Read the full judgment text of CACV 000029/1997 on BabelCite. This Court of Appeal judgment was delivered on 5 June 1997 before Mortimer JA, Godfrey JA, Keith J.
Civil law – easements – prescription – Prescription Act 1832 – lost modern grant – Application of English Law Ordinance (Cap. 88) – modification for Hong Kong circumstances – Crown leases – whether a leaseholder can prescribe against another leaseholder of the same Crown lessee – whether a squatter whose possessory title is not of lawful origin can acquire an easement by prescription over adjoining land of the person dispossessed – proprietary estoppel – interlocutory injunctions – appeal from refusal of injunction by deputy judge – plaintiffs in adverse possession of parts of Lot 2030A in Demarcation District No. 95, Ku Tung, New Territories, for over 20 years – defendants tenants under the same Crown lessee of the land over which the access road runs – access road the plaintiffs' only means of access to a public road – first issue: whether it is arguable that a limited owner can prescribe for an easement against another limited owner – court holds yes – English rule restricting prescription to fee simple owners irrational in Hong Kong where virtually all land is held under Crown leases – Application of English Law Ordinance s.4(1)(a) requires modification to give the Prescription Act 1832 practical effect – Irish rule (Flynn v. Harte) permitting one tenant to prescribe against another tenant of the same landlord is more rational and applicable by analogy – Foo Kam Shing v. The Local Printing Press Limited and Tang Tim Fat v. Chan Fok Kei distinguished or doubted – second issue: whether a squatter whose title is not of lawful origin can acquire an easement by prescription – court holds yes, arguable – Wilkes v. Greenway confined to ways of necessity which require an actual grant – prescription relies on a presumed fictional grant which is conclusively proved unless impossible in law (Tehidy Minerals Ltd v. Norman) – squatter acquires rights on first day of possession which ripen upon expiry of 20-year limitation period under s.17 of the Limitation Ordinance – third issue: sufficiency of evidence for proprietary estoppel – not decided, plaintiffs having succeeded on first two issues – appeal allowed – arguable case for prescriptive right established – matter to proceed to trial – interlocutory relief granted subject to defendants' undertakings – costs of the application here and below to be determined.
Legal issues: Whether a limited owner can prescribe for an easement against another limited owner in Hong Kong · Whether a squatter whose title is not of lawful origin can acquire an easement by prescription · Whether the plaintiffs' evidence is sufficient to prove an arguable case for a proprietary estoppel right to use the access road
Outcome: Appeal allowed. The plaintiffs established an arguable case for a prescriptive right to use the access road; the matter is to proceed to trial. Interlocutory relief granted unless appropriate undertakings are given by the defendants.