Easements — Right of way — Whether vehicular rights abandoned — Whether court should grant mandatory injunction to require removal of obstructions — Whether damages adequate remedy
By a
conveyance of 1888 the plaintiff owners of industrial premises claimed title to
a right of way ‘with or without … carts and other vehicles’ over a 12ft-wide
passageway owned by the defendants. In the late 1960s or early 1970s a brick
pier was placed in the middle of the passageway to support an overhead room. In
1976 about half the width of the passageway was obstructed by the erection of a
fence by one defendants’ predecessor in title. In 1989 the defendants acquired
an adjoining property together with the passageway and proceeded to erect a
building which left the width of the passageway at 3ft 9ins. Although invited
to do so, the plaintiffs declined to apply for an interlocutory injunction to
restrain the defendants from proceeding with the building works because they
were not prepared to give an undertaking in damages. The plaintiffs appealed
from the decision of the county court that their right of way did not include
any right to use vehicles.
abandoned their right to use the passageway for vehicles. It was immaterial
that they only made occasional vehicular use of the passageway up to 1961;
after that date a number of valuations of the plaintiffs’ property were made on
the assumption of the existence of the vehicular rights. The plaintiffs would
be adequately compensated with an award of damages, rather than an injunction,
reflecting the difference in value between the plaintiffs’ property with the
benefit of the full rights of way (including vehicles) and the more limited
right as now exists. The
interlocutory injunction before proceedings with their building works; they had
been advised that they had an arguable case and did not act unreasonably. In
the circumstances it would be unreasonable to grant a mandatory injunction
against the defendants.
The following
cases are referred to in this report.
Benn v Hardinge (1992) 66 P&CR 246, CA
Bulstrode v Lambert [1953] 1 WLR 1064; [1953] 2 All ER 728
Cook v Mayor and Corporation of Bath (1868) 6 Eq 177
Drewett v Sheard (1836) 7 CAR&P 465
Gotobed v Pridmore (1971) 217 EG 759
Gregg v Richards [1926] Ch 521
Hansford v Jago [1921] 1 Ch 322
Krehl v Burrell (1879) 11 ChD 146
London
& Suburban Land & Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480
McIlraith v Grady [1968] 1 QB 468; [1967] 3 WLR 1331; [1967] 3 All ER
625, CA
Oxy
Electric Ltd v Zainuddin [1991] 1 WLR 115;
[1990] 2 All ER 902; [1990] 3 PLR 115
Tehidy
Minerals Ltd v Norman [1971] 2 QB 528;
[1971] 2 WLR 711; [1971] 2 All ER 475; (1970) 22 P&CR 371, CA
Williams v Usherwood (1983) 45 P&CR 235, CA
This was an
appeal against the decision of Judge Micklem QC, sitting in Birmingham County
Court, in an action by the plaintiffs, Snell & Prideaux Ltd, against the
defendants, Dutton Mirrors Ltd, relating to rights of way.
John West
(instructed by Shakespeares, of Birmingham) appeared for the plaintiffs;
Anthony Mann QC and David Stockhill (instructed by Stanley A Coleman &
Hill, of Birmingham) represented the defendants.
Giving the
first judgment, Stuart-Smith LJ
said: This is an appeal from a judgment of Judge Micklem sitting as a deputy
High Court judge and given at Birmingham on December 8 1992, whereby he held
that the plaintiffs had established a right of way over land owned by the
defendants, but only to the extent that the plaintiffs could go on foot and
with trolleys and barrows, not with vehicles, horses or carts, which was the
full extent of the easement which the plaintiffs claimed. The judge held that,
notwithstanding the fact that the defendants had constructed a building which
occupied a part of the passageway in question, the plaintiffs had sustained no
substantial damages. He awarded the plaintiffs 2 nominal damages and ordered
the plaintiffs to pay the defendants’ costs of the action. The plaintiffs now
appeal against that judgment.
The plaintiffs
are the freehold owners of 6–9 Ernest Street, Birmingham, and they are
industrial premises. The defendants are the freehold owners of the land to the
north of the plaintiffs’ premises, also fronting on to Ernest Street. The
defendants’ premises abut the plaintiffs’ premises. The plaintiffs claim a
right of way over the strip of land 12ft wide adjoining their premises on the
defendants’ land. It is a claim of a right to use that strip of land.
In September
1989, the defendants, having recently bought the premises, began building
operations on the land which resulted in a building completed in June 1991.
