the effect of the Act might be as a matter of principle, it was rejected as a matter of law by Lord Blackburn in Dalton v Angus & Co . , [78] [(1881)6 App. Cas. 740.] and far from being discarded, the doctrine thrived. Cases in which the courts developed the presumption of a lost grant by analogy to the provisions of the Limitation Act for quieting titles show one of the various strands in the development of the doctrine of lost modern grant. Another is a line of cases in which the courts used presumptions to avoid having to non-suit plaintiffs in ejectment actions because a term of years was shown to be outstanding, or because the fee simple estate was shown to be in the hands of trustees for the plaintiff. In Doe d. Hodsden v Staple [79] [(1788) 2 T.R. 684.] Lord Kenyon C.J. reports Lord Mansfield as saying in an unreported case, Lade v Holford, that he would not suffer a plaintiff to be non-suited by a term outstanding in a trustee, or a satisfied term set up by a mortgagor, but would direct a jury to presume a surrender. [80] [See also Doe d. Bowerman v Sybourn (1796) 7 T.R. 2 .] In fact, courts had presumed surrenders of terms from an early date, where long possession had been shown by someone other than the termor. [81] [Anon (1674) 1 Vent. 257; Warren v Greenville (1740) 2 Str. 1129 . See, however, the comments on the latter decision in Goodtitle v Duke of Chandos (1760) 2 Burr. 1065 .] Equally, where it appeared the legal estate was in the hands of trustees, a conveyance by the trustees could be presumed, at any rate when the court was satisfied that it was the duty of the trustees to convey the lands to the person who had shown possession for a long time. [82] [ Lady Stafford v Llewellin (1682) Skin. 77; England v Slade (1792) 4 T.R. 682; Hillary v Waller (1806) 12 Ves. Jr. 240; Townsend v Champernown (1827) 1 Y. & J. 538; Hozier v Powell (1841) 3 Ir. L.R. 395; Harris v Harris (1868) I.R. 3 C.L. 294. For cases where the court refused to make a presumption of a surrender or conveyance see Goodright v Swymmer (1756) 1 Keny 385; Doe d. Hodsden v Staple (1788) 2 T.R. 684; Goodtitle d. Jones v Jones (1796) 7 T.R. 43; Keene v Deardon (1807) 8 East 248; Doe d. Hammond v Cooke (1829) 6 Bing. 174 .] In Doe d. Putland v Hilder [83] [(1819) 2 B. & Ald. 782.] Abbott C.J. explained that where acts had been done or omitted by the owner of the inheritance and persons dealing with him which ought not to have been done or omitted if the term existed in a trustee, and if there did not appear anything to prevent a surrender, in such cases the things done or omitted might most reasonably be accounted for by supposing a surrender, and a surrender would accordingly be presumed. [84] [See also Bartlett v Downes (1825) 3 B. & C. 616.] Presuming surrenders or conveyances in such circumstances was controversial however, [85] [See Doe d. Blacknell v Plowman (1821) 2 B. & Ad. 573; Doe d. Earl of Egremont v Langdon (1848) 12 Q.B. 711 .] Lord Eldon and others making their criticism of the practice known. [86] [ Aspinall v Kempson (1821) 3 Sugden, A Practical Treatise on the Law of Vendors and Purchasers of Estates (10th ed., 1839) p.65; see also criticism by Sugden at 3 op. cit. p. 196. ] The issue was addressed in the Bill introduced into Parliament by Lord Tenterden in 1831, on which the Prescription Act 1832 was based. [87] [See 3 H.L. Debs (3rd series) col. 442 (March 15, 1831).] Although the provisions of the Bill dealing with satisfied terms were not enacted in the Prescription Act, the matter was eventually dealt with by Parliament in the Satisfied Terms Act 1845 .

Long before its application in the law of easements in 1761, [88] [ Lewis v Price (1761) 2 Wm. Saund. 175 .] the doctrine of lost grant was known to the courts in disputes regarding tithes. The issue in these disputes was whether a discharge from liability to pay tithes could be acquired from nonpayment of tithes for many years. If an owner of land was liable for tithes, yet the land had been enjoyed for many years without tithes being paid, could immunity from payment be established? The problem was the rule that no prescription could be obtained by a layman in non decimando . [89] [See Slade v Drake (1618) Hob. 295; Fanshaw v Rotheram (1759) 1 Eden 276 .] The fact that tithes had not been paid in the past did not confer any immunity from payment in the future. The rule was intended to protect the income of the Church. [90] [See discussion in Slade v Drake (1618) Hob. 295; Aldermen etc. of Bury St. Edmunds v Evans (1739) 2 Gw. 757 .] After the dissolution of the monasteries tithes became capable of ownership by lay improprietors, and it was argued that the rule did not apply in such cases. That argument was, however, rejected, the courts holding that there was no difference between a spiritual improprietor and a lay improprietor so far as prescription claims in non decimando were concerned. [91] [ Lady Charlton v Charlton (1732) Bunb. 325; Jennings v Lettis (1755) 3 Gw. 952; Meade v Norbury (1816) 2 Price 338 .] Next, however, it was argued that although a claim could not be made in non decimando, an exemption could be established on the basis of a lost grant by the lay improprietor, in the same way as any other grant by him could be presumed. That argument fared no better, [92] [ Aldermen etc. of Bury St. Edmunds v Evans (1739) 4 Gw. 757; Fanshaw v More (1743) 2 Gw. 780; Jennings v Lettis (1755) 3 Gw. 952; Nagle v Edwards (1796) 3 Anst. 702 .] despite criticism by judges and recognition that failure to apply the doctrine in the case of tithes was anomalous. [93] [ Fanshaw v More (1743) 2 Gw. 780; Lord Petre v Blencoe (1797) 3 Anst. 945; Meade v Norbury (1816) 2 Price 338; Norbury v Meade (1821) 3 Bli. 211 .] The position, though doubted, [94] [ Rose v Calland (1800) 5 Yes. Jr. 186 .] became established that no grant could be presumed to establish a discharge from liability to pay tithes. [95] [ Andrews v Drever (1835) 3 Cl. & Fin. 314 . The refusal to presume a discharge from liability to pay tithes did not, however, mean all was lost. In some instances bills for accounts of tithes were dismissed on the basis of the long possession without demand being made, or on the ground that the plaintiff had not proved his title to the tithes. See Fanshaw v Rotheram (1759) 1 Eden 276; Scott v Airey (1779) 3 Gw. 1174; Edwards v Lord Vernon (1781) 3 Gw. 1177; Lord Petre v Blencoe (1797) 3 Anst. 945; Norbury v Meade (1821) 3 Bli. 211 .] A remedy ultimately came in the Tithe Prescription Act 1832 , which contained provisions allowing discharge from liability to pay tithes to be established after non-payment for 30 years, [96] [Like the Prescription Act, the Tithe Prescription Act provided an alternative longer period (60 years) upon which a claim could be based.] corresponding in principle to the provisions for establishing easements and profits contained in the Prescription Act 1832 . The two sets of provisions, along with provisions to deal with surrender of outstanding terms, had all been contained in the one Bill originally introduced by Lord Tenterden into Parliament in 1831, [97] [See 3 H.L. Debs (3rd series) Col.442 (March 15, 1831). The proposals of the Bill were based on the recommendations of the Real Property Commissioners: see First Report of the Real Property Commissioners (1829) H.C.P. x. 1, p.51 et seq. ] Lord Tenterden thought the provisions as to tithes the most important part of the Bill, [98] [ibid. In this regard see the reference in the House of Commons to 222 suits having been instituted in one parish alone in which tithes had not been demanded for a long time: 3 H.C. Debs (3rd series) Col. 1190 (July 13, 1831).] and opposition to the Bill centred on those provisions. The Bill was lost when the parliament was dissolved, but ultimately the provisions of the Bill relating to tithes and to easements and profits were enacted, albeit in not one but two measures. [99] [Prescription Act 1832 ; Tithe Prescription Act 1832 .] A grant is the means by which a private right of way is created. Where such a right of way is established by prescription, it is because a grant is presumed to have been made. Public rights of way do not arise by grant, but by dedication of the way to the public. Once the presumption of dedication arises, the onus is on the party seeking to deny a public right of way exists to show that there was noone capable of dedicating the way. [100] [See Att.-Gen. v Watford R.D.C. [1912] 1 Ch. 417; R. v West Sussex Quarter Sessions Ex p. Albert & Maud Johnson Trust Ltd. [1973] 3 All E.R. 289 .] Presuming dedication from long enjoyment of a way by members of the public has taken place in many instances, [101] [To name but a few: R. v Lloyd (1808) 1 Camp. 260; R. v Barr (1814) 4 Camp. 16; R. v East Mark (Inhabitants) (1848) 11 Q.B. 877 ; R. v Petrie (1855) 4 E. & B. 737; Winterbottom v Lord Derby (1867) L.R. 2 Ex. 316; Vernon v Vestry of St James, Westminster (1880) 16 Ch. D. 449; Turner v Walsh (1881) 6 App. Cas. 636; Att.-Gen. v Esher Linoeleum Co. Ltd. [1901] 2 Ch. 647; Att.-Gen. v Tasker (1928) 92 J.P. 157; Hue v Whiteley [1929] 1 Ch. 440; Williams-Ellis v Cobb [1935] 1 K.B.

