Long v Gowlett [1923] 2 Ch 177

Facts

  • The dispute centered on a claim to a path over the defendant's land.
  • The plaintiff asserted this right based on long-standing use, arguing that he and previous owners had used the path for many years.
  • Records indicated the use of the path changed over time, with different purposes and some uses being permitted temporarily.
  • The employed uses were not always related to the specific right now claimed by the plaintiff.

Issues

  1. Whether prolonged use of land for varied or changing purposes can create a legal right of way or similar property right.
  2. Whether evidence of consistent, specific use without force, secrecy, or consent is required to establish such a right.

Decision

  • The Court of Appeal rejected the plaintiff’s claim to a right over the path.
  • Lord Justice Warrington concluded that prolonged use must match the specific right claimed; irregular or varied use is insufficient.
  • The mixed and changing nature of the path’s use prevented the establishment of a right by long use alone.

Legal Principles

  • No new right can be created solely by prolonged use unless that use is consistent, specific, and mirrors the right being asserted.
  • The use to support a claimed right must be exercised openly, continuously, and without force, secrecy, or permission (nec vi, nec clam, nec precario).
  • Only prior use that remains unchanged and aligns precisely with the asserted right can form the basis for recognition.
  • The case is distinguished from authorities such as Dalton v Angus (1881) 6 App Cas 740, where continuous and specific use upheld a right.
  • The rule remains a guiding principle for property law, notably in disputes regarding paths, light, and water access.

Conclusion

Long v Gowlett [1923] 2 Ch 177 affirms that rights over property cannot arise simply from prolonged or irregular use; rather, consistent and specific prior use aligned with the right asserted is essential. This decision reinforces a key standard for recognizing rights by duration in property law, ensuring certainty and limiting unsubstantiated claims.

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