That building restricts the access of the plaintiffs to a width of 4ft 6ins at
the front of the Ernest Street and 3ft 9ins at the rear end of the right of
way. The plaintiffs’ title to the right derives from a conveyance in 1888 to
the plaintiffs’ predecessors in title. That conveyance was by a William Martin
to Mr Croft:
All that
piece of land being part of the Windmill Hill Estate and situate in and
fronting to Ernest St in Bham afsd and bounded at the back by Florence St and
on one side thereof by a road or passage 12ft wide … Together with full liberty
for the said EC Croft and his hrs and assns at all times thereafter with or
without horses carts and other vehicles servants workmen and others to use the
sd streets called Ernest St and Florence St and the sd intended party road 12ft
wide thrnbfe desck and to put and maintain grates into the sd party road for the
purpose of lighting the cellars of the houses or other bldgs to be created on
the sd land the sd EC Croft his hrs and assns contributing from time to time
with the lessees owners or occupiers of the adjoining land his and their
proportionate share of the expense of maintaining the same road in good repair
and condon and also all those two
manufacturers offices and prems fronting Ernest St afsd …
Florence
Street, which is there referred to, is at the rear of the premises. At the time
of the grant, there was in fact no complete way through from Ernest Street
along the passage to Florence Street because the level changed at about half
way at the end of the plaintiffs’ factory. According to the 1888 ordnance
survey map it appears that no 6 was then used as a bonnet factory. There was an
access to the bonnet factory under a covered way into an internal yard of the
factory. There was also access via the passage to a public house and other
houses on the land to the north.
By 1902 the
southern end of the passage, that is to say that part leading to Florence
Street, had become blocked up. There was a building built across the whole of
the passageway at that end. Also a building had been erected at first-floor
level over the Ernest Street entrance to the passageway. It was the width of
the passage and extended some 6ft back from the frontage on Ernest Street.
There was a staircase up to that building and a lavatory underneath the
staircase, but that did not impede the entrance way to the passage from Ernest
Street.
By 1908 a
building had been erected at the western end of the passageway and occupied
part of the passageway. It was common ground that the plaintiffs’ predecessors
had abandoned any part of the way occupied by the building at the Florence
Street end and also by the 1908 building. The judge held that the easement
contained in the grant of 1888 over the passageway continued, save and in so
far as it had been abandoned by the plaintiffs or their predecessors. He
concluded that the plaintiffs had abandoned the right to use the passage for
vehicles other than trolleys and barrows. They had retained the right to go on
foot and use trolleys and barrows. It is against that finding that the
appellants appeal.
I must
therefore turn to the subsequent history after 1908. At some stage, which is
not known, nos 6 and 9 came into common occupation. That occurred, it appears,
before the war. During the war no 6 was badly bombed. In 1944 Mr Stephens took
a weekly tenancy of the 1908 building, the passageway and the room over the
passage, fronting on to Ernest Street. By 1950 the plaintiffs, who by this time
owned the dominant tenement, had rebuilt their factory. The effect of the
rebuilding was that there was a loading bay and a garage fronting on to Ernest
Street. The vehicular access to and from the passageway, which appears in the
1888 ordnance survey plan, had been bricked up and a sliding door, some 7ft
high and 4ft 6ins wide, had been constructed into the passageway, that being
constructed as a part of the 1950 reconstruction. It is not clear at what stage
the original vehicular access to the passageway had been blocked up. It was the
defendants’ case at the trial that it had been blocked up before 1950 and
perhaps as early as 1908. The judge held that the evidence about that was
inconclusive. In any event, he was satisfied that, even if that opening had
been blocked up, there must have been some other door on to the passageway
which had been made at the time of the blocking up. In my judgment, there is no
reason to differ from the judge’s finding on that point.
In the late
1960s or early 1970s Mr Stephens built a brick pier roughly in the middle of
the passageway to support the beam which itself supported the overhead room.
With that pier in position, vehicles could no longer go down the passageway
beyond the point of the pier, unless it was removed. In February 1973 the
plaintiffs had a valuation of their premises by surveyors.
