REF/2009/1013

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

LESLIE MARK BROWN

 

APPLICANT

 

and

 

GEOFFREY STUART COLLINS

DOREEN ELDERKIN

MARGARET BIRCH

COLIN HENRY CHAPMAN

 

RESPONDENTS

 

Property Address: Land on the West Side of The Beacon, Ilminster TA19 9AH

11 The Beacon, Ilminster TA19 9AH

Title Number: WS45511 and ST163230

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Taunton Deane Magistrates Court

On: 15 and 16 June 2011

 

Applicant Representation: Mr. Foster of Dyne Drewett Solicitors Limited, solicitor

Respondent Representation: Mrs. M.P. Masters

___________________________________________________________________________­

 

 

The Applicant proved that for over 20 years between 1985 and 2008, about 12 times a year, he had gone on foot across the edge of a field between the public highway and the back of his house to bring logs and ladders to the back of the house and to exercise his dog. To do this the Applicant would climb over a wall at the end of the courtyard behind the house which was sufficiently high to require either some athleticism or the use of steps. Between 1985 and 1996 the field was found to be surrounded by an electric and pig wire fence erected by a licensee under a grazing agreement each spring and taken down in late autumn each year. While it was there, the route could only be accessed at either end by climbing through or over the fence and throwing the dog over or through it, moving the upper strand of fencing to get through. Access was obtained from the roadway through a hole in the hedge about 2 to 3 feet wide and access to and from the house was by climbing over a wall which required steps or some athleticism to get over. The wall, which was the property of the Applicant, had once had an opening onto the field but it had been filled in by a friend of the Applicant in about 1985. The Applicant’s occasional use of the route, which was held to be on foot and occasionally with a wheelbarrow, left no visible track and the wall appeared to the casual onlooker to suggest that there was no access to the house from the field. The evidence was that the trustees had no actual knowledge of the use of the route. The route had been fenced off in July 2008, but this had been protested and early in 2009 the Applicant applied to the Land Registry to register a right of way with vehicles. That application was referred to the Adjudicator, the reference being received by him on 13 August 2009.

 

Held: 1. The fencing had not been acquiesced in for over a year prior to the suit before the Adjudicator. The objections and the application to the Land Registry meant that a right under the Prescription Act 1832 could be claimed on appropriate evidence notwithstanding the obstruction.

Davies v Du Paver, [1953] QB 184, CA, applied.

2. The circumstances of the user were such that the owners of the field and the occupier under the grazing licence had no actual or constructive knowledge of the user and that therefore no right of way by prescription could have arisen.

Dalton v Angus (1880-1881) 6 App Cas 740 at 773-4, Hollins v Verney (1884) 13 QBD 304, CA, Pugh v Savage, [1970] 2 QB 373, CA, Diment v NH Foot Ltd. [1974] 1 WLR at 1433B-D and Williams v Sandy Lane (Chester) Ltd [2007] 1 P & CR 27, CA, considered and applied.

Question whether the lifting or lowering of the top strand of the wire to get through or over the fence amounted to force so as to prevent any right of way arising in any event.

3. The claim to a right of way by necessity or under the doctrine of non-derogation from a grant were misconceived in the absence of any evidence of either necessity or a grant by the servient owner.

 

 

1.      For the reasons set out below, I shall direct the Chief Land Registrar to cancel the application of the applicant made by a form dated 24 April 2009 received by the Land Registry on 29 April 2009.

 

2.      I held a site view on 14 June 2011 prior to the hearing. For most of the time from the reference of the case to the Adjudicator, and before, the Applicant was represented by Mr. Noel Hill, and Mr. Foster and his firm took over the representation of the Applicant only shortly before the hearing. The Respondents were represented throughout by Mrs Masters.

