Conveyance – Easement – Fencing – Dispute arising about obligation to fence boundary between two parcels of land – Judge holding appellant liable to fence boundary by putting fence on their land – Judge identifying obligation as fencing easement – Whether legally possible for clause in conveyance to create fencing easement – Whether on its true construction relevant clause had that effect – Appeal dismissed
The respondent was the tenant under a lease of Churston Court Farm. The freehold of the farm was registered in the names of the trustees of a settlement. The appellant was a golf club which was the leasehold proprietor of neighbouring land. The freehold of the appellant’s land was held by Torbay Borough Council. In 1972 the former owners of the appellant sold the golf club land to the County Borough of Torbay by a deed of conveyance. The trustees, who were owners of adjoining land, were also parties to the deed.
Clause 2 of the conveyance provided: “The purchaser hereby covenants with the trustees that the purchaser and all those deriving title under it will maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stock proof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto”. The respondent was a successor in title to the trustees named in the clause and the benefit of clause 2 passed to him.
A dispute arose about the obligation to fence the boundary between the two parcels of land. The judge held that the appellant owed an obligation as the owner of adjoining land to fence the boundary by putting a fence on their land. He identified the obligation as a fencing easement.
The appellant appealed. The issues for determination were: (i) whether it was legally possible for a clause in a conveyance to create a fencing easement at all; and (ii) whether on its true construction the clause had that effect.
Held: The appeal was dismissed.
(1) Easements were obligations which applied to one piece of land for the benefit of another piece of land. They were attached to the land rather than to the person who happened to be the owner or occupier of the land at a given moment. The problem was that easements in general did not or could not give the owner of the dominant tenement a right to impose a positive obligation on the owner of the servient tenement to do something (such as to spend money). A right to have something done was not an easement. An obligation to build and maintain a fence was such an obligation. However, as a result of three cases decided by the Court of Appeal which considered this sort of fencing obligation, it had been clearly established that a fencing obligation between neighbours in the nature of an easement could exist as a matter of English law and would run with the land (the fencing easement). The Court of Appeal decisions made it clear that at least one origin of the fencing easement lay in grant. That was a necessary part of the reasoning which led to the courts accepting that those obligations existed at all. Thus, it had to be possible for two parties to actually create such a right by grant in a clause in a conveyance of the relevant land. That did not mean such an easement had in fact been created in any given case but if, on its true construction, a clause purported to create an easement of fencing, the objective view of the intention of the parties was that that was what they intended to achieve. There was no good reason in law or principle why that should be declared legally impossible. Since a fencing easement was a thing which could exist, could run with the land and whose origin could lie in grant, there was no reason why two parties who wished one to be granted could not do so: Jones v Price [1965] 2 QB 618, Crow v Wood [1971] 1 QB 77 and Egerton v Harding [1975] 1 QB 62 applied. Rhone v Stephens [1994] 2 EGLR 18 distinguished.
(2) It was clear law that clauses in a deed which conveyed property could be construed as a grant of an easement even though they were framed expressly in terms as a covenant and even though the word “covenant” was used. Therefore, the fact that a clause used the word “covenant” did not mean it only took effect as a covenant and could not do so as a grant. The judge had been entitled to examine whether the clause created an easement of fencing because, as a matter of law, it was possible for a clause in a conveyance to do that: Rowbotham v Wilson (1860) 8 HL Cas 348, QB and Russell v Watts (1885) 10 App Cas 590 considered.
(3) Clause 2 satisfied all four requirements of an easement in that it involved a dominant and servient tenement and conferred a benefit on the dominant tenement, the dominant and servient tenements were not owned or occupied by the same person and the easement was capable of forming the subject-matter of a grant. The inclusion of the words “forever hereafter” in clause 2 showed that the parties intended that the obligation was supposed to last into the future even if the purchaser ceased to exist.
(4) Clause 2 expressly stated that the purchaser “hereby covenants”. Nevertheless, an objective approach to determining the intention of clause 2 was that it was intended that a stock proof boundary fence, wall or hedge would be maintained “forever hereafter” on the purchaser’s side of the boundary of the two parcels of land by the owners or occupiers of the purchaser’s land for the benefit of the trustees’ land. It was intended to create a fencing easement and the judge had been right so to hold. Accordingly, it was legally possible to create a fencing easement by express grant in a conveyance of the relevant land and the conveyance in this case did that. The judge was right to find that a fencing easement existed: Sugarman v Porter [2006] 2 P&CR 14; [2006] PLSCS 63 distinguished.
Malcolm Warner (instructed by Kitsons, of Torquay) appeared for the appellant; John Sharples (instructed by Stephens Scown, of Exeter) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Churston Golf Club v Haddock