The valuation
refers to the benefit of the right of way. In August 1974 Mr Gould, who had
been the agents for Mr Stephens’ lessors, made a statutory declaration, in the
course of which he refers to the ‘right of access over the right of way by all
persons entitled to use the same’. On December 5 1974 the owners of the
servient tenement conveyed the property to Mr Stephens, he having previously
been, as I have indicated, a weekly tenant. In March and April 1976 Mr
Stephens erected some fencing on the servient tenement. It extended from the
1908 building towards Ernest Street at a slight angle away from the plaintiffs’
property and then turned at an angle, going straight across the passageway. The
result was that about half of the passage at that point was blocked off. He did
not take the fencing straight across the passageway, thereby blocking the entrance
to the plaintiffs’ side door. He also erected some gates at the Ernest Street
entrance to the passage. After a year or so at least, Mr Bowker, who was
married to the manager of the plaintiffs’ factory at the time, had the keys to
those gates. By this date, if not earlier, Mr Stephens had installed machinery
in the form of two lathes under the overhead workshop and it is plain that the
area of the passage was substantially cluttered up with materials, such that it
was difficult to pick one’s way to the plaintiffs’ side entrance by the sliding
door. Mr Stephens had earlier, in about 1960, erected two brick piers adjacent
to the plaintiffs’ wall, but they caused no real obstruction.
The plaintiffs
called a witness, Police Constable Taylor, whose father had worked at the
plaintiffs’ premises until his death in January 1961. Mr Taylor’s evidence was
that he used to visit his father at the factory, usually on a Saturday. The
plaintiffs’ vehicles had been driven up the passageway to a point adjacent to
the side door where there was a tap and the vehicles had been washed in that
position. He also said that on about 20 occasions loading and unloading of
those vehicles had taken place via the side door.
After 1975, it
was Mr Bowker’s evidence that: the passageway was seldom used by the
plaintiffs; the sliding door was used as a fire door; it was open in summer;
and the passage was used for occasional visits by Trent Water Authority, who
apparently used it for one of two purposes, either to suck out a sump which
appears to have been in the factory itself or else to take samples of the
plaintiffs’ effluent from manholes in the passage.
In March 1977
there was a further valuation report on behalf of the plaintiffs, which again
refers to the right of way. Neither this valuation nor the earlier ones
specifically refers to the right for vehicles, but the right is shown as being
over the whole extent of the passageway, the 12ft, and obviously, it seems to
me, without any specific restriction that would be taken to include used by
vehicles. In February 1985 further instructions were given to the valuers to
value the property. In March 1986 the solicitors for the plaintiffs gave
further instructions in which they referred to the right of way. Also in March
1986 sale particulars of the plaintiffs’ property were produced. Those, too,
referred to the right of way and those particulars became known to the
defendants, who were minded at that stage to make an offer for the plaintiffs’
premises.
In November
1986 a sale of the property was arranged by the plaintiffs to John Keatley
Investments Ltd, which was a company of which Mr Ashton was the principal
shareholder. However, that transaction did not go through, but in February 1987
Mr Ashton was appointed chairman and managing director of the plaintiff company
and either he or his company bought the shares of the plaintiffs. In November
1988 there was a conversation between Mr Ashton and Mr Stephens, in which, in
whatever terms, it is plain that Mr Ashton asserted a right of way over the passageway.
The defendants, as I understand it, accept that from then on the plaintiffs
were asserting a right of way, both in correspondence and orally, to Mr
Stephens and the defendants. On January 31 1989 the plaintiffs changed the
locks on the gates and obtained a receipt for a duplicate key for that lock
from Mr Stephens. On June 30 1989 the servient tenement was sold to the
defendants. On July 4 1989 the defendants removed the plaintiffs’ padlock from
the gates and it does not appear that the plaintiffs had a key thereafter. The
defendants applied for planning permission to develop their site. Among other
things, the plans showed that the wall of the new factory near the plaintiffs’
land was going to encroach to such an extent that there would only be a narrow
passageway, some 3ft 9ins in width, dividing them. The plaintiffs objected to
the planning authority, pointing out that they had a right of way. Some minor
modification was made with a view to the plaintiffs obtaining access to their
drains, but, as I have indicated, the defendants in fact went ahead with the
construction of their building. That was started in September 1989 and between
then and January 1990 the site clearance on the defendants’ land took place. In
March 1990 the footings of the building were constructed and they encroached in
the manner I have described on the passageway. On April 27 1990 an ex parte injunction
was granted in Birmingham County Court restraining the defendants from carrying
out further work, but it was discharged at a later stage on the basis that the
county court had no jurisdiction. On June 11 1990 the writ and statement of
claim in these proceedings were served, claiming, among other things, an
injunction restraining the defendants and a mandatory injunction requiring them
to remove any encroachment on the 12ft passageway. The defendants invited the
plaintiffs to apply for an interlocutory injunction. They said that they would
take no further steps for a period of three months to enable the plaintiffs to
take that step. The plaintiffs declined to do so. They were unwilling to give
an undertaking in damages and as a result the defendants went ahead and the new
building was completed.
