Access to land — Right of way — Abandonment — Respondent owning land and buildings separated by strip of land owned by appellant — Appellant claiming right of access extinguished Whether respondent’s predecessor abandoning right of way — Appeal dismissed
The respondent company was the freeholder of land that comprised a former hotel and three former garages. The garages had been accessed over a strip of land that was owned by the appellant. In 1964, the grant of a right of access had been included in a conveyance of what was now the respondent’s land. The original garages were subsequently demolished and a two-storey car park erected. The use of the way for accessing the car park was unlawful and was not permitted under the terms of the grant. The car park was later discontinued. No garages had stood on the site for more than 30 years when, in 2002, the respondent acquired the site for redevelopment. It wanted to reconstruct three garages.
The appellant accepted that a right of way had been validly and effectively granted for the benefit of that part of the respondent’s land. However, he contended that the right no longer existed since it had been abandoned by the respondent’s predecessor and could no longer be exercised by the respondent. He argued that the terms of the grant were such that without garages, there could be no access. The intention of the respondent’s predecessor, after demolishing the garages, had not been to use the way for accessing the garages but to use it illegitimately for access to the new car park and this was inconsistent with the use under the terms of the grant. By constructing the car park, the then owners had showed an intention to use the site inconsistently with garage use.
The county court rejected that submission and held that the respondent had established its right of access. The appellant appealed.
Held: The appeal was dismissed.
On the facts, the appellant had not discharged the burden of showing an inference of abandonment.
The question of abandonment had to be tested at the time of the acts relied upon as showing abandonment without reference to subsequent events. However, the dominant owner had to manifest a clear intention that neither it nor its successors in title should thereafter make any use of the right previously held. Abandonment was not to be inferred lightly since owners did not normally divest themselves of property unless this was to their advantage, even if they had no use for the property in question at the current time: Gotobed v Pridmore (1971) 217 EG 759 and Cook v Bath Corporation (1868) LR 6 Eq 177 considered.
In the present case, substantial as the works of demolition of the garages and construction of the car park had been, they did not justify an inference that the then owner had intended to abandon the right of way forever so that neither it nor its successors could resume its exercise.
Patrick Hamlin (instructed by Paul Gromett & Co) appeared for the appellant; Richard Banwell (instructed by Laytons, of Guildford) appeared for the respondent.
Eileen O’Grady, barrister
