Easements – Right of way – Conveyance – Parties owning neighbouring properties – Properties previously in common ownership – Whether appellants having rights of way over respondent’s land by virtue of conveyance from common predecessor in title – Whether such rights granted by relevant transfer – Whether rights transferred under section 62 of Law of Property Act 1925 as advantages enjoyed with the land at time of transfer – Appeal allowed
The appellants and the respondent owned neighbouring properties near Salisbury, Wiltshire, which had previously been in common ownership as part of a residential, agricultural and sporting estate. The estate had been sold off in lots in 1998. At that time, the respondent had acquired some cottages along with the greater part of the agricultural land. Other parts of the estate, including a manor house, coach house, stables and paddock, had been sold to the appellants’ predecessors in title with the benefit of “all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property”. The appellants’ predecessors in title had started a livery stables business which the appellants continued on acquiring the property in 2009.
The appellants asserted that they had rights of access to their property at various points over a track on the respondent’s land. They claimed a vehicular right of way over a track in order to access the highway, plus rights of way on foot and on horseback to connect with certain bridleways crossing the respondent’s land. They contended that the relevant rights had been included in the 1998 transfer to their predecessors in title either: (i) by the terms of the transfer, so far as it expressly conveyed all “liberties, privileges and advantages of a continuing nature now used and enjoyed” by or over the property; or (ii) by operation of section 62 of the Law of Property Act 1925, as liberties, privileges, easements, rights and advantages enjoyed with the land at the time of the 1998 sale.
Dismissing the claim, the judge held that the general words in the 1998 transfer was not intended to confer unspecified rights of access in addition to those for which it provided in detail and that the use of the land, while it was in common ownership, was not such as to give rise to an easement under section 62 of the 1925 Act: see [2014] EWHC 1358 (Ch); [2014] 2 EGLR 151. The appellants appealed.
Held: The appeal was allowed.
(1) The 1998 transfer, properly construed, did not grant the rights claimed by the appellants. The rights granted were confined to those of a “continuous” nature and the claimed right of way was not of that kind. The law recognised the existence of a well-defined category of “continuous” easements, for the purpose of the rule that, when land previously in common ownership was sold off in parts, it was permissible to imply a grant of such continuous and apparent easements as were necessary to the reasonable enjoyment of the property conveyed and had in fact been so enjoyed during the unity of ownership. The usual meaning of “continuous”, both in ordinary English usage and in the context of conveyancing, was uninterrupted or unbroken. A “continuous” easement was one which was enjoyed passively, such as a right to use drains or a right to light, as opposed to one requiring personal activity for its enjoyment, such as a right of way. A reasonable reader of the 1998 transfer would interpret the word “continuous” in its conventional sense. The grant in the transfer should therefore be construed as being confined to easements within the established category of continuous easements. The claimed rights of way were not among them: Wheeldon v Burrows (1879) 12 Ch D 31 applied.
(2) That interpretation of the transfer was not affected by the fact that the appellants’ predecessors in title had used the way without objection from the respondent. Conduct that post-dated the transfer would be taken into account only for the purpose of determining the position of a boundary, by way of exception to the general law of contract. Moreover, the conduct had to be probative in effect. Where the suggested conduct in using the claimed right of way did not in itself interfere with the servient owner’s own use of the land, it was highly unlikely that evidence of such use would prove anything. Accordingly, even if evidence of subsequent conduct could be taken into account, the judge had been entitled to find that it was not probative: Ali v Lane [2006] EWCA Civ 1532; [2007] 1 P&CR 26; [2007] 1 EGLR 71, Piper v Wakeford [2008] EWCA Civ 1378 and Norman v Sparling [2014] EWCA Civ 1152 considered.
(3) The appellants were nonetheless entitled to the rights they claimed by virtue of section 62 of the Law of Property Act 1925. If a quasi-easement fell within the category of easements “enjoyed with” the land conveyed, there was no additional requirement, for the purposes of section 62, that the easement should be necessary for the reasonable enjoyment of the land: Watts v Kelson (1871) 6 Ch App 166 applied. It was important to distinguish between cases where a landowner was simply making use of the whole of his land as he pleased, and cases where a particular use could be discerned as being in the nature of an easement, or quasi-easement, enjoyed for the benefit of a particular part of the land. In the case of a right of way, the court would consider the features observable on the ground at the date of the transfer, including the extent to which there were visible signs of a track or road, although a “made” road was not essential. In order for an easement to arise under section 62, the way also had to have been used within a reasonable period preceding the conveyance: Nickerson v Barraclough [1981] Ch 426, Payne v Inwood (1996) 74 P&CR 42 and Campbell v Banks [2011] EWCA Civ 61; [2011] PLSCS 35 applied. At the date of the 1998 transfer, there was no physical barrier preventing access over the route now claimed as a vehicular right of way and there was a made up track over part of the way. There were visible signs that the way had been used by vehicles for the benefit of the property now owned by the appellants. On the judge’s findings of fact, the way had been used roughly once a month, which was a sufficient pattern of use to count as “enjoyment” for the purposes of section 62: Long v Gowlett [1923] 2 Ch 177 and Mills v Silver [1991] Ch 271; [1990] EGCS 90 applied.
(4) There had also been vehicular use of the way over which the appellants now claimed a right of way on foot and with animals. The mismatch between the content of the rights claimed and the nature of the rights proved did not prevent those rights from arising. The nature of a right of way would depend on the physical characteristics of the way and the purpose for which it was intended to be used. There was nothing in the physical features of the land over which the rights were claimed that was inconsistent with those rights. Where a vehicular right was established, it would always include a right to use the way on foot or on horseback, although not a right to drive animals: Cannon v Villars (1878) 8 Ch D 415, Davies v Stephens (1836) 7 C&P 570 and White v Richards (1993) 68 P&CR 105 applied. The right to use the ways on horseback was not limited to domestic use but extended to use for the appellants’ livery business, even though that use did not exist at the time of the 1998 transfer. A description of a right as “at present enjoyed” did not refer to the purposes for which the right was used but to the manner of use, such as on foot only, with animals or with vehicles: Hurt v Bowmer [1937] 1 All ER 797 applied. Accordingly, the mere fact that use changed from domestic to commercial did not of itself amount to use in excess of the right granted. Since there were already stables on the land prior to 1998, the appellants’ livery business did not amount to a radical change in the dominant tenement. The increased use of horses was no more than an intensification of use of a kind which would not result in a substantial increase or alteration in the burden on the servient land: McAdams Homes Ltd v Robinson [2004] EWCA Civ 214; [2005] 1 P&CR 30; [2004] 3 EGLR 93 applied.
The application of section 62 was not excluded by any “contrary intention” expressed in the conveyance. The grant of a limited right in the written terms of a conveyance would not exclude the operation of section 62 to confer a greater right than that which was contained in the terms of the conveyance itself. The terms of the 1998 transfer did not express the requisite contrary intention with sufficient clarity to displace the effect of section 62: Gregg v Richards [1926] Ch 521 and Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259 applied. It followed that the appellants were entitled to the rights claimed.
Jonathan Karas QC and Simon Atkinson (instructed by Memery Crystal LLP) appeared for the appellants; Jonathan Gaunt QC (instructed by Irwin Mitchell LLP) appeared for the respondent.
Sally Dobson, barrister
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