 

3.      Numbers 7, 9, 11, 13, 15 and 17 The Beacon, Ilminster are a terrace of Victorian cottages which are accessed at the front only by a pedestrian path and steps from the highway, although the side of No. 17 is close to the highway and perhaps could be directly accessed from it. All of them back onto a large field of about 5 acres (“the field”). At one time it is likely that all will have had a stone wall as the boundary with the field. Within that wall there is likely to have been a small courtyard and an outbuilding, possibly a wash house.

 

4.      The Applicant, Mr. Brown, is the registered proprietor of 11 The Beacon. He has owned it and lived there since 1985. The Respondents are trustees of a trust and in that capacity are the current owners of the field. The field was part of a farm held by the trust. The rest of the farm was sold many years ago, but the field was retained.

 

5.      At the present time, only Mr. Brown’s property still has a rear wall and courtyard. His wash house has gone. Some of these changes to the other properties were before Mr. Brown came to live at No.11. Others have occurred since. The only material change to Mr. Brown’s property (according to Mr. Brown, although disputed by the Respondents) is that, as he stated in evidence, when he arrived at the property there was an opening in the rear wall from which access could be gained to the field. This was filled in by a friend of Mr. Brown soon after he arrived, and the work was done so well that it was not possible to see on the site view from the field any difference between the old wall and the new work done by the friend. Mr. Brown stated that the work could be seen from the other side of the wall, but unfortunately, although at that time Mr. Brown had invited me to inspect the other side, this was overlooked at the end of the site view nearly an hour later. The wall is over a metre high.

 

6.      The filling in of the wall is curious because this is an application by Mr. Brown to register a prescriptive right of way for the benefit of No.11 from the rear wall across the field to the highway, which is essentially based on his use of the way since 1985. He explained, however, that the opening – an old pedestrian entrance – was blocked up because anybody or anything could get in and animals did get in from the field. He was able to access the field by putting blocks on the other side to use as steps and swinging over the wall.

 

7.      Although at the hearing Mr. Brown was represented by Mr. Foster of Dyne Drewett, solicitors, until very recently his case had been conducted on his behalf by Mr. Noel Hill, the 85 year old husband of the current owner of No.15, who had purchased that property in 2007, having first viewed it in 2006. The Statement of Case settled by Mr. Hill had raised many issues in addition to the right of way. He challenged the first registration of the field at the Land Registry by the Respondents as being obtained, he asserted, as a result of a failure to disclose relevant information to the Land Registry. He claimed wide ranging rights to use or enjoy an area of the field extending some 15 metres back from the back of the cottages as a garden area, and also a profit a prendre to cut the grass in that area and a right to go over the whole field with and without vehicles. The rights were said to arise by prescription at common law, under the Prescription Act 1832, and by lost modern grant, as well as by necessity and under the principle of non-derogation from grant.

 

8.      The claims in relation to the registration of the field, to a profit a prendre and to enjoy the relevant part of the field as a garden area are clearly outside the scope of the reference to the Adjudicator and I declined to deal with them, although my findings of fact in relation to a right of way will be binding also in relation to those claims if pursued. The right to a profit a prendre was also based on no more than 23 years use and would therefore have failed as a prescriptive profit requires 30 years of use under the Prescription Act and no other basis was suggested. Any right of way to the area over which rights were claimed would also be ancillary to those rights if established and I was not prepared to hear arguments as to them in the absence of any claim to such rights with which I had jurisdiction to deal. I would also add that I can see no basis for a profit a prendre when the cutting of the grass was not so that the grass could be used but because of a fear that the uncut grass would be a fire hazard. Nor can I see on the evidence before me how the occasional use by some residents of the mown area for picnics or for a bonfire can have given Mr. Brown a right to enjoy the area as a garden even if he took some part in those activities, which in any event only seem to have started after the area stopped being used for grazing purposes by the trustees licensees. For the reasons given below, I find that the field was used for grazing purposes, and the grass cut for fodder, between spring and autumn each year until at least 1996 and possibly 1998, and that during this period each year it was fenced off by the licensee from the rear of the cottages and could be accessed by them only by climbing over or through the fencing, which included both pig fencing and electric fencing.

