Lang v House

Private lane common to neighbouring farms — Ownership of soil — Presumption that half the lane vested in each owner — Presumption held to arise in case of private lane as well as public way A lane disputed between the parties was bounded, as to the first portion, on both sides by land owned and tenanted by the respective plaintiffs and known as Chalcott Farm, as to the second portion, by the plaintiffs’ land on the north and the defendant’s known as Woolston Farm, on the south, and as to the third, by the defendant’s land on both sides. Both the plaintiffs’ land and the defendant’s were conveyed in March, 1920, under contemporaneous sales by the freehold owner. Held, that without having regard to the existence of a public right of way over part of the lane, there was a presumption that in 1920 the northern half of the second portion passed with the Chalcott land; and on the facts, this presumption as not rebutted by the terms of the conveyances. Accordingly, a cattle grid there placed across the lane by the defendant constituted a trespass and must be removed. Held, further, that the plaintiffs would have been entitled to a right of way over the second portion had the question arisen, and that increased use of the way by bringing milking cattle thereon in place of store cattle would not constitute a qualitative change of user within the meaning of the relevant authorities. This was a dispute between the owners and occupiers of two adjoining farms at Stogursey, Somerset, over their respective rights over that part of a private lane from a public road to the defendant’s farm, which abuts on one side on fields belonging to the plaintiffs’ farm. The plaintiffs were Mr Ian Marshall Lang, of the Home Farm, Rangemoor, Burton-on-Trent, Staffs, and his tenants at Chalcott Farm, Stogursey, Mr Ernest Hine and Mr Michael Hine. The defendant was Mr Donald House, of Woolston Farm, Stogursey. Mr HE Francis, QC, and Mr PJ Millett (instructed by Messrs Gillhams, agents for J Ruscombe Poole & Son, of Bridgwater) appeared for the plaintiffs, and Mr Kenneth Elphinstone (instructed by Messrs Peacock & Goddard, agents for Messrs Burrough, Horner & Pigot, of Wedmore, Somerset), represented the defendant. Giving judgment, MR JUSTICE RUSSELL said: This is an action between the owner and joint tenants of Chalcott Farm as plaintiffs, and the owner and occupier of Woolston Farm as defendant. Both farms are in the Parish of Stogursey, Somerset, near the Bristol Channel. The dispute concerns a west-to-east road known as Woolston Lane, which I shall hereafter refer to as ‘the lane.’ This has existed for more than 100 years. The earliest evidence speaks of it as a ‘ made-up way.’ The lane connects at its west end with a north/south public road coming from Stolford to the north. Just north of the connection on the west of the public road is a group of farm buildings known as Idson Barton belonging to Chalcott Farm. From the north down to this end of the lane the road passes through Chalcott Farm land; thereafter it forms the western boundary of Chalcott Farm. The Idson Barton buildings are conveniently situated for the farming purposes of Chalcott Farm. The farmhouse and other farm buildings are in a north-eastern direction from Idson Barton and well back from the road. The lane starting from its west end passes first through Chalcott Farm ground, first ordnance survey no 887 on the north, and no 886 on the south; next ordnance survey no 882 on the north and no 884 on the south. It is next bordered on the north by ordnance survey no 881 and on the south by a westerly protrusion of ordnance survey no 878 belonging to Woolston Farm. In the result, the lane for the first 530 odd yards or so is bordered on each side by Chalcott Farm land. Next it is bounded by Chalcott land on the north and Woolston Farm land on the south, and thereafter it enters Woolston Farm and is wholly bordered by Woolston Farm land, finishing after a further 600 yards or so at Woolston Farm house and buildings. In the lane there are three farm gates — suitable for vehicles and implements — leading from and to Chalcott Farm land. One is in the southern hedge of ordnance survey no 882; the second is in the northern hedge of ordnance survey no 884 substantially opposite the first; the third is in the southern hedge of ordnance survey no 881. These gates have from time to time been repaired or replaced by the owner of Chalcott Farm. Opposite the third is another gate in the northern hedge of Woolston Farm ordnance survey no 878. A public footpath comes from the north (at Yearmoor Lane, which is the main approach to Chalcott Farm house) through Chalcott Farm land and crosses the lane at the site of the last-mentioned gates, continuing in a south-easterly direction through Woolston Farm land and on to the village of Stockland, Bristol. Just to the west of this path beside the lane are two other cottages known as Woolston Cottages on Woolston Farm land. Beside and to the south of the Idson Barton buildings is a pair of semi-detached cottages, the one nearest the road being on Chalcott Farm land, almost opposite the mouth of the lane. About 65 yards further down the road to the south there is a turning off to the east to Idson