Easements — Implied reservation — General rule against implied reservation — Right claimed to construct and use road under exception to general rule — Early conveyances and plans referring to road and intended road — Whether easement by implied reservation under exception to general rule — Whether right to construct road
In the 1920s H made up as a road the northern part
of a former estate or farm track and sold off a number of residential plots
fronting the road. The southern, unmade part of the track continued to H’s
property, Lostock Hall Farm. By two conveyances, of 1928 and 1930, a
predecessor in title of the respondent acquired from H one of the plots at the
south end of the road (the Paddock). The plan to the 1928 conveyance indicated
a southern extension of the road to Lostock Hall Farm by dotted lines; the
grant in the same conveyance included a right to use the road leading from the
main road to Lostock Hall Farm in common with the owner. The same features
appeared in the 1930 conveyance, save that the road was referred to as an
‘intended road’. The appellant acquired Lostock Hall Farm from a successor in
title to H. In proceedings by the respondent, the appellant counterclaimed that
he was entitled to enter the Paddock for the purpose of constructing an
extension to the made-up road as shown on the plans to the two conveyances. His
contention that he was so entitled by reason of an implied reservation of
rights in the two conveyances was rejected in the court below. He appealed.
dismissed. Re Webb’s Lease [1951]
Ch 808 established that the onus was on the appellant to bring his case
within one of the exceptions to the general rule that a grantor who intends to
reserve any right over the land granted has a duty to reserve it expressly in
the grant, as stated by Thesiger LJ in Wheeldon v Burrows (1879)
12 ChD 31. No reservation of any kind was to be implied into the two
conveyances, for a number of reasons. In so far as there was a common intention
that the vendor, under these conveyances, should have a right to enter the
Paddock to construct an extension to the road, it was not possible to deduce
with any degree of certainty the precise nature and extent of the right that
the parties intended the vendor to have. It was highly material that the two
conveyances contained express reservations of rights in favour of the vendor.
There was no need for H to include the strip of the intended road in the two
conveyances if it was to be used for future road-widening by him.
This was an appeal by the defendant, Michael
Kingsley, from a decision of Judge Maddocks, sitting as a deputy judge of the
High Court, in proceedings by the claimant, Harold Percy Chaffe, in relation to
the defendant’s claim to a right of way.
Jonathan Brock QC and David Ainger (instructed by
Charles Russell) appeared for the appellant; Simon Berry QC and John Dagnall
(instructed by Halliwell Landau, of Manchester) represented the respondent.
Giving the first judgment, JONATHAN PARKER J said:
Introduction
This is an appeal by the defendant in the action,
Mr Michael Kingsley, from an order made by his honour Judge Maddocks, sitting
as a High Court judge, on 18 July 1997. By his order, the judge dismissed Mr
Kingsley’s counterclaim in the action.
Mr Kingsley appears by Mr Jonathan Brock QC and Mr
David Ainger of counsel; the plaintiff in the action (respondent to the
appeal), Mr Harold Chaffe, appears by Mr Simon Berry QC and Mr John Dagnall of
counsel.
By his counterclaim, Mr Kingsley claims a right
for himself and his successors in title as owners of Lostock Hall Farm,
Poynton, Cheshire, now or at any time in the future to enter on Mr Chaffe’s
property known as the Paddock, 24 Lostock Hall Road, Poynton, Cheshire, for the
purpose of constructing a road, together with a right of way over the road
(once constructed). Mr Kingsley bases that claim on two conveyances dated
respectively 26 June 1928 (the 1928 conveyance) and 5 March 1930 (the 1930
conveyance). By those conveyances,Mr Kingsley’s predecessor in title, as
vendor, conveyed to Mr Chaffe’s predecessor in title two adjacent plots of land
that, immediately prior to the conveyance, had formed part of Lostock Hall
Farm. Mr Chaffe’s property, the Paddock, is comprised of the plot conveyed by
the 1928 conveyance together with a strip some 4ft wide of the plot conveyed by
the 1930 conveyance, which adjoins the southern boundary of the plot conveyed
by the 1928 conveyance. Neither the 1928 conveyance nor the 1930 conveyance
contains any express reservation of the rights that Mr Kingsley claims, but his
case is that, on the true construction of the 1928 conveyance and the 1930
conveyance, a reservation of such rights is to be implied in each of those
conveyances.
Mr Chaffe denies that any such implication is to
be made. Alternatively, if that be wrong, he contends that the rights claimed
are unenforceable in that they offend against the rule against perpetuities
and/or have been abandoned, and, in the further alternative, that Mr Kingsley
is estopped from asserting such rights. The judge found in favour of Mr Chaffe
on the first issue (the implication issue), concluding that any implied
reservation would, at best, be exercisable only within a reasonable time from
the date of grant, and that, on any basis, a reasonable time had long since
expired. The judge accordingly dismissed Mr Kingsley’s counterclaim. In the
course of his judgment, the judge indicated that had he reached a contrary
conclusion on the implication issue — that is to say, had he held that the
rights claimed had been reserved by implication — he would have held in favour
of Mr Kingsley on the remaining issues relating to perpetuity, abandonment and
estoppel.
