Easements – Right of way – Interference – Claimant having prescriptive right of way over defendant’s land to access property – Claimants alleging interference with right of way – Defendant alleging excessive user and trespass – Whether actionable interference with right of way – Claim allowed in part – Counterclaim dismissed
The claimants owned a farmhouse, buildings and land at Low Meadows Farm, Lanchester, County Durham. The claimants ran an equestrian centre from the property with some livery. The defendant was the owner of the adjoining farmhouse, farm buildings and land. In order to gain access to their farm from the public highway, the claimants had the benefit of a prescriptive right of way over a track, much of which was on the defendant’s land. There was no dispute that the claimants were entitled to the right of way but disputes arose as to the extent of the right of way and whether the defendant had interfered with it. The defendant accused the claimants and their licencees of excessive user and trespass.
The defendant contended that the right of way was confined to the track itself. The right could be used by the claimants and their visitors at any time. However, in so far as it was used by customers of the livery it could only be used between 7 a.m. and 9 p.m. Heavy vehicles over 17 tonnes could not use the right of way. The claimants argued that it was more extensive and included a right to pass over the verges, to use the passing places on the track and to what was described as “swingspace”. The use of the right of way was unlimited in time and there was no restriction on use.
Held: The claim was allowed in part. The counterclaim was dismissed.
(1) In order to establish a prescriptive right there had to be long enjoyment of the right “as of right”. The extent of the right of way acquired by prescription had to be measured by the extent of user during the period of time relied upon. The right impliedly granted or prescriptively acquired was a right for all purposes according to the ordinary and reasonable use to which the dominant tenement might be applied at the time of the implied or supposed grant: Williams v James (1867) LR 2 CP 577, Finch v Great Western Railway (1879) 5 Ex D 254, Mills v Silver [1991] Ch 271 and McAdams Homes Ltd v Robinson [2004] 3 EGLR 93 applied.
In the present case, the right of way was in general limited to the track itself. The court was not satisfied that there was sufficient user of the northern verge to give rise to a prescriptive right; nor that there was sufficient evidence to establish a “swing space” either side of the track going back the requisite period of 20 years. There was no restriction on the times that the easement could be exercised. The evidence clearly established sufficient user before 7 a.m. and after 9 p.m. Nor was there any weight limit on the type of vehicle that could use the way. An informal discussion between the parties was not a sufficient basis to infer a limitation on the weight of vehicles entitled to use the track.
(2) Not every interference with a right of way was actionable. The owner of the right might only object to activities, including obstruction, which substantially interfered with the exercise of the defined right as for the time being was reasonably required by him. The question whether the owner reasonably required to exercise his right in a particular way was to be addressed by reference to convenience, rather than necessity or even reasonable necessity. Thus, if an obstruction interfered with a particular mode of exercise of the right which it was neither unreasonable nor perverse of the owner to insist upon, then the obstruction would be an actionable interference even if there remained other reasonable ways of exercising the right which many, or even most, people would prefer. The test of an actionable interference was not whether what the grantee was left with was reasonable, but whether his insistence on being able to continue the use of the whole of that which he had obtained by prescription was reasonable. Whether there was a substantial interference was a question of fact in each case. In deciding whether the interference was substantial, the court had to have regard to all the circumstances of the case. The motives of the party whose actions were alleged to constitute an actionable nuisance were relevant to the question whether there was such a nuisance: Zieleniewski v Scheyd [2012] EWCA Civ 247; [2012] PLSCS 55 applied. Christie v Davey [1893] 1 Ch 316, Flynn v Harte [1913] 2 IR 322, Pettey v Parsons [1914] 2 Ch 653, Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825, Saint v Jenner [1973] 1 Ch 275 and Owers v Bailey [2006] PLSCS 200 considered.
(3) In all the circumstances, the claimants were entitled to special damage in relation to the loss of rent caused by the claimants’ tenant leaving their tenancy as a result of the defendant’s conduct in the sum of £1,300. Further, the interferences had been deliberate and serious. Not only had they caused significant anxiety, they had caused substantial inconvenience, anxiety and distress to the claimants. In addition to the special damage the claimants would be awarded general damages of £3,500.
(4) The court was not satisfied that there had been excessive user of the right of way. The fact that there might have been occasional speeding by some people did not amount to excessive user. The claimants had taken reasonable steps to prevent their visitors from speeding over the track. They were not responsible for the occasional person who drove too fast. However, they had to continue to take reasonable steps to see that their visitors respected the defendant’s land by not driving too fast and by not arriving too early if it was avoidable.
Richard Selwyn Sharpe (instructed by Hodgson & Angus, of Bishop Auckland) appeared for the claimants; Stephanie Jarron (instructed by Bond Dickinson, of Newcastle) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read transcript: Bramwell and others v Robinson