Farm. Opposite that farm turning there is a stile in the hedge of ordance survey no 886, and a footpath is shown on the maps leading therefrom roughly parallel to the lane on its southern side joining the lane at the gate into ordnance survey no 884. On the bend of the road between the stile and the end of the lane is a farm gateway into ordnance survey no 886. A similar gateway connects ordnance survey no 887 with the road. The various enclosures I have mentioned of Chalcott Farm are interconnected by farm gates, and there is a similar gate in the northern side of ordnance survey no 881 affording access to and from Chalcott Farm house and the fields of Chalcott Farm to the north. This last gate is in fact astride the public footpath to Yearmoor Lane already mentioned. The legal positions adopted by the parties are these. The plaintiffs assert that they own the soil of the lane wholly where it passes through Chalcott Farm land, and the northern half where there is the 110-yard overlap already mentioned, though subject to a right of way in favour of Woolston Farm for all agricultural purposes. Consequently they assert that a cattle grid with side backing and a wicket gate which the defendant erected at the end of the lane late in 1958 is a trespass and must be removed, and damages for the trespass paid. The existence of the grid, they say, has made it necessary to drive the milking cattle between the milking parlour at Idson Barton and kale or pasture in the fields adjoining the lane via other fields, to the damage of crops in the latter. The defendant denies such ownership of the soil, and asserts the ownership to be in Woolston Farm either under a promissory title or by virtue of a conveyance in 1960 after action by Lord St Audries to the defendant. A similar claim founded on an estoppel was rightly abandoned after evidence on the point was given. The plaintiffs alternatively assert that Chalcott Farm has a right of way over the lane to and from the Chalcott Farm closes 882, 884 and 881 for all agricultural purposes, based on (a) the words implied in a conveyance of 1920 of Chalcott Farm by Lord St Audries, or (b) an implied grant in that conveyance, or (c) a prescriptive title based on user. As to this the defendant asserts that there was no such grant, whether by the general words or by implied grant, and that any such user has been permissive. Alternatively, it is said that the way has never been used for milking cattle, but only for store cattle; that with the recent introduction of the milking parlour at Idson Barton it is intended to use the lane for the passage of cows along the lane at peak periods four times daily to and from pasture in 881, 882 and 884 or one or more of them from time to time according to the rotation; and that such user will constitute an excessive user beyond any right which exists which it is feared will lead to fouling of the lane by mud and dung and damage to the hard surface in particular by a treading down of the ditches and waterlogging of the hardcore. So far the lane has not been so used, since the crops in these closes were not appropriate to dairy cattle until after the cattle grid was installed; this claim is quia timet, and the question of what harm may be done does not depend on evidence of actual harm done. Here a few points should be added. There is a gate west of the cattle grid just before the lane joins the road. It was put there some years ago by the defendant, it is virtually never closed; if Chalcott Farm owns the soil of the lane it is technically a trespass, but the plaintiffs do not press for its removal. If the plaintiffs have only a right of way it is not an obstruction to it. Many years ago, before 1920, there was a gate in the same position. Beside that gate there is a notice ‘Private road to Woolston Farm.’ Similar considerations apply to this. The defendant admits that the plaintiffs have a right to cross the lane between the opposed gateways in ordnance survey nos 882 and 884, but denies any other right in the plaintiffs. The paper title must now be noticed. In 1920 both farms were owned by Lord St Audries with tenants in fact in them. One P Triggol was a tenant of Chalcott Farm and a Miss Heiniman was tenant of Woolston Farm. Each bought the freehold from Lord St Audries, the conveyances being both on March 25, 1920. The conveyance to Triggol was of ‘the land hereditaments and premises known as Chalcott Farm …more particularly mentioned and described in the First Schedule hereto and for the purposes of illustration only delineated and coloured pink on the plan…’ The schedule set out the ordnance, the tithe map, numbers and acreages of the lands conveyed, including 881 pasture, 882 arable, 884 arable, 886 meadow, 887 arable, 888 buildings, etc, at Idson and part 890 cottage at Idson. Now the lane has always had a separate ordnance no 879, 2.022 acres; this was not mentioned in the conveyance nor coloured in the plan. On the other hand the schedule did include ordnance survey no 854, .385 acres ‘Lane,’ which was Yearmoor Lane already mentioned, the whole of which was conveyed to Triggol and coloured on the plan. The contemporaneous conveyance |page:802| of Woolston Farm to Heiniman was similar in general form; it did not