ABSTRACT
There are three separate methods whereby an easement may be acquired by prescription. These methods are cumulative and it is common for claimants to rely upon all three simultaneously.
In order to acquire an easement by prescription at common law, the claimant must show that he has enjoyed the user since time immemorial, that is, from the time at which legal memory is taken to have begun. The date from which legal memory begins was fixed at 1189 by the Statute of Westminster 1275. The claimant must, therefore, show enjoyment since 1189. In order to relieve the claimant from discharging this impossible burden of proof, the courts are willing to presume that enjoyment has lasted from 1189, if proof is given of an actual enjoyment for 20 years.122 This concession, however, is subject to one major difficulty: it is that the presumption that user has been since time immemorial can be rebutted by proof that the easement could not possibly have existed since 1189. For example, if an easement of light to a building is claimed, the servient owner can rebut the presumption of user from 1189 by proving that the building was constructed in 1975. Again, if the servient owner can show that at any time since 1189 the dominant and servient tenements were owned and occupied by the same person, any easement would have been extinguished and the claim at common law would fail. For this reason, claims to prescription at common law rarely succeed and claimants prefer to rely on the other two methods.