 

9.      The claim to a vehicular right of way between the rear of No.11 and The Beacon was also abandoned after Mr. Brown gave evidence, that with two exceptions when he first moved in, when he drove through a gate which has since been removed and the area blocked off, he had never obtained access with anything larger than a wheelbarrow. In the end, his claim was to a right of way on foot and with a wheelbarrow between his back wall and an opening in the hedge bordering The Beacon which he described as being 2 to 3 feet wide at the closest corner of the field to the cottages, next to No.17.

 

10.  As to this, his evidence was that since he moved in, until the route was blocked by fencing erected by the trustees in July 2008, he had used this route to get access to and from the back of his cottage about a dozen times a year. These included bringing logs to the back of the cottage twice a year, bringing ladders there most years to clear the gutters at the back, taking his dog for a walk occasionally and rare other isolated events of which he mentioned bringing a freezer there, and also a motor mower, rather than taking them down the front steps.

 

11.  There are remarkable differences between Mr. Brown’s evidence as contained in his witness statement dated 28 February 2009 and the way in which his case and his evidence were presented at the hearing, as well as other evidence. His witness statement began by asserting that prior to his arrival and ever since the occupants of the cottages had enjoyed the use of an area of the field measuring approximately 15-20 metres wide by the combined length of the cottages, whilst assuming responsibility for keeping it clear of rubbish and ensuring that the grass was cut regularly to a suitable length. At the hearing he agreed that sheep had been grazed in the field, first he said until the late 1980’s and then possibly into the early 1990’s. If he was claiming that he and the neighbours were at the same time being responsible for the grass in the area referred to, that would have deprived the sheep of their grass in that area. They would no doubt have provoked the wrath of the farmer and, in order to mow the land, given my findings below, between early spring and late autumn they would have had to get a mower across pig fencing and an electric fence in order to mow the land. In fact, I accept the evidence of the farmer grazing the sheep, Ms Margaret Whaites, supported by correspondence from 1992, 1995 and 1996, that the annual grazing agreements continued until at least 1996 and that during that time the sheep would graze the land and it would on occasions be mowed by her for fodder for the sheep.

 

12.  Mr. Brown then asserted in the second paragraph of his written statement that until the purchase of the field by the present owners, both the field and ‘the Beacon properties’ belonged to Walter John Britten, who resided at 15 The Beacon. No evidence was produced by him to support this assertion, of which he plainly had no personal knowledge, either as to such ownership or even of the existence of Mr. Britten, and I am satisfied that the present owners are trustees of the field under a trust that has subsisted for many decades, although the identity of the trustees has changed from time to time. Nor was there any evidence that the cottages and the field were ever in common ownership, with the result that the claim for an easement of necessity and by reference to non-derogation from grant had to fail. I would add in parenthesis that there was access from the front of his cottage to the highway, so that an easement of necessity would fail in any event.

 

13.  In his third paragraph, and indeed in his oral evidence, Mr. Brown stated that sheep had grazed the field for a short period some 20 years ago. I am satisfied from the evidence of Ms Whaites that they grazed there under annual grazing agreements from about 1985 until at least 1996. It is unnecessary for me to make any finding whether the grazing went on until 1998 as one letter from the trustees’ solicitors appears to suggest, but there would have been no point in paying good money for annual grazing rights (from spring to late autumn) if they were not taken advantage of as Ms Whaites stated they were.

