Churchyard — Grant of right of way to churchyard extension — Grant made to vicar and successors in title — Whether easement granted without description of “retained land” — Whether consents required — Whether excessive user — Whether defendants entitled to obstruct right of way completely
In July 1984, the defendants purported to grant an easement of a right of way over a narrow strip of land in the vicinity of the parish church of St Andrews, Hamble. The conveyance was to the vicar of the parish of Hamble “and his successors, the owners or occupiers for the time being …” of the “retained land”. Two parcels of that land had been consecrated as an extension of the churchyard for use as a burial ground.
In October 1984, the Diocese of Winchester made a pastoral measure by which the land was vested in the parish council, the present plaintiffs. The defendants strongly objected to the exercise of the right of way and put forward three defences to the plaintiffs’ claim for a declaration and injunctive relief: (a) they claimed that on the true construction of the conveyance there was no land which answered the description of the dominant tenement; it was therefore an easement granted in gross and void; (b) they submitted that the taking of the easement by the vicar for the benefit of the churchyard was made without the necessary consents under the Church Property Miscellaneous Provisions Measure 1960, section 9, and was therefore void; (c) they submitted that there had been, or would inevitably be, excessive user which they could prevent only by obstructing the way completely.
Held Plaintiffs’ application for a declaration granted; injunctive relief refused.
1. As neither the conveyance itself nor the attached plan enabled the churchyard to be identified, extrinsic evidence could therefore be admitted. On that basis, by 1984, the “retained land” would have been readily identifiable as that lying between the churchyard and the strip of land.
2. Property of the benefice did not include the church or churchyard which was vested in the incumbent not for his own benefit but as property held for the parishioners’ benefit. Consents to take an easement were not necessary because the land had been conveyed as an extension of the churchyard to the then vicar. As a matter of law, therefore, it had become part of the churchyard, vested in him in right of his office and in trust for the parishioners (see, inter alia, Rector and Church Wardens of St Gabriel, Fenchurch St v City of London, re A Property Co Ltd [1896] P 95).
3. If an owner wished to bring to an end excessive use, he might abate the nuisance in the case of a discontinuous easement, where the extent of the excess could be ascertained (see, inter alia, Graham v Philcox [1984] QB 747). In the present case, however, the owners would not have been entitled to obstruct the right of way. There had been an express grant under the assumption that the retained land would always remain in the ownership of the vicar and his successors but the defendants had not foreseen that the land might be transferred to the parish council for use as a public burial ground. The “vicar and his successors” meant the vicar and his successors, owners and occupiers of the retained land — and not vicars of the parish.
Mr Alistair Craig (instructed by Hepherd Winstanley & Pugh) appeared for the plaintiffs, Hamble Parish Council; and Mr David Ritchie (instructed by Rubinstein Callingham Polden & Gale) appeared for the defendants, Raymond and Barbara Haggard.