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310; Browne v Dowie (1959) 93 I.L.T.R. 179 . See also Mann v Brodie (1885) 10 App. Cas. 378 .] in the same way as the presumption of a grant has been made in the case of a private right of way. As in the case of establishing private rights of way, it seems that the period of enjoyment which needed to be shown was 20 years. [102] [ Dawes v Hawkins (1860) 8 C.B. N.S. 848 . The period of 20 years was the period chosen in the Rights of Way Act 1932 . See below, p.238.] As in the case of private rights of way, judges have said that where long enjoyment by the public has existed, a presumption that the way has been dedicated to the public ought to be made. [103] [ Turner v Walsh (1881) 6 App. Cas. 636; Att.-Gen. v Esher Linoleum Co. Ltd. [1901] 2 Ch. 647. ] And as in the case of private rights of way, no presumption will be made if an alternative explanation for the long enjoyment of the way exists. [104] [ Dawes v Hawkins (1860) 8 C.B.N.S. 848; Att.-Gen. v Manchester Corpn. [1931] 1 Ch. 254. ] The comparison can be carried further: in the same way as a grant will not (in England anyway) be presumed against a tenant for life, dedication will not be presumed against a tenant for life, though Farquhar v Newbury R.D.C. [105] [[1909] 1 Ch. 12.] shows the court able to get over the difficulty by presuming dedication by the tenant for life and the remainderman together. [106] [For an unsuccessful attempt to get over the difficulty that at the time dedication could have taken place the land was in strict settlement by recourse to the doctrine of lost grant, see Att.-Gen. and Newton Abbot R.D.C. v Dyer [1947] Ch. 67 . A public right of way was found however to exist on other grounds.] It is therefore tempting to think that presuming the grant of a right of way after 20 years enjoyment was no different in the cases of private rights of way and public rights, save that in the one case what was presumed was a grant, whereas in the other it was dedication. It seems, however, that to do so would be wrong. That a distinction between public rights of way and private rights of way exists in this context was pointed out recently by Lord Hoffmann. [107] [ R. v Oxfordshire CC Exp. Sunningwell P.C. [2000] 1 A.C. 335. ] His Lordship explained that the law did not supplement the rule that public ways could be established by usage from time immemorial by fictitious grants or user which the jury were instructed to presume. Despite evidence of user as of right, the jury were free to infer that this was not because there had been dedication, but because the landowner had merely tolerated such use. The authority cited for the latter proposition is Folkestone Corpn v Brockman [108] [[1914] A.C. 338.] in which Lord Atkinson had said he was unable to find any case in which there was even a suggestion that where evidence of user was of the strongest kind and unrebutted, the judge was entitled to direct the jury to find a verdict in favour of dedication. Lord Atkinson went on to say that the inference must always be drawn by the judges of fact (i.e. the jury). It was for the judge to determine as a matter of law whether there was evidence from which an intention to dedicate could be drawn, but for the jury to determine whether it should be drawn. [109] [The difficulty that despite long established user by the public the jury might find that dedication had not taken place was eventually remedied by legislation. Section 1 of the Rights of Way Act 1932 provided that where a way was shown to have been enjoyed as of right by the public for 20 years, the way would be deemed to have been dedicated unless there was evidence showing there had been no intention to dedicate the way or unless during the 20 years there was no-one in possession of the land capable of dedicating the way. The provisions are now contained in s.31 of the Highways Act 1980 . For the purpose and effect of the provisions see Jones v Bates [1938] 2 All E.R. 237; Jaques v Secretary of State for the Environment [1995] J.P.L. 1031 . On the provisions of the section see also Merstham Manor Ltd. v Coulsdon and Purley U.D.C. [1937] 2 K.B. 77; Att.-Gen. and Newton Abbot R.D.C. v Dyer [1947] Ch. 67; Fairey v Southampton C.C. [1956] 1 All E.R. 419 . For the differences between establishing dedication at common law and following the enactment of the provisions see Sydenham, Public Rights of Way and Access to Land (Jordan Publishing Ltd, Bristol, 2001), p.37.]