mention ordnance survey no 879 (the lane) though it did mention ordnance survey no 870 ‘Lane,’ which was a short stretch of roadway just the other side of Woolston Farm buildings, the whole of which ordnance survey number was conveyed. The plan — but for the purposes of identification only — in fact coloured the lane where it was bordered on both sides by Woolston Farm land. There was a certain amount of evidence of user by the public of the lane as a footpath between the road and the north/south public footpath already mentioned just east of Woolston cottages. It was accepted by counsel for the defendant that there was a public footpath from the stile to the gate in 884 and thereafter along the lane to the north/south footpath. The definitive map of public footpaths shows the public footpath as being all along the lane from the road to the north/south footpath, there having been discussions on this matter between the local authority and the defendant, who did not object to such delineation. The evidence satisfied me that prior to 1920 members of the public who wished to go from the north/south footpath and the road, and vice versa, used equally and indifferently the path between the stile and the 884 lane gateway and the lane itself west of that gateway, and that there was in 1920 a foot highway along the whole of the lane where it bordered Chalcott Farm land except the last 60 yards east of the 881 gate. The plaintiffs’ claim to ownership of the soil of the whole lane in its western part and of the northern half in the overlap length rested upon the presumption that a conveyance of land bordering on a road included and embraced the soil of the road to its centre. It may be noticed here that there was no evidence before the Court of Lord St Audries’ right to the soil of the lane, but it was presumed to belong to him by the fact of his ownership of that land on each side. The first question for decision is whether the presumption is applicable where the road in question is not a highway. I have held it to be a foot highway throughout nearly the whole relevant length, but it is desirable to consider this question. It has been held that where a person owns land on each side of a road the presumption is that he owns the soil of the road, not only when it is a highway but also when it is a private road: see Holmes v Billingham, 7 CBNS 329. While it is clearly established that when it comes to considering the effect of an actual conveyance, it will prima facie be construed as conveying with the actual land also the soil of an adjacent highway, or half of it, there is no actual decision that that extends also to the soil of an adjacent road which is not a public highway. There are, however, in the text books a number of statements to that effect. Reference may be made to Norton on ‘Deeds,’ 2nd edition, pages 252, 257; Dart on ‘Vendors and Purchasers,’ 8th edition, page 370; Theobald on ‘The Law of Land,’ 2nd edition, pages 255-6. If it be correct to say that there are two presumptions, one dealing with the state of the land and its ownership and the other dealing with a particular conveyance or other document, I can see no reason for declining to include also in the latter the case of a road which is not a public road. It is clear that the presumption applies to the bed of a non-tidal and non-navigable river when a conveyance is under consideration. In the authorities various reasons have from time to time been given in justification of these presumptions or this presumption: see Central London Railway v City of London Land Tax Commissioners, [1911] 2 Ch 467 and [1913] AC 364. For my part, I think it is no longer necessary to search for the reasons to justify that which is well established, beyond saying that as a matter of common sense it is unlikely that a person parting with land on each side of a road will wish to retain the soil of it, and that it is desirable to have some prima facie presumption in an endeavour to avoid inconvenience and uncertainty of title — albeit an endeavour which, as this case shows, is not always successful. Such considerations in my view justify the application of the presumption to the conveyances of 1920 not only in so far as the lane involved a public footpath, but also in so far as it did not. Now it is plain that such presumption may be rebutted either by force of the language of the conveyance or by the surrounding circumstances. It was argued for the defendant that it was so rebutted. It was admitted that the definition of the parcels by ordnance survey numbers and area, and the omission of the lane from the schedule and from the colouring on the plan would not suffice to rebut the presumption. It was also admitted that the physical facts in relation to the lane and its possible value to the vendor were not present such as sufficed to rebut the presumption in Prior v Patre, [1894] 2 Ch 11. But stress was laid on the express conveyance of ‘ordnance survey no 854, lane, .385 acres’ in the Chalcott Farm conveyance and — in so far as relevant — of ‘ordnance survey no 870, lane, .259 acres’ in the Woolston Farm conveyance, accompanied by the battle-cry of ‘inclusio unius’ — a maxim which, as was pointed out in Gregg v Richards, [1926] Ch 521, must