Duke of Norfolk v Arbuthnot (1880) 5 CPD 390;
44 JP 796; 49 LJQB 782; 43 LT 302
EASEMENT, PRESCRIPTION, PRESCRIPTION AT COMMON LAW,
ENTITLEMENT TO LIGHT, LOST GRANT, DEFEAT OF PRESCRIPTIVE RIGHT
Facts
The parish church, St. Nicholas Arundel, was a cruciform church with a central tower. Part of it, located to the east of the tower, and called Fitzalan Chapel belonged to the plaintiff. The Fitzalan Chapel occupied the place commonly filled by the chancel in the churches. The plaintiff built a wall across the west end of Fitzalan Chapel to separate it structurally from the rest of the church. The defendant pulled down part of the wall, alleging that Fitzalan Chapel was the chancel of the parish church or even if it were not, the parishioners were entitled to the light from it by virtue of either prescription at common law, or lost grant, or s. 71 Prescription Act 1832. The plaintiff – the Duke of Norfolk, and his ancestors, though whom he claimed against the defendant, exclusively owned Fitzalan Chapel for more than 300 years.
Issues
(1) Was Fitzalan Chapel the chancel of St. Nicholas Arundel Church?
(2) Could the pulling down of the wall be justified on grounds that the Church was entitled to access the light from Fitzalan Chapel?
Decision/Outcome
The decision was in favour of the plaintiff.
(1) Fitzalan Chapel was not the chancel of St. Nicholas Arundel Church as the evidence showed that it was owned by the Duke of Norfolk and his family for more than 300 years.
(2) The defendant could not justify the pulling down of the wall on grounds that the Church was entitled to access the light from Fitzalan Chapel neither by virtue of prescription at common law, nor by virtue of lost grant, nor by s. 71 Prescription Act 1832.
Updated 21 March 2026
This article accurately summarises the 1880 case of Duke of Norfolk v Arbuthnot (1880) 5 CPD 390. The case remains a valid historical authority on the principles of prescriptive easements, prescription at common law, lost grant, and the operation of the Prescription Act 1832 in relation to rights to light.
Readers should note that the Prescription Act 1832 remains in force but has been subject to longstanding criticism. The Law Commission recommended its reform or replacement in its 2011 report Making Land Work: Easements, Covenants and Profits à Prendre (Law Com No 327), proposing a new statutory scheme for the acquisition of easements by prescription. As of the date of this note, those recommendations have not been implemented and the 1832 Act continues to govern the relevant law alongside common law prescription and lost modern grant. The substantive legal principles discussed in the case summary are therefore still part of English law, though students should be aware that reform in this area has been recommended and may eventually occur.
