Heslop v Bishton and others

Easement – Deviation – Substantial interference – District judge ruling that erection of wall and pillars by appellant to construct gateway constituting substantial interference with right of way – Whether appellant’s actions constituting actionable interference – Appeal dismissedThe appellant owned the freehold of a property that formed part of an estate of houses. A passageway, which was approximately 8ft wide, ran between the appellant’s property and the neighbouring house belonging to the respondents, and led to a right of way along the back of the houses. In 1985, the right of way had been diverted to enable the appellant and his neighbour to extend their houses by building at the rear over the previous right of way and reducing the width of the passageway. A dispute arose between the parties regarding an alleged obstruction over the right of way that had been caused when the appellant erected a wall and pillars to construct a gateway on his land to the south of the passageway. The district judge gave summary judgment for the respondents and made declarations that: (i) the erection of the brick wall and pillar to one side of the gateway constituted a substantial interference with the respondents’ right of way; and (ii) for as long as the obstruction subsisted, the respondents would be allowed to enter onto that part of the appellant’s land that was not subject to the right of way in order to make effective use of the gateway.The appellant appealed, contending that although the wall and pillar prevented the effective use of the right of way granted by the 1985 deed, anyone entitled to use that right of way could avoid the obstruction by stepping onto a small piece of the appellant’s land to the east of the existing right of way and gain access in a manner equally convenient to the use of the right of way that had been formally granted.Held: The appeal was dismissed.A servient owner had no right to alter the route of an easement of way unless such a right was an express or implied term of the grant of easement or was subsequently conferred on him. However, in exceptional circumstances the court might refuse injunctive relief where the realignment improved road safety, the dominant owners had failed to object and the realignment was necessary to achieve an object of substantial public and local importance: Greenwich Healthcare NHS Trust v London & Quadrant Housing Trust [1998] 1 WLR 1749 considered.Where a right of way had been obstructed, the existence of an equally convenient alternative right of way could affect the remedy available to the holder of the obstructed right since remedies such as injunctions were equitable and matters of discretion. The court could take any relevant circumstances into account in deciding whether to grant an injunction, and the practical effect on the dominant landowner of the interference, bearing in mind any other rights he had, was relevant.The alteration of the route of a right of way involved, first, the grant of a right of way over a new route and, second, the extinguishment of former rights of way over the existing route so that the dominant landowner was compelled to use the new route. The dominant landowner could not object to the first of those steps. Although rights of way could be and often were granted by an instrument to which both the dominant and servient landowners were parties, it was not necessary that they should be. A legal easement was created by deed of grant executed by the servient landowner, and there was no requirement for any consideration or reciprocation from the owner of the dominant land. Thus, there was no reason in principle why the owner of land that was subject to a right of way over route A should not unilaterally execute a deed in favour of all the persons entitled to the benefit of that right of way, conferring on them an additional right of way over route B.However, the beneficiaries of that grant were not obliged to use that right and had not been subjected to any liability by virtue of its creation. Although they could individually or collectively release the original right, unless and until they did so it would subsist.Consequently, the servient owner could not by provision of a new right prevent acts of obstruction of the old route from being in principle actionable. The availability of the new route went to remedy, but did not extinguish the original right. Where an equally convenient alternative route was available, the court could decline to grant an injunction to enforce use of the original route, but there was no reason in principle why it should not grant other relief, such as a declaration as to subsistence of the right or compensation. It would be unjust if an existing legal right were to be extinguished by the creation of an equitable right, only for the latter to be defeated in some way, leaving the dominant landowner with no right at all.The appellant appeared in person; William Hansen (instructed by Underhill Langley Wright, of Wolverhampton) appeared for the respondents.Eileen O’Grady, barrister