QUESTIONS AND DIFFICULTIESAn examination of the decisions in which the doctrine has been relied on to support a claim based on long enjoyment of an activity by the claimant reveals a number of unanswered questions and difficulties with the doctrine. The existence of these would seem to require consideration whether the doctrine can be supported in the form in which it is usually expressed, or whether some alternative explanation is needed for what the courts are doing when they uphold claims to carry on activity on the basis of long enjoyment. The difficulties are discussed in this and the following section; consideration of an alternative explanation will be found thereafter.

In some jurisdictions provision exists for registration of deeds creating interests in land, with the penalty that if a deed is not registered, it will be void against a later deed which is registered. The register of deeds is intended to provide a means by which purchasers of land can ensure protection against unknown interests. Grants presumed to exist do not fit comfortably into this system, and, not surprisingly, questions as to how the doctrine of lost modern grant applies in such cases have arisen in jurisdictions in which registration provisions exist. One possibility is that if the grant is presumed to exist, it must also be presumed to be registered, as otherwise those claiming under later registered deeds will take priority. Yet the whole purpose of the legislation is to provide that interests created by grant will be disclosed by a search, which will plainly be impossible in the case of a grant which is presumed but does not exist in fact. Even where legislation for registration of deeds does not exist, a similar problem arises in cases where provisions exist requiring enrolment of instruments. If it is proved that as a matter of fact no instrument has been enrolled, can the presumption of an instrument existing be made? The authorities both in England and elsewhere show the difficulties of fitting the doctrine into situations where registration or enrolment provisions exist. In England, the absence of proof of enrolment defeated claims based on the presumption of a grant in both Wright v Smythies [110] [(1809) 10 East 409.] and Doe d. Howson v Waterton, [111] [(1819) 3 B. & Ald. 149. See also Att.-Gen. and Newton Abbot R.D.C. v Dyer [1947] Ch. 67. ] yet in a number of later cases courts have upheld claims based on presumed grants, the absence of enrolment notwithstanding, with the courts prepared to presume enrolment if need be. [112] [ Macdougall v Purrier (1830) 2 Dow. & Cl. 135; Att.-Gen. v Moor (1855) 20 Beav. 119; Williams v Eyton (1858) 2 H. & N. 771; Haigh v West [1893] 2 Q.B. 19 . Compliance with statutory formalities including enrolment was also presumed in Leigh U.D.C. v King [1901] 1 Q.B. 747 though the correctness of the decision has been doubted: see Cabab v Walton-on-Thames D.C. [1914] A.C. 102; Stockwell v Southgate Corpn. [1936] 2 All E.R. 1343 . More recently, where an enclosure award had been acted on for over 135 years, the Court of Appeal in Enifer v Brentwood D.C. (1993) (unreported, C.A., July 14, 2000) rejected a defence based on alleged non-compliance with formalities contained in statutory provisions under which the award had been made.] Ireland has long had a registry of deeds, and it might be expected that the problem of fitting the doctrine of lost modern grant into a registration system would have been solved there. In fact, although the difficulties were recognised in Lysaght v Royse [113] [(1861) 12 Ir. Ch. R. 444.] the court managed to avoid the problem by presuming a grant before the Registration Act came into force. Likewise, in Ontario, the court in Watson v Jackson [114] [(1914) 19 D.L.R. 733.] was able to dispose of the case without tackling the problem. Other courts have not been so fortunate. Two decisions in the former Straits Settlements exist in which the courts refused to presume grants in favour of claimants relying on long enjoyment, on the basis that registration was required to make the deed effective, and had not been shown to exist. [115] [ Att.-Gen. v Lin Chin Swi (1904) 9 S.S.L.R. 6; Angullia v Ong Boon Tat (1921) 15 S.S.L.R. 190. ] These, however, represent a minority view, an alternative analysis being that the presumed grant being fictitious simply does not come within the registration legislation and as such does not threaten the integrity of the system established by the legislation. [116] [ Delohery v Permanent Trustee Co. of New South Wales (1904) 1 C.L.R. 283; Goldring v Tanner (1991) 56 S.A.S.R. 482; see also Vannini v Public Utilities Commission of Sault Ste. Marie [1973] 2 O.R. 11. ] In a number of instances judges have expressed views, with varying degrees of patience, that arguments based on the registration legislation are technical and inappropriate. [117] [ Goldring v Tanner (1991) 56 S.A.S.R. 482; Yong Joo Lin v Fung Poi Fong [1941-1] M.L.J. 63; Yim Yip Kae v Kwong Hoek Cheong Sawmill & Co. Ltd. [1954-1] M.L.J. 21. ] If a claimant intends to rely on the doctrine of lost modern grant to establish a right, the question arises whether he must plead that a grant was made and is lost, and if pleading is required, what degree of particularity is required in such pleading. As to the former, the position is unclear. In Hyman v Van den Bergh [118] [[1908] 1 Ch. 167.] Cozens-Hardy M.R. held that the plaintiff there could succeed in his claim only under the Prescription Act, as he had not pleaded a title by lost grant. [119] [See also Damper v Bassett [1901] 2 Ch. 350 , where the court refused to allow the defendant to amend the pleadings to include a claim based on lost grant, though the amendment was sought after the trial had begun and where the court thought there was no chance of the claim succeeding. Contrast Gardner v Hodgsons Kingston Brewery Co. [1900] 1 Ch. 592 where an amendment to include a claim based on

