Vice-Chancellor’s decisions on two novel points of real property law in action to establish a right of way over a private road–Whether the implication of a ‘way of necessity’ can be negotiated by an express term in the grant or whether such a result is prevented by a rule of public policy–Whether the principle of Harris v Flower, that if a right of way is granted to plot A the grantee cannot use it as a means of access to his adjoining plot B, is excluded in cases where plot A itself is, or is intended to be, a means of access to plot B–Held that the relevant deed in this case be construed so as to avoid denying a right to the way of necessity, but if this construction was wrong public policy overrode the denial–Held also that the rule in Harris v Flower was excluded in the circumstances of this case, where the right of way to a strip of land which itself formed a means of access to the plaintiff’s adjoining property should be construed as providing a right of way to that property.
This was the
second judgment given by Megarry V-C in a lengthy litigation concerning the
claim by the plaintiff, Mrs Erna Nickerson, to be entitled to a right of way
over a private road known as Scouts Lane to a field, extending to 3.35 acres,
belonging to her situated a few miles south of Grimsby. The second and third
defendants, John Letten Mountain and John Thomas Roberts, were the owners of
Scouts Lane and of a dyke or ditch which separated Scouts Lane from the
plaintiff’s field. The first defendant, a Mr Barraclough, was the manager of a
golf course belonging to the second and third defendants, lying south east of
the plaintiff’s field and approached by Scouts Lane.
The main
documents of title out of which the litigation arose were (1) a conveyance of
1906 comprising the greater part of what became the plaintiff’s field, and (2)
a conveyance of 1922 of a strip of land 36 ft wide running east and west at the
north end of the field. Among the stipulations contained in a schedule to the
1906 conveyance was one which gave rise to much of the argument. It provided
that the vendor did not undertake to make any of the proposed new roads shown
on the plan attached to the conveyance ‘nor did he give any rights of way over
the same until the same should (if ever) be made.’ At the date of the 1922 conveyance of the
strip there was a visible track down Scouts Lane and also a visible bridge
across the dyke or ditch which provided an entrance from Scouts Lane to the
strip, without there being any other obvious means of access.
In the
Vice-Chancellor’s first judgment, which he delivered on November 27 1978, he
said that the plaintiff’s claim to the right of way was formulated under four
heads, namely, (1) as an implied grant, (2) as a claim by virtue of section 62
of the Law of Property Act 1925, based on the conveyance of the strip, (3) on
the bases of prescription under the Prescription Act 1832, and (4) on the bases
of prescription under the doctrine of lost modern grant. The Vice-Chancellor
decided that the plaintiff had established her claim to the right of way both
under the Prescription Act 1832 and the doctrine of lost modern grant. So far
as the submissions based on implied grant (as a way of necessity) and on
section 62 of the Law of Property Act 1925 were concerned, he felt that in the absence
of full argument before him at that stage he was unable to give a decision. As,
however, the nature and extent of the rights to which the plaintiff was
entitled under the prescriptive rules might not be sufficient to resolve the
matter, he offered to restore the case for further argument on the application
of the law as to implied grant and section 62 of the Law of Property Act 1925,
if the parties should so desire. He directed that no order should be drawn up
until counsel had been able to consider the judgment delivered on November 27
1978. Counsel applied to be allowed to argue the matter further and the present
judgment was delivered on March 19 1979. It is not proposed to report the
earlier judgment. The present judgment is reported because of the novelty of
the two points of law with which it deals.
S G Maurice
(instructed by Lee, Bolton & Lee, agents for Roythorne & Co, of
Spalding) appeared on behalf of the plaintiff: F M Ferris (instructed by
Sharpe, Pritchard & Co, agents for Bates, Mountain & Co, of Grimsby)
represented the defendants.