Mr Kingsley appeals against the dismissal of his
counterclaim, contending that the judge was wrong in concluding that any rights
impliedly reserved by the 1928 conveyance and the 1930 conveyance must have
been exercisable only within a reasonable time. A respondent’s notice has been
served on behalf of Mr Chaffe, contending that no rights were impliedly
reserved by the two conveyances and, in the alternative, raising the further
issues relating to perpetuity, abandonment and estoppel. Effectively,
therefore, all the issues that were argued before the judge are before this
court.
Factual and conveyancing background
With that short introduction, I can now turn to the
factual and conveyancing background in more detail.
The Paddock is the most southerly house in Lostock
Hall Road, which leads northwards from the Paddock to join the main Chester
Road, the A5149. The main road runs more or less east/west. All the houses on
Lostock Hall Road (including the Paddock) were once part of Lostock Hall Farm,
which is owned by Mr Kingsley. The farmhouse and buildings of Lostock Hall Farm
lie some distance away from the Paddock in a southerly direction.
Lostock Hall Road is, and has, since 1925, been, a
made-up road, some 40ft in width overall. At its southerly end, it meets part
of the northern boundary of the Paddock. That accounts for some 28ft of its
width, measuring from its western side. There is a gateway in the northern
boundary of the Paddock at its eastern extremity, which leads directly on to
Lostock Hall Road. The eastern boundary of the Paddock consists of a hawthorn
hedge that runs southwards from the end of Lostock Hall Road in an irregular
line. To the east of the hedge is an unmade-up track leading from the end of
Lostock Hall Road to the farmhouse and buildings of Lostock Hall Farm. At its
northern end, the hedge more or less abuts the track, but it diverges from the
line of the track as the track bends towards the south-east before resuming a
southerly direction as it approaches Lostock Hall Farm.
Prior to 1920, Lostock Hall Farm (which, as I
mentioned earlier, then included the Paddock and the other properties fronting
on to Lostock Hall Road, together with Lostock Hall Road itself) formed part of
the settled estates of Lord Vernon of Sudbury. In those days, Lostock Hall Road
did not exist as a made-up road; rather, the track to which I have already
referred continued northwards to the Chester Road along the line of what is now
Lostock Hall Road, connecting Lostock Hall Farm and the Chester Road.
In 1920 Lord Vernon sold Lostock Hall Farm to the
tenant farmer, one Charles Hampson. Over the ensuing years Mr Hampson sold off
a number of small plots for development. By 1925 Lostock Hall Road was made up
as far as what is now the northern boundary of the Paddock (and that has since
remained the position). From about 1925 onwards, Mr Hampson sold off a number
of plots fronting on to the road. By a conveyance dated 21 April 1925, Mr
Hampson conveyed the plot immediately to the north of what is now the Paddock
to a Mrs Lillie Joy. The eastern boundary of that plot fronted on to Lostock
Hall Road.
The next material conveyances are the 1928
conveyance and the 1930 conveyance. The original deeds are not in evidence, but
their contents are proved by an examined abstract of title, the accuracy of
which is not in question.
By the 1928 conveyance, Mr Hampson conveyed to one
Beatrice Marsden the plot lying immediately to the south of the plot sold to
Mrs Joy. The plot conveyed by the 1928 conveyance forms the northerly part of
what is now the Paddock, and its northern boundary projects some 28ft further
to the east than the southern boundary of Mrs Joy’s plot. The parcels clause in
the 1928 conveyance describes the land conveyed by reference to an attached
plan, on which the land is expressed to be ‘more particularly delineated and
described’. For present purposes, the boundaries of the land conveyed are not
in issue. What is directly material for present purposes, however, is the fact
that the plan (a copy of which is bound into the abstract of title) shows
Lostock Hall Road as continuing southwards at a constant width, and as
incorporating the easterly part of the plot. The fact that, as at that date,
Lostock Hall Road ended at the northern boundary of the plot (as it still does)
is reflected in the fact that from the point where it crosses the northerly
boundary of the Paddock, the western border of Lostock Hall Road is shown on
the plan not as a continuous line but by a line of dashes and dots (I will
refer to it as a dotted line). The dotted line, (which, as I have explained,
cuts through the easterly end of the plot) is described on the plan as ‘Road
Imp Line’ — meaning, presumably, road improvement line. I should note at this
point that, in the course of his judgment (at p16G of the transcript), the
judge observed that this road improvement line:
was not and could not be referable to an
improvement line resolved upon by the Local Authority under section 33 of the
Public Health Act 1925.
The contrary has not been argued on this appeal.
Returning to the plan, both the existing road and
the extension to the south are shown coloured yellow. The plan also shows,
coloured brown, the track that I described earlier, leading from the end of
Lostock Hall Road to Lostock Hall Farm.
Turning to the parcels clause in the 1928
conveyance, the land was conveyed together with the benefit of two easements
and subject to an exception and reservation. The words of grant are recited in
the abstract of title in the following terms:
TOGETHER with (in common with the Vendor and all
other persons entitled thereto) a right of way at all times and for all
purposes over or along so much of the roadway known as Lostock Hall Road
leading from Chester Road to Lostock Hall [a reference to Lostock Hall Farm] as
[and then one must supply some such word as ‘lies’ or ‘lay’] between the plot
of land thereby conveyed and Chester Road and the right to use the sewers
soughs and drains then or thereafter laid or to be laid under the said roadway
and which said roadway was for the purpose of identification only coloured
yellow on the said plan drawn thereon.
