"Private car park. For the use of club patrons only. By order of the committee"
"The third ground of appeal is that use of the roadway by coach drivers was not use by or on behalf of KCL such as would have enabled Tara to bring an action in trespass against KCL. This, it was argued, meant that the use did not count for the purposes of supporting a claim to have acquired a right of way by prescription. There is no trace in the authorities of a requirement that the use relied on must have been such as to enable the servient owner to sue the dominant owner in trespass. What the authorities establish is that the servient owner must have been in a position to challenge or stop the use. As Mr. Dowding pointed out, one way in which Tara could have done that would have been by erecting a gate or barrier across the roadway. That would not have required any court proceedings at all. In addition, as the judge said, … it is enough that the use in question accommodates the dominant tenement. I would reject the third ground of appeal." 6 It was suggested that Lewison L.J. went further than he needed to have gone and further than Lord Neuberger M.R. went in the same case. Lord Neuberger M.R. said this in paragraph 46: "
"Such parking as there was at the material time could not properly be characterised as user as of right"
"In my view, what these authorities show is that there may be 'vi' - a forceful exercise of the user - in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word 'vi' or 'force' such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner."
"When one applies these authorities to the facts of the present case it seems to me that unfortunately for Mr. Newnham, it is quite impossible to conclude that there had been no interruption prior to June 27th 1983. Interruption for one day less than one year before June 27th 1984 would not matter. But clearly there was much more than that. There was admitted contentious interruption from the end of August when the fence was erected. But going backwards in time, there was equally clearly interruption and objection back to June 27th 1983. At that point we have reached the end of the critical last year of the period before the action was brought. So one has to ask oneself: was there any interruption; was there any contentiousness; was there anything that had to be overcome by what in law is described in this context as force, so as to extend the period of interruption backwards beyond the one year permissible before action? In my view, on the evidence there can only be one answer to that. One only has to look at the terms of the correspondence beginning with the letter of June 23rd 1983 from Mr. Westbrooks [Mr. Newnham's predecessor in title] solicitors to Mr. Willison, demanding the removal of the obstructions. That letter, written with the best intentions and entirely correctly, clearly shows that there was then an increase in a state of already existing contentiousness. From about March 1983 or thereabouts, and then increasingly so thereafter, the Willisons were making it perfectly clear, first to Mr. Westbrook and then to Mr. Newnham, that they were objecting to the way in which the turn from the drive to the track was being used."
"The correspondence in that regard speaks for itself. All could have been cured on behalf of Mr. Newnham if only he had been advised to bring his action by about March 1984. But unfortunately for him the action was only instituted over a year after there had been a series of acts which in law clearly constituted interruption which when added together amounted to a period of more than a year before the action was brought."
"If the proceedings had been brought in the County Court by the end of 1983 or early 1984, on the judge's findings of fact he would have established a prescriptive easement to use the corner as he desired to use it for heavy vehicles."
"The passage which I have quoted from the judgment of Kerr L.J., with whom Eason J. agreed, tends to combine questions associated with the contentiousness of the user with matters affecting interruption. But both judges agreed that had Mr. Newnham brought his action within the year of the solicitor's letter he would not have been in any difficulty.” 13 With respect, I do not read Kerr's L.J.'s judgment as requiring the action to be brought within 12 months of the solicitor's letter, which would suggest that the matter was not contentious before then, but within 12 months of March 1983, when the matter was equally contentious without solicitors being on the scene. It seems to me that this misunderstanding may have led Pumfrey J. into error. He concluded by saying: "
"The test formulated by Morgan J. in paragraph 121 of his judgment specifies two alternative approaches to the question of notice. If the landowner erects suitably worded signs and they are seen by would-be peaceable users of the land then it follows that the user will be contentious and not as of right. That is the easy case. The alternative is an objective test based on knowledge being attributable to a reasonable user of the land from what the landowner did in order to make his opposition known. If the steps taken to manifest that opposition are sufficient to bring it to the attention of any reasonable user of the land then it is irrelevant that the particular users may not have been aware of it. The steps to be taken do not have to be fail safe in that regard. But they must be proportionate to the user which the landowner wishes to prevent." 15 On the face of it, the present case falls within the first category (said to be “the easy case”) so far as the owners of the dominant tenant are concerned, because there is no doubt that the owners of the dominant tenant knew of the notices. It may well be that not all of the fish and chip shop customers spotted the notice but the notice was clearly visible as the tribunal judge found and was unambiguous. There was also another notice, less readily visible from a distance, in the club window. 16 The Court of Appeal in the Taylor case went on to say that the judge was right to reject the submission that the landowners should have taken legal proceedings in order to make their position known, and found that it was enough that the landowners had, as regards members of the public who did not see the signs, taken all reasonable steps to bring their objection to their attention by the erection of notices. Fences and hedges which buttressed the notices had also as a matter of fact been maintained during part of the relevant time, but the Court of Appeal's reasoning was largely to the effect that notices in an appropriate case are sufficient to prevent the user being as of right. 17 Why then did the tribunal judge in this case regard the notices as insufficient to prevent the parking from being as of right? He said this: "
"It has often been pointed out that 'as of right' does not mean ‘of right’. It has sometimes been suggested that its meaning is closer to ‘as if of right’ ... This leads at once to the paradox that a trespasser (so long as he acts peaceably and openly) is in a position to acquire rights by prescription, whereas a licensee, who enters the land with the owner's permission, is unlikely to acquire such rights. Conversely, a landowner who puts up a notice stating ‘Private Land - Keep Out’ is in a less strong position, if his noticed is ignored by the public than a landowner whose notice is in friendlier terms: 'The public have permission to enter this land on foot for recreation, but this permission may be withdrawn at any time'."