Regarding your first point – a claimed easement over a village green – I suspect you may well be right about the potential for breaching the provisions of the Victorian statutes. Whilst in Bakewell it would have been possible for there to have been a grant of an easement, in the context of a village green, once it is registered, it seems quite probable that the landowner would not be able to grant an easement if it would constitute a nuisance (contrary to the Inclosure Act) or an interference (contrary to the Commons Act). I suspect that each case might end up turning on its own facts to some extent depending upon whether any claimed right would be unlawful for these reasons.

Your second point – regarding adverse possession of a common (unregistered title) – yes, I quite agree that the notion of a grant has no relevance here (nor does in relation to the operation of the rules of prescription in every context in which those rules operate – in the context of the registration of new greens, of course, there is no underlying fiction there, unlike in relation to easements, say). I am not aware that the principle ex turpi causa non oritur actio applies in the context of claims based upon adverse possession. Given that those who claim title to land by adverse possession will have been in occupation of that land without lawful authority, their occupation will have been unlawful (whether or not it offends statutory provisions which prevent inclosure, for example, as well as violating the landowner’s property rights). I think that as long as the requirements for a successful claim based upon adverse possession are met then it will succeed (to the extent that the adverse possessor will be able to claim title to the land). Of course, even if title is ultimately transferred because of a successful claim in adverse possession, that would not preclude those who have rights (of common perhaps) from complaining and then demanding that any unlawful inclosure is removed. I think I would view these two issues as being distinct (although in practice a court may not do so – it is always difficult to think about these things in the abstract – much more helpful if one has a set of ‘real facts’ against which to consider such issues – however, if an adverse possessor has been in occupation of land for 12 years and those with rights of use have not complained, a court may not be quite so sympathetic if it is felt that they have ‘sat on their rights’ for such a long time).

I think you have identified two very difficult issues and I am not sure that I will have added anything helpful! Thanks for taking the time to comment…

Rowena

I agree completely with the rest of your comment.

I like the new blog by the way! Just what I need to complement Nearly Legal’s housing input. I’ve added you to my feeds. I hope it goes well and I will be keenly watching what you do with it.

However, given recent developments in the law on prescription I do not think that the “as of right” and “as of wrong” divide is so clearly defined any longer. The as of right test clearly requires user to be “as if by right” but Lord Walker in R (Beresford) v Sunderland City Council [2004] 1 AC 889 said that in order for use to be as of right, it must be trespassory (thereby making it nec precario), which is, of course, use which is wrong.

That said, it seems to me that there are robust arguments for distinguishing Bakewell, not so much because the tests for adverse possession and prescription are fundamentally different because I have some difficulty accepting that they are. However, the fact that adverse possession is concerned with a claim to title to land (subject to any incorporeal rights which exist) and prescription is concerned with claiming a right over land may well provide the means of distinction given that the issues of legality do not arise in the context of ownership whereas in the context of exercising rights legality is clearly relevant.

We have a detailed view on why this is wrong by Francis Davey on Nearly Legal
http://nearlylegal.co.uk/blog/2009/05/adverse-possession-of-a-highway/
(and the case is going to appeal).