Giving
judgment, MEGARRY V-C said: In the judgment that I have already delivered in
this case, there were two points that I refrained from deciding, though I gave
counsel the opportunity, if they wished, to argue these points further in the
light of my findings of fact and my comments on those points. Counsel availed
themselves of this opportunity, and argued the points for a day and a half. Put
shortly, and in general terms, the points are as follows. First, if land is
conveyed in circumstances which otherwise would create a way of necessity, or a
way implied from the common intention of the parties based on a necessity
apparent from the deeds, does public policy prevent the creation of such a way
from being negatived by an express term in the grant? Second, under what is sometimes called the
doctrine of Harris v Flower (1904) 74 LJ Ch 127, a right of way
to plot A cannot be used as a means of access to plot B which lies beyond it.
But where plot A itself is, or is intended to be, a means of access to plot B,
does the doctrine apply, or will the grant of such a right by virtue of the Law
of Property Act 1925, section 62, confer a right of access over the way to plot
B via plot A? So far as I know, both
points of law are novel in this country.
I shall take
the point on public policy first. This was the subject of an article by E H
Bodkin in the Law Quarterly Review in 1973 which Mr Maurice read to me
and adopted as part of his argument: see (1973) 89 LQR 87. The article observes
at the outset that the possible impact of public policy on agreements
purporting to exclude the implication of easements of necessity does not appear
to have been considered in any reported case. The view of the author, with his
great learning and experience of conveyancing, was that any provision made by a
grant of real property (at any rate if it was for value), or expressed or
implied in the whole arrangement contained in the grant and any ancillary
agreement which was
implication of a way of necessity, or substantially to limit its extent: see at
p 90. Of the authorities which I mentioned in my judgment, the article cites Packer
v Wellstead (1658) 2 Sid 111 at p 112 (though there is a slip in the
page reference) and Brown v Burdett (1882) 21 ChD 667, though not
Dutton v Tayler (1700) 2 Lutw 1487. A footnote on page 91 refers to an
Australian decision, North Sydney Printing Pty Ltd v Sabemo
Investments Corporation Pty Ltd (1971) 2 NSWLR 150, a case that was not
cited to me but which I shall have to consider in due course: for brevity I
shall call it the North Sydney case.
It seems clear
that necessity may be relevant to rights of way in two distinct but overlapping
ways. First, there may be a way of necessity, strictly so-called. Here the
necessity is that without the way the land would be landlocked and could not be
used at all: see Union Lighterage Co v London Graving Dock Co
[1902] 2 Ch 557 at p 573. Second, the way may be necessary (a) for the
enjoyment of some right expressly granted by the conveyance (as where the grant
of a right to draw water from a spring will imply a right of way to the
spring), or (b) in order to give effect to the common intention of the parties.
Under the first head, and also under limb (b) of the second head, easements of
way may arise either in favour of the grantor or in favour of the grantee; and
both heads are instances of implied grant. See generally Pwllbach Colliery
Co Ltd v Woodman [1915] AC 634 at pp 646, 647, per Lord Parker of
Waddington. The overlapping nature of these two heads is illustrated by Wong
v Beaumont Property Trust Ltd [1965] 1 QB 173. There, at p 180, Lord
Denning MR spoke of easements of necessity and gave a way to a landlocked close
of land as an instance, thus plainly referring to the first head; but he cited
in support only those passages in Lord Parker’s speech in the Pwllbach
Colliery case which related to limb (b) of the second head.
Now in this
case, as stated in the judgment which I have already delivered, Mr Maurice
disclaimed any intention of relying on any factual evidence of plot 77a being
landlocked in 1906, and said that he relied solely on the 1906 conveyance,
construed in its context. As I said, apart from public policy, I found great
difficulty in holding that there had been granted by implication something that
the grant expressly negatived; the question for me now, of course, is whether
public policy produces any different result. Packer v Wellstead
(1658) 2 Sid 111 at p 112 contains a dictum of Glynn CJ which indicates that it
should; and he added a reference (which must, I think, be his predecessor in
office, Rolle CJ) to a previous view to the same effect having been expressed
on circuit at Winchester. This case was cited in Dutton v Tayler
(1700) 2 Lutw 1487 at 1489, in which it was said (not ‘held’, as by a slip
appeared in my previous judgment) that the public good required that land
should not be unoccupied; but this was merely one part of the argument of
counsel for the plaintiff, which in the event failed. Thus far, such authority
as there is supports the existence of this aspect of public policy. There is Packer
v Wellstead, which seems to be accepted by Gale on Easements
(14th ed 1972) p 117 (with the comment that ‘The law on the subject is
antiquated and, in some respects, not fully developed’), and then there is the
article in the Law Quarterly Review. But there is also the North
Sydney case; and to this I must turn.
