A prescriptive right based on 40 years of use could not be acquired under section 2 of the Prescription Act 1832 where the servient owners had powers derived from a statute that rendered it unlawful for them to grant the right claimed.

Judge Roger Kaye, QC, sitting as a Chancery Division judge, so held when dismissing an appeal by Michael and Elizabeth Housden against the dismissal by Edward Cousins, the Adjudicator to the Land Registry, of their application to register the benefit of a private right of way over an access way leading to their property at Southside Common, Wimbledon, London.

The access way led from a public road to the property across a small strip of land that formed part of Wimbledon Common. Both the property and the access way were built between 1883 and 1893 since when the applicants and their predecessors in title had enjoyed access to and egress from the property over the access way.

The claim to the right of way was based on prescription under section 2 of the 1832 Act. The Conservators of Wimbledon and Putney Commons, who did not object to Mr and Mrs Housden using the access way on the basis of a personal licence that they did not intend to withdraw, objected to the application.

They argued that under the Wimbledon and Putney Commons Act 1871, which vested the commons in the conservators, they had no power to grant the right of way claimed and, in the absence of a competent grantor, the applicants could not have acquired the right of way by prescription.

The adjudicator held that the conservators were not capable grantors on the true construction of the 1871 Act as they could not lawfully grant the easement claimed and, therefore, the applicants could not have acquired a prescriptive right of way based on 40 years of use under section 2 of the 1832 Act. Mr T. C. Dutton for Mr and Mrs Housden; Mr Guy Fetherstonhaugh, QC, for the conservators.

HIS LORDSHIP said that section 35 of the 1871 Act prevented the conservators from disposing in any manner of any part of the commons, which meant that they were prevented from granting any easements over any land forming part of the commons.

Therefore, they could not lawfully grant a private right of way of the kind sought and were not and never could have been capable grantors of a private right of way over or across any part of the commons. Solicitors: Russell-Cooke; Gregsons, Wimbledon.

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