The first
ground of appeal advanced by Mr West is that it is not possible as a matter of
law to abandon only part of an easement, that is to say, access by horses,
carts and vehicles. There must be an abandonment of the whole of the easement
or nothing. The judge rejected that submission. He said that part could be
relinquished or surrendered by deed and there was no reason why it should not
be done impliedly on the doctrine of abandonment.
In my
judgment, for reasons which will appear, it is unnecessary to decide this
point, but I am not persuaded that there is any logical or legal reason why
there cannot be a partial abandonment of the full extent of an easement. Mr
Anthony Mann QC, has referred the court to an old case, Drewett v Sheard
(1836) 7 CAR&P 465, which related to an easement for water. It was held
that the owner of the dominant tenement could abandon the part of the full
measure of the water to which he had at one time been entitled.
The main
submission on behalf of the plaintiffs is that the facts established did not
justify the judge’s conclusion that the plaintiffs had abandoned the right to
use vehicles. The law on the topic is well established. refer, first of all, to
Halsbury’s Laws of England, vol 14, para 119, where it is said:
Where the
title to an easement has been perfected an extinguishment by release can rarely
be effected in any other manner than by an express release or by circumstances
so cogent as to preclude the quasi-releasor from denying the release. Where,
however, an easement is claimed by prescription or is based upon the fact of
immemorial user, extinguishment or non-completion of the prescriptive claim may
readily be presumed from facts pointing to an implied release.
This case of
course comes under the first of those two headings. Part 121:
The
extinguishment of an easement by implied release must be based upon the
intention of the dominant owner. To establish abandonment the conduct of the
dominant owner must have been such as to make it clear that he had, at the
relevant time, a fixed intention never at any time thereafter to assert the
right himself or to attempt to transmit it to anyone else. It is a question of
fact whether an act amounts to an abandonment or was intended as such. The
intention to release an easement will be less readily presumed where the title
to the easement has been perfected than where the title still remains inchoate
…
The law has
also been recently reviewed in this court in Benn v Hardinge (1992)
66 P&CR 246, although the law as there reviewed referred to previous
decisions of this court, Williams v Usherwood (1983) 45 P&CR
235 and Gotobed v Pridmore (1971) 217 EG 759.
In Benn
v Hardinge it was held that mere non-user cannot amount to evidence of
an intention to abandon. In that case there had been 175 years of non-user. At
p257, Dillon LJ, citing from the judgment of Cumming-Bruce LJ in Williams
v Usherwood, said:
To establish
abandonment of an easement the conduct of the dominant owner must, in our
judgment, have been such as to make it clear that he had at the relevant time a
firm intention that neither he nor any successor in title of his should
thereafter make use of the easement … Abandonment is not, we think,
to be lightly inferred. Owners of property do not normally wish to divest
themselves of it unless it is to their advantage to do so, notwithstanding that
they may have no present use for it.
At p258,
citing from the judgment of Buckley LJ in the Gotobed case, Dillon LJ
cites this passage:
The benefit
of an easement may of course be formally released by deed. There is ample
authority to show that it may also be impliedly released where the conduct of
the dominant owner is such as to manifest an intention to abandon the benefit
of the easement. Mere abstinence from the use of an easement such as a right of
way is insufficient to establish such an intention.
It is worth
noting that in Gotobed v Pridmore the servient tenement was
surrounded by a fence and there was a dyke across the way leading to it.
Buckley LJ in relation to those facts said:
So long as FB
Chapman had no use for the right of way down Cowbit Drove there was really no
object in constructing an earth bridge across the dyke, and to have put a
bridge in at a time when there was no immediate prospect of it being needed
might well have resulted in unnecessary additional work on a subsequent
occasion when the dyke was cleared out … the erection of an earth bridge of
this kind [was in any case] a matter of no very great expense or complication.
Such a bridge could probably be constructed across the dyke in a matter of
days.
In Tehidy
Minerals Ltd v Norman [1971] 2 QB 528, Buckley LJ said:
Abandonment
of an easement or of a profit a prendre can only, we think, be treated as
having taken place where the person entitled to it has demonstrated a fixed
intention never at any time thereafter to assert the right himself or to
attempt to transmit it to anyone else.
