My candle burns at both ends
It will not last the night;
But ah, my foes, and oh, my friends -
It gives a lovely light.

Edna St. Vincent Millay, "A Few Figs from Thistles", US poet (1892 - 1950)

Sunday, 3 June 2007 Common Law Prescription

The law will presume the grant of an easement if it has been enjoyed since time immemorial ie the commencement of legal memory in 1189. If, however, it can be shown that the use has lasted for at least twenty years it will be presumed that it commenced in 1189...

So... in the Eyes Of The Law, Josephine was born in 1186?

I take it all back. Never mind a common law prescription, Josephine is fast needing an NHS one. And as for the Law... maybe an eye-test?


Martin said...

'Tis a little more complex than that.

The common law presumption from long user is effectively redundant in modern Land Law (see Mills v Silver [1991] Ch. 271 at 278). It is very difficult to satisfy (the respondent could simply bring evidence that ownership could not go back to 1189 (i.e. Richard I's accession), despite having been enjoyed for 20 years or since "living memory"; or that the dominant and servient tenement were in common ownership at some point.)

Lost modern grant, on the other hand, presumes nothing. It creates the "fiction" (Simmons v Dobson [1991] 1 WLR 720 at 723) that 20 years' user is evidence that a grant has been made by deed at some point after 1189, but has since been lost. It is this method that the courts use today, rather than pure long user.

As Gray and Gray put it (p.705), "Emphasis has shifted from the 'brute fact' of immemorial (and almost always fictional) user to the inherent quality of the 20 year user which underlies the modern law of prescription.

Josephine Bloggs said...

Indeed. I omitted to publish the subsequent paragraph which does go on to briefly explain the complete fiction of lost modern grant.

For each subject we are given a course "manual" the contents of which endeavour to simplify and summarize the salient points of the relevant topics. Read out of context or without augmentation by reference to other texts it often reads like wild nonsense.

Anyway, as the late, great Lord Denning no doubt managed to work into one of his judgment specials: Time for bed, said Zebedee.

Anonymous said...

Josephine, you have my prfound and sincere sympathies.
The Law of Property was not actually invented/developed to manage the scarce resource that is Land in our, well, Green and Pleasant Land, as most esteemed textbooks on the matter will have you believe, but, in fact, to torture innocent law students in an orchestrated campaign to shatter their faith in their own reasoning abilities!
All the VERY best with your endeavours on this front - you sound as if you have it nailed to me.!

Accidental Lawstudent said...

Land Law aside, I do simply love that Time Immemorial (which, to everyone else, really is immemorial) is to the ever-pedantic legal community PRECISELY 1189.


Scientist: "This has been the case since the Dawn of Man..."

Lawyer: "What, you mean 132,624 years ago?"

Anonymous said...

"The Law of Property was not actually invented/developed to manage the scarce resource that is Land " ... but to ensure that a dual ownership system existed so that aristrocrats would not be pestered and the remainder would squabble over ridiculously priced crumbs.

Anonymous said...

This used to go under the Name of Subversion or treason or Something didn't it...