The North
Sydney case was decided in the Supreme Court of New South Wales by Hope J,
sitting in equity. Put very shortly, the facts were that a company sold part of
its land which abutted on to a street. The retained land had no access to a
highway, but the company intended subsequently to sell it to the local
authority as an addition to a contiguous car park owned by that authority. The
proposed sale to the local authority went off, and the company was left with
its retained land, which was landlocked. The company then sought a declaration
that its retained land had a way of necessity over the land sold; and this
claim failed. Over 20 authorities (half of them English) were cited in
argument, including Packer v Wellstead and Dutton v Tayler.
The opposing
contentions seem to have been pitched high. The company contended that it was
entitled to a way of necessity by virtue of public policy, and that the
intention of the parties was irrelevant. The purchaser contended that public
policy was irrelevant, and that the company was entitled to no right of way,
since the intention of the parties was that the company should have no such
right. The issue was thus not whether there was any rule of public policy on
the point, but whether the creation of ways of necessity was based on public policy
or on intention. The judgment cited a number of English authorities which rest
the doctrine on intention, and, not surprisingly, came to the conclusion, at p
160, that ‘a way of necessity arises in order to give effect to an actual or
presumed intention.’ The judge added
that no doubt difficulties could arise in some cases because of differing
actual intentions on the part of the parties, though for the way to arise it
must at least be possible, in a case such as that before the court, to presume
an intention on the part of the grantor that access to the land should be given
over the land conveyed. In fact, the company’s actual intention was the
contrary: its intention was that the land retained should have no access over
the land conveyed, but instead should have access over the car park.
Furthermore, under the town planning legislation the company had at all
material times a right to compel the local authority to acquire the retained
land; and if this right was exercised, there would be access to the retained
land. Accordingly it was held that no way of necessity over the land conveyed
had arisen for the benefit of the land retained.
So far as I
have been able to ascertain, that is the only case in modern times in which
public policy has been considered in relation to ways of necessity. I regret
that this case was not cited to me and discussed in argument, and that the
footnote in which it appears in Mr Bodkin’s article says so little about the
case. I must therefore do the best that I can on my own: I do not think that it
would be right to restore the case once more for further argument. It will be
observed that the North Sydney case differed in a number of ways from
the case before me. First, the claim to a way of necessity was made by the
vendor, and not, as in the present case, by successors in title of the
purchaser; and although ways of necessity are in a special position, the law is
far more ready to imply the grant of easements than it is to imply their
reservation. There is a doctrine against derogating from a grant, but not
against derogating from a reservation. Second, the way of necessity was claimed
in the teeth of a positive intention by the claimant that access should be by
means of a different way over different land; it was not a case of a mere
general negation of any rights of way over proposed new roads in general, as in
the present case. Third, there was no unqualified necessity for the way. The
way that the company intended the land to have over the car park could at all
material times have been provided by the company. True, this could be achieved
only by the company selling the retained land to the local authority, it could
not both retain the land and require the local authority to grant a way over
the car park. But at no time was the company unable to prevent the land being
landlocked and so unusable. The necessity was at worst a qualified necessity.