Then followed an exception and reservation of
mines and minerals, the detailed terms of which are not material for present
purposes, and, accordingly, I need not read them. The presence of an express
exception and reservation in the 1928 conveyance is, however, of some
significance (it seems to me) in the context of the contention that an
additional reservation is to be implied. I shall return to this point later in
this judgment.
The 1928 conveyance contains a number of covenants
by the purchaser, for herself and her successors in title, of which I must
refer to the following. First, there are covenants by the purchaser within two
calendar months from the date of sale ‘to erect (if not already erected)
suitable fences to divide the plot of land thereby conveyed from the adjoining
land belonging to the Vendor and from the said roadway known as Lostock Hall
Road’ and ‘for ever thereafter to maintain and keep such fences in good repair
and condition’. There is also a covenant by the purchaser:
to bear and pay a proportionate part in common
with others of the cost of keeping Lostock Hall Road and the sewers and drains
thereunder in reasonable repair and condition until the same should be taken
over by the Local Authority.
Finally, so far as the 1928 conveyance is
concerned, I should refer to the covenant by the purchaser not to build a
dwelling-house nearer to Lostock Hall Road than the house erected on the
adjoining plot to the north; presumably this covenant is based on the existence
of a local authority building line.
I turn next to the 1930 conveyance. By the 1930
conveyance, Charles Hampson conveyed to Beatrice Marsden a plot lying
immediately to the south of the plot conveyed by the 1928 conveyance. The 4ft
wide strip along the northern boundary of this plot now forms part of Mr
Chaffe’s property, the Paddock.
As in the case of the 1928 conveyance, the plot
was conveyed by reference to a plan, on which it was expressed to be ‘more
particularly delineated and described’. Turning to the plan, the southerly
extension of Lostock Hall Road is shown in the same position as it appears on
the plan attached to the 1928 conveyance and is marked by dotted lines. As in
the case of the plot conveyed by the 1928 conveyance, the dotted line marking
the western border of the extension cuts through a section of the plot at its
north-east corner, where the boundaries of the plot effectively jut out into
the site of the extension. In contrast to the 1928 conveyance, however, the
extension to Lostock Hall Road is described on the plan as ‘Intended Road’.
Turning to the parcels clause in the 1930
conveyance, the plot is conveyed with the benefit of easements as follows:
TOGETHER with (in common with the Vendor and all
other persons entitled thereto) a right of way at all times and for all
purposes for the Purchaser and all persons authorised by her to pass and repass
at all times and for all purposes over and along the roadway marked Intended
Road on the said plan to its junction with the [sic] Lostock Hall Road and
thence to Chester Road aforesaid on payment of a proportionate part of the
expense of keeping the said Intended Road when formed by the Vendor in good
repair and condition until taken over by the Local Authority and the right to
use the sewers soughs and drains when or thereafter laid or to be laid under
the said roadway.
I draw attention at this stage to the words ‘when
formed by the Vendor’, on which Mr Brock QC, for Mr Kingsley, places strong
reliance.
There then follows an exception and reservation in
relation to mines and minerals in the same terms as that that is to be found in
the 1928 conveyance, and I make the same observation in relation to it. The
1930 conveyance also contains a fencing covenant by the purchaser in the same
terms as the equivalent covenant in the 1928 conveyance. There is, however, no
covenant equivalent to what I may call the ‘building line’ covenant in the 1928
conveyance.
I need not refer further to the conveyancing
history, save to note that Mr Chaffe acquired the Paddock by a conveyance dated
10 June 1966 from a Mr Dance (the successor in title of Beatrice Marsden, the
purchaser under the 1928 conveyance and the 1930 conveyance); and that Mr Kingsley
inherited Lostock Hall Farm on the death of his uncle Mark (or Marques)
Kingsley in 1974.
In the event, no extension to Lostock Hall Road
has ever been constructed as shown on the plans to the two conveyances. In
about 1989, Mr Kingsley started to build a road from Lostock Hall Farm
northwards towards the end of Lostock Hall Road, but that road ends at a point
to the south of the Paddock. Subject to that, the situation on the ground in
relation to Lostock Hall Road remains more or less as it was following the 1930
conveyance, almost 60 years ago. Lostock Hall Road was adopted in 1967, and
part of the liability for maintenance expenses was apportioned to the Paddock
by reference to its 28ft frontage on to the road on its northern boundary (as
described earlier).
Issues in the action
The proceedings were commenced by Mr Chaffe in or
about early 1994, following a number of incidents between him and Mr Kingsley
that the judge described as ‘fairly trivial’. Before the judge, both sides
accepted that issues as to damages arising from those incidents could be
resolved by agreement. In the event, the only issue of substance raised before
the judge (and the only issue raised on this appeal) concerns Mr Kingsley’s
claim to be entitled to enter on the Paddock for the purpose of constructing an
extension to Lostock Hall Road as shown on the plans attached to the 1928
conveyance and the 1930 conveyance: what I referred to earlier as ‘the
implication issue’. The resolution of the implication issue does not involve
the determination of any contested issues of fact: rather, it depends on the
true construction of the 1928 conveyance and the 1930 conveyance, and on the
question of whether, in all the circumstances as obtaining at the dates of the
respective conveyances, reservations of the rights claimed ought to be implied
into those conveyances. If such rights were impliedly reserved, further issues
of law arise in relation to perpetuity, abandonment and estoppel.