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lost grant was permitted.] Idington and Davis JJ., dissenting in Tweedie v The King, [120] [(1915)52 S.C.R. 197.] were prepared to dismiss a claim based on lost grant for want of pleading. [121] [The majority decision proceeded on other grounds, though Anglin J. was prepared to presume a grant, raising no difficulty about the pleadings.] On the other hand, in Smith v Baxter [122] [[1900] 2 Ch. 138.] Stirling J. was willing to allow the plaintiff to proceed at trial on the footing that his claim could be established under the doctrine, even though it had been pleaded as arising under the Prescription Act. Two Commonwealth authorities support the view that so long as the pleadings show long enjoyment, actual reference to a lost grant is unnecessary. In Tuckett v Brice , [123] [[1917] V.L.R. 36.] in which a claim to enjoyment of air was asserted by the defendant, Madden C.J. held that although the defendant had not expressly referred in the pleadings to a lost grant, he had shown the date on which his building had been constructed and that his claim was based on user as of right since then, and that such averments were sufficient to allow the defendant to rely on the doctrine. Similarly, in McAuley v McDonald [124] [(1908)4 E.L.R. 486.] the court held that a pleading alleging an easement arising from user as of right for 40 years was sufficient, as it disclosed all that it was necessary to prove in support of the claim based on a lost grant. It was not necessary to refer to the fiction of a lost grant, as this was not a matter for proof. In a number of other cases questions have arisen based on the particularity required in pleading where the pleadings do allege a grant has been made and lost. [125] [The argument that a plea of a lost grant was bad because the deed could not be produced was rejected in Reed v Brookman (1789) 3 T.R. 151. ] In Hendy v Stephenson [126] [(1808) 10 East 55.] the defendant pleaded simply that by deed now lost the owner of the plaintiffs land had granted the right to the defendants predecessor. The plaintiff complained that the pleading did not disclose the parties to the deed alleged, nor when it was made. Lord Ellenborough C.J. agreed, saying that the material terms of the deed must be disclosed so that the court might see what the grant really was. In more recent times the court has been asked to order particulars to be given of the grant alleged, in order that the opposing party could raise a defence. It seems, though not without doubt, that if the court is asked to order the claimant to say whether the grant was made before or after a particular date, it will do so. [127] [ Tremayne v English Clays Lovering Pochin & Co. Ltd. [1972] 2 All E.R. 234 . See also Palmer v Guadagni [1906] 2 Ch. 494 . For the view that particulars of the grant will not be ordered, see Gabriel Wade & English Ltd. v Dixon & Cardus Ltd. [1937] 3 All E.R. 900 . A question as to whether the pleadings were sufficient to allow a claim to proceed on the basis of lost grant also arose in Pugh v Savage [1970] 2 All E.R. 353. ] The claimant has the choice of pleading that the grant was made during a specified period, or of pleading alternatively that it was made before or after the date in question, though in the latter case he will do so at his own risk as to costs. [128] [ Palmer v Guadagni [1906] 2 Ch. 494; Tremayne v English Clays Lovering Pochin & Co. Ltd. [1972] 2 All E.R. 234 .] Determining a date before or after which the grant may be presumed to have been made may be important for another reason. According to Bowen J. in Dalton v Angus & Co., [129] [(1881)6 App. Cas. 740.] the presumption is that the grant presumed to have been made was made before the commencement of the user relied on by the claimant. The same view was expressed in the Canadian case of Abell v Village of Woodbridge. [130] [(1917)37 D.L.R. 352 (on appeal on grounds not relevant to this point at (1919) 46 D.L.R. 513 and (1920) 57 D.L.R. 81).] The user arises, in other words, because a grant has already been made authorising it. Hence the relevance of the period between January 1920 and November 1921 in Tehidy Minerals Ltd. v Norman, [131] [[1971] 2 All E.R. 475.] the former date being the date before which no grant could have been made (the dominant and servient tenements being until then in common ownership and occupation), the latter being the last date on which a grant could have been made, and being 20 years before user ceased on the land being requisitioned. A different view is possible, however, on the basis of Halliday v Philips, [132] [(1889) 23 Q.B.D. 48. For the case on appeal see [1891] A.C. 228.] where the question was whether a faculty could be presumed conferring an exclusive right to a pew. There Bowen L.J. (apparently having changed his mind since Dalton v Angus & Co.) said that in the case of a lost deed the law did not require going back to the very earliest trace of user: rather [y]ou must take things as a whole, and, if the bulk of the user can be explained by the grant of a faculty at some time or other [133] [Emphasis added.] it was no answer to the application of the presumption that the right did not exist at the moment user commenced, but could have shortly afterwards. [134] [See also Angus v Dalton & Co.

(1878) 4 Q.B.D. 162 where Thesiger L.J. says that the presumption of a grant cannot be rebutted by mere proof that no grant was made either at the commencement or during the continuance of the enjoyment.] The position in England is that no grant can be presumed against someone who is not the owner in fee simple of the land over which the right is claimed. Although it was accepted in Bright v Walker [135] [(1834) 1 Cr. M. &R. 211.] that before 1832 a grant could be presumed against a lessee, the position was seen as otherwise following the Prescription Act passed that year. Though the reasoning was questioned recently in Simmons v Dobson , [136] [[1991] 4 All E.R. 25.] the position was seen as established so that the grant of an easement could not be presumed against a lessee. [137] [See, however, Bosomworth v Faber (1992) 69 P. & C.R. 288 where the court held that the rule preventing presumption of a grant against a lessee had no application where the lessee had a statutory right to enlarge his estate into an estate in fee simple, without the consent of the lessor. Elsewhere it has been held that a 999-year lease was sufficiently close to an estate in fee simple to allow prescriptive rights to be acquired: Ohna Mohamed Abubaker v Tho Yan Poh 13 S.S.L.R. 39 . See also Yong Joo Lin v Fung Poi Fong [1941-1] M.L.J. 63 .] The explanation given in Wheaton v Maple [138] [[1893] 3 Ch. 48.] for the rule is that prescription at common law required user against the fee simple estate. The position is similar in the case of a tenant for life under a settlement. [139] [See Barker v Richardson (1821) 4 B. & Ald. 579 ; Roberts & Lovell v James (1903) 89 L.T. 282 . Cf. Oakley v Boston [1975] 3 All E.R. 405 .] There is, however, the difficulty with this view that it is accepted by those subscribing to it that the holder of a lesser estate than the fee simple can expressly create an easement for the duration of his own estate. If such a grant can be made expressly, it seems illogical to say that it cannot be presumed to exist. In Ireland and elsewhere the courts have taken a different, and it is thought preferable, view as to presuming grants against lessees. [140] [ Hanna v Pollock [1900] 2 I.R. 664 . For relevant earlier authorities see Wilson v Stanley (1861) 12 I.C.L.R. 345 ; Beggan v McDonald (1877) 2 L.R. Ir. 560 ; Clancy v Byrne (1877) I.R. 11 C.L. 355 ; Timmons v Hewitt (1888) 22 L.R. Ir. 627 ; OKane v OKane (1892) 30 L.R. Ir. 489 . See also Flynn v Harte [1913] 2 I.R. 322 ; Delany, Lessees and the Doctrine of Lost Grant (1958) 74 L.Q.R. 82; Chua, Easements: Termors in Prescription in Ireland (1974) 15 N.I.L.Q. 489. The Irish authorities have recently been followed in Hong Kong ( Chung Yeung Hung v Law Man Nga [1997-2] H.K.C. 406 , not following Tang Tim Fat v Chan Fok Kei [1992-2] H.K.C. 623 ) but not in Australia ( Sunshine Retail Investments Pty Ltd. v Wulff [1999] V.S.C. 415 ).] Lessees and tenants for life aside, there are others against whom the presumption of a grant presents difficulties. It appears that a grant will not be presumed against a landlord to allow his tenant to acquire an easement over land owned by the landlord. Although concerned with a claim under the Prescription Act rather than under the doctrine of lost grant, Gayford v Moffatt [141] [(1868) 4 Ch. App. 133. See also Bailey v Great Western Railway Co. (1884) 26 Ch. D. 434 ; Kilgour v Gaddes [1904] 1 K.B. 457 .] has been applied to prevent acquisition of an easement by a tenant against his landlord under the doctrine of lost grant. [142] [ Macnaghten v Baird [1903] 2 I.R. 731 . The court recognised that to allow presumption of a grant against a tenant of the lessor while not allowing it against the lessor himself was illogical.] In other instances, however, notably where breach of a covenant by the tenant is concerned, courts have presumed releases of the covenant by landlords in favour of tenants. [143] [Below, p.245.] The basis of the acquisition of prescriptive rights is acquiescence on the part of the owner of the land over which user has been enjoyed. [144] [ Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] Acquiescence presupposes knowledge of, and the ability to prevent, the activity which has been enjoyed. [145] [ Daniel v North (1809) 11 East 372 ; Webb v Bird (1862) 13 C.B. N.S. 841 .] In the case of land in the possession of lessees or tenants for life, reversioners or remaindermen may well lack any knowledge that a third party has been enjoying some activity on the land on which the prescriptive claim is based, and even if they are aware of it, it is doubtful that they would be able to prevent what is going on. Presuming that a reversioner or a remainderman has made a grant therefore presents some difficulties. It appears that the courts may be prepared to make presumptions against reversioners and remaindermen, if there is positive proof that there has been acquiescence on their part, [146] [ Deeble v Linehan (1860) 12 I.C.L.R. 1 .] though this does not answer the question how a right can be acquired if the supposed grantor could not have prevented the user relied on. [147] [See

