'The basis of prescription is that if long enjoyment of a light is shown, the court will strive to uphold the right by presuming that it had a lawful origin.'1 This too is the basis of inferred dedication of a public right of way. The user does not establish the right but is taken as evidence that there was a grant of a private right ofway ora dedication oi a public right of way.
The difficulties of applying these fictions at common law were tackled, not entirely satis¬factorily, by the Prescription Act 1832 and by the Rights of Way Act of the same year for private and public rights respectively.
Godmanchester and Drain were concerned with s. 31 of the Highways Act 1980 which, in turn, was derived from the Rights of Way Act 1832. Section 31(1) of the Highways Act 1980 provides:
Where a way over any land ... has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period2 to dedicate it.
The period of 20 years is calculated:
retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.3
1 Megarry & Wade, The Law of Real Property 6th edition, 121.
2 Words in bold are referred to subsequently in the text.
3 Highways Act 1980, s. 31 (2).
In other words, in order to presume a dedication of a public right of way there are three essential elements: 20 years’ user as of right by the public, a bringing into question of the right of way from which to calculate the 20 years and no evidence of lack of intention to dedicate.
USER AS OF RIGHT
As of right means without force, secrecy or permission. The subjective belief of the users themselves of their rights is immaterial. This point has been firmly established by the House of Lords in the case of R v Oxfordshire County Council and Anor ex p. Sunningwell Parish Council.4
Lord Hoffmann said:
A person who believes he has the right to use a footpatli will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not.
BRINGING THE RIGHT OF WAY INTO QUESTION
Denning LJ previously explained this requirement as follows:
I think that in order for the right of the public to be 'brought into question', the landowner must challenge it by some means sufficient to bring it home to the public that he is challenging their right to use the way, so that they may be apprised of the challenge and have a reasonable oppor¬tunity of meeting it....
But whatever the public do, whether they oppose the landowners action or not, their right is 'brought into question' as soon as the landowner puts up a notice or in some other way makes it clear to the public that he is challenging their right to use the way....
If the landowner merely turned back one stranger on an isolated occasion, that would not, I think, be sufficient to make it clear to 'the public' that they had no right to use it. He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path.
We ought to assume that in 1931 when the landowner turned back strangers, he did it in so open and notorious a fashion that it was made clear, not only to strangers, that they had no right to use the path, but also to local residents, that they only used it by tolerance of the owner.5