Easement — Right of way — Grant for agricultural use — Whether removing timber stored on dominant tenement excessive user
By a
conveyance dated October 1990 the defendants purchased a farm together with a right
of way over a causeway and a private road which provided access between the
nearest public road and the farm. It was a term of the grant of way that its
use was connected with the use and enjoyment of the farm as agricultural land
or for access to the dwelling-house. In January 1994 the defendants purchased a
plantation adjoining the farm. In July 1995 felling equipment was brought on to
the farm via the private roadway and across the causeway, and trees on the
plantation were felled. The timber was transported to the farm for temporary
storage. The plaintiff sought an injunction and damages on the grounds that the
defendants’ use of the right of way was unauthorised by the terms of the grant.
The county court held that the felling of trees in a forestry operation was an
agricultural operation and within the terms of the grant, although the bringing
of felling equipment along the right of way was a trespass. The plaintiff
appealed.
agricultural land’ in the grant of the right of way includes forestry. But
neither forestry nor agriculture includes the separate activity of storing
timber felled elsewhere. Thus, had the farm been used as a timber storage
depot, that would not be an agricultural use for the purposes of the grant of a
right of way. To fall within agricultural use, the storage must be of timber
grown on and felled on the land in question. The removal of the timber, felled
on the plantation and stored at the farm, over the right of way was an
excessive user of the right of way. This use of the right of way was not
authorised by the terms of the grant.
The following
cases are referred to in this report.
Bracewell
v Appleby [1975] Ch 408; [1975] 2 WLR 282;
[1975] 1 All ER 993; [1976] 1 EGLR 119; [1976] EGD 190; (1975) 237 EG 731
Harris
v Flower (1904) 74 LJ Ch 127
This was an
appeal brought by the plaintiff, James Michael Jobson, against part of the
order of Mr Recorder Hatton, sitting in Newcastle County Court on November 23
1995, dismissing his claim for damages and injunction against the defendants,
Dr Christopher Oswald Record and Suzanne Marie Record.
Robin Horner
(instructed by Sanderson McCreath & Edney, of Berwick-upon-Tweed) appeared
for the plaintiff; Stephanie Jarron (instructed by Ward Hadaway, of Newcastle
upon Tyne) represented the defendants.
Giving
judgment at the invitation of Simon Brown LJ, MORRITT LJ said: This is
an appeal of the plaintiff, Mr Jobson, brought with the leave of the judge from
part of the order of Mr Recorder Hatton, sitting in Newcastle County Court on
November 23 1995. This appeal is concerned only with the issue whether the use
by the defendants, Dr and Mrs Record, of a right of way granted to them by Mr
Jobson on the sale to them of a property called Catheugh was excessive. The use
in question was the transport of timber felled off neighbouring property called
Windybanks Plantation, but stored, of necessity, at Catheugh.
Between 1980
and 1990 Mr Jobson owned a farm called High Weldon Farm at Long Framlington,
near Morpeth, Northumberland. The farm was divided by the River Coquet, which
at that point runs from south to north and then turns east. To the east and the
south of the river lay approximately 90 acres of the farm, some of it
well-wooded, and a farmhouse called Catheugh. The two parts of the farm were
linked by a causeway constructed by Mr Jobson on what he said were known as
Irish bridge principles, that is to say it is designed to withstand the force
of the flow of the river rather than to carry substantial weights. Access to
Catheugh from the nearest public road was obtained over the causeway, along a
private roadway past High Weldon farmhouse and thence to the road.
On October 25
1990 Mr Jobson sold to Dr and Mrs Record Catheugh and land to the east and west
of the river, but not including the causeway nor the site of the private
roadway. By clause 1 and Schedule 2, para 1, Mr Jobson granted to Dr and Mrs
Record:
The right for
the Purchasers and their successors in title licencees and invitees at all
times and for all purposes connected with the use and enjoyment of the property
hereby conveyed being used as agricultural land or for access to a single
private dwellinghouse to go pass and repass with or without vehicles and
animals over and along the section of private roadway
and then there
follows a description by reference to a plan.
In January
1994 Dr and Mrs Record bought the plantation called Windybanks Plantation. That
lay to the east of Catheugh and south of the river.
In June 1995
on advice the Records decided to fell off some of the timber on Windybanks
Plantation and to replant it. For that purpose they entered into two contracts,
one with a timber merchant, AMJ Scott, and the other with treefellers.
In July 1995
felling equipment was brought on to Catheugh by the treefellers via the private
roadway and across the causeway. The timber was felled and the resulting timber
was stored on Catheugh. It was, the judge found, necessary to store it on
Catheugh for there was nowhere on the plantation itself where it could be left.
On July 12
1995 Mr Jobson started this action in Morpeth County Court seeking an
injunction and damages. So far as now relevant, this was based on the
proposition that Dr and Mrs Record could only use the right of way for access
to and from Catheugh and the other land conveyed to them in October 1990. On
the same day he sought an interim injunction and was granted one restraining Dr
and Mrs Record from using the right of way for the purpose of gaining access to
or
Windybanks Plantation whether stacked there or elsewhere’. That injunction was
subsequently continued by agreement until the trial of the action. That took
place on September 28 and 29 1995 and judgment was reserved.
During the
course of the reservation of the judgment, the judge was asked and gave his
consent to the removal by the Records over the causeway and the private roadway
of the timber felled on Windybanks Plantation and stored at Catheugh. The
timber was accordingly removed.
The judgment
was given on November 23 1995. The recorder held that the Records were not
entitled to use the right of way for access to or egress from Windybanks
Plantation so that the transport of the felling equipment over the right of way
was a trespass. He then decided:
In my
judgment, the timber lorries travelling to and from Catheugh to collect timber
stored thereon are gaining access to Catheugh, and Catheugh alone. To collect
the timber, in my judgment, is a purpose connected with the use and enjoyment
of Catheugh as agricultural land.
