Vehicular right of way — Construction — Surrounding circumstances — Conveyance granting appellant right of way over vendor’s land — Judge finding right of way terminating at gate to field not in appellant’s ownership at time of grant — Whether judge erring in approach to construction of conveyance — Appeal allowed
In 1978, the appellant purchased a property known as the Coach House with the benefit of a vehicular right of way from the public highway over “the private road belonging to the vendor known as Brook Avenue”. Without that right of way, the property would have been landlocked.
The vendor subsequently sold another part of his land, Brook House, to the respondents. A dispute arose as to the extent of the appellant’s right of way. The appellant maintained that he was entitled to access his property by driving from Brook Avenue along the respondents’ driveway. The respondents brought proceedings seeking a declaration that the right of way did not extend to their driveway, together with an injunction preventing such access. They argued that the appellant should access the Coach House from Brook Avenue by crossing a field that had previously belonged to the vendor but that had, by then, come into the appellant’s ownership. The appellant pointed out that vehicular access was impossible by that route because of the state of the ground, and that, in any event, the vendor had not granted him any right of way over the field. The vendor gave evidence that the driveway had been the usual access route to the Coach House both before and after the 1978 conveyance.
The judge took the approach that he should look to the surrounding circumstances to assist him in construing the conveyance, since that document was not so unambiguous as to preclude looking further than its terms. He accepted the vendor’s evidence only in so far as it related to access after 1978, and he found on the facts that the right of way terminated at the field gate, so that access from there had to be gained by crossing the field. The appellant appealed.
Held: The appeal was allowed.
Although the judge had taken the correct approach to construction, he had erred in his application of it: St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 2 EGLR 115 applied. He had disregarded the most important surrounding circumstance, namely the means of access to the Coach House prior to the 1978 conveyance, and he had had no basis for his implied rejection of the vendor’s evidence on that point. It was highly unlikely that the vendor would have rejected the most obvious route to the Coach House, that is, the driveway, in favour of a more difficult one across the field. That matter was obviously relevant when construing the right of way, since the parties to the conveyance had done nothing to indicate that they intended to change the situation with regard to access. Moreover, the court ought not to make a finding that the vendor had intended access to be by means of a difficult route, which had previously been used only rarely and was not in the appellant’s ownership, unless it were absolutely necessary. Use of the driveway after 1978 was not relevant to the construction of the conveyance. The evidence did not justify the judge’s conclusion as to the extent of the right of way. That right extended over the driveway, and a declaration was to be made to that effect.
Paul Chaisty QC and Mark Harper (instructed by Cobbetts, of Manchester) appeared for the appellant; David Berkley QC and Susanne Muth (instructed by Fruhman Davies Livingstones, of Manchester) appeared for the respondents.
Sally Dobson, barrister
