Right of way — Extent — Whether permitting use for purposes of land other than estate forming dominant tenement — Whether right of way for dwellings restricted to those occupied by estate workers
The claimants owned a house that had previously been part of the defendant’s estate. Access to the estate from the public highway was by a roadway through the grounds of the house. A 1979 transfer had given the defendant a right of way over the roadway in connection with use of the estate “as an agricultural and forest estate and for the purpose of obtaining access to and egress from such dwellinghouses as are now erected… including not more than two new dwellings that may be erected for agricultural and forestry workers”.
The estate was subsequently enlarged by the addition of neighbouring land that was farmed with the core estate. The defendant used the roadway in connection with the entire estate, including access by the public to a farm shop and for a commercial shoot across the core estate and neighbouring land. The roadway also provided access to the cottages on the estate, some of which the defendant let, or proposed to let, on the open market.
The claimants brought proceedings against the defendant for trespass, alleging excessive use of the roadway for the benefit of land other than the dominant tenement and for purposes not permitted by the right of way. A preliminary issue was tried as to the extent of the right. The defendant argued that as the right was for the benefit of the “estate”, it permitted access to the core estate for the genuine and substantial purpose of access to the estate as a whole, including the neighbouring land. The claimant submitted that it was not possible in law to create an easement granting a right of way in favour of land outside the dominant tenement. It also submitted that the right of way to the dwellings was restricted to those occupied by agricultural or forestry workers on the estate, and, in respect of new dwellings, to the first two to be built rather than to any two of the defendant’s choosing.
Held: The court ruled:
1. The references to the “estate” in the transfer were shorthand for the parcels of land in the title numbers set out in the grant, namely the dominant tenement. The right of way was granted for the benefit of that dominant tenement only, and it was not intended that it should be used for purposes that extended beyond those connected with that land. Accordingly, use of the roadway for the purpose of farming the neighbouring land, or for the joint purpose of farming the neighbouring land and the core estate, was outside the purpose for which the right of way had been granted: Harris v Flower (1904) 74 LJ Ch 127 and Peacock v Custins [2001] 1 EGLR 87; [2001] 13 EG 152 applied. The prohibited purposes included access to or egress from the neighbouring land and the transportation of produce grown on that land onto the core estate. Customers of the defendant’s shop could use the roadway provided that the shop sold only produce grown on the core land, and, likewise, use of the roadway for the purposes of the commercial shoot was permitted so long as the shoot was confined to the core land.
2. There was no restriction implicit in the words of the transfer limiting the right of way in respect of dwellings to occupants who were agricultural or forestry workers on the estate. The structure of the grant, and the way it dealt separately with the use of the roadway in connection with the estate and its use as a right of way to the dwellings, showed that the latter part of the grant was to be construed on its own terms. Accordingly, the right of way permitted access to and egress from the existing dwellings even where they were occupied by persons unconnected with the estate. With respect to future dwellings, the right of way would extend to any two dwellings to be nominated by the defendant from time to time. The grant did not stipulate that it always had to be the same two dwellings, and it was only the amount of use that mattered to the grantor.
Per curiam: It was possible that a right of way of the type contended for by the claimant could be created by the appropriate words, provided that the extended purpose of the easement truly accommodated the dominant tenement, in the sense of being reasonably necessary for its enjoyment.
Jonathan Small (instructed by Kingsfords, of Ashford) appeared for the claimants; Caroline Hutton (instructed by Cripps Harries Hall) appeared for the defendant.
Sally Dobson, barrister