 

14.  The next paragraph of Mr. Brown’s witness statement states that access to the rear of the cottages at the time of his purchase was via a gateway, perhaps 8 feet wide in the top right hand corner of the field behind no.17 and leading onto New Road. He stated that the gateway fell into a dilapidated state and was removed, leaving a gap in the hedge that persisted, after being widened somewhat (after being widened by the owners of no.17) until fenced off by the trustees in July 2008. His evidence at the hearing was that at that corner there was only a gap in the hedge some 2 to 3 feet wide through which he could get access with a wheelbarrow. There was no gateway there, and never had been. There had been a gateway further along the road, which he had used in the very early years he was there, but it had become dilapidated and was blocked up by the early 1990’s. The other gateway, and its being blocked up, was confirmed by other evidence, with only a slight possible disagreement as to its exact position of no relevance to this case. I am satisfied that this occurred while Ms Whaites was still using the field to graze sheep, as she recalled the blocking up with satisfaction as it reduced the number of trespassers to the field and the possibility of sheep escaping. She herself did not use the gate but obtained access from a different gate at the bottom of the field.

 

15.  I also have no difficulty in accepting the remainder of Ms Whaites’ evidence, and in preferring it to the evidence of Mr. Brown where their evidence conflicts. She was consistent in the evidence she gave, she had no personal interest in the outcome, and it made good sense in the context of her annual grazing agreements. I accept that she grazed between 50 and 100 sheep in the field each year she had a grazing agreement. They were not there all the time as they would eat all the grass and it would have to be let grow again before they could return or so that she could crop it for winter fodder. In order to make the field stockproof, she would fence it with pig fencing each year. Despite this, sheep would escape after pushing down the fencing, and after a few years, she would put an electric fence just inside the pig fencing. There was an elder tree in the corner by the gap in the hedge where Mr. Brown said that he would gain access from the highway and she would run her fencing around that tree and down close to the side of the field by the cottages. Initially she would leave the fencing up throughout the year, but it was damaged during the winter by tobogganers who broke through where the old gate had been. At the end of each grazing season, therefore, she subsequently took down her fencing, being unsure if she would get a new licence the following year.

 

16.  I reject Mr. Brown’s evidence that there was never any fencing there. Two photographs taken from inside no.15, in about 1990 or 1991 show fencing including electric fencing running past that property. There is no reason for it stopped before reaching no.11, and I am satisfied that it continued well past his property and around most of the field as described by Ms Whaites in her evidence.

 

17.  Further, when I asked Mr. Brown how he got his dog over the wall and into the field to go for a walk if there was electric fencing there as Ms Whaites had stated, he did not say that there was never such fencing there, but that he would put the dog, a terrier, on the top of the wall and climb up and throw it over the fence.

 

18.  While I do not consider that Mr. Brown was deliberately making up his evidence, I do consider that his memory for dates and events is very poor. It was clear that the moving force behind his claim was not him but Mr. Hill, who, when acting as his representative, had claimed a far wider right of way for Mr. Brown than could ever be established by the evidence that Mr. Brown ultimately gave, and must take some responsibility for the drafting of Mr. Brown’s highly misleading witness statement and the exaggerated and irrational claims made by him before the hearing.

 

19.  Mr. Hill also gave evidence for Mr. Brown, but as he had only come on the scene in 2006/7, there was little relevant first hand evidence he could give. He did obtain some statements from occupants or previous occupants of the cottages, none of whom attended to give evidence. An E.J. Norton, who stated that he had occupied no.7 from 1975 to 2000, provided a short statement that there was never a fence at the rear of the walled yards above him to the road, a statement that is contradicted both by Ms Whaites and by the photographs I have referred to. He also stated that there was always a gate to the field at the top of the field next to the first house of the terrace, a statement that has no support from any witness including Mr. Brown. There is a similar statement about a gate in the hedgerow at the rear of no.17 allowing access to the roadway in the statement of Cleaver and Sue Symons, who had in any event only lived in no.13 since 2003. The Whitefields, who had lived in no.13 from 1998 to 2003 refer more accurately to a gateway/gap. The current tenants of Mrs. Hill at no.15 state that they had been there since 2006 and refer to a gap in the hedge some 8 feet wide.

 

20.  Ms Whaites’ evidence showed that there were gaps in the hedge, at least sufficient for tobogganers to get through and for her sheep to escape onto the road after they or trespassers pushed down her fence before the electric one was used. To this extent, she was in agreement with Mr. Brown. There was also a public footpath at the other end of the field beyond the cottages which went through the field, rather than along the edge.

