Ward v Kirkland [1967] Ch 194

Facts

• The case concerned whether an easement could be acquired by prescription based on the use of a putative right over land.
• Questions arose around if use was sufficiently “continuous” and “apparent” to satisfy legal requirements for prescriptive easements.
• The practical examples included agricultural rights of way, footpaths across fields, and concealed features such as drainage pipes, highlighting the need for consistent but not necessarily uninterrupted use and the requirement of observable signs.

Issues

1. What constitutes “continuous” use for the purpose of acquiring a prescriptive easement?
2. What defines “apparent” use in the context of a prescriptive easement?
3. Is a prescriptive easement barred if the dominant and servient tenements were previously under common ownership?

Decision

• The court held that “continuous” use does not require constant or uninterrupted exercise of the claimed easement; rather, use must be consistent and in line with the typical nature of the right.
• It was determined that “apparent” use does not demand obvious, visible evidence at all times, but physical signs should be detectable upon reasonably careful inspection of the servient land.
• The judgment reaffirmed that a prescriptive easement cannot exist when both the dominant and servient lands were held under single ownership during the relevant period.

Legal Principles

• “Continuous” use means use which is consistent with the nature and function of the easement claimed, not an unbroken or daily use.
• “Apparent” use refers to use that could be discovered through a reasonably thorough examination of the land, even if not always plainly visible.
• Prescriptive easements require that the dominant and servient lands were separately owned during the relevant period; common ownership precludes acquisition by prescription.

Conclusion

Ward v Kirkland [1967] Ch 194 clarified the standards for establishing “continuous” and “apparent” use in prescriptive easements, confirming that consistent, reasonable use and observable evidence suffice, but a prescriptive easement cannot arise during any period of common ownership.