be applied with caution. I do not consider that is sufficient to rebut the presumption in either of the conveyances. As I have said, I do not know the paper title prior to 1920 of Lord St Audries to the lane; it may be that the title did not show the lane while it did show the other two lanes, which would be good ground for not expressly including the lane. Another ground for not expressly including the lane may have been this. In each case of the other two lanes, the parcel was an entire ordnance survey number with its ordnance survey acreage ready to hand for the schedule; an express conveyance of the lane in 1920 would have involved, if it were to fit with the rest of each schedule, not merely a reference to part 879 but also an ad hoc survey or measurement to divide up its ordnance survey acreage of 2.022 between the two conveyances, quite apart from any special complications introduced by the need to divide the lane at its centre line in the length of overlap already mentioned. It would be quite wrong, in my judgment, to deduce from the inclusion of the simple and obvious and the omission of the complicated that the vendor intended not to transfer the soil of the lane. It was argued for the defendant that one way in which the presumption might be rebutted was to look at the subsequent conduct of the parties, and reference was made to Becket v Leeds Corporation, 7 Ch App 421. It was said that the evidence showed that the owners and occupiers of Chalcott Farm did not consider that they owned the soil of their part of the lane. According to Mr Grace, who bought Woolston Farm in the 1920s, Triggol of Chalcott Farm asked his permission to use the lane. Tarr, the tenant of Chalcott Farm, asked permission of the owner of Woolston Farm in 1933 to lay a water pipe across between 887 and 886, and, it was said, to take a combine harvester along the lane, and a gyro tiller, and to put a mangold clamp on the verge. The gate and the notice board were put up without objection. These events suggested, it was said, that the owners and occupiers of Chalcott Farm had no idea that they were owners and tenants of the soil of the lane. As to the facts, I would hesitate to place absolute reliance on the nature of Triggol’s conversation with Grace so many years ago; an informal and friendly approach to a newly-arrived neighbour with whom a lane must be shared may sound like a request for permission when it is not truly so. Since the laying of the water pipe involved digging a trench across the lane, it would be natural to refer the matter to the farmer who had a right of way down the lane. The conversation about the combine harvester, as given in evidence, did not in fact amount to a request for permission to take it up the lane. The gyro tiller was a slow-moving, wide piece of machinery, in the event too wide to go along the lane at all, and might quite reasonably have been referred to the neighbour whose sole interest was a right of way down the lane. The mangold clamp was objected to, successfully, on the sole ground that it would when broken up inconvenience the passage of vehicles, etc, from Woolston Farm. The notice board was put up in order to prevent members of the public from driving vehicles up what otherwise appeared to be an attractive country lane, and its content ‘Private road to Woolston Farm’ is in no way inconsistent with ownership of the soil being in Chalcott Farm in the western half. The gate at the western end was put up to prevent outsiders’ cattle straying up the lane from the road and blocking the lane or even reaching Woolston Farm itself, and as a long stop should Woolston Farm cattle escape down the lane. None of these things can be relied upon, in my judgment, as certain indications that the owners and occupiers of Chalcott Farm thought they did not own the soil. But in so far as they could be so relied upon, they do not indicate in any way that they thought that the soil remained after 1920 in the ownership of Lord St Audries. It seems to me that subsequent conduct could only be thought to assist if it pointed in that direction, as was the case in Becket v Leeds Corporation, ante. These matters could only suggest, if anything, that they thought that the ownership of the soil of the western half was in Woolston Farm; that was on any footing wrong, and I cannot see how conduct pointing to ownership in X can be relied upon to suggest or support ownership in Y. It was additionally suggested that if the presumption applies to private roads, it must be more easily rebuttable, having regard to the possibility of a vendor being concerned to retain the soil. This may be so, but I can think of no reason why Lord St Audries on selling these two farms to his tenants should have wished to retain the soil of the lane. He could have no future occasion to use the lane. I observe that in later years Lord St Audries and his solicitors disclaimed any interest in the soil until the disputes in this action led the defendant to offer them £100 for the conveyance of any of his interests therein. It would indeed be surprising if after the conveyance of Woolston Farm, the owner of Woolston Farm needed permission of Lord St Audries to lay and maintain a water pipe from his northern fields