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Webb v Bird (1862) 13C.B.N.S. 841 ; Roberts & Lovell v James (1903) 89 L.T. 282 ; Oakley v Boston [1975] 3 All E.R. 405 .] Finally, there may be difficulties in presuming grants against fiduciaries such as trustees. In Oakley v Boston [148] [[1975] 3 All E.R. 405.] Goulding J. thought that there were considerable difficulties in applying a doctrine of acquiescence to fiduciaries because of the duties they owed to others before they could exercise their powers. [149] [That the putative grantor was a company established for making and maintaining a canal, and owing duties to the public, was a consideration leading the court to refuse to presume a grant in Rochdale Canal Co. v Radcliffe (1852) 18 Q.B. 287 .] Leaving aside the question whether the grant is within the powers of the trustee, presumption of a grant against a trustee must affect the beneficiaries also. Nonetheless, the court has presumed a grant against trustees, notwithstanding that such grant would amount to a breach of trust. [150] [ Tuckett v Brice [1917] V.L.R. 36 . Contrast Thwaites v Brahe (1895) 21 V.L.R. 192 . See discussion below, p.248.] All the cases hitherto considered have involved acquisition of rights rather than their extinguishment. From the fertility of the courts imagination [151] [See below, p.252.] it might be thought that in the same way as the court will presume from long usage that a grant has been made to carry on the activity in question, so there should be no reason why the court should not presume a release or extinguishment of rights which claimants have failed to exercise. Apparently this is not so, at least in the case of easements. Despite early dicta suggesting that a presumption arises from absence of enjoyment over a long period as it does in enjoyment itself, [152] [See Hillary v Waller (1806) 12 Ves. Jr. 240 ; Doe d. Putland v Hilder (1819) 2 B. & Ald. 782 ; Moore v Rawson (1824) 3 B. & C. 332 ; Crossley & Sons Ltd. v Lightowler (1867) 2 Ch. App. 478 .] it has recently been determined by the Court of Appeal that extinguishment of an easement will not be presumed from mere failure to exercise it. [153] [ Benn v Hardinge (1992) 66 P. & C.R. 246 .] The reason given is that failure alone to exercise a right does not mean it has been abandoned: an intention to abandon must be proved. It is difficult, however, to see why the requirement of an intention to abandon should prevent a presumption arising from non-use for a long period. It would seem equally possible to presume intention as it is to presume anything else. In the case of highways, the maxim once a highway always a highway is used to signify that mere non-user will not extinguish public rights of way. [154] [ Dawes v Hawkins (1860) 8 C.B. N.S. 848 .] The prospect that long disused public ways should be capable of being pressed again into service would, it is thought, alarm many a landowner. In some instances where long non-use has been proven the courts have held public rights to have been extinguished by presuming that the proper procedure for extinguishment has been followed. In both Williams v Eyton [155] [(1858) 2 H. & N. 771.] and Leigh U.D.C. v King [156] [[1901] 1 Q.B. 747.] the court was prepared to presume that the necessary formalities had been observed for the stopping up of public rights of way. Similarly, in Representative Church Body v Barry [157] [[1918] 1 I.R. 402.] the court was prepared to presume that a presentment by the Grand Jury had been made, this being the appropriate means of stopping a right of way in Ireland at the time. To like effect is R. v Montague , [158] [(1825) 4 B. & C. 598.] in which the court was prepared to presume from non-use that a public right of navigation had been extinguished, either by an Act of Parliament, or by a writ of ad quod damnum. In the case of covenants, the courts have presumed release or abandonment of a covenant where there has been a breach and the person entitled to enforce the covenant has failed to take action for a long period of time. Thus in Gibson v Doeg [159] [(1857) 2 H. & N. 615.] a licence from the lessor was presumed where premises had been used for more than 20 years in breach of a covenant in the lease, Pollock B. saying that it was a maxim of the law to give effect to everything which appeared to have been established for a considerable period of time, and to presume that what had been done had been done of right rather than in wrong. Similar views were expressed by Farwell J. in Hepworth v Pickles . [160] [[1900] 1 Ch. 108. See also Re Summerson [1900] 1 Ch. 112 ; Tennent v Neill (1870) I.R. 5 C.L. 418 .] In a recent case, the Privy Council has upheld a decision in which the Court of Appeal in Hong Kong held that a covenant in a lease by the Crown controlling building on the demised land had been abandoned where buildings not complying with the covenant had existed on the land for over 40 years. [161] [ Att.-Gen. for Hong Kong v Fairfax Ltd. [1997] 1 W.L.R. 149 .] In other situations also

the court has been prepared to presume the extinguishment of rights. In Re Houghton , [162] [(1860) 11 Ir. Ch. R 136.] where a lease provided that before any assignment would take place the lessee should first offer the property back to the lessor, the court was prepared to presume that the covenant had been complied with, or alternatively that the lessor had waived his rights under it, where an assignment had been made many years earlier. Again, disclaimer of an interest in land was presumed in McKenna v Eager , [163] [(1875) I.R. 9 C.L. 79.] where the land had been enjoyed for many years without any assertion of their interest by the parties entitled thereto.

