CA 6 July 1990 Appeal from cc decision restraining first and second defendants (M) from passing along a track with vehicles over land owned by the plaintiffs (S). S also claimed damages for trespass against M and a third defendant for laying a stone road along the track. Cc concluded that past use of the track was not sufficiently continuous to establish a prescriptive right and that in any event, tolerance by previous servient owners of such use was fatal to M`s claim. Awarded S damages for trespass and ordered M to indemnify the third defendant in respect of that sum. CA held, allowing appeal, that the past user was user as of right and S had no defence in law on the ground of tolerance to M`s claim to a prescriptive easement by presumption of lost modern grant . With regard to improvements to the track, M were entitled to repair the track, but not to improve it. By employing the third defendant to lay the stone road, M had increased the burden on the servient tenement not authoris