Express grant of right of way affording access to highway – Servient owner claiming that way unlawfully used for agricultural operations upon land adjoining dominant tenement – No significant increase in physical burden borne by servient tenement – Whether level of physical activity relevant – Servient owner’s appeal allowed
At all material times before February 1997, the claimants owned a 14 acre plot of land in Cambridgeshire lying to the south of a highway, Sutton Row. The northern tip of the plot consisted of a house and gardens, No 39 Sutton Row, which fronted and gave access to the highway. The remainder widened out to form a 10 acre area of farmland (the blue land).
In April 1976 the claimants acquired a 15 acre area of farmland (the red land) which adjoined the blue land and lay to the rear of No 33 Sutton Row. The vendor (V) retained No 33 together with a strip of land (the yellow land) that linked the red land to the highway. Under the terms of the conveyance, the claimants acquired “the benefit of the right of way… for all purposes in connection with the use and enjoyment of [the red land] over the roadway coloured yellow on the… plan”.
In January 1977 V sold and conveyed No 33 and the yellow land to the defendants. The conveyance was expressed to be subject to the right of way in favour of the red land. At all material times thereafter, the red land and the blue land were farmed as a single 25 acre unit by an agricultural tenant.
In February 1997 the claimants sold No 39 together with other land fronting the highway. No highway access rights were reserved for the benefit of the blue land. Following that sale, the tenant used the access over the yellow land about six times a year for the purpose of cultivating both the red land and the blue land. The parties fell into dispute over the use being made of the yellow land. Proceedings were taken in the county court, where the defendants contended that the right of way could not be lawfully exercised for the benefit of the blue land. The judge, having found as a fact that, during any one year, only two tractor journeys over the way could be attributed to the cultivation of the blue land, ruled against the defendants on the ground that they had failed to establish a significant increase in the burden placed upon the servient tenement. The defendants appealed to the Court of Appeal.
Held: The appeal was allowed.
1. The defendants’ allegation was that the right was being exercised to accommodate a property other than the dominant tenement identified in the grant. Once that was established, the court was not concerned with any comparison between the amount of use made or to be made of the servient tenement, and the amount of use made, or that might lawfully be made, within the scope of the grant: see Harris v Flower (1904) 74 LJ Ch 127 (CA), as applied in Jobson v Record [1998] 1 EGLR 113 (CA).
2. It was not to be implied that a person would necessarily go outside the scope of the grant if he used the way to access the dominant land and then went on, for example, to picnic on the neighbouring land: see per Mulock CJ in Miller v Tipping (1918) 43 DLR 649 (Ontario Court of Appeal) at p675.
Thomas Dumont (instructed by Taylor Vintners, of Cambridge) appeared for the claimants; Timothy Morshead (instructed by Birketts, of Ipswich) appeared for the defendants.
Alan Cooklin, barrister