FURTHER PROBLEMSFurther problems with the doctrine can be found when the decisions which have dealt with how the presumption of a grant can be rebutted are considered. Some of the principles which have emerged appear unobjectionable. Other bases on which the courts have held that grants cannot be presumed in the circumstances of the case show how the courts have struggled with the doctrine and its application. Beginning with the unobjectionable, it is clear that where the activity enjoyed by the claimant is prohibited, it will not be rendered lawful by the presumption of a grant authorising it. Although in cases of prescription the enjoyment relied on is unlawful in the sense of having been carried on without an express grant of the right and without the permission of the owner of the land over which the enjoyment has taken place, this unlawfulness does not prevent a claim on the basis of prescription. If, however, the enjoyment is unlawful because it is prohibited by statute, it cannot be relied on in order to maintain a claim that a grant of the right to carry on such activity has been made. [164] [ Hulley v Silversprings Bleaching & Dyeing Co. Ltd. [1922] 2 Ch. 268 ; Green v Matthews & Co. (1930) 46 T.L.R. 206 ; Hunter v Richards (1912) 5 D.L.R. 116 (affirmed 1913, 12 D.L.R. 503). Cf Stevenson v Parker [1895] 2 I.R. 504 (release of covenant prohibiting subletting not presumed where subletting in breach of statutory prohibition). Note, however, reference by Lord Maugham in George Legge & Son Ltd. v Wenlock Corpn. [1938] A.C. 204 to cases (unspecified) in which by lost grant, lost patent or some other presumption individuals had notwithstanding the terms of a statute acquired rights apparently in contradiction of it.] The implication of a lost grant does not arise to do an act forbidden by law. [165] [ Hunter v Richards (1912) 5 D.L.R. 116 (per Clute J.).] In a number of recent cases the courts have affirmed the principle in the case of claims to vehicular rights of way, where vehicular use is prohibited. [166] [ Hanning v Top Deck Travel Group Ltd. (1994) 68 P. & C.R. 14 ; Robinson v Adair (unreported, H.C., Dyson J., February 16, 1995); City Council of Bristol v Jenkins (unreported, C.A., September 30, 1999); Bakewell Management Ltd. v Brandwood [2003] E.W.C.A. Civ. 23 ; Massey v Boulden [2003] 11 E.G. 154 . See now the Countryside and Rights of Way Act 2000 , s.68 .] Where, however, enjoyment of the activity began before the statutory prohibition came into being, it may be possible for the court to presume a grant. [167] [ Leconfield v Lonsdale (1870) L.R. 5 C.R 657 ; Somersetshire Drainage Commissioners v Corpn. of Dudley (1899) 81 L.T. 729 ; Tweedie v The King (1915) 52 S.C.R. 197 . Cf. Turner v Walsh (1881) 6 App. Cas. 636 (dedication of highway presumed to have been made before statutory prohibition). See also Hunter v Richards (1912) 5 D.L.R. 116 ; Cargill v Gotts [1981] 1 All E.R. 682 ; Ward (Helston) Ltd. v Kerrier D.C. (1981) 42 P. & C.R. 412 .] Equally uncontentious is the principle that no grant will be presumed where to do so would effectively abrogate rights conferred by custom on the owner of the land over which the right is claimed. The cases have invariably involved claims to easements of light over land in London, where a custom exists that a landowner may build on his land notwithstanding that by doing so he blocks the light to adjoining buildings. [168] [ Wynstanley v Lee (1818) 2 Swans 333 ; Perry v Eames [1891] 1 Ch. 658 ; Bowring Services Ltd. v Scottish Widows Fund etc. [1995] 16 E.G. 206 .] Similarly, where a grant of the right claimed would involve interference with rights of the public, no grant will be presumed. [169] [ Rochdale Canal Co. v Radcliffe (1852) 18 Q.B. 287 ; Abell v Village of Woodbridge (1917) 37 D.L.R. 352 (on appeal (1919) 46 D.L.R. 513; (1920) 57 D.L.R. 81).] The presumption that a grant was made authorising the activity long enjoyed by the claimant logically presupposes a grantor able to make the grant in question. No grant can therefore be presumed to have been made and lost unless at the time the grant could have been made there was someone capable of

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making a grant. If, for example, in Tehidy Minerals Ltd. v Norman [170] [[1971] 2 All E.R. 475.] the land had been owned between 1920 and 1921 by someone incapable of making a grant of the rights claimed, no grant could have been presumed. Incapability may arise in various ways. The court has refused to presume a grant where the grant would be outside the powers of a corporation, [171] [ Re Canadian Southern Railway and Lewis (1884) 20 C.L.J. 241 ; Tyne Improvement Commissioners v Imrie (1899) 81 L.T. 174 .] and where land was held by a tenant for life incapable of making a grant binding the inheritance. [172] [ Barker v Richardson (1821) 4 B. & Ald. 579 ; Roberts & Lovell v James (1903) 89 L.T. 282 . See also In re Bomfords Estate [1904]1 I.R. 474 .] If the supposed grantor is under a legal disability, such as being a minor, [173] [ Creagh v Blood (1845) 8 Ir. Eq. R 688 .] or being of unsound mind, the court will not presume a grant has been made. [174] [ Angus & Co. v Dalton (1878) 4 Q.B.D. 162 ; Dalton v Angus & Co. (1881) 6 App. Cas. 740 .] Questions as to whether the grantor has power to make a grant also arise in the case of trustees and other fiduciaries. [175] [[1917] V.L.R. 36.] In Abell v Village of Woodbridge [176] [(1917) 37 D.L.R. 352 (on appeal at (1919) 46 D.L.R. 513; (1920) 57 D.L.R. 81).] the court was asked to presume a grant of an easement to discharge water across a road. The court held that if the road in question had been a public highway at the time the grant could have been made, no grant would have been presumed as the grantor would have had no power to grant a right which would interfere with the rights of the public. In Tuckett v Brice , [177] [[1917] V.L.R. 36.] however, the court held that there was nothing to prevent a grant being presumed against a trustee who had the fee simple estate, though the grant would be a breach of trust. In Tuckett v Brice Madden C.J. based his decision on the absence of any incapacity on the part of the trustee to make the grant, the trustee being clothed with the full legal estate in fee simple in the land. In an earlier case involving land held by trustees, Thwaites v Brahe , [178] [(1895)21 V.L.R. 192.] the same judge refused to presume a grant against the trustees in that case on the ground that any grant made by the trustees would lead to the forfeiture of their estate. In the opinion of the Chief Justice, incapacity extended not only to the insufficiency of the estate held by the putative grantor, but also to its quality. Any grant by the trustees would have rendered their title void. The court has similarly refused to presume grants in a number of cases where the making of a grant would have contravened statutory provisions. [179] [See Goodtitle d. Parker v Baldwin (1809) 11 East 488 ; Neaverson v Peterborough R.D.C. [1902] 1 Ch. 557 ; Hunter v Richards (1912) 5 D.L.R. 116 (affirmed 1913, 12 D.L.R. 503).] It seems the same would be true where the grant would be contrary to public policy. [180] [See Mayor etc. of Penryn v Best (1878) 3 Ex D. 292 ; Hunter v Richards (1912) 5 D.L.R. 116 (affirmed 1913, 12 D.L.R. 503).]