There is, in
my judgment, a further reason why the court should not lightly infer an
intention to abandon rights for all time from acquiescence by the owner of the
dominant tenement in acts of the servient owner, which make it difficult or
impossible to exercise those rights at a time when the owner of the dominant
tenement does not have any need to do so. It is this. As a matter of good
neighbourliness, an owner of land may well permit his neighbour to make use of
the servient tenement for the time being. The dominant owner does not have any
present need to exercise his rights and it is a convenience to the servient
owner to store materials or vehicles, to erect machinery or structures for his
business. It would, I think, be undesirable, if this generous and good
neighbourly conduct could not be indulged in for fear of losing for all-time
rights, which at that moment the dominant owner has no need or wish to
exercise. No doubt, it must be a question of degree. The erection of a house or
other substantial and permanent building, which completely defeats the right if
acquiesced in by the dominant owner, would be taken as a clear indication that
the right was being abandoned. But if the obstruction can be removed, albeit at
some inconvenience and expense to the servient owner, the court should, in my
judgment, be slow to infer that acquiescence in its existence is sufficient to
amount to evidence of intention to abandon for all time the right.
The judge’s
reasoning for concluding that there was a partial abandonment is:
In considering
whether there has been an implied release I regard these matters as important.
First, in building its factory the plaintiff bricked up a gateway formerly
giving access with vehicles to no 6 Ernest Street. Second, the plaintiff
replaced two separate buildings with a single factory and it was built for a
purpose which was quite a different purpose from the original bonnet factory
and warehouse. Third, the plaintiff provided both for direct access from Ernest
Street to a garage on the factory premises and, more importantly for present
purposes, provided for a loading bay open directly onto Ernest Street in its
new factory. Fourth, the plaintiff constructed a door opening to the passageway
which was not wide enough to give access to the courtyard at the rear of the
new premises with horses and carts or motor vehicles. Fifth, the plaintiff
acquiesced in the erection of a pillar or pier which absolutely prevented
access with horses and carts and motor vehicles to the only door it had
constructed giving access to the factory from the passageway; a pillar or pier
which appeared on its face to be a permanent obstruction. Sixth, the plaintiff
acquiesced in the erection of a chain link fence enclosing a substantial area
of the disputed strip in 1976. Seventh, the plaintiff acquiesced in Mr Stevens
using the area of the disputed strip under his workshop as a workshop/storage
area and parking space, and the use of the area behind his overhead workshop as
a storage area. Eighth, the plaintiff acquiesced in the erection of the gates
across the mouth of the passage to Ernest Street, and I think it is important
that when Mr Stevens spoke to Miss Derne about this she said to him that she
and the plaintiff wanted no part in that. There is, of course, the acquiescence
over many years in the very large area of the passageway being occupied by the
1908 building and there is the absence of use with vehicles since 1960.
I regard the
new configuration of the plaintiff’s factory as of great significance, but I
would not have regarded that by itself as sufficient to manifest a clear
intention to abandon any right to use the passageway with vehicles. I do not
regard parking vehicles in the way on a Saturday morning to wash them as an
exercise of any right of way, nor do I think that any loading or unloading that
took place before 1960 in the presence of Mr Taylor shows a settled use for
loading vehicles. None the less, the possibility remained after the plaintiff’s
new factory was built, of which occasionally advantage was originally
apparently taken, of backing a vehicle down to the new door and loading and
unloading from it. But that possibility was effectively excluded when the
plaintiff acquiesced in Mr Stevens’ erection of the brick pier in the middle of
the passageway to support his first-floor overhead room. Access with horses and
carts and motor vehicles beyond that point was thereafter impossible. The
impediment was apparently permanent and the whole tenor of the evidence from
the late 1960s onwards is that the plaintiff had a firm intention that neither
it nor any successor in title to it should use the passageway with horses and
carts or motor vehicles thereafter, whether one looks at it, as it were, ‘internally’
in terms of Mr Bowker’s understanding that the passageway was no concern of the
plaintiff’s (and that is a view which I note was held by a gentleman who was
the husband of the company’s then general manager) or whether one looks at it
as it must have appeared to Mr Stevens, who was told by Miss Derne that she
wanted to have nothing to do with the putting of gates across the mouth of the
passage and raised no word of protest when Mr Stevens virtually incorporated
the passageway, save and in so far as it had been built on in 1908, in his own
business premises, though I note, of course, that the plaintiff asked for and
obtained a key.
Mr Mann, on
behalf of the defendants, submits that one should not simply look at each of
the reasons given by the judge and say it is not sufficient in itself; one must
look at the cumulative effect of those reasons and see whether it amounts to
evidence of a manifest intention on the part of the plaintiffs to release part
of their rights. I agree with that, but, subject to one argument raised by Mr
Mann, I do not think that it is arguable that the plaintiffs had abandoned
their rights before the pier was erected in the passageway in the late 1960s or
early 1970s.
