LAND LAW Essay Example | Topics and Well Written Essays - 2000 words

LAND LAW - Essay Example e possession or enjoyment had been carried back as far as living memory would go, that a grant had once existed which had since been lost.’ A presumption of lawful grant can be made either at common law, by lost modern grant or under the Prescription Act 1832. Claims are usually made under all three methods2. When applying the doctrine of prescription at common law, such an easement is only presumed where the appropriate user has existed from time immemorial. The limit of legal memory for this presumption was usage from 1189 but as it is normally impossible to supply actual proof dating this far back it has been commonly accepted on the basis of evidence as a long user3. The difficulty with this is that such a presumption can be rebutted as occurred in Hubert v Dale [1909]4 where the plaintiff was able to show that the right claimed had not existed or could not have existed since 1189. Due to the difficulties with the common law approach to prescription and the possibilities of rebuttal the principal of lost modern grant was formed. Under this heading there is a presumption that if the user has used the easement for a period of 20 years that the deed of grant to use the land has been lost. This makes the presumption that a lawful grant was previously in existence and therefore the user should be entitled to continue using the land in the manner he has been doing. The case of Tehidy Minerals Ltd v Norman [1971]5 settled that the presumption cannot be rebutted even by direct evidence that no grant was ever made. If another explanation for the user is equally possible, than a grant should not be presumed6. It was decided in Neaverson v Peterborough RDC [1902]7 that the presumption can be rebutted if it can be established that no lawful grant could have been made at any relevant time. The Prescription Act 1832 gives rights to subsequent purchasers of the land. Section 2 of the Act takes the view that if a user has enjoyed the right without interruption for 20