 

21.  The only trustee to give evidence was Mr. Colin Chapman, who is now 75 years old, and became a trustee in 2005. His father had also been a trustee at one stage and Mr. Chapman had been familiar with the field since his childhood and had visited it two or three times a year since on visits to Ilminster. He was plainly and understandably incensed at some of the claims that had been made in this case by or on behalf of Mr. Brown. The claim to a vehicular right of way was rightly not pursued at the hearing, not was the claim to a right of way from the road over a full 15 metre wide strip of the field. The claim that the entrance by the corner of field through the hedge was about 8 feet wide was contradicted by Mr. Brown’s own evidence that it was 2 to 3 feet wide until widened relatively recently. Mr. Brown’s claim in his witness statement that the sheep had only been there for a short time about 20 years earlier and without stockproof fencing was also in my judgment wholly unsustainable and was contradicted by the evidence that the grazing agreements continued until 1996 at least, by Ms Whaites and by Mr. Brown’s own evidence at the hearing as to how he negotiated the electric fence.

 

22.  Nevertheless, Mr. Chapman’s own evidence that the field was always surrounded by the trustees own fencing throughout the year in addition to Ms Whaites’ fencing and that there were never any gaps in the hedge that anybody could get through is contradicted by Ms Whaites’ evidence as well as by the absence of any visible fencing in the photographs taken by Mr. Chapman himself in 2005/6. In other earlier photographs there is no visible fencing other than the fencing erected by Ms Whaites. While I accept his evidence that he and his father had fenced the field many years earlier, when it was being grazed by cattle, I am satisfied that it had long since become dilapidated and disappeared, and did not provide any sort of obstruction to the exercise of the claimed pedestrian right of way by the time Mr. Brown came on the scene. I am also satisfied that Mr. Chapman is wrong in his recollection that there were never any gaps in the hedge. I am satisfied that there were such gaps including one of rather over 2 feet at the corner of the field with No.17.

 

23.  I accept Mr. Chapman’s evidence that the reason the field was not used once Ms Whaites’ stopped using it was difficulties finding a tenant as a result of people using the public footpath across it with dogs that were not kept on a leash. There was no evidence to support the assertion on behalf of Mr. Brown (again not pursued at the hearing by Mr. Foster) that it was simply a potential development site.

 

24.  There was no evidence that the trustees were at any time aware of any user of the claimed way by Mr. Brown. There was no obvious access to the field from the rear of his house once the old access had been closed off by Mr. Brown’s friend. Access to the road could be obtained more easily by using the stepped path at the front of Mr. Brown’s property. There is no evidence of any visible track from his wall to the road on any photograph and no evidence was given of any such track. Mr. Hill contended when giving evidence that a track could be discerned on a 2001 aerial photograph, but I am not satisfied that any track is visible and in the absence of any evidence that a path was visible at any time as a result of its being used to get onto the road at the corner of the field, I find that no visible path was created. I also note that from about 2005 to 2007 there was a large pile of builder’s rubbish left, principally by Mr. Brown in the field against his back wall. While it may be that Mr. Brown could have climbed over the wall onto the rubbish to access the route to the road, that is not something that any reasonable owner could have been expected to deduce from looking at the site. Mr. Brown also gave evidence that he never saw any trustee, or Ms Whaites, when using the route.