Judgment
In the course of his judgment, which is now
reported at (1999) 77 P&CR 281, the judge conducted a thorough and careful
review of the authorities concerning the basic principles governing the
implication of a reservation in a conveyance, starting with Wheeldon v Burrows
(1879) 12 ChD 31. The second of the two well-known propositions stated by
Thesiger LJ in that case was expressed at p49 of the report in the following
terms:
if the grantor intends to reserve any right over
the tenement granted, it is his duty to reserve it expressly in the grant.
Thesiger LJ expressly acknowledged that that
general rule was subject to exceptions, including ‘ways of necessity’, but he
went on to observe that it was:
founded upon a maxim which is as well established
by authority as it is consonant to reason and common sense, viz., that a
grantor shall not derogate from his grant.
After
referring to a number of other authorities, including Jones v Pritchard
[1908] 1 Ch 630 and Pwllbach Colliery v Woodman [1915] AC 634,
the judge continued at p288:
Taking the cases together they do in my judgment
establish that an easement may arise by implied reservation where the common
intention to reserve that easement plainly appears from the terms of the
deed including any plan forming part of
the deed as properly construed in the
light of the circumstances in which it was entered into.
The implication will, however, only arise where
there is a necessary inference as to the common intention and then only to the
extent necessary to give effect to it.
The judge then referred to Re Webb’s Lease
[1951] Ch 808, quoting extracts from the judgment of Jenkins LJ on p828 and
p829 of the report, and continued at p289:
This approach to the reservation of rights
appears to me to be part of the general principle as to the implication of
terms considered more recently in the well-known case of Liverpool City
Council v Irwin [1977] AC 239.
The judge went on to quote from Lord Wilberforce’s
speech in that case.
Finally, before turning to the terms of the 1928
conveyance and the 1930 conveyance, the judge observed that, in order for a
reservation of the rights claimed to be implied, the case must be brought
within one of the exceptions to Thesiger LJ’s second proposition in Wheeldon
v Burrows, which I quoted earlier.
Before referring to the remainder of the judgment,
it is right to record that Mr Brock does not quarrel with the judge’s analysis
of the position in law in relation to the implication of a reservation, or with
the judge’s identification of the relevant principles. Mr Brock’s quarrel is
with the way in which the judge applied the relevant principles. Mr Brock
contends that, in the case of each of the two conveyances, it is a necessary
implication that a right was reserved to the vendor and his successors in title
to enter on the land conveyed at any time in the future in order to construct
the extension to Lostock Hall Road as shown on the plans.
Returning to the judgment, having referred to the
relevant principles, the judge went on to consider the terms of the two conveyances.
As to the 1928 conveyance, the judge commented
that it was plain from the plan, and, in particular, from the reference to a
‘road improvement line’, that an extension to Lostock Hall Road was
contemplated at some time in the future. He attached significance to the fact
that the parcels referred to the road as leading from Chester Road to Lostock
Hall, and that both the existing road and the extension were coloured yellow on
the plan. He noted that the right of way granted by the 1928 conveyance was
expressed to be granted over the whole road ‘in common with the Vendor’.
Finally, the judge referred to the fencing covenant, commenting that it would
seem to apply not merely to the existing road but also to the extension. He
went on at p289:
These are strong indications that the Vendor was
to have some corresponding rights over the unmade part [a reference to the
extension]…
The judge then turned to the 1930 conveyance. He
began by referring to the plan, and to the designation of the extension as
‘Intended Road’. He noted the grant of a right of way over the extension up to
the end of Lostock Hall Road, observing that as a description this would
include that part of the plot conveyed which lay within the boundaries of the
extension, notwithstanding that there was no need to grant the purchaser a
right of way over her own land. He also attached significance to the fact that
the right of way was granted ‘in common with the Vendor’, and to the obligation
contained in the parcels clause to contribute to the cost of keeping the
extension ‘when formed by the Vendor’ in good repair and condition. He pointed
out that the vendor could only form the extension if he had a right to form it
on the plot conveyed as well as on land retained by him.
The judgment continues at pp290-291:
The terms of the parcels to the deeds coupled with
the plans do therefore make it plain, at the very least: (i) that the parties
contemplated an extension of the road as indicated; (ii) that the Vendor would
have corresponding rights of way and drainage as well over the extension when
formed as over the existing road which he retained; (iii) that the Vendor had
or was to have a right to enter and make up the road in order to give effect to
the grant and to the scheme.
Thus far I can see grounds for the implication of
rights in favour of the Vendor as a matter of necessary implication to give
effect to the terms of the deed and the obvious expectation of the parties. In
the first place I think it must have been intended that as and when the road
was formed the Vendor was to have a corresponding right of way over the whole
road and the right to use the sewers and drains. Without that the whole scheme
would break down and be unworkable.
The crucial question is to what extent, if at
all, there can be implied a right to enter and form the road. One view might be
that the failure to reserve any right indicates that there existed some
independent personal right outside the deed. Any such right, being personal,
would not avail the defendant and must long since have elapsed.
However, I think the proper approach is to treat
each deed as forming a self-contained contract between the parties. On that
footing the defendant’s case is that all the rights to give effect to the
scheme must be of the same extent and duration. The rights of way granted to
the purchaser were immediate rights attached to the fee simple. The rights to
be implied in favour of the Vendor should therefore be of the same nature, that
is to say an immediate right of way coupled with an immediate right to enter
and form the road, but exercisable at any time in the future.
