Express grant of vehicular and pedestrian access — Abandonment of right — Partial extinguishment — Whether easement created by express grant capable of being partially extinguished — Erection of building by servient owner — Dominant owner applying for mandatory injunction to take down part of building interfering with easement — Whether dominant owner showed firm intention not to use easement — High Court holding that partial extinguishment established — Nominal damages awarded — Court of Appeal allowing appeal — Injunction not appropriate but matter remitted to official referee for damages to be assessed
The plaintiff was the freehold owner of factory premises at 6 & 9 Ernest Street, Birmingham. It claimed a right of way over a 12 ft wide strip of land which ran along the north side of its premises (“the passageway”) created by express grant in 1888. The defendant was registered as proprietor with possessory title of the soil of part of the passageway, and under a separate title to the plot of land on its north side.
The plaintiff sought a mandatory injunction that the defendant remove so much of its factory as had been recently built on the northern part of the passageway because it interfered with the plaintiff’s right of way on foot and with vehicles over the passageway. The High Court held that from the late 1960s onwards the plaintiff had shown a firm intention that neither it nor any successor should use with horses and carts or motor vehicles, the land over which its predecessor had been granted an easement to do so; consequentially partial extinguishment had occurred. However, the plaintiff retained a right to go on foot. In the circumstances the court awarded damages of £2. The plaintiff appealed.
Held The appeal was allowed.
1. An easement created by express grant was capable of being partially extinguished or released not only by deed but also impliedly.
2. However, mere non user of a right of way did not effect or give rise to a presumption of abandonment: see Gotobed v Pridmore (1970) 217 EG 759.
3. Where a piece of property might have significant importance in the future its abandonment was not to be lightly inferred. The servient owner claiming implied release has to establish that the conduct of the dominant owner was such as to make it clear that he had a firm intention not to make use of the easement: see Tehidy Minerals v Norman [1971] 2 QB 528 at p553.
4. It would be undesirable to construe the law in a way which discouraged good neighbourliness and the court would be slow to infer that acquiescence in the existence of a temporary obstruction to a right of way was sufficient to amount to evidence of an intention to abandon that right for all time.
5. On the evidence in this case it was impossible to infer a clear intention on the part of the plaintiff to relinquish its right to vehicular use for all time.
6. There had been a substantial interference with the plaintiff’s right of access, but the court would not grant mandatory injunction that the defendant take down the building. The court had a discretion to be exercised in the circumstances of the case. The defendant had not ridden roughshod over the plaintiff’s right, but had acted on the mistaken legal advice. The plaintiff would be adequately compensated by an award of damages reflecting the difference in value of its premises with full rights of access and with the now limited rights of access.
John West (instructed by Shakespeares, of Birmingham) appeared for the plaintiff; Anthony Mann QC and David Stockill (instructed by Stanley Coleman & Hill, of Birmingham) appeared for the defendant.