PROBLEM CASESThe waters become muddier, however, when we consider other bases upon which the courts have refused to make the presumption of a lost grant in support of long enjoyment shown by the claimant. We have seen that the presumption arises only where there is no explanation for the long enjoyment shown by the claimant. Courts have found alternative explanations, thereby defeating claims based on the doctrine, in circumstances where: enjoyment was referable to a natural right rather than an easement; [181] [ Palmer v Bowman [2000] 1 All E.R. 22 .] a licence granted by the owner of the servient tenement; [182] [ Gardner v Hodgsons Kingston Brewery Co. Ltd. [1903] A.C. 229 .] an uncompleted agreement for partition between co-owners of the land; [183] [ Doe d. Millett v Millett (1848) 11 Q.B. 1036 .] and the right of the public to deviate from a highway. [184] [ Dawes v Hawkins (1860) 8 C.B. N.S. 848 .] In Attorney General v Horner [185] [(1884) 14 Q.B.D. 245.] the court refused to presume a grant of the right to hold a market every day of the week on the ground that a charter did exist conferring the right to hold a market on some days of the week only. More problematic are cases where the courts found an alternative explanation in the liberality of the owner of the land over which the right was claimed, [186] [ Att.-Gen. v Antrobus [1905] 2 Ch. 188 .] or tolerance. [187] [ Alfred F. Beckett Ltd. v Lyons [1967] 1 All E.R. 833 ; Bridle v Ruby [1989] Q.B. 169 .] It now appears that tolerance will not prevent acquisition of an easement by lost grant, on the ground that so to hold would effectively render acquisition of an easement by prescription impossible. [188] [ Mills v Silver [1991] Ch. 271 ; Samuel v Fatih (unreported, C.A., June 20, 2000); Smith v

Brudenell-Bruce (unreported, H.C., Pumfrey J., July 2, 2001). Contrast the acquisition of public rights of way: R. v Oxfordshire C.C. Ex p. Sunningwell P.C. [2000] 1 A.C. 335 . See discussion above, p.237.] Neither will a mistaken belief that the claimant is entitled to do what he has been doing be an alternative explanation so as to prevent a grant being presumed. [189] [ Bridle v Ruby [1989] Q.B. 169 ; Bosomworth v Faber (1992) 69 P. & C.R. 288 ; Dawson v McGroggan [1903] 1 I.R. 92 . For earlier decisions supporting the contrary view see Campbell v Wilson (1803) 3 East 298 ; Lyell v Lord Hothfield [1914] 3 K.B.911 . See also Hamilton v Joyce [1984] 3 N.S.W.L.R. 279 .] Even where an alternative explanation does exist for the user, it appears that, if minded to do so, it is not beyond the power of the court to overcome the problem for the claimant. The point can be illustrated by the cases in which the courts have been prepared to make presumptions in favour of claimants who can show evidence of title to the right claimed, but where that title is shown to be defective. [190] [See Halliday v Phillips (1889) 23 Q.B.D. 48 .] So, for example, confirmatory endowments have been presumed to cure shortcomings in endowments relied on in suits for tithes, [191] [See Parsons v Bellamy (1817) 4 Price 190 ; Wolley v Brownhill (1824) 13 Price 500 .] and the Privy Council has said that confirmatory grants by the Crown might be presumed where actual grants were void for uncertainty. [192] [ Doe d. Devine v Wilson (1855) 10 Moo P.C. 502 . See also Simpson v Mayor of Godmanchester [1896] 1 Ch. 214 , where the court was prepared to presume a grant if, contrary to its finding, an actual grant relied on was bad as creating an easement in gross. Compare Bosomworth v Faber (1992) 69 P. & C.R. 288 where it seems the court was prepared to presume a grant despite the existence of an actual grant which was void for perpetuity had it not been for other circumstances.] In one Irish case the court was prepared to presume a supplemental deed transferring the liability to pay a quit rent to B, where for many years the rent had been paid by B, although the documents of title produced to the court showed the rent was payable by A. [193] [ Re Bomfords Estate [1904] 1 I.R. 474 .] In all these instances the evidence of title produced seems to be an explanation of the right enjoyed by the claimant which can displace the presumption of a grant: the fact that the title is defective does not change that. Yet the courts have been prepared to circumvent this by the presumption of a deed notwithstanding the documentary explanation. The same point can be seen in another context. In Goodman v Mayor of Saltash [194] [(1882)7 App. Cas. 633.] Lord Selborne L.C. declared his view that no trust could have been presumed in the earlier case of Lord Rivers v Adams , [195] [(1878) 3 Ex. D. 361.] as the title deeds produced would have shown no trust existed. Leaving aside any other difficulty with this, [196] [Below, p.251.] the problem could be solved by the presumption of a trust of later origin and now lost. [197] [ Hammerton v Earl of Dysart [1916] 1 A.C. 57 ; R. v Doncaster M.B.C. Ex p. Braim (1986) 57 P. & C.R. 1 .] Even where a licence has been shown to exist at the inception of the user, so that user would not be user as of right, the court may presume that the licence has been superseded by a grant. [198] [ Harrison v Harrison (1883) 16 N.S.R. 338 .] Whether the presumption of a lost grant can be rebutted by proof that no grant was in fact made was one of the matters settled in Dalton v Angus & Co. [199] [(1881) 6 App. Cas. 740.] As Gale points out, [200] [Gale on Easements (17th ed., Sweet & Maxwell Ltd, London, 2002) para. 4-13.] the effect of the decision of the House of Lords was to confirm the views of Thesiger and Cotton L.JJ. in the Court of Appeal. [201] [(1878) 4 Q.B.D. 162.] Those views, shared by Lush J. at first instance, [202] [(1877) 3 Q.B.D. 85. Giving the majority view, Cockburn C.J. (Mellor J. concurring) thought that nothing could be more certain than that the presumption could be rebutted by proof that no grant had in fact been made. See also the judgment of Brett L.J. in the Court of Appeal ((1878) 4 Q.B.D. 162) and Bowen J.s opinion on the Lords questions ((1881) 6 App. Cas. 740).] were that proof that no grant was in fact made is not sufficient to rebut the presumption arising from long enjoyment. The explanation given by Thesiger L.J. for this view is that the presumption arising from long enjoyment and acquiescence is in the nature of an estoppel by conduct which, while not conclusive so far as to prevent denial or explanation of the conduct, presents a bar to any simple denial of the fact which is merely the legal inference drawn from the conduct. Lindley J., giving his opinion on the questions put to the judges by the House of Lords, thought it would be contrary to the reason for the theory of a lost grant to allow enjoyment to be disturbed simply by proof that no grant had ever in fact been made. [203] [(1881)6 App. Cas. 740.] The result of the confirmation of this view by the House of Lords is the rather strange situation already noted that the presumption is a rebuttable presumption of fact which cannot be rebutted by showing that in fact no grant existed.