That has only to be stated for it to raise the
immediate question as to how such rights could possibly arise by way of
necessary implication. The purchaser might well have accepted a right of
immediate entry to give effect to a scheme which then existed. A right to form
the road at any time in the future, if sought, would, as Mr Dagnall said, have
been an obvious subject for negotiation.
At best, any right which might be implied must,
in my judgment, be limited to a right of entry to carry out the Vendor’s then
existing scheme if there was one but, in any case, to make up the road within a
reasonable time. That implication is all that is necessary to give effect to
the common intention appearing from the deeds coupled, as it is, with the
failure to reserve any express or more extensive right.
That conclusion was sufficient to dispose of Mr
Kingsley’s claim. However, the judge went on to say briefly what his
conclusions would have been on the issues of perpetuity, abandonment and
estoppel had such issues arisen for decision. As I said at the outset, he
indicated that he would have decided those issues in favour of Mr Kingsley.
The judge gave leave to appeal.
I turn, therefore, to the implication issue, for,
depending how that issue is resolved, the remaining issues may not arise.
Arguments on the implication issue
As I noted earlier, Mr Brock does not take issue
with the judge’s exposition of the relevant principles as explained in the
authorities to which the judge referred. However, Mr Brock has referred us to a
number of additional authorities. In the first place, he referred us to the
recent House of Lords decision in Investors Compensation Scheme v West
Bromwich Building Society [1998] 1 WLR 896, and in particular to the now
much-cited passage from the speech of Lord Hoffmann at pp912F-913F, in support
of the proposition that conveyances must be construed in accordance with the
surrounding circumstances known to the parties at the time.
Next, Mr Brock relied on Stafford v Lee
(1993) 65 P&CR 172 in support of the proposition that the intended use of
land, the subject of an implied easement, need only be proved on the balance of
probabilities. In that case, the plaintiffs, as owners of an area of woodland,
claimed that the conveyance under which they derived title contained an implied
grant of a right of way over an adjoining road both on foot and with vehicles.
The defendant, the successor in title of the grantor under the plaintiffs’
conveyance, admitted that a right of way over the road was impliedly granted,
but contended that it was limited to all purposes necessary for the enjoyment
of the plaintiffs’ land as woodland. The judge at first instance held in favour
of the plaintiffs. This court dismissed the defendant’s appeal, holding that an
implied easement arose in favour of a grantee of land if the grantee could
establish that the parties to the grant had a common intention that the land
would be used in some definite and particular manner; that on the balance of
probabilities the parties to the conveyance intended that the land would be
used for the construction of a dwelling, ie for a residential purpose; and that
a right of way on foot and with vehicles was reasonably necessary for that
purpose. At p176 of the report, not quite halfway down the page, Nourse LJ
said:
The requirement that the parties should have
intended a definite and particular use for the land does not require that the
intention be proved as a certainty. As always, it is enough that it is proved
on the balance of probabilities.
Mr Brock also relies on Stafford v Lee
in stressing the importance of a plan as an aid to the true construction of the
deed to which it is attached. In Stafford v Lee the plan was expressed
to be for the purpose of identification only. Rejecting a submission that in
those circumstances the plan could not be relied on for the purpose of
ascertaining the parties’ common intention, Nourse LJ said, a little further
down p176:
I cannot see why that should be so. The plan is
part of the material agreed on by the parties. There is no reason why their
common intention, if it is not expressed, should not be implied from that as
much as from any other part of the agreed material. There is every reason why,
if it can be, it should be so implied.
Mr Brock also relies in this connection on the
House of Lords decision in Eastwood v Ashton [1915] AC 900. In
the course of his speech in that case, Lord Wrenbury said at p920 of the
report:
My Lords, I find that the description by plan is
couched in the words ‘all which said premises are more particularly described.’
The words ‘more particularly’ exclude, I conceive, that they have already been
exhaustively described. These words seem to me to mean that the previous
description may be insufficient for exact delimitation, and that the plan is to
cover all deficiencies, if any.
Lastly, so far as authority is concerned, Mr Brock
cites Neilson v Poole (1969) 20 P&CR 909 in support of the
proposition that the use of such phrases as ‘more particularly delineated’ and
‘for the purpose of identification only’ are not conclusive as to the status of
a plan, particularly where both expressions are to be found in the same deed (a
reference to the fact that the 1928 conveyance contains both such expressions).
Turning to the 1928 conveyance and the 1930
conveyance, Mr Brock submits that it is legitimate for the court to have regard
to the 1930 conveyance in construing the 1928 conveyance. He submits that, in
effect, they must be considered together. In making this submission, Mr Brock
frankly accepted that the 1930 conveyance afforded greater support for his
submissions than the 1928 conveyance; in this respect he no doubt had in mind,
in particular, the description of the extension of Lostock Hall Road as
‘Intended Road’ and the words ‘when formed by the Vendor’, to which I drew
attention earlier. Mr Brock stresses that the parties to each conveyance are
the same, and that only a relatively short period of time is involved.
