ABANDONMENT MUSGROVE-V-INCLOSURE COMMISSIONERS
If commoners have not abandoned their rights, the authorities cannot allow the works.
Says Tony Barnett
If a commoner fails to exercise his/her rights for a long time, it can be years, or else does something to alter his/her property so that it can no longer benefit from the rights, in law, or the law may presume that the rights have been abandoned.
But, a presumption of abandonment can be re-butted by evidence, disclosed that the commonerís intention is to keep the rights alive.
In this context, it is important to distinguish between evidence needed to prove the existence of a right of a right by prescription, and evidence needed to show that the right, or a right which existed in the past has been kept alive.
The point is illustrated by the above court hearing 1874. there an inclosure act provided for compensation for commoners, was Musgrove still a commoner, there were deeds proving his farm carried out rights in the 18th century but prior to the action Musgrove had only exercised his rights in 1828, 1844-5 and 1859-61.
The court held that this very intermittent use was sufficient to keep the claim alive; it would clearly not have been like enough to establish a claim by prescription.
So we need to know how long any of the commoners stopped taking their rights.
A declaration is assumed or submitted, that the making of an application to register a right of common under the 1965 act amounts to the expression of an intention not to abandon the right-s.
Would you be able to use this when speaking to the commoners? Best put it in your own terms, basically, if the commoners have not abandoned their rights, they cannot allow the works.