The argument
of Mr Mann is this. He submits that the effect of the easement is merely that
of a right of way to pass and repass over the passageway, not to stop and
unload. Where the grant is in those terms, I that is to say, to pass and
repass, the authorities show that it is only where it is necessary to give effect
to the right of way at all that the courts will construe it as giving a right
to stop and unload: see Bulstrode v Lambert [1953] 1 WLR 1064 and
McIlraith v Grady [1968] 1 QB 468. In London & Suburban
Land & Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480
Millett J held that where there was ample room on the dominant tenement for
lorries to stop and unload, an easement to pass and repass did not entitle the
dominant owner to unload lorries on the right of way.
The next step
in the argument is this. In 1888, at the time of the grant, there was an
entrance to the yard in no 6 so that vehicles could go down the passage and
into no 6. There was no need, therefore, for them to stop and unload in the
passage. But by 1950, at the latest, the vehicle entrance to no 6 had been
blocked off. If there was no right to stop and unload at that time prior to the
blockage, the plaintiffs cannot enlarge the grant by blocking up the entrance.
That argument would, in my judgment, be a formidable one if the grant was so
worded, namely to pass and repass, but it is not. The wording of the grant is
‘with or without horses, carts of other vehicles, servants, workmen or others
to use the intended party road to 12ft wide’. Mr Mann accepts, as I understand
it, that, on the normal and natural construction of the word ‘use’, it is apt
to cover stopping for loading and unloading. But he says that it must be given
a more limited meaning because the
covered entrance into the yard and therefore there was no need or expectation
that vehicles would stop in the passageway.
I do not
accept this argument. I see no reason to cut down the words of the grant. In my
judgment, the grantee was entitled to use the road for all those purposes by
which property adjoining a street would normally be accommodated, provided such
user does not interfere unreasonably with the use of the road or passage by its
owner or those equally entitled.
Mr Mann also
submits that this court should not lightly interfere with the judge’s findings
of fact. They are not primary findings of fact. As to those, there is no
dispute. The question is: what is the correct inference to be drawn from the
facts found by the judge? In those circumstances, the Court of Appeal is
normally in as good a position as the trial judge to draw the appropriate
inference, although we do not, of course, lightly interfere with the
conclusions of the trial judge, particularly an experienced one. But if we are
persuaded that he is wrong, then we must do so.
I revert then
to the judge’s reasoning. Reasons one to four relate to alterations carried out
by the plaintiffs in the construction of their factory. In my opinion, as the
judge himself recognised, the new configuration of the plaintiffs’ factory
cannot be sufficient to manifest a clear intention to abandon the right to use
the passage for vehicles for all time. The fact that, on occasions down to
1961, albeit rarely, the plaintiffs used it for parking vehicles, to wash them
and, more importantly, to load and unload makes it quite clear that they had no
such intention. To my mind, it is quite immaterial that the use is only
occasional. Moreover, I reject Mr Mann’s submission that the loading and
unloading was purely incidental to the business of washing the vehicles, which
itself was not an exercise in the use of the right.
The four
remaining points relate to the acquiescence in Mr Stephens’ activities. In my
judgment, there is really nothing in the erection of the fence or the use of
the passage for storage of materials or machines. These could easily have been
removed. The brick pier was certainly a more substantial construction. It would
have taken little to remove it, but it would undoubtedly have involved Mr
Stephens in some inconvenience and expense to provide some alternative support
to the beam of the rear of the overhead room. This matter was not investigated
at the trial, but, it seems to me that, the onus was upon the defendants to
show that the plaintiffs intended to abandon their rights and if their case was
that the obstruction could not have been removed without disproportionate or
unreasonable expense and difficulty, such that the plaintiffs must be deemed to
have intended never in the future to exercise their full rights, it was
incumbent upon the defendants to establish this. They did not do so.
Finally, there
was the erection of the gates. The judge clearly attached considerable
importance to this and to the fact that, when asked, Miss Derne said that she
wanted no part in it. This phrase can at best, from the defendants’ point of
view, be interpreted to mean that the plaintiffs did not want to contribute
financially to the gates and did not want to be involved in the design or
physical erection of them. There was no reason why they should. But the gates
presented no real obstruction. They were open throughout the working week. The
plaintiffs were provided with keys, albeit only after a year or so. In January
1989 the plaintiffs themselves changed the padlock and gave Mr Stephens a key.