As to the 1928 conveyance, Mr Brock submits that
the plan was intended to be conclusive as to the boundaries of the land
conveyed (see, in particular, the expression ‘more particularly delineated and
described’ in the parcels clause and the measurements on the plan); that the
plan clearly shows that there was an intention on the part of Hampson to
construct an extension of Lostock Hall Road incorporating part of the land
conveyed; that it was intended that Hampson should have a right of way over the
intended extension, including so much of it as would be situated on the land
conveyed (see the words ‘in common with the Vendor’); that the words ‘for
identification only’ when referring to the plan in the context of the grant of
a right of way do not operate to restrict the common intention that Hampson
should have a right to enter the land conveyed to form the new road; and that
to construe the conveyance otherwise would not give effect to the words ‘Road
Improvement Line’.
Mr Brock submits that the 1930 conveyance is to
the same effect. He points, in particular, to the designation of the extension
as ‘Intended Road’; to the provision for apportioning the costs of repairing
and maintaining the extension ‘when formed by the Vendor’; and to the grant of
drainage rights under the ‘Intended Road’.
Mr Brock also places some reliance on the plans
attached to three later conveyances (in 1935, 1942 and 1950), on which the
extension to Lostock Hall Road is shown. The 1935 conveyance, whereby Mr
Hampson conveyed away another plot, contains an express reservation in favour
of himself and his successors in the following terms:
And also save and except to the Vendor and such
persons as aforesaid similar rights of way over so much of the old cartway [a
reference to the track… as is included in the property hereby conveyed until
such time as the extension of the Lostock Hall Road shall be constructed and
thereby render unnecessary the last mentioned easement.
Mr Brock submits that, construing the 1928
conveyance and the 1930 conveyance together and in the light of the surrounding
circumstances, the common intention of the parties at all material times
clearly was that Hampson and his successors in title should have a right, at
any time in the future, to enter upon the land conveyed by those conveyances
for the purpose of constructing an extension to Lostock Hall Road in the
position shown on the plans, together with a right of way over the extension
when constructed.
I do not understand Mr Berry QC to take issue with
the propositions of law advanced by Mr Brock. In his written skeleton argument
he submits, however, that the correct application of the relevant principles in
the instant case leads to the conclusion that no reservation of any kind should
be implied. He too has referred us to authorities not cited to the judge,
including two recent, and, as yet, unreported decisions of this court in Philips Electronique Grand Public SA v British
Sky Broadcasting* and Peckham v Ellison†. Basing himself on
those authorities, Mr Berry submits that the test for the implication of a
reservation in an instrument granting an interest in land is a stricter one
than that that applies where a term is sought to be implied into a commercial
contract, and that a reservation will not be implied unless it can be clearly
seen: (a) that the common intention of the parties to the instrument was that
there should be a reservation; and (b) that had the parties addressed the
matter expressly they would have included a reservation in the terms claimed
and not in some other terms.
* Editor’s note: Reported at [1995] EMLR 472
† Editor’s note: Reported at (1999) 31 HLR 1030
Turning to the facts of the instant case, Mr Berry
submits that it cannot be clear, in the context of a sale of a house and
garden, that the parties are to be taken to be both agreed that some part of
the garden may be effectively taken away by the vendor or his successors in
title at any time in the future. Had the vendor sought such a right, it is more
than possible that the purchaser would have insisted on some limitations on
that right, or perhaps called off the sale altogether. He submits that the
plans show no more than that at the material time an extension of Lostock Hall
Road was contemplated as being something that might occur. He points also to a
number of uncertainties: for example, as to what was to happen if part of the
retained land was sold. Was it intended that the whole of the retained land
should have the benefit of the right claimed? And if not, how is the dominant
tenement to be defined? He submits that, given these uncertainties, no
reservation of any kind can be implied, limited or otherwise.
In the alternative, he submits that the fact that
(as is accepted on behalf of the defendant) the right of way granted over the
extension is only exercisable once the extension has been constructed provides
strong support for the proposition that any implied right to enter the
plaintiff’s land to construct the extension was exercisable only within a
reasonable time, as the judge held. In support of this submission, he relies on
Swan v Sinclair [1925] AC 227 (a case that was cited to the judge
primarily in the context of the issue of abandonment).
In Swan v Sinclair a row of houses
was sold in lots, one of the conditions of sale being that each of the lots was
sold subject to and with the benefit of a right of way over a strip of land
lying along the rear of the row of houses, which was intended to be cleared and
formed into a road leading to the public highway. In the event, the road was
never formed. Some 60 years later a purchaser of one of the lots sought to
enforce the right of way. The House of Lords, upholding the decisions of the
judge at first instance and the Court of Appeal, held that the inevitable
inference was that the original contractual arrangement had been abandoned. In
the course of his speech, Viscount Cave LC said at p237 of the report:
The effect of the transactions was at the most to
create a contractual relation between the several purchasers and the vendors,
under which the purchasers might perhaps have been called upon within a
reasonable time after the execution of the conveyances and the determination of
the existing tenancies, to clear the land and form the road; but until that had
been done there could be no effectual creation of the easement of passage. In
these circumstances it appears to me that the lapse of time is fatal to the
appellant’s claim.
See also per Lord Finlay at pp240-241 of
the report.
Relying on that authority, Mr Berry submits that
the judge was correct in concluding that there was no basis for implying any
right in excess of a right to form the extension to Lostock Hall Road within a
reasonable time.
Conclusions
I can now state my own conclusions on the
implication issue.
