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We are having trouble with the farmer after about access and hedge trimming to maintain the ability to fish. The original landowner died in 1980 but we have only had any problems recently I have a scanned copy of the 1961 agreement which was legally draw up
Can you attach or email the agreement please? If emailing send to me at UK law [email protected]
It can take up to 24hrs to arrive as it is fwd manually. Regards
o.k. I will e mail it
I have the documents.
Let me tell you now that there is a very expensive argument to be had here.Let me explain why.
Ward wanted to exercise his rights to fish and the Club owned the fishingrights (but not rights of access . So a deal was done between the Club and Wardwhereby he gave them access and he was allowed to fish.
So far so good.
If you refer to clause number one on document 0003 you will see that theright is granted to the Company (the Club) and its successors in title (and allits agents etc).
There is nothing in there which says that this grant was made for thebenefit of the land/stream was for the company and successors.
There is also nothing which says that the right to fish there is granted toWard and his successors in title.
So, successors in title is mentioned with regard to the Club being able topass on the right to walk along the bank but there is no mention of the right forWard to fish to be passed on to his successors in title.
In cases like this, when it is mentioned in one place but not in othersjudges can often say that it was intended by the parties that the right wouldnot pass from one to another and nor would the obligation.
It is the difference between a covenant being personal to the grantor oralso passing on to successors in title.
I think that in this went to court, contrary to what I have said above,because there is nothing to the contrary, the court would find that this rightto walk along the path only existed while Ward was alive. However, if thecurrent landowner wants to be awkward, regardless of my opinion, you are facedwith putting this in front of a judge to let a judge decide. Before wastingmoney on court costs, I would spend probably £500/£800 on Chancery Counsel'sopinion. I wouldn't be wasting any money exchanging correspondence withsolicitors or the landowner.
I wish I could give you a definitive answer would have there was a definitiveanswer to every legal question, the courts would close down overnight.
Can I help further?
Please bear with me today and over any weekends because I will be onlineand off-line.Please don't forget to positively rate my answer service (even if it was notwhat you wanted to hear) and I will follow up any further points you raise forfree.If you don't rate it positively, then the site keep your deposit and I get 0for my time. It is imperative that you give my answer a positive rating. Itdoesn't give me "a pat on the head", "good boy" (like ebay), it is mylivelihood!If in ratings you feel that you expected more or it only helped a little,please ask me for further info before rating me negatively otherwise I don'tget paid at all for my time and answer. The thread remains open for us to continue this exchange
Thanks for that. I think I understand.
Since we have had uninterrupted access since 1961 will we not have a case for continued access irrespective of whether we have a written agreement?
There is a technical legal argument that could help you and that is that iftheir stance is successful wherein they claim that the right for Ward to fishonly lasted for his lifetime and therefore your right to access the bank onlylasted during his lifetime/ownership, then as soon as Ward died/sold (using their argument)you no longer had consent.
If that is the case, since Ward sold/died you have been using the bank without consent.
If that is more than 20 years ago, you may have acquired a right by prescriptionIt would be interesting to see how they get out of that!
Yes. We have always paid a small sum to the landowner for what was called a wayleave (probably not the right word in this case) Last year he did not cash the cheque. Before we try to solve the problem we wanted some advice re our position.
Ward died in 1980
A wayleave is used for overhead power lines. The word is simply the "right"although you could use easements but easements are generally not paid for annually on a licence. Thewording used is immaterial.
Paying him money every year is evidence of consent so the last prescriptionargument fails. Can you see how important even minutest facts are?
There is something missing because no mention is made in the deed ofpayment from what I remember (I have closed the docs down now). IT was a swop:Fishing in exchange for access. I checked and it is not for money, it is in consideration of what is in the deed (common wording)
So payment must have been agreed by someone at some stage.
Please don't forget topositively rate my answer service (even if it was not what you wanted to hear)and I will follow up any further points you raise for free.If you don't rate it positively, then the site keep your deposit and I get 0for my time. It is imperative that you give my answer a positive rating. Itdoesn't give me "a pat on the head", "good boy" (like ebay), it is mylivelihood!
So are you saying we cannot claim right by prescription because we make a payment?
It is so long ago I do not know the origin of the payment
. In the Ward agreement the payment was for any damage that might have been caused not access
1 That's right. It implies consent and you cannot have prescriptive right if you have consent
2 It would be useful to know. It has certainly come from somewhere
3 Yes, but that was to pay for damage it wasn't consideration
I wouldn't be giving up easily BUT it depends how much you want to spend if a legal battle starts.
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