lost modern grant

lost modern grant

a convenient legal fiction devised to overcome the difficulty of common law prescription that use or enjoyment from 1189 had to be shown. Where use or enjoyment as of right for 20 years could be shown, the mere fact that use or enjoyment could not have been going on in 1189 was not allowed to stop the operation of the prescription; the courts were prepared to accept that the use or enjoyment had arisen as a result of a grant post-1189 that had subsequently been lost.
References in periodicals archive ?
The doctrine of lost modern grant portrays the acquiescent servient owner as the active grantor of a deed which was lost.
Secondly, a right to light may be acquired at common law, under the doctrine of lost modern grant or under the Prescription Act 1832.
Adrian Bradbrook and Marcia Neave have identified several areas of the doctrine of lost modern grant where Australian and English authorities appear in conflict, (96) including who bears the onus of proof, (97) and whether the granting of permission before the commencement of the prescriptive period automatically prevents the acquisition of a prescriptive easement.
Thirdly, leaving aside the impact of the Torrens system generally, and the special situation in Tasmania, it is theoretically possible to make a claim for a prescriptive easement under the doctrine of lost modern grant.
In contrast, Simpson CJ in Eq had held that the doctrine of lost modern grant was a fiction which was neither beneficial to the law of NSW nor the country, (115) Therefore, his Honour decided against the plaintiff's claim to an ancient light.
Delohery confirmed the existence of the doctrine of lost modern grant in Australia.
In 2001 that state enacted legislation which both abolished and reinstituted the doctrine of lost modern grant in a modified form.
131) In other states, the prospect of easements of light was met with equanimity, courts preferring to determine whether the facts fitted within the doctrine of lost modern grant (132) rather than adopting a blanket rejection of prescriptive easements.
SA has not abolished prescriptive easements of air, so it must be presumed that a prescriptive easement may be created under the doctrine of lost modern grant or the Prescription Act 1832.
Overall, the courts actively developed the law of prescription both at common law and in the form of the doctrine of lost modern grant.
In Delohery, the High Court preserved the doctrine of lost modern grant.
The doctrine of lost modern grant was tolerated only to the extent that it was considered not to hinder economic development.