The gates were erected by Mr Stephens to prevent vandals coming into the
premises. That was obviously of some benefit to the plaintiffs as well. With
all respect to the judge, I find it quite impossible to infer from these matters
a clear intention on the part of the plaintiffs to relinquish their right to
vehicular use for all time.
But the matter
does not stop there because there are, in my judgment, clear indications from
1973 onwards that the plaintiffs did not intend to abandon this right. In the
various valuations to which I have referred, prepared on the instructions of
the plaintiffs or their solicitors, importance is obviously attached to that
right. It seems to me that the description of the right, although not referring
specifically to vehicular use, referring, as it does, to the full width of the
passageway of 12ft, must obviously have been intended to include vehicular use.
The same may also be said of the sale particulars in 1986. Although the judge
does not seem to have been much impressed by the conversation between Mr Ashton
and Mr Stephens in November 1988 or the letter that was thereafter sent by the
plaintiffs, I do not think that his criticisms of Mr Ashton were really
justified. Mr Mann accepts, as I have indicated, that really as soon as Mr
Ashton had come on the scene and taken stock of the situation, the solicitors
were asserting the full right on behalf of the plaintiffs. Although the judge
refers to these matters of evidence, he makes no comment on them, other than
those to which I have referred, and he drew no inference from it. To my mind,
these matters are inconsistent with any intention on the part of the plaintiffs
to abandon any part of their right over the passageway.
Mr Mann seeks
to support the judge’s findings on alternative grounds, namely that the
conveyance of 1934 to the plaintiffs was more limited in its terms than the
original grant. The specific wording of the conveyance at that time, and I do
not need to refer to much more than a short passage, was:
Together with
full liberty for the purchaser and her successors in title the owners and
occupiers of the property now in course of description or any part thereof, and
her and their undertenants and servants at all times to use the said party road
as now used by the underlessees …
Mr Mann
submits that that is clearly intended to cut down the original extent of the
grant. He further submits that, at that stage in 1934, there is really no proof
by the plaintiffs that they were using the way for vehicular use. He submits
that it is for the plaintiffs to show that that was the use then in existence
and they have failed to do so. The judge dealt with this point succinctly where
he said:
The
unqualified form of that easement contained in the 1876 lease is, however, set
out in the first recital of the 1934 conveyance. It is not difficult to see why
the Swann trustees were only prepared to convey together with a limited right
of way, having regard to the existence of the 1908 building which had come into
existence as a result of their predecessor’s grant of the 1908 lease.
To my mind,
that is a perfectly sensible and reasonable explanation of the limitation
implied by those words in 1934. I can see no reason for construing them as
involving a further limitation on what the plaintiffs’ predecessors had a clear
right to grant in 1934.
For those
reasons, in my judgment, I respectfully disagree with the judge’s conclusion
that the plaintiffs had abandoned part of their right to use the passageway in
question.
There remains
the question of what remedy the plaintiffs are entitled to. Mr John West
submits that the plaintiffs ought to be granted a mandatory injunction
requiring the defendants to take down their building or so much of it as
encroaches on the passageway, except to the extent that it has already been
blocked by the 1908 building. Damages under Lord Cairns’ Act, he submits, are
not an appropriate remedy. He submits that this is a case where the defendants
have ridden roughshod over the plaintiffs’ rights, even to the extent of
carrying out the bulk of the building work during the currency of the
proceedings. He relied upon Krehl v Burrell (1879) 11 ChD 146. In
the course of his judgment, James LJ said at p148:
It was not
intended, and never could have been intended, by the legislature, in giving a
right to damages under Lord Cairns’ Act, to compel a man who is wronged
to sell his property to the person who has wronged him. No such right as is
claimed by the appellant can exist in this country unless specially given by
Act of Parliament. If it were otherwise, the consequence would be that a person
would have a right to do a wrong to his neighbour at a price to be fixed by the
Court.
But the facts
of that case were very different from those here.
In my
judgment, the court has a discretion to be exercised in the light of all the
circumstances of the case. So far as the defendants’ attitude is concerned,
they were not, it seems to me, riding roughshod over clear and long-exercised
rights of the plaintiffs. They were acting on the advice of their solicitors,
based in part at least on a statutory
been, in part at least, wrong. In the event, that advice, in the view of this
court, was mistaken, but there was no reason to suppose that it was not bona
fide. Moreover, the defendants invited the plaintiffs to apply for an
interlocutory injunction and agreed to take no steps in building for three
months to enable that to be done. The plaintiffs declined to do so. They were
unwilling to give an undertaking in damages. That is understandable, but it
does suggest a less than total confidence in their case. Although the fact that
a plaintiff does not apply for an interlocutory injunction does in no way preclude
him from obtaining a permanent injunction at the trial, it is, in my judgment,
a factor to be taken into account in exercising the court’s discretion.