The felling
of trees in a forestry operation is, in my judgment, an agricultural operation.
It forms cultivation of the soil. To use Catheugh for the storage of timber,
however temporary, is to use Catheugh as part of that operation and therefore
is to use it for an, and that, agricultural purpose. It is something done on
the land which falls within agriculture. To send in a vehicle to remove the
timber is connected with the use of the land for that agricultural purpose and
benefits the dominant land in accomplishing that purpose. The dominant
tenement, Catheugh, is accommodated by the removal of timber which is stored
there out of (as I find as a fact) necessity and (as I find) as part of the
agricultural purpose being carried out.
The
plaintiff’s first claim therefore fails.
The judge’s
order to reflect these findings provided, so far as relevant, in para 1, a
declaration that the exercise of the right of way to gain access to and egress
from land not contained within the conveyance in question is an unlawful
exercise of that right and, in particular, access to and egress from the land
known as Windybanks Plantation owned by the defendants. But in para 5 it was
provided:
The
Plaintiffs claim for a final injunction in the terms of the interim injunction
granted by the Court on 12 July 1995 be refused and the Court declares that the
Defendants are entitled to remove from Catheugh along the roadway coloured
green and causeway coloured blue the timber which was stacked there at the date
of the said interim injunction, having been previously felled on Windybanks
Plantation, and refuses a declaration to the contrary.
Although the
timber has now been removed, Mr Jobson is concerned that the consequence of
para 5 of the order would be that he would be liable on his cross-undertaking
in damages given as part and parcel of the grant to him of the interim
injunction to which I have referred.
The case for
Mr Jobson is quite simply this. A right of way granted expressly may only be
exercised in accordance with its terms for the accommodation of the dominant
tenement, namely Catheugh, and for this purpose he relies on Harris v Flower
(1904) 74 LJ Ch 127 and Bracewell v Appleby [1975] Ch 408.
He contends
that the removal of the timber stored at Catheugh was in substance for the
accommodation of Windybanks Plantation, for it was all part of one operation of
the felling and removing of timber. He submits that the storage of the timber
felled at Windybanks Plantation at Catheugh is not a use of Catheugh ‘as
agricultural land’ so as to come within the terms of the grant anyway.
For Dr and Mrs
Record it is contended that the nature of the land at Catheugh being at least
partly wooded, it must follow that the reference in the conveyance to
agricultural use must be construed to include forestry, namely the growing,
felling and storage of timber.
They submit
that the storage at Catheugh of the timber felled on Windybanks Plantation was
a separate agricultural use or operation carried out on Catheugh, and they
claim that Catheugh was thereby accommodated in that separate operation by the
removal of the timber over the right of way.
It is clear
that the law is not in dispute. A right of way granted for the benefit of a
defined area of land may not be used in substance for accommodating another
area of land. Thus in Harris v Flower the defendant was entitled
to a right of way for access to land shown on the plan coloured pink. He owned
further land coloured white on which he built a factory. He was restrained from
using the right of way for getting to and from the land coloured white.
At p132 of the
report Vaughan Williams LJ stated:
There can be
no doubt in the present case that, if this building is used as a factory, a
heavy and frequent traffic will arise which has not arisen before. This
particular burthen could not have arisen without the user of the white land as
well as of the pink. It is not a mere case of user of the pink land, with some
usual offices on the white land, connected with the buildings on the pink land.
The whole object of this scheme is to include the profitable user of the white
land as well as of the pink, and I think the access is to be used for the very
purpose of enabling the white land to be used profitably as well as the pink,
and I think we ought under these circumstances to restrain this user.
Earlier at
p130 going over to p131 Vaughan Williams LJ had observed:
The question
of the user is a question of fact; but if we come to a conclusion different
from that at which Mr Justice Swinfen Eady arrived, it will not be on a
question of fact such as those questions of fact on which the Court of Appeal
very unwillingly and reluctantly comes to a different conclusion from that taken
in the Court below; because here the question of fact does not depend on any
conflict of evidence, but is a question of the proper inference to be drawn
from the facts, which are not in dispute. Under these circumstances we are
bound to deal with the matter according to our own view of the proper inference
to be drawn from the facts.
I accept the
submission made for Dr and Mrs Record that in this conveyance the phrase ‘used
as agricultural land’ in the grant of the right of way includes forestry. But
neither forestry nor agriculture includes the separate activity of storing
timber felled elsewhere. Thus, had Catheugh been used as a timber storage
depot, that would not be an agricultural use for the purposes of the grant of a
right of way. To be agricultural the storage must be of timber grown on and
felled off the land in question. Accordingly, I disagree with the judge’s
conclusion in the passage of his judgment that I have quoted that because
storage of timber was part of the operation of forestry and therefore of
agriculture, storage of timber alone was itself an agricultural use of
Catheugh. In my view, it is not.
It follows
from those two propositions that the removal of the timber felled off
Windybanks and stored at Catheugh over the right of way from Catheugh to the
road must have been an excessive user of the right of way. If the storage was a
separate operation it was not an agricultural use of Catheugh. If it was not an
operation separate from the felling of the timber, then the use of the right of
way for the removal of the timber felled at Windybanks Plantation was in
substance for the accommodation of Windybanks Plantation. Either way, the use
of the right of way was not authorised by the terms of the grant.
It follows
that, for my part, I would allow the appeal, discharge para 5 of the judge’s
order and, subject to any further argument as to its form, make a declaration
in the terms sought in para (3) of the order proposed in the notice of appeal.
SIR BRIAN
NEILL and SIMON BROWN LJ agreed and did not
add anything
Appeal
allowed.
