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[In Aldred’s Case 9 Co Rep 57b, Lord Coke remarked that damages could be recovered for obstructing an ancient window because] ‘[I]t may be that, before time of memory, the owner of the said piece of land has granted to the owner of the said house to have the said windows without any stopping of them, and so the prescription may have a lawful beginning; and Wray CJ then said that, for stopping as well of the wholesome air as of light, an action lies, and damages shall be recovered for them, for both are necessary . . . But he said that, for prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof, and yet it is a great commendation of a house if it has a long and large prospect, unde dicitur, laudaturque domus longos quae prospicit agros. But the law does not give an action for such things of delight.’

. . . The distinction between a right to light and a right of prospect, on the ground that one is matter of necessity and the other of delight, is to my mind more quaint than satisfactory. A much better reason is given by Lord Hardwicke in Attorney-General v. Doughty 2 Ves Sen 453, where he observes that if that was the case there could be no great towns. I think this decision, that a right of prospect is not acquired by prescription, shows that, while on the balance of convenience and inconvenience, it was held expedient that the right to light, which could only impose a burthen upon land very near the house, should be protected when it had been long enjoyed, on the same ground it was held expedient that the right of prospect, which would impose a burthen on a very large and indefinite area, should not be allowed to be created, except by actual agreement. And this seems to me the real ground on which Webb v. Bird 10 CB (NS) 268, 13 CB (NS) 841 [no right to the passage of air to a windmill could be acquired by prescription] and Chasemore v. Richards 7 HLC 349 [no right to percolating water] are to be supported. The rights there claimed were analogous to prospect in this, that they were vague and undefined, and very extensive. Whether that is or is not the reason for the distinction, the law has always . . . been that there is a distinction; that the right of a window to have light and air is acquired by prescription, and that a right to have a prospect can only be acquired by actual agreement.

13.6. User as of right and the problem of acquiescence

As Lord Hoffmann points out in R. v. Oxfordshire County Council, ex parte Sunningwell Parish Council, as a consequence of the fiction that long use is attributable to lawful origin, it is necessary to prove that the user was ‘as of right’, and this in turn involves a requirement that the servient owner has acquiesced in the use. This is inherently unsatisfactory. There is no necessary connection between a failure to object and an acknowledgment that, having granted the right in the first place, one is not entitled to object. Also, there are considerable difficulties in establishing what amounts to acquiescence for these purposes, as demonstrated in R. (Beresford) v. Sunderland City Council [2003] UKHL 60 (extracted at www.cambridge.org/propertylaw/), where the House of Lords reached a radically different conclusion from that reached by the Court of Appeal and the judge at first instance. Permission and acquiescence can sometimes

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It is appreciated that the ‘automatic right’ [of lateral support] approach gives an advantage to the owner who builds first. Nevertheless, it seems preferable to put the burden of support on the second builder when he comes to excavate rather than to encourage disputes in anticipation of a situation which may never become an issue between the two owners. It must be remembered that this approach has operated for many years under the London Buildings Act. We are not aware of any hardship caused by its operations. Moreover, in modern conditions it is thought to be reasonable to regard building as a normal use of land which can be undertaken freely provided it conforms to planning control and does not infringe a neighbour’s existing rights.

On balance, this author is of the view that the Law Commission’s stand in 1971 is preferable. The Law Commission has correctly pointed out that, in light of modern planning and zoning requirements by the relevant authorities, a landowner should be free to utilise his land so long as it conforms to such control. Further, the earlier Law Reform Committee’s suggestion is untenable. If adopted, it is foreseeable that a builder would be involved in a messy, protracted and expensive dispute even before he starts construction. This is clearly not desirable. There is also the very real practical problem on how a tribunal would award compensation for the right of lateral support. Is it to be premised on the estimated increase in the costs of a hypothetical construction of a building to the neighbour in future? Would inflation be one of the factors to be taken into account? The earlier proposal by the Law Reform Committee involves too much uncertainty and hence should be rejected. (Tang Hang Wu, ‘The Right of Lateral Support of Buildings from the Adjoining Land’)

Extract 13.1 R. v. Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335; [1999] 3 WLR 160; [1999] 3 All ER 385

[The facts and the opening part of Lord Hoffmann’s judgment were discussed in Notes and Questions 5.2 above. Briefly, the inhabitants of Sunningwell claimed that they had used the glebe land in Sunningwell for sports and pastimes as of right for not less than twenty years, and that, therefore, Oxfordshire County Council was obliged to register the glebe land as a village green under the Commons Registration Act 1965. As Lord Hoffmann explained, the principle issue was whether their user had been ‘as of right’.]

