Cases - Oakley v Boston

Record details

Name
Oakley v Boston
Date
(1976)
Citation
QB 270
Legislation
Keywords
Rights of light - Prescription Act 1832
Summary

The plaintiffs were the owners of property known as the Old Rectory, which had previously been glebe land and vested in the rector of the parish. The plaintiffs began an action for trespass against the defendant, who claimed that he had a right of way over the land on the basis of lost modern grant, (i.e. on the basis of a presumed grant by the rector) and under the Prescription Act.

The Court of Appeal held that the rector could only have granted a right of way with the approval of the Ecclesiastical Commissioners. The doctrine of lost modern grant arose where the servient owner, with knowledge of the exercise of the right of way, acquiesced in this so that his consent by way of a deed could be presumed. However, the court held that the doctrine could not be extended to allow it to presume that the Commissioners, carrying out their statutory duty, would have approved of the grant. There was no evidence that the Commissioners knew of, or had acquiesced in, the use of the way.