across and through the soil of the lane to his southern fields. The application of the presumption to the 1920 conveyance of Woolston Farm seems to me in harmony with common sense and convenience, and so also to the 1920 conveyance of Chalcott Farm. It was suggested that the result will be that Chalcott Farm will own the northern half of some 60 yards of the lane, between the 881 gate and the eastern boundary of Chalcott Farm, while not having any right of way over the corresponding southern half. This does not deter me from my conclusion. On the footing that the soil of the western length of the lane was vested in Triggol by the 1920 conveyance, the only defence of the defendant is that a possessory title was acquired by the owners of Woolston Farm. |page:803| That it is not easy for such a title to be acquired by one who already has a right of way over the road is obvious; so many of his actions, such as user and repair, are equivocal and referable to his right of way: see Littledale v Liverpool College, [1900] 1 Ch 19. Really the only act which could be relied upon for this purpose was the putting up by Grace of the notice board in 1924 — it was removed for security reasons during the war. I have already referred to this notice and the purpose for which it was erected. Even if that act may be permitted to take colour from the allegations of permission to use sought and granted, already referred to, I cannot think that there was here discontinuance of possession or dispossession. In my judgment no possessory title to the soil in the western half of the lane was ever acquired by the owner of Woolston Farm. If that be correct the question of an easement in favour of Chalcott Farm, or of excessive user, does not arise. The owner of Chalcott Farm is entitled to do what he pleases in this western part of the lane subject only to the existence of the right of way to and from Woolston Farm and to the public footway already mentioned. The plaintiff, Lang, is entitled to the declaration asked for, with an additional reference to ownership of the northern half of the lane in the overlap stretch, and to a mandatory order on the defendant to remove the cattle grid and associated posts and fencing installed and erected by him and to restore the surface of the lane there. So far as damages for trespass are concerned, the plaintiff tenant, Michael Hine, gave evidence that the existence of this cattle grid made it necessary for him to drive his dairy cattle through 886 to 884 in the winter of 1959/60, causing a loss in the crop taken from 886 last summer which he estimated approximately — and he said conservatively — at £25 to £30. Similar driving through fields in the winter of 1960/61 he estimated would result in about the same loss next summer. Possible loss due to a fall in milk yield by reason of detours, or due to extra labour in cleaning cows of mud, he could not put a figure to and would not press. Only a general suggestion was made in cross-examination that these figures were on the high side without analysis of any kind, and this suggestion was denied. In the circumstances, I think a proper figure to award to the second and third plaintiffs jointly is £55 by way of damages for the trespass. The defendant must pay the plaintiffs’ costs of the action and counterclaim. It is not strictly necessary to consider the alternative case of the plaintiffs based on a right of way over the western part of the lane for the purpose of moving on foot or with animals, implements and vehicles between the road and the gates leading to ordnance survey nos 882, 881 and 884, unless the defendant is going to assert that the plaintiffs must confine themselves to the northern half of the lane in the overlap section when going to and from the 881 gate. But it is desirable that I should consider it. This claim was based on the general words imported by statute into the 1920 conveyance or on implied grant or prescription. Taking prescription first, it was accepted that the relevant period began in 1938, that any permission asked or given before that period was not relevant, and that the only evidence of permission which could be relied upon was in connection with the combine harvester in 1951. It was also accepted that the evidence showed, and it did show, that over the years since 1920 the owners and occupiers of Chalcott Farm had, as and whenever the ordinary concern of farming made it convenient, moved on foot, with vehicles, horses, tractors and implements, and with sheep and cattle on the hoof, along the lane in both directions between the gates into the three closes mentioned and the road, and also between the gates themselves. The extent of such user varied from time to time, naturally, since the system and methods of management of the farm varied from time to time. The alleged fact of permission relied upon was in my judgment wholly inadequate for that purpose. According to the defendant’s evidence, the tenant of Chalcott Farm, Jack Tarr, a close friend of the defendant as well as a neighbour, bought a wide combine, too wide to come through the lane. Tarr asked him if he had any objection to his cutting back banks in the lane where it was narrow. Tarr said he was going to widen his gates and the defendant said that he would widen his. The defendant said he did so because it was useful to both of them. This evidence is no more than evidence of a discussion of a project useful to both of them, and it would be quite unsound to treat it as showing that the user of the lane by Chalcott Farm was precarious. An alternative claim to a right of way was based by the plaintiff on the statutory incorporation in the conveyance of 1920 of Chalcott Farm of an express grant in general terms of ‘all ways rights and advantages whatsoever at the time of the conveyance enjoyed with Chalcott Farm or any part thereof.’ The evidence showed that prior to 1920 as well as thereafter these gates existed and had been used by the occupants of Chalcott Farm in the manner already described, and in the end counsel for the defendant rightly accepted this and that some right of way must have been granted by force of the general words. The other suggestion was that there was an implied grant of this way as being apparent and necessary for the reasonable enjoyment of the property. Resort to this doctrine was not necessary, having regard to the positive evidence of current user and the force of the general words. A good deal of argument was addressed to me on this point, and a land surveyor called by the defendant expressed the expert view after visiting the place that the existence of the opposite gates in 882 and 884, not in the western corner of those closes where he would expect them but a third of the way along them, made it apparent that their only function was to afford an opportunity of crossing the lane from one close to the other. This he elaborated by reference to gate connections between the various fields, by noticing that the angle of opposition between the two opposing gates was such that a continuance of the centre line across the middle of 882 would — or would almost — hit a gateway in the north-eastern corner of 882. This evidence I found wholly unconvincing, particularly as the opposing gates were in a conveniently wide part of the lane. Nor was it strengthened by the revelation that he arrived on the scene with a predisposition to a conclusion, for the said that at first he was ‘worried’ by the gate into the lane from 881, until he learnt that there was some reason to suppose that it could be of service as a means of communication between Woolston Farm and some fields originally farmed to the north of Chalcott Farm via Yearmoor Lane. Had it been necessary to decide the matter in the light of the layout of the lane and fields and gates and farm buildings at Idson Barton, I would have had no hesitation in saying that the facts were such as to warrant an implied grant of a way within the principles of Borman v Griffith, [1930] Ch 493. The defendant, however, sought to say that under none of those heads could the plaintiffs assert a right to use the lane for taking dairy cattle to and fro. Until 1956 there was no milking parlour at Idson Barton, and the only use of the lane for cattle had been for store cattle. These required little and infrequent movement along the lane since except perhaps for a certain amount of to and fro movement in early spring they would not, once out, be moved except to another pasture or back to their winter quarters. But with dairy cattle and a milking parlour at Idson Barton far more frequent movement would be required with, it is asserted, resultant user in excess of the right. The counterclaim as finally amended asked for an injunction against the use of the lane for the purpose of livestock in connection with the milking parlour at Idson Barton. It was argued that the use of the lane by dairy cattle was qualitatively different from its use by store cattle, and reference was made to Gale on ‘Easements,’ 13th edition, page 244, and the following pages, and to authorities there referred to. For the plaintiffs it was argued that since a way was conferred by the statutory incorporation of general words in an express grant, authorities as to excessive user in cases of ways acquired by prescription or by implied grant were not relevant. I do not agree with that; it is not a question of construing a particular express grant, but of considering what has been done and the locus in quo. But I cannot accept the defendant’s submission as to excessive user. The way was always used for driving cows from the road to the gates and from the gates to the road; all that may happen is that more cows may be driven more often. I see no true qualitative distinction. In truth the way, however acquired, is to be regarded as for all agricultural purposes. Accordingly had I not held that the plaintiffs are the owners of the soil I would nevertheless have decided the case in their favour. Everything that I have said about a right of way applies to the southern half of the lane between the north-western corner of Woolston Farm, ordnance survey no 878 and the gateway into 881 — that half belonging to Woolston Farm. If necessary I shall declare also that a right of way for all agricultural purposes exists in favour of Chalcott Farm over that half for the purpose of access and egress from the gate in 881. Judgment was entered for the plaintiffs in the terms indicated in the judgment, with costs.