 

25.  I accept Mr. Brown’s evidence that he used the route over which he claims his right of way about a dozen times a year as set out in paragraph 11 above. Insofar as he may have also claimed to have walked the dog that way a dozen times a year I consider that he was probably exaggerating, but I do not consider that anything turns on this. I consider that it is likely that the logs and the ladders to clear the gutter would have brought from the road in late autumn or winter, after Ms Whaites’ fence had been removed when the grazing agreement ended. I accept that it would sometimes have been convenient to take the dog in the back way after a walk, if, for example, the dog had got very muddy during the walk, and I accept that on very isolated occasions it may have been more convenient to bring a heavy item to the back of Mr. Brown’s property in this way. I am also satisfied that some of the dog walks each year until 1996 will have been in the periods of the grazing agreements and will have involved Mr. Brown getting himself and the dog over or through the electric fence as he describes. Exhibits 8 and 9 to Mr. Chapman’s statutory declaration dated 15 July 2010 are photographs, which I accept were taken between 1989 and 1991, show the fence as it was behind the cottages, with posts and electric wiring between them, and also a strand of barbed wire which had been pulled up, possibly to allow somebody to get under it and over the electric fencing from one or more of the cottages. I am satisfied that that fencing would have extended behind Mr. Brown’s cottage and that he would have had to take similar steps to get himself and his dog through it.

 

26.  An additional witness statement by Mr. Chapman dated 5 June 2011 exhibited copies of further photographs said to have been taken in December 2005 and January 2006 which were said by him to demonstrate that access to the road at the corner of the field from the back of Mr. Brown’s cottage was not possible at that time because of the way the hedge had become overgrown. I am not satisfied that they show any such thing. If everything dark in that corner of the field in the photographs is hedge, then it would have had to extend not only across No.17 but also across part of No.15. There are in fact signs of possible fencing and considerable shadow in the area as well as a possible path between the apparent fencing and No.15 which could have led to the road at the corner of the field. Particularly given the lateness of the photographs and the dispute which has emerged as to what they show, I am not prepared to accept that they show that access to the corner of the field was obstructed as claimed by Mr. Chapman. It is unnecessary, therefore, to have any further hearing or evidence to rebut what the photographs were claimed by Mr. Chapman to show. The photographs do, however, show the state of the builder’s rubble piled up behind Mr. Brown’s property, which he accepted was there for about 2 years, and which also appears on other photographs.

 

27.  Finally, I note that no claim to an easement was made by Mr. Brown until well after the field was fenced off and the way blocked in, and that in his witness statement dated 28 February 2009 he asserted that there had been an 8 feet gateway in the corner of the field behind No.17, which had become dilapidated and was removed, leaving a gap in the hedge which was only fenced in by the Respondents in July 2008. Quite how Mr. Brown came to make such a statement is a matter between himself and Mr. Hill, who appears to have prepared it for him.

 

28.  I note for the purposes of any claim under the Prescription Act 1832 that the application to register a right of way was made by Mr. Brown in April 2009 and that the matter was referred to the Adjudicator on 11 August 2009, being received on 13 August 2009. The application to the Land Registry was thus less than a year after the erection of the fence but the case was referred to the Adjudicator more than a year after that event. However, in the intervening period Mr. Brown, through Mr. Hill was strongly asserting his right to a right of way. It does not therefore appear to me that the interruption to the exercise of the right of way by the erection of the fence was submitted to or acquiesced in at all within the meaning of section 4 of the Prescription Act 1832 (see the decision of the Court of Appeal in Davies v Du Paver, [1953] QB 184). I interpose that no decided cases were referred to by either representative at the hearing and I then indicated to them that I would have to consider the state of the case when preparing my decision. Neither then sought to make any further representations on any cases found by me. In those circumstances, and given that Mr. Foster has since been replaced by Mr. Hill as Mr. Brown’s representative and neither he nor Mrs. Masters has any legal training, I have not sought any further submissions from them before concluding this decision.

 

Was there acquiescence by the trustees?

29.  Fry J in Dalton v Angus (1880-1881) 6 App Cas 740 at 773-4 (as cited by Pennycuick VC in Diment v NH Foot Ltd. [1974] 1 WLR at 1433B-D) explained the law as to prescriptive easements as follows:

 

“The whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rests upon acquiescence…I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done…”

 

30.  In Williams v Sandy Lane (Chester) Ltd [2007] 1 P & CR 27, CA, Chadwick LJ with whom the other members of the court agreed) stated that “knowledge, in this context includes imputed knowledge: that is to say, knowledge of such facts as an ordinary owner of the servient land, diligent in the protection of his interests, would have become aware.” I note that in that case the path was well worn and in 1984 a claim to an easement had been made to the dominant owner which did nothing.