LORD HOFFMANN: . . . The principal issue before your Lordships thus turns on the meaning of the words ‘as of right’ in the definition of a green in section 22(1) of the 1965 Act. The language is plainly derived from judicial pronouncements and earlier legislation on the acquisition of rights by prescription. To put the words in their context, it is therefore necessary to say something about the historical background.

Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment. But the principles upon which they achieve this result may be very different. In systems based on Roman law, prescription is regarded as one of the methods by which ownership can be acquired. The ancient Twelve Tables called it usucapio, meaning literally a taking by use. A logical consequence was that, in laying down the conditions for a valid usucapio, the law concerned itself with the

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The result of these developments was that, leaving aside the cases in which it was possible to show that (a) the right could not have existed in 1189 and (b) the doctrine of lost modern grant could not be invoked, the period of 20 years’ user was in practice sufficient to establish a prescriptive or customary right. It was not an answer simply to rely upon the improbability of immemorial user or lost modern grant. As Cockburn CJ observed, the jury were instructed that, if there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant, they not merely could but should find the prescriptive right established. The emphasis was therefore shifted from the brute fact of the right or custom having existed in 1189 or there having been a lost grant (both of which were acknowledged to be fictions) to the quality of the 20-year user which would justify recognition of a prescriptive right . . . It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner . . . The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. So in Dalton v. Henry Angus & Co., Comrs of HM Works and Public Buildings v. Henry Angus & Co. (1881) LR 6 App Cas 740 at 773, Fry J (advising the House of Lords) was able to rationalise the law of prescription as follows:

. . . the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.

In the case of easements, the legislature intervened to save the consciences of judges and juries by the Prescription Act 1832 [which, in effect, provided an additional method of statutory prescription for easements, so that, in the cases where the Act applied, if the claimant could prove twenty years’ uninterrupted use ‘as of right’, his claim could not be defeated by proof that the right could not have existed for time immemorial or that it could not be attributed to a lost modern grant].

Thus in a claim under the Act, what mattered was the quality of enjoyment during the 20-year period. It had to be by a person [claiming ‘as of right’, which was subsequently held] to have the same meaning as the older expression nec vi nec clam nec precario . . .

My Lords, I pass now from the law concerning the acquisition of private rights of way and other easements to the law of public rights of way. Just as the theory was that a lawful origin of private rights of way could be found only in a grant by the freehold owner, so the theory was that a lawful origin of public rights of way could be found only in a dedication to public use. As in the case of private rights, such dedication would be presumed from user since time immemorial, that is from 1189. But the

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holding that it required ‘an honest belief in a legal right to use . . . as an inhabitant . . .

and not merely a member of the public’ he followed dicta in three cases on the 1932 Act and its successor legislation, section 31(1) of the Highways Act 1980, which I must now examine.

The first was Hue v. Whiteley [1929] 1 Ch 440, a decision of Tomlin J before the 1932 Act. The dispute was over the existence of a public footpath on Box Hill and the judge (at 444) found that for 60 years people had ‘used the track to get to the highway and to the public bridle road as of right, on the footing that they were using a public way’. Counsel for the landowner, in reliance on A-G v. Antrobus [1905] 2 Ch 188 (which concerned the tracks around Stonehenge), argued that the user should be disregarded because people used the path merely for recreation in walking on Box Hill. The judge said (at 445) that this made no difference:

A man passes from one point to another believing himself to be using a public road, and the state of his mind as to his motive in passing is irrelevant. If there is evidence, as there is here, of continuous user by persons as of right (i.e. believing themselves to be exercising a public right to pass from one highway to another), there is no question such as that which arose in Attorney-General v. Antrobus.

