Defendant erecting fencing at boundary of his property – Plaintiffs seeking injunction – Whether and to what extent the plaintiffs enjoyed a right of way over defendant’s land – Plaintiffs claim succeeding in part
The plaintiffs and the defendants owned adjacent properties that faced north on to the Great North Road. Immediately south of the road was a grassy area, behind which was a service road. The properties stood behind the service road. In contrast to the defendant’s property, the plaintiffs’ property, Measide, did not include any of the service road in front of it. There were four exits on to the Great North Road from the service road, one being to the east of Measide and one in front of the defendant’s land. The area of service road at the boundary between the plaintiffs’ and the defendant’s properties was known as “AB”.
In 1997 the defendant erected wooden fences at the side boundaries of his property. The plaintiffs sought a declaration that they were entitled to a right of way for travel, both by foot and vehicle, between the land marked “AB” and the exit from the defendant’s property to the Great North Road (the exit), and to and from “AB” and a point marked “CD”. The defendant denied any right of way existed and asserted that “CD” had been obstructed for more than a year before the commencement of the action. The issue therefore, for each right of way, was whether the plaintiffs had enjoyed use of the defendant’s land for the purpose claimed, for a continuous period of 20 years up to 27 May 1998, the date upon which the action started.
Held: The plaintiffs’ claim succeeded in part.
The plaintiffs could not show vehicular use from AB to the exit from, at least, 1979 to 1988. Further, they failed to establish vehicular use by themselves, or their predecessors, at any time through CD. However, the claim to a right of way by foot from AB to the exit had different features. There was direct evidence from those who claimed to use it at Measide, from which it was almost certain that a pedestrian right of way was used throughout the 20-year period. The defendant had therefore interfered with the plaintiffs’ use of their right of way and an injunction was issued in terms that a pedestrian right of way existed in favour of the plaintiffs from AB to the exit.
Lisa Sinclair (instructed by Wedlake Saint) appeared for the plaintiff; Edmund Cullen (instructed by Clintons) appeared for the defendant.
Sarah Addenbrooke, barrister