 

31.  It was also held in those cases that in order that there may be the necessary acquiescence the owner of the servient tenement must have knowledge or the means of knowledge that the act is done – the act here being user of these lands for passage to create a right of way.” Pennycuick VC in Diment then went on to cite Pugh v Savage, [1970] 2 QB 373 where it was held that one ought to presume knowledge in the absence of evidence that the owner did not have such knowledge – p.1434G. In Davies v Du Paver, however, the Court of Appeal found against any such presumption at least where there was nothing to put the owner on notice of any such user – see at [1953] 1 QB at pp.201, 205-6, 210-211.

 

32.  In Hollins v Verney (1884) 13 QBD 304, CA, it was stated at p.315 that for the user to be sufficient during the whole period of 20 years (whether acts of user be proved in each year or not) the user must be sufficient to carry to a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended.

 

33.  In the present case, Mr. Brown himself has given evidence that on the occasions that he used the route he did not see any trustee or Ms Whaites. This is not surprising. Rather it would have been fortuitous if he had been seen by any of the trustees on those occasions, which must only have lasted for the most part one or two minutes. Ms Whaites and Mr. Colin Chapman, who gave evidence, both stated that they had not seen him using the route. There was no direct evidence from any of the other trustees, not all of whom are still alive or in good enough health to give evidence. However, in my judgment the evidence of Mr. Brown himself that he did not see them or Ms Whaites is some evidence that they would not have had actual knowledge of his user in the absence of some other sign that he was using the route. Mr. Brown’s conduct, through his friend, in blocking up the obvious access to the field through the gateway or hole in his wall would have led any conscientious trustee inspecting the field to conclude that he was not using that route. Taken together with the absence of any sign of a track and the presence for about half the year of electric and barbed wire fencing along the back of the cottages and across the hole in the hedge by No.17 until at least 1996, without any complaint from anybody, and the presence from 2005 to 2007 of so much rubbish against the back wall of Mr. Brown’s property, it does not appear to me that a reasonable person in the possession of the servient tenement would have realised that a continuous right to enjoyment was being asserted and ought to be resisted. Nor does it appear to me that the owners knew or had the means of knowledge that the route was being exercised and whatever the burden of proof in respect of their knowledge, I am satisfied that they did not know of the user and thus could not have acquiesced in it.

 

34.  There is also the question whether, when Mr. Brown crossed the fence twice with his dog on each trip he was exercising his right of way without force. While the presence of the electric fence was not designed to keep Mr. Brown or other trespassers out, but to keep the sheep in, as Ms Whaites explained in her evidence, if the presence of the fence meant that Mr. Brown could only use the route by force then such use could not be as of right. I have come to the conclusion that the fence could only be crossed by Mr. Brown if he moved the top strand either up or down, and that he will have done this in order to use the route when the fence was there between 1985 and at least 1996. I have also come to the conclusion that the fence constituted a substantial obstruction to the exercise by Mr. Brown of any right he may have asserted and had he then had a right of way he would have been entitled to apply to the court for an injunction to have the obstruction removed or modified.

 

35.  I have found no decided case either way on the question whether moving the wire constituted force in these circumstances (indeed I was not referred to any authority by either party) and I have not been able to find any case which assists me on whether this limited movement of the fence would amount to force, bearing in mind that it was not erected to keep anybody out but to keep the sheep in and that it was not erected by the owners of the property but by a licensee with grazing rights.

 

36.  As I have come to the conclusion that no right of way was acquired for other reasons, it is unnecessary for me to express any view on the matter.

 

 

By Order of The Adjudicator to HM Land Registry

 

dated the 4^th day of July 2011