When lost modern grant can’t work

The doctrine of lost modern grant doesn’t apply when the use of the alleged servient tenement is reasonably explicable on some basis other than the presumed grant. It doesn’t apply when the presumed grant would have been legally impossible.

In Smith v Brudenell-Bruce ([2002] 2 P & CR 4) S bought a cottage in 1975. From then until the date of the proceedings he used a track on D’s land from his cottage to get to a nearby forest. There was an interruption in 1998 when D’s began to object strenuously to the use. It was held that S had acquired an easement under the doctrine of lost modern grant because of his use of the track for 20 years or more prior to the interruption.

The doctrine of lost modern grant doesn’t apply when the use of the alleged servient tenement is reasonably explicable on some basis other than the presumed grant. D argued that S’s use was similar to that enjoyed by other members of the public and was explicable on the basis of the same licence afforded to the public. This argument failed. S’s use was different in kind and intensity from that enjoyed by the public.

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