I cannot see
anything in the North Sydney case to negate the existence of a head of
public policy which requires that land should not be rendered unusable by being
landlocked. As I have indicated, the question in that case was whether public
policy rather than intention was the source of ways of necessity: indeed, it is
only on the assumption that there is some rule of public policy to this effect
that such a question could arise. I readily accept that the court must be
careful not to carry matters of public policy beyond the proper bounds, and I
bear in mind the warnings to be found in Fender v St John-Mildmay
[1938] AC 1 at pp 10-12, per Lord Atkin, and elsewhere. At the same time,
where, as here, the existence of
foundation in the law, and, what is more, is attuned to modern needs, I think
the court ought not to shrink from applying that policy. With the vast
increases in population in England that have occurred over the last three
centuries, I cannot think that today it is any less important than it once was
that in the public interest land should not be made unusable.
If such a head
of public policy exists, as I think it does, the question is what its bounds
are. I do not think it can be said that, whatever the circumstances, a way of
necessity will always be implied whenever a close of land is made landlocked.
One can conceive of circumstances where there may be good reason why the land
should be deprived of all access. The land may contain large quantities of
highly toxic substances with a long life; or it may be desired to produce a
bird sanctuary that will, as far as possible, be free from any disturbance; or
there may be some other good reason, in no way contrary to the public interest,
why it may be desired that the land should remain inaccessible. Accordingly I
would not go beyond saying that there is a rule of public policy that no
transaction should, without good reason, be treated as being effectual to
deprive any land of a suitable means of access. Alternatively, the point might
be put as a matter of construction: any transaction which, without good reason,
appears to deprive land of any suitable means of access should, if at all
possible, be construed as not producing this result.
With that, I
return to the 1906 conveyance. I can see nothing whatever that could be
described as being a good reason for leaving plot 78a landlocked. The land was
sold and conveyed as building land, and no suggestion has been made of any
possible valid reason for leaving it cut off from any access from any highway.
The vendor must not derogate from his grant, and to sell building land as such
and yet to negative any means of access to it seems to me a plain instance of
derogation. If, therefore, the words of negation can be read in some way so as
not to produce any derogation from grant, they should be so read. The rule of
public policy requires the same approach. The question, then, is whether the
words negating any right of way can be construed in such a way as to produce a
sensible result, and to avoid, at least to this extent, stultifying the purpose
of the conveyance.
Now the wording
of the clause in question, paragraph 7 of the First Schedule to the 1906
conveyance, as it appears in the examined abstract and with the contractions
expanded, runs as follows: ‘The Vendor did not undertake to make any of the
proposed new roads shown on the said Plan nor did he give any rights of way
over the same until the same should (if ever) be made.’ Grammatically, the words ‘the same’ must mean
‘the proposed new roads shown on the said plan.’ This clause of the schedule seems primarily
concerned to relieve the vendor of any obligation to make any of the proposed
new roads in the sense of constructing roadways over the routes shown on the
plan. If one disregards public policy and the doctrine of derogation from
grant, I think the natural meaning of the second limb of the clause is that
until roadways had been constructed on the routes shown on the plan, the
purchaser was to have no right of way over the routes along which those
roadways were to be constructed.
I think,
however, that it is also possible, though less natural, to read the second limb
as in effect merely reinforcing the first limb. The first limb simply negatives
any undertaking by the vendor to make up the new roads: the second limb goes on
to prevent the conveyance giving any rights of way over the new roads which
might enable the purchaser to claim that, having been granted a right of way
over the new roads, he can, by virtue of that right, require the vendor to
construct them. On that footing, the second limb does not negative any way of
necessity over the unmade sites of the proposed new roads. All that is
negatived is any rights of way over the proposed new roads until they are
constructed. It is, of course, obvious that one cannot have a right of way over
a made road until the road has been made: but if a way is granted over a road
to be made, it might be contended that that imposed an obligation to make the
road, and so the glimpse of the obvious in the second limb would, on this
construction, perform a useful purpose for the vendor. In short, the vendor was
to be freed altogether from any obligation to make up the roads, whether by
virtue of any undertaking or by virtue of any implication from the grant of
easements of way. Nothing, however, was done to negative any way of necessity,
though the inference would be that the way should be over some route of the
proposed new roads; and there was at least the implication that when the new
roadways, or any of them, were constructed, the purchaser was to have rights of
way over each of them as constructed.
