Adjoining properties — Nature and extent of right of way — Whether restricted pedestrian access or vehicular access also granted — County court finding that right of way included vehicular access — Court of Appeal upholding decision
In 1924 the common vendor was owner of 22 and 24 Sebright Avenue, Worcester, which were separated by a narrow strip of land about 9ft 6ins wide and extending the entire depth of the common boundary. In December 1924 the common vendor conveyed no 22 (the dominant tenement) to W, the plaintiff’s predecessor in title. The right to use the path or roadway lying between nos 22 and 24 was conveyed to W. In April 1925 the common vendor conveyed no 24 (“the servient tenement”) to the predecessor of the defendant. That conveyance was subject to the right of the owner of no 22 to use the path between nos 22 and 24. The plaintiff bought the dominant tenement from W’s executors in 1984. The defendant bought the freehold of the servient tenement in 1986.
The plaintiff enjoyed an admitted right of way over the land, but a dispute arose as to the nature and extent of the right. There was no plan annexed to either of those conveyances. The defendant claimed that a flower bed had existed at the side of the path at the time of grant which negatived any inference that the right of way was intended to accommodate the dominant tenement beyond the front one-third of the path. The county court held that the plaintiff’s right of way included vehicular access.
Held The defendant’s appeal was dismissed.
1. Where the words of grant were apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there was in existence at the date of grant some feature in the servient tenement which represented a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it was a matter of construction in every case for the court to determine whether the existence of that obstacle called for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It was essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court would be to infer that it was the intention of the grantor to override the obstruction.
2. In the present case, the intention that was properly to be imputed to the common vendor was an intention to allow the dominant owner access for pedestrians and vehicles at every point along the driveway. The fact that that interpretation would carry with it the right to call upon the servient owner to abandon his flower bed at any point where the dominant owner desired to exercise a right of access did not involve a consequence sufficiently drastic to contradict the plain language of the grant.
3. Moreover, it could not be said that the right of way had been abandoned through non-user because no attempt had been made to create a formed access to the driveway by the dominant owner. There was no basis for treating the right of way conferred on W as having been subject to any condition rendering the easement an inchoate or suspended right until such time as some formed access might be constructed on the dominant tenement to allow movement to and from the servient tenement. The right of way became fully appurtenant to the dominant tenement from the moment it was granted.
Nigel Gerald (instructed by Parkinson Wright, of Worcester) appeared for the appellant/defendant; Andrew McGrath (instructed by Russell & Hallmark, of Malvern) appeared for the respondent/plaintiff.
