Acquiesence no bar to easement by prescription

A claim to acquire an easement by prescription must be a claim to use as of right. The claim cannot succeed if the use is on the basis of a licence. The mere fact that the servient owner knew of the use and acquiesced (in the sense of not protesting or taking stops to prevent the use) does not prevent an easement being acquired by prescription.

In Mills v Silver ([1991] Ch 271 CA (Eng)) A and B were the owners of two neighbouring hill farms. Vehicular access to A’s farm was over a track on B’s land. The owner of A had used this track since the early 1950s (for more than the 20 year period necessary for a claim by prescription under the doctrine of lost modern grant). B claimed that he had acquiesced in the use and that this acquiescence (rather than the fictional grant) explained the use. This failed. Mere acquiescence (knowledge of the use and a failure to take measures to prevent it) are common features of claims based on prescription. The mere fact that the servient owner knew of the use and acquiesced (in the sense of not protesting or taking stops to prevent the use) did not prevent an easement being acquired by prescription.

The owners of the dominant tenement are entitled to keep a right of way in repair. A turned the track into a metalled road. This was improvement rather than repair and was a trespass for which A was ordered to pay damages.