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Such being the view, one proposition put forward by Lord Selborne L.C. in Goodman v Mayor of Saltash [204] [(1992)7 App. Cas. 633.] is puzzling. Speaking of Lord Rivers v Adams , [205] [(1878) 3 Ex D. 361.] his Lordship said that in the earlier case it would not have been possible to presume that Lord Rivers held land on trust to give effect to the right claimed by long usage, for the reason that any such allegation would be met by the production of Lord Rivers title deeds which did not reveal any trust. Against such a title a trust could not be presumed from the evidence of user relied on. The production of the title documents would not, however, have amounted to more than evidence that as a matter of fact there was no trust, and would seem therefore to be inadmissible to rebut the presumption of a trust. Apart from that, production of the documents should not have prevented the court from presuming a trust was created by Lord Rivers at a later date. [206] [See Hammerton v Earl of Dysart [1916] 1 A.C. 57 ; R. v Doncaster M.B.C. Ex p. Braim (1986) 57 P. & C.R. 1 .] In some instances judges have refused to presume grants on the ground of unreasonableness or improbability. Thus in Lord Rivers v Adams [207] [(1878) 3 Ex. D. 361.] Kelly C.B. refused to presume a grant to the inhabitants of a parish in such form as made them a corporation, on the ground that to do so would have been most unreasonable. In other cases the likelihood or probability of a grant has been the determining factor in whether the court will presume a grant. It was the unlikelihood of a grant of an easement in perpetuity as a small annual payment which led Lord Macnaghten to refuse to presume such a grant in Gardner v Hodgsons Kingston Brewery Co Ltd [208] [[1903] A.C. 229.] and the extreme improbability of a grant by the Crown influenced Farwell J in Attorney General v Simpson . [209] [[1901] 2 Ch. 671.] An attempt to show how probability fits into the doctrine of lost modern grant was made in Attorney General v Horner (No.2) , [210] [[1913] 2 Ch. 140.] Hamilton L.J. saying that where the existence of the lost grant is improbable by reason of circumstances proved or inferred, the matter becomes one for consideration against the presumption. The relevant question is whether the facts are more consistent with the theory of a lost grant, or are equally consistent with that theory and with the theory that possession has been unlawful throughout. [211] [ Halliday v Phillips (1889) 23 Q.B.D. 48 (Fry J.).] In most if not all cases in which grants had been presumed, said the Lord Justice, a lawful origin was a matter of proved probability. Despite this, improbability continued to be a matter of concern to judges asked to presume grants. In White v Taylor (No.2) , [212] [[1969] 1 Ch. 160.] Buckley J., echoing the views expressed in Wheaton v Maple , [213] [[1893] 3 Ch. 48.] said his credulity would be stretched beyond all reasonable limits if he were asked to infer that five grants had been made, all of which had been lost and of which nothing was known. [214] [ Cp Tilbury v Silva (1890) 45 Ch. D. 98 and Kemp v Pike (1959) 173 E.G. 391 .] Yet his Lordship later accepted that in the light of Dalton v Angus & Co. [215] [(1881) 6 App. Cas. 740.] this line of reasoning was no longer open, and accordingly presumed that four grants of grazing rights had been made and lost, though the combination of circumstances was exceedingly improbable. [216] [ Tehidy Minerals Ltd. v Norman [1971] 2 All E.R. 475 .]

A WIDER PRINCIPLEHitherto what we have been considering is the presumption the court may make that a grant has been made authorising activity proved to have been enjoyed over a long period of time. There are many cases, however, in which instruments other than grants have been presumed on the basis of long enjoyment. The extent to which the courts will go in making presumptions in favour of long enjoyment can be seen in dicta in various cases, in the variety of instruments which the courts have been prepared to presume, and most clearly of all in a series of decisions involving fluctuating bodies of individuals. As to dicta, Lord Kenyon is reported as having said that he would presume not one but 100 grants [217] [ Roe d. Johnson v Ireland (1809) 11 East 280 .] (or was it 200?) [218] [ Lady Dartmouth v Roberts (1812) 16 East 334 .] to support a long enjoyment. Willes J. certainly said he would presume anything in favour of the plaintiff in Rogers v Brooks [219] [(1783) 1 T.R. 431.] after possession of a pew had been shown for 36 years. Likewise in Roe d. Johnson v Ireland [220] [(1809) 11 East 280.] Lord Ellenborough C.J. said he would presume anything capable of being presumed after enjoyment for over a century and a half had been shown. [221] [For similar views see Foleys

Charity Trustees v Dudley Corpn. [1910] 1 K.B. 317 ; Lady Dartmouth v Roberts (1812) 16 East 334 .] Anything capable of being presumed includes Acts of Parliament, [222] [For dicta, rather than decisions, in support of the proposition see Lady Stafford v Llewellin (1682) Skin 77 ; Fanshaw v Rotheram (1759) 1 Eden 276 ; Cocksedge v Fanshaw (1779) 1 Doug. 119 ; Morse v Royal (1806) 12 Ves. Jr. 355 . See, however, also Delarue v Church (1833) 20 L.J. Ch. 183 . Harper v Hedges [1923] 2 K.B. 314 is, however, directly in point, though the case on appeal was reversed and contains statements doubting the proposition. The ability to presume an Act of Parliament has been questioned in other cases: see discussion above, p.230.] byelaws, [223] [ Cocksedge v Fanshaw (1779) 1 Doug 119 ; Att.-Gen. v Wright [1897] 2 Q.B. 318 .] charters and grants by the Crown, [224] [ Mayor of Hull v Horner (1774) 1 Cowp. 102 . By 1809 the courts were said to be in the daily habit of presuming grants from the Crown: Goodtitle d. Parker v Baldwin (1809) 11 East 488 .] faculties [225] [ Philips v Halliday [1891] A.C. 228 ; Stileman-Gibbard v Wilkinson [1897] 1 Q.B. 749 ; Re St. Martin le Grand, York [1990] Fam. 63 . For earlier decisions in which the court refused to presume a faculty see Stocks v Booth (1786) 1 T.R. 428 ; Griffith v Matthews (1793) 5 T.R. 296 ; Warren v Gunner (1798) 1 Hag. Con. 314 . The principle that a faculty could be presumed was not questioned, however.] and endowm