As I have already indicated, there is no dispute
as to the relevant principles of law. In particular, the decision of this court
in Re Webb’s Lease [1951] Ch 808 establishes that the onus is on Mr
Kingsley to bring this case within one of the exceptions to the general rule
stated by Thesiger LJ in Wheeldon v Burrows, quoted above.
In Re Webb’s Lease, the defendant landlord
granted a lease of premises to the plaintiff tenant. The demise included the
outer walls of the demised premises. At the time of the grant of the lease, and
continuously thereafter, there were, on the outside wall of the demised
premises, an advertisement advertising the landlord’s business (which he
carried on in the ground floor of the building) and an advertisement for a
brand of matches. Subsequently, the tenant contended that the landlord was not
entitled under the terms of the lease to use the outside wall of the demised
premises for the purposes of advertising. The lease contained no express
reservation of such a right in favour of the landlord, but the landlord
contended that such a reservation was to be implied. The judge at first
instance found in favour of the landlord, but his decision was reversed on
appeal by this court. In the course of his judgment Jenkins LJ said at p823 of
the report:
As to the law applicable to the case, it is not
disputed that as a general rule a grantor, whether by conveyance or lease, of
part of a hereditament in his ownership, cannot claim any easement over the
part granted for the benefit of the part retained, unless it is expressly
reserved out of the grant…
There are, however, certain exceptions to the
general rule. Two well-established exceptions relate to easements of necessity
and mutual easements such as rights of support between adjacent buildings. But
it is recognized in the authorities that these two specific exceptions do not
exhaust the list, which is indeed incapable of exhaustive statement, as the
circumstances of any particular case may be such as to raise a necessary
inference that the common intention of the parties must have been to reserve
some easement to the grantor, or such as to preclude the grantee from denying
the right consistently with good faith, and there appears to be no doubt that
where circumstances such as these are clearly established the court will imply
the appropriate reservation.
It is not hard to see why the scope for
implication is more restricted in the case of a reservation than it is in the
case of a grant. In the case of an implied reservation, by definition the term
that is sought to be implied will to some extent run counter to the express
terms of the instrument in question; whereas in the case of an implied grant,
by definition, the term that is sought to be implied will be designed to enable
what is expressly granted to be the better enjoyed by the grantee.
Moreover, the ‘appropriate reservation’ referred
to by Jenkins LJ in Re Webb’s Lease must, in my judgment, be that which
the parties intended to be reserved. As I read the authorities, a common
intention to reserve a right of some kind, but which is unspecific as to the
precise nature and extent of that right, cannot found a case for the
implication of a reservation. As Sir Thomas Bingham MR (as he then was) said in
Philips v British Sky Broadcasting:
it is not enough to show that had the parties
foreseen the eventuality which in fact occurred they would have wished to make
provision for it, unless it can also be shown either that there was only one
contractual solution or that one of several possible solutions would without
doubt have been preferred.
See also the House of Lords’ decision in Trollope
& Colls Ltd v North West Metropolitan Regional Hospital Board
[1973] 1 WLR 601 and the unreported decision of this court in Peckham v Ellison.
Turning to the circumstances of the instant case,
I am content to proceed on the footing (more favourable to Mr Brock) that the
1928 conveyance and the 1930 conveyance should be taken together.
I agree with the judge that it is plain from the
terms of the 1928 conveyance and the 1930 conveyance (and, in particular, from
the plans) that it was at the time contemplated that: (a) Lostock Hall Road
would be extended southwards, incorporating part of what is now Mr Chaffe’s
land; (b) the extension would be constructed by the vendor; and (c) the vendor
would have rights over it once constructed. So much, I think, is clear. But, in
my judgment, those factors do not lead to the conclusion that there was a
common intention that the vendor should have the right for himself and his
successors to enter on what is now Mr Chaffe’s land at any time in the future
for the purpose of constructing the extension. In my judgment, very clear
evidence indeed would be required to establish a common intention to reserve a
right of that kind, exercisable in perpetuity, and the indicators of intention
in the instant case fall, in my judgment, very far short of that. I agree with
the judge that in the instant case there is no basis for implying a reservation
of a right to construct the extension that is exercisable after the expiry of a
reasonable time.
For my part, I would go further. In my judgment,
no reservation of any kind — even of some limited right — is to be implied in
the 1928 conveyance or the 1930 conveyance. In the first place, in so far as
there was a common intention that the vendor should have a right to enter upon
what is now Mr Chaffe’s land for the purposes of constructing the extension of
Lostock Hall Road, it is not possible (as I see it) to deduce with any degree
of certainty the precise nature and extent of the right that the parties
intended the vendor to have. For example: it might have been a contractual
right only (as in Swan v Sinclair); it might even have taken the
form of a non-contractual private arrangement; it might have been limited in
time or by reference to the progress of development in the area or by reference
to some other matter; it might have attached to the whole of the retained land
or only to some part of it. These and other uncertainties as to the nature and
extent of the right (including, in particular, the uncertainties to which the
fencing covenants give rise, whichever construction of those covenants one
adopts) seem to me to be fatal to Mr Kingsley’s case on the implication issue.
In the second place, it is highly material, as it
seems to me, that (as I noted earlier) both the 1928 conveyance and the 1930
conveyance contain express reservations of rights in favour of the vendor. This
shows, at the very least, that the parties must have turned their minds to the
question of what rights should be reserved, and yet no express reference is
made to the rights that Mr Kingsley claims.
