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.
[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
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.
The following cases are referred to in this report.
Chaffe v
Kingsley (1999) P&CR 281
Eastwood v Ashton [1915]
AC 900
Investors
Compensation Scheme Ltd v West Bromwich Building Society [1998] 1
WLR 896; [1998] 1 All ER 98, HL
Jones v Pritchard
[1908] 1 Ch 630; [1908-11] All ER Rep 81; 24 TLR 309
Neilson v Poole
(1969) 20 P&CR 909
Peckham v Ellison
(1999) 31 HLR 1030
Philips
Electronique Grand Public SA v British Sky Broadcasting Ltd [1995]
EMLR 472
Pwllbach Colliery
Co Ltd v Woodman [1915] AC 634
Stafford v Lee
(1993) 65 P&CR 172
Swan v Sinclair
[1925] AC 227
Trollope &
Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1
WLR 601; [1973] 2 All ER 260
Webb’s Lease, Re
[1951] Ch 808; [1951] 2 All ER 131, CA
Wheeldon v Burrows
(1879) 12 ChD 31
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
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 upon 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,
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 Co Ltd 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 Ltd
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); 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; 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’); 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 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 Ltd* 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
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 Ltd v West Bromwich
Building Society. The passage in question is attributed to Professor
Anthony 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.
