Plaintiff granting right of way for benefit of land sold to defendants – Timber felled off neighbouring property but stored of necessity on defendants’ land – Whether use of right of way to remove stored timber excessive user – Plaintiff’s application for injunction unsuccessful – Plaintiff’s appeal allowed
In October 1990 the plaintiff sold to the defendants land at Longframlington, Morpeth, Northumberland, adjoining land of which the plaintiff retained. The land which the plaintiff sold, Catheugh, was divided by a river into two parts. The two parts were joined by a causeway. Access to Catheugh from the public road was obtained over the causeway and along a private roadway past the plaintiff’s farmhouse. In order to have access from the west, the defendants obtained a clause giving them a right of way, which did not include the causeway nor all the private roadway, over part of the plaintiff’s retained land “for all purposes connected with the use and enjoyment of the property being used as agricultural land”.
In January 1994 the defendants purchased an area of woodland, Windybanks, which adjoined the land purchased from the plaintiff. The defendants, on advice, decided to fell off some of the timber and to replant it. Felling equipment was brought on to Catheugh via the private roadway and across the causeway, timber felled and the resulting timber stored on Catheugh. The plaintiff sought an injunction alleging that the defendants could only use the right of way for access to and from Catheugh and the other land contained in the conveyance of October 1990, and that there had been misuser or excessive user of the right of way. The judge found that the use of the right of way by the defendants for the transport of felling equipment was a trespass. The plaintiff appealed from the judge’s finding that collecting the timber was a purpose connected with the use and enjoyment of the defendants’ land as agricultural land, and that the felling of trees in a forestry operation was an agricultural operation. He further found as a fact that the removal of timber was a necessity and part of the agricultural purpose being carried out.
Held The appeal was allowed.
1. A right of way granted for the benefit of a defined area of land could not be used in substance for accommodating another area of land: see Harris v Flower (1905) LJ Ch 127.
2. Although the phrase in the conveyance “used as agricultural land” included forestry, neither forestry nor agriculture included the separate activity of storing timber felled elsewhere. To be agricultural the storage had to be of timber grown and felled off the land in question. Accordingly, the judge was wrong to conclude that because storage of timber was part of the operation of forestry, and therefore agricultural, storage of timber alone was itself an agricultural use of Catheugh.
3. It followed that the removal of the timber felled off Windybanks and stored at Catheugh over the right of way from Catheugh to the road must have been an excessive use of the right of way, and that use of the right of way was not authorised by the terms of the grant.
Robin Horner (instructed by Sanderson McCreath & Edney, Berwick-upon-Tweed) appeared for the plaintiff; Stephanie Jarron (instructed by Ward Hadaway, of Newcastle-upon-Tyne) appeared for the defendants.