I would therefore conclude that not even a limited
right, such as was suggested by the judge, was impliedly reserved. That
conclusion does not, of course, affect the result so far as the implication
issue is concerned, since such a limited right would not in any event avail Mr
Kingsley.
For those reasons, I conclude that the judge was
right to find in favour of Mr Chaffe on the implication issue. That being so,
it is unnecessary for me to address the further issues raised on this appeal,
relating to perpetuity, abandonment and estoppel.
I would accordingly dismiss this appeal.
Agreeing, SEDLEY
LJ said: I agree, for the reasons set out by Jonathan Parker J, that
this appeal cannot succeed.
I am grateful for my part that Mr Brock has
invited us to set directly about determining the meaning of the 1928
conveyance. The distinction between the construction of documents and the
implication of terms, which at the start seemed likely to occupy much of the
argument, is often a mare’s nest. Attempting the latter inevitably provokes the
true but unhelpful response that words are being artificially introduced into a
document; attempting the former almost as inevitably provokes the response,
equally true and equally unhelpful, that the terms relied on are not visible.
It has been helpful, therefore, to be conducted directly on the search for
meaning. Meaning is not necessarily the same thing as intent, but in the
construction both of statutes and of documents it is the first step in deducing
intent; and this is why intent can also be collected or qualified or amplified
in controlled conditions from extrinsic evidence.
It seems to me, however, that it is impossible to
extract from the 1928 conveyance either alone or in association with the 1930
conveyance, and whether with or without reference to the topography of the site
and the history of its development, the meaning or, therefore, the intent for
which Mr Brock contends. Two factors in particular seem to me to militate
against it.
The first is that the grant is accompanied by
express reservations that conspicuously do not include the reservation of a
right to build a roadway on part of the parcel conveyed. It is good sense, as
well as good law, that it takes even more to amplify a reservation than to
qualify a grant. The second is that the vendor had no need to convey the
‘ransom strip’ at all if he intended at some future date to use it for
road-widening; for if, as Mr Brock contends, it was well known to both sides
that it was going to be claimed sooner or later for this purpose, its inclusion
in the parcel can have added little or nothing to the parcel’s value or,
therefore, its price.
From these considerations follows a third: that it
is far from obvious that the parties were in agreement about what was to happen
if the vendor or his successors in title decided to extend the road. The road
improvement line marked on the plan may have signified no more than where the
road would go if the parties could agree terms about the transfer or use of the
strip of land. There was, as Mr Brock accepts, no implacable need capable of
creating an easement of necessity. Nor, in my view, was there anything capable
of generating what he calls a quasi-necessity (assuming, what I doubt, that
beyond the case of mutual easements — which are a variant of true necessity —
authority establishes the existence of such a concept). What is now devoutly
wished by the defendant is that his predecessor in title had preserved an
enforceable right to enlarge the road if it one day became worthwhile to do so;
but, in 1928, there was manifestly no immediate need to do so, and what was
done fell well short of such a reservation.
If it were clear that this was a simple oversight,
the court would supply the omitted term, whether by implication or by
construction — which it is called is unimportant. But the combination of
internal evidence that it was not an oversight with the want of external
evidence of a shared intent puts the task, in my view, beyond the defendant’s
reach.
Also agreeing, EVANS LJ said: I also agree. Mr Brock does not contend
that the term for which he contends should be implied in the 1928 and 1930
conveyances (like my lords, I am content to read the two conveyances together)
out of necessity, and regardless of their express terms. That might be called a
true implied term, implied by operation of law, owing nothing to the express terms
and perhaps even contradicting them. He relies rather upon certain of the
express terms together with what is now known of the surrounding circumstances
when the conveyances were made. Since they do not contain in so many words the
term upon which he relies, the term can properly be called an implied term,
implied from the express terms, using that phrase in this different sense.
I agree with Mr Brock’s opening submission that
the task for the court is essentially one of construction or interpretation, rather
than ‘implication’ in the more formal sense. The court’s approach is well spelt
out in the recent new edition of Chitty on Contracts (28th ed) in paras
12/014 and following, a passage that takes account of the recent speech of Lord
Hoffmann in Investors Compensation Scheme SA v West Bromwich Building
Society. The passage in question is attributed to Professor Stephen Guest
QC, and is therefore to be regarded with considerable respect by this court. It
is noteworthy that the topic of implied terms is dealt with also by Professor
Guest in the following chapter, chapter 13.
In summary, Mr Brock submits that a case arises of
what he calls quasi-necessity; the term must be implied so that the agreement
will work as the parties intended that it should. In my judgment, for the
reasons given by my lords, the tantalising indications of what Mr Hampson and
Mrs Marsden may or may not have had in mind for the future, as regards the
intended road and the road improvement line, are no more than that. They do not
come near establishing a common intention that Mr Hampson should retain a
considerable right and that Mrs Marsden, effectively, would release part of the
land to him for no discernible benefit to herself at a time entirely of his
choosing. If that was their intention, then questions arise: why was such a
significant reservation of rights not included as an express term? Why were
certain of the express terms apparently contradictory of the suggested implied
term, for example the purchaser’s undertaking to fence the existing boundary,
left unqualified? It is these and similar questions that ultimately, in my
view, cannot be answered in Mr Kingsley’s favour.
Appeal dismissed