Although, in my opinion, the plaintiffs have suffered substantial damage, with
the loss of vehicular access and the restriction imposed by the proximity of
the defendants’ building on the free and easy use of trolleys and forklift
trucks, the fact is that, for many years, they made virtually no use of it and
they do have an alternative access at the front of the building. Indeed, at one
time they had two such accesses the garage and the loading bay, although the
garage has now been converted to offices or a showroom. In the light of these
considerations, I consider that the plaintiffs can be adequately compensated by
an award of damages which will reflect the difference in value between the
plaintiffs’ property with the benefit of the full right as compared with its
value with the limited right as now exists. For those reasons I would allow the
appeal.
Agreeing, Hoffman LJ said: I agree with
everything that Stuart-Smith LJ has said, and I add a few supplementary remarks
of my own. It was an important part of his submissions that, upon the true
construction of the deed of November 9 1888, the right of way only permitted
the grantee to pass and repass with vehicles, but not to stop for the purposes
of loading or unloading. That submission was important for two reasons. First,
because it would have enhanced the significance which might have been attached
to the stopping up of the vehicular entrance into the dominant premises. While
that entrance remains stopped up the grant, if construed in the way which Mr
Mann submitted, would for practical purposes be useless to the dominant owner.
Second, it was important because a grant so restricted would today be of very
little value to the dominant tenement in its present form and therefore would
substantially reduce the damages which the plaintiffs could recover.
Mr Mann says
that the conveyance must be construed in the light of the surrounding
circumstances and, in particular, the layout of property as it existed or was
contemplated at the time of the grant. With that general proposition I agree.
The case of Bulstrode v Lambert [1953] 1 WLR 1064 certainly
provides some authority for it. I am not so certain about the case of McIlraith
v Grady [1968] 1 QB 468 upon which Mr Mann relies, because the facts of
that case are not altogether clear from the report.
In my view,
however, a part of the surrounding circumstances which must be taken into
account is that the easement which was granted by the conveyance of 1888
precisely mirrored in its language the grant by the lease of July 6 1876, to
which the 1888 conveyance was expressed to be subject. The identity in language
runs even to the extent of reproducing the words ‘said intended party road’,
although, as the judge found, that road had in fact been laid out by 1881. In
my view, the inference is overwhelming that the easement which was granted by
the conveyance was intended to be coterminus with the easement granted by the
lease. At the time of the grant of the lease, the bonnet factory which
originally stood upon the dominant tenement had not yet been built, nor was any
particular building contemplated. The lessee merely covenanted to spend £2,000
within five years on erecting dwelling-houses, manufactories or other
buildings. It was pursuant to a building underlease of October 21 1881 that the
bonnet factory was eventually erected. The position in 1876 was, therefore,
that the building which would be using the various roads over which the
easements were granted might or might not have access to inner-courtyards for
the purposes of unloading. In those circumstances, I think that the word ‘use’
in its ordinary meaning would have included the right to stop, to load or
unload when it was necessary or convenient to do so, without causing
obstruction to other users of the road. I do not think that this construction,
on the facts of this case, is in any way inconsistent with the decision of
Millett J in London & Suburban Land & Building Co (Holdings) Ltd
v Carey (1991) 62 P&CR 480, where the language of the grant was
different and, perhaps even more important, the evidence showed that the
parties at the time of the grant contemplated that the dominant tenement would
have a substantial forecourt on which loading or unloading could take place.
That
considerably reduces the significance which might be attached to the blocking
up of the vehicular entrance. In any case, it is clear from authorities, such
as Cook v Mayor and Corporation of Bath (1868) 6 Eq 177, that the
blocking up of an entrance, even for, as in that case, a period of as long as
40 years, in no way amounts to an abandonment of a right of way which prevents
the dominant owner from reopening it and then using the way.
I entirely
agree with what Stuart-Smith LJ has said about the undesirability of construing
the law in such a way as to discourage neighbourly acts of acquiescence which
cause no inconvenience to the dominant owner. The position is very different if
the servient owner is induced by reliance on the apparent abandonment by the
dominant owner to incur substantial expense. This is a point which was very
clearly made by Sir Richard Malins in the decision in the case to which I have
just referred. He says:
If in this
case the defendants had commenced building before this back-door had been
re-opened, I should