Dedication and acceptance – Strip of land forming cul-de-sac with access to minor country road – Defendants claiming certain user rights – No public use in recent times, but such use noted in records relating to collection of tithes and an early 20th century land tax – Whether defendants estopped by convention from asserting public status of strip – Defendants making alternative claim to implied grant of private easement of way – Whether such claim good at common law or under section 62 of Law of Property Act 1925
The land in dispute was a short strip (the strip), the eastern end of which joined a highway that ran in a south-westerly direction towards the village of Colerne in Wiltshire. Close to the junction with the highway, the strip divided into two, leaving a small triangular area (the triangle) in the centre of the strip. The defendant’s property (Thickwood House) included a 17th century house located within the acute angle formed by the junction. The house enjoyed direct access to the highway and stood in grounds that abutted the southern edge of the strip. The defendant also owned an adjoining meadow (the green land) that extended westwards beyond the strip. The claimant’s property (the farm) included the strip itself, as well as a farmhouse and land abutting the northern edge of the strip. The farmhouse had been built in the 19th century on a site previously occupied by two old cottages.
Documents accompanying the 1875 Colerne Tithe Award (the tithe records) recorded that the two houses were in separate ownership and that the strip was in the occupation of parish officers. Between 1910 and 1920, a plan and valuations made for the purpose of tax legislation then in force* showed the strip as an untaxed public road. However, the strip was not recorded as a highway in records held since 1924 by the county council for local search purposes, nor was it ever shown in official highway records as a publicly-maintained highway or included in the definitive map of ways subject to public rights (first required by the National Parks and Access to the Countryside Act 1949).
In the early 1950s, a public telephone box was installed on the triangle, and a letter box for public use was placed in a privately-owned wall located near the triangle.
As a result of various conveyances executed between 1952 and 1979, the title to the strip and all the land directly relevant to the dispute came to be vested in G, who granted rights over the strip to successive owners of a neighbouring house. In December 1990 G sold the farm and the strip to the claimant company, while reserving the right to use the strip for purposes connected with the green land. By the same transfer, G covenanted to erect a wall between the strip and the grounds of Thickwood House to the intent that any right of way over the strip from Thickwood House to the highway should be extinguished. In January 1991 G sold Thickwood House, together with part of the green land and the benefit of the reservation made in the 1990 conveyance, to L, who undertook to perform the 1990 covenant. L built the wall and obtained a purely personal permission from the claimant, terminable by one week’s notice, to use the strip as a footway and to access the strip via a gate that he was allowed to build into the wall. In November 1994 all the property acquired by L was bought by the defendants, who had been informed by the council that the strip was a highway.
In the following year, the defendants claimed that they had an irrevocable right to access the strip from the gate in order to reach the highway on foot. The claimant purported to terminate the 1991 permission given to L, and brought proceedings, contending, inter alia, that the defendants’ rights over the strip were limited to those reserved in 1990 in favour of the green land.
Held: (1) The strip was a public highway, which the defendants were entitled to use as such; and (2) the defendants had no private rights over the strip other than those reserved in 1990.
1. The long user by the public of the post and telephone box overwhelmingly supported the inference of dedication of the eastern end of the strip as a highway and acceptance of it by the public. As regards the remainder of the strip, although the same inference could not be drawn from evidence of actual user within living memory, such an inference could be readily drawn from the tithe and tax records, as the persons involved would have had the strongest interest in identifying where the relevant fiscal burden fell: see, as to relevance and admissibility, section 32 of the Highways Act 1980 and Kent County Council v Loughlin (1975) 234 EG 681. The fact that the claimant and its predecessors had, from time to time since the 1950s, treated the strip as private property could not remove its public status, the rule being “once a highway always a highway”: see Dawes v Hawkins (1860) 29 LJ CP 343 and Eyre v New Forest Highway Board (1892) 56 JP 517. The absence of a public terminus at both ends did not rule out a presumed dedication and acceptance; it merely made it more difficult to draw the necessary inference as to where the alleged highway was located in the countryside: see Eyre and other authorities cited in Sauvain on Highway Law (2nd ed) paras 1-17 and 2-75.
2. There was no evidence to support the claimant’s contention that the parties were estopped by convention from treating the strip as a public highway. Although G and the claimant had proceeded upon a mistaken assumption as to the status of the strip, nothing had occurred to make it unconscionable for the defendants to assert their public rights.
3. If the strip had been private land, there would have been insuperable objections to the defendants’ alternative claim to an easement based upon implied grant, whether based upon the rule in Wheeldon v Burrows (1879) LR 12 ChD 31 or section 62 of the Law of Property Act 1925. Such an implication was quite inconsistent with the earlier transfers. Moreover, for the purpose of the common law rule, there was no “continuous and apparent” route, nor could the defendants show that the desired access was reasonably necessary for the enjoyment of the land adjacent to Thickwood House. Section 62 could not operate as alleged, because there was no diversity of occupation or ownership at the material time: see Payne v Inwood (1997) 74 P&CR 42.
*Editor’s note: The “incremental value duty”, introduced by the Finance (1909-1910) Act 1910, was abolished in 1920. However, as observed by the judge, the valuable records left in its wake have come to be known as “the Second Domesday”.
David Hodge QC and Ian Partridge (instructed by Manches & Co) appeared for the claimant; Katharine Holland (instructed by Clarks, of Reading) appeared for the defendants.
Alan Cooklin, barrister