The decision in the case was that the reasons why people used the road were irrelevant. It was sufficient that they used it as of right. I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J meant to say more than Lord Blackburn had said in Mann v. Brodie (1884–5) LR 10 App Cas 378 at 386, namely, that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.

Tomlin J’s parenthesis was picked up by the Court of Appeal in Jones v. Bates [1938] 2 All ER 237. The defendant asserting a right of footpath adduced overwhelming evidence of user for many years, including evidence of the plaintiff landowner’s predecessors in title that they had never stopped people from using the path because they thought it was a public right of way. The judge in the Hastings County Court nevertheless rejected this evidence as insufficient to satisfy section 1(1) of the 1932 Act. The Court of Appeal by a majority held that he must have misdirected himself on the law (there was no right of appeal on fact from a county court) and ordered a new trial. But the case contains some observations on the law, including a valuable exposition by Scott LJ of the background to the 1932 Act. The two majority judgments of Slesser and Scott LJJ both cite Tomlin J’s parenthesis with approval. But the question of whether it is necessary to prove the subjective state of mind of users of the road in addition to the outward appearance of user did not arise and was not discussed.

Slesser LJ (at 241), after citing Tomlin J’s parenthesis, went on to say that ‘as of right’ in the 1932 Act had the meaning which Cotton LJ had given to those words in

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ignored. Still less can it be ignored in a case like R. v. Suffolk County Council, ex parte Steed when the users believe in the existence of a right but do not know its precise metes and bounds. In coming to this conclusion, I have been greatly assisted by Mr J. G. Riddall’s article ‘A False Trail’ (1997) 61 Conv 199.

I therefore consider that Ex p. Steed was wrongly decided and that the county council should not have refused to register the glebe as a village green merely because the witnesses did not depose to their belief that the right to games and pastimes attached to them as inhabitants of the village. That was the only ground upon which [the Inspector] advised the council to reject the application. But Miss Cameron, who appeared for the board, submitted that it should have been rejected for other reasons as well. Although these grounds did not form the basis of any cross-appeal, your Lordships considered that, rather than put the parties to the expense of further consideration by the county council followed by further appeals, it would be convenient to consider their merits now [he went on to consider these points, in the passage from his judgment discussed in Notes and Questions 5.2 above] . . .

Miss Cameron’s third and final point was that the use of the glebe was not as of right because it was attributable to neighbourly toleration by successive rectors and the board. She relied upon the following passage in [the Inspector’s] report:

It appears to me that recreational use of the glebe is based on three factors. First, the glebe is crossed by an unfenced footpath so that there is general public access to the land and nothing to prevent members of the public straying from the public footpath. Second, the glebe has been owned not by a private owner but by the rector and then the Board, who have been tolerant of harmless public use of the land for informal recreation. Third, the land has been used throughout for rough grazing so that informal public recreation on the land has not conflicted with its agricultural use and has been tolerated by the tenant or grazier.

I should say that I do not think that the reference to people ‘straying’ from the footpath was intended to mean that recreational user was confined to people who set out to use the footpath but casually or accidentally strayed elsewhere. That would be quite inconsistent with the findings of user which must have involved a deliberate intention to go upon other parts of the land. I think [the Inspector] meant only that the existence of the footpath made it easy for people to get there. But Miss Cameron’s substantial point was based upon the finding of toleration. That, she said, was inconsistent with the user having been as of right. In my view, that proposition is fallacious. As one can see from the law of public rights of way before 1932, toleration is not inconsistent with user as of right. (See also Mills v. Silver [1991] Ch 271 at 281 per Dillon LJ.) When proof of a public right of way required a finding of actual dedication, the jury were entitled to find that such user was referable to toleration rather than dedication: Folkestone Corp. v. Brockman [1914] AC 338. But this did not mean that the user had not been as of right. It was a finding that there had been no dedication despite the user having been as of right. The purpose of the 1932 Act was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right. Alfred F.