14 The plaintiffs' writ was not filed until 2 March 2007, almost six years after the repeal of the Prescription Act. The effect of this may be fatal to the success of the plaintiffs' Prescription Act claim as all of the events necessary to create the right had not occurred prior to the repeal. In particular, proceedings had not been commenced prior to the repeal. But this does not mean that the Court lacks jurisdiction to determine the claim.
15 The difficulty does not exist so far as the claim for an easement under the doctrine of lost modern grant is concerned. Under that doctrine, as distinct from a claim under the Prescription Act, the relevant period does not need to be a period ending with the commencement of an action.
16 The plaintiffs allege in their statement of claim that a period of enjoyment of 20 years had accrued before the amending legislation came into effect in 2001. The claim for a declaration that, accordingly, an easement exists is not a proceeding to have it decided whether an easement should be granted.
17 The amendments mean that easements which were formerly acquired by prescription can only be acquired now by application to the Recorder of Titles. The amendments have no impact on the Court's power to hear and determine a claim that an easement had come into existence prior to the commencement of the amending legislation. The plaintiffs claim that they already had the easement. Their claim is for the declaration of a right in existence as opposed to a claim for the acquisition of a right. There is no provision in the Land Titles Act which would enable the Recorder to determine such a claim and so of course nothing to indicate that the jurisdiction of the Court has been excluded.
18 The point of law raised by the defence challenging the jurisdiction of the Supreme Court to determine the claim is resolved in favour of the plaintiffs. The Court has jurisdiction.