§ Mr. Speaker
It would be convenient to discuss at the same time the following Amendment, No. 38, standing in the name of the hon. Gentleman and the names of some of his hon. Friends, Clause 16, in page 8, line 21, at end insert:and(iii) in determining, in the case of a right of common in gross, whether the evidence justifies the presumption of a lost modern grant".
§ Mr. Corfield
The Amendments are linked, Mr. Speaker. Indeed, the first is a paving Amendment to the second.
The purpose is to extend the provisions of Clause 16, which is designed to prevent the Prescription Act from running against the commoner when he has had a break in the use of his rights as a result of either animal health matters or his land being requisitioned. This is really only one aspect of a much more general problem.
The earlier means of establishing many of these rights was the old common law prescription which gradually developed into the fiction of lost modern grants which, in turn, developed into the theory laid down by the Prescription Act. The grants followed relatively long and continuous use. It seems to us that these exemptions should apply whether one is concerned with the Prescription Act or not.
I have picked out the case of rights of common in gross because the courts have found that rights of common in gross are not covered by the Prescription Act and cannot be established by that Act. They can only be established by provisions in common law—which becomes rarer and rarer because any generally proved grant could not have been made prior to 1198 or whatever the date of official legal memory is.
Normally, a right in gross would depend upon the fiction of the lost modern grant, and if I may quote again from that admirable book, "Cheshire", it is stated that it is dependent on user as is the establishment of a right under the common law. As "Cheshire" says, 20 years is enough to raise a prescription, but there is nothing rigid. If we look to see where the plea has been successful in recent times, we find nothing less than 40 years; and the user must have been continuous, although I admit the Parliamentary Secretary's point made in Committee that it need not be quite so continuous as the user which is used in evidence under the Prescription Act.
There is a case for extending the principle, because the Prescription Act is only a development of the basic idea of prescription at common law, as is the idea of the lost modern grant historically and logically, if there is any logic in this rather curious fiction.
§ Mr. Skeffington
We had a very interesting discussion in Committee on lost modern grant, and the House would not be grateful in any way if I continued the discussion at any length, but it is an interesting point. Gaps in user are not nearly so important in common law or the doctrine of the lost modern grant, and the time factor in prescription has really become important only in the Act of 1832. I hope to give some evidence which I hope the hon. Gentleman the Member for Gloucestershire, South (Mr. Corfield) will think is conclusive.
Our view is that this Clause does not need to be extended as he suggests. If prescription under common law or lost modern grant, provided that there has been a 20 years' user at least before an action, is to be taken as the basis for establishing a right, then the case rests on Carr v. Foster, decided in 1842.
This was an interesting case only 10 years after the new Prescription Act, and the judges in the Appeal Court of that time were not only familiar with the new Statute, but with the earlier law which had decided many of these cases. The Lord Chief Justice of that time and two other judges gave judgment, and Mr. Justice Williams said:Before the statute, in cases relating to common, it was very usual to explain the ceasing to turn on cattle by the fact that there were not, at that time, commonable cattle to turn on. No necessary inference arises from a cesser during two, three, or seven years".This case also decided that "interruption" meant an obstruction by some person other than the claimant.
We take the view that in the light of that judicial dictum which, I think, is a good interpretation of the common law and lost modern grant it would, if pleaded in the courts, make this Amendment unnecessary. Nobody would be likely to lose their rights if there is a 20 years' period before, and they could prove they were not intending to abandon the right to graze their cattle or whatever their right might be.
§ Mr. Corfield
I think that this does concern all rights of way. Clearly, as one of the old cases said, one cannot be continually using one's right of way in the same way one continually exercises one's right of grazing. I am perfectly willing to accept the Parliamentary 399 Secretary's interpretation. Neither of us is likely to find a final answer to this, unless it goes to the House of Lords, which seems very unlikely. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.