I readily
accept that this may be regarded as a somewhat strained interpretation of
paragraph 7 of the First Schedule; but I do not think that it is so impossible
that I must reject it. If, then, in construing this provision I give proper
weight to the doctrine against derogation from grant and the rule of public
policy, I think that I can construe paragraph 7 in this particular way, and
that I ought in fact to do so. If I am wrong in this, then I would hold, though
with some hesitation, that public policy requires that paragraph 7 should not
take effect so as to negative the implied grant of a way of necessity. As I
have already held, I think that there has been a tacit allocation by user of a
way over what is now Scouts Lane, and that this way is a way for building
purposes. For brevity I have referred simply to a ‘way of necessity,’ though I
think the way should be more accurately referred to as a way implied from the
common intention of the parties, based on a necessity apparent from the deeds,
though disregarding that part of the intention which is contrary to public
policy.
With that, I
turn to the second point, the so-called rule in Harris v Flower
(1904) 74 LJ Ch 127. In my previous judgment I set out the view that I
provisionally took, the point not having been argued then. That view was that
although the general rule was that the grant of a right of way to reach plot A
cannot be used as a means of access to plot B, which lies beyond, this rule
would not apply if, at the time of the grant, plot A forms a means of access to
plot B. I have not been referred to any authority which seems to me to bear at
all directly on the point, and so I have to deal with it as a matter of
principle. Let me take as an example a case where plot A consists of a footpath
some three ft wide and 100 yds long, running from land near a public highway up
to plot B. If there is an express grant of a right of way to plot A over land
which lies between plot A and the highway, it seems to me that the grant would,
subject to any language to the contrary, be construed in the light of the
nature and user of plot A at the time of the grant. Since that nature and user
is as a footpath which constitutes a means of access to plot B, then I would have
thought that the grant would be construed as authorising the dominant owner to
use the way as a means of access to plot A for the purposes for which plot A is
used, namely, as a means of access to plot B. In the result, the way can be
used as a means of access to plot B via plot A, notwithstanding Harris v
Flower. If plot A is not used as an actual means of access to plot B but
as between the parties to the transaction it is intended to be used thus, I
think that the same rule would apply.
If that is the
rule for an ordinary express grant, then I think that it can be no narrower for
an express grant which takes effect by virtue of the words implied by the Law
of Property Act 1925, section 62: for these words are both wide and general.
Rights which appertain or are reputed to appertain to land are likely to be
rights which are less precisely defined than rights which have been defined in
conveyancing language in an ordinary express grant. I have heard nothing to
disturb the view that I had tentatively formed when I prepared the judgment
that I have already delivered. I therefore hold that by virtue of the 1922
conveyance section 62 created a right of way over Scouts Lane to the sleeper
bridge and
a means of access not only to the strip conveyed but also to plot 78a. At the
same time I can see nothing to justify the contention that this is a way for
all purposes, including building purposes. On this, I think Mr Ferris is right.
At the time of the 1922 conveyance the strip and plot 78a had been used for
agriculture and cricket, and the access from Scouts Lane was via a gate some 10
ft wide and the sleeper bridge, which was some 8 ft wide. In those
circumstances, I do not see how a way to the land for building purposes could
be said to appertain or be reputed to appertain to it. On the other hand, a
sleeper bridge some 8 ft wide is more than is needed for mere pedestrian
access, and agricultural use and cricketing use will normally require the
access of at least some vehicles. The evidence of user in and about 1922 is far
from detailed: but on the whole, I think that what appertained or was reputed
to appertain to the strip was a way for pedestrians and vehicles for
agricultural and sporting purposes, though not vehicles for building purposes.
In view of what I have already held in relation to prescription and section 62,
the details of my decision under this head may well be of no great
significance; but however that may be, I think the result is as I have stated.
His Lordship
made a declaration defining the right of way to which the plaintiff was
entitled, ordered an inquiry as to damages, gave the plaintiff liberty to apply
for further relief in certain events, and ordered the defendants to pay the
plaintiff’s costs.
