Rights of way are essential to the use of land. Where a right of way has been expressly granted, its scope, extent and effect will depend upon the interpretation of the deed in which the right was granted. Unfortunately, historically, parties often failed to specify the precise uses that could be made of a right of way. How will the courts approach the interpretation of an easement in such circumstances? Much will depend upon the terms of the relevant deed.
In Newman v Greatorex v [2008] EWCA Civ 1318; [2008] PLSCS 332, the Court of Appeal was asked to consider the scope of a right of way reserved out of a conveyance to enable the seller and anyone authorised by her to access land that she was retaining. The seller was entitled to use the right of way at all times, with or without horses, carts and carriages. Unfortunately, at the end of the description of the dominant land, the draftsman had added the words “as now used by her tenant Edward Collinson”. Had the draftsman used these words to identify the dominant tenement, which was used as a shop, or to limit the scope of the rights granted?
Rights of way are essential to the use of land. Where a right of way has been expressly granted, its scope, extent and effect will depend upon the interpretation of the deed in which the right was granted. Unfortunately, historically, parties often failed to specify the precise uses that could be made of a right of way. How will the courts approach the interpretation of an easement in such circumstances? Much will depend upon the terms of the relevant deed.
In Newman v Greatorex v [2008] EWCA Civ 1318; [2008] PLSCS 332, the Court of Appeal was asked to consider the scope of a right of way reserved out of a conveyance to enable the seller and anyone authorised by her to access land that she was retaining. The seller was entitled to use the right of way at all times, with or without horses, carts and carriages. Unfortunately, at the end of the description of the dominant land, the draftsman had added the words “as now used by her tenant Edward Collinson”. Had the draftsman used these words to identify the dominant tenement, which was used as a shop, or to limit the scope of the rights granted?
The answer was important, because the use of the dominant tenement had changed. The premises were being used as a bar and customers were using the passageway to obtain access to a beer garden at the rear of the premises. The owners of the passageway complained about the noise and mess made by users, especially in the summer months and at weekends. They argued that retail customers were not entitled to use the right of way for access (but did not object to the passageway being used for trade deliveries and rubbish collection).
The High Court was unimpressed by arguments that the draftsman had intended to identify only the dominant tenement. The judge decided that the publican’s right of way was limited to the type of use that his predecessor had made of the passageway in 1921, when it was used as a tradesmen’s entrance.
The Court of Appeal upheld the judge’s decision. Obvious difficulties arose in obtaining direct evidence concerning the use of the passage 87 years ago. However, the right of way was reserved shortly after the first world war for the benefit of a shop, which had a high-street frontage and rear access through a side alley. No shopkeeper would have asked or encouraged customers to use the rear access and customers would not have expected to be able to do so. The overwhelming likelihood was that the rear access was used only by suppliers and possibly by trade customers. Consequently, the right of way did not extend to use by customers, except in emergencies.
Each case will turn upon its own particular facts. However, this decision illustrates the importance of considering the scope and extent of any rights granted before creating an easement or changing the use of premises with the benefit of a pre-existing easement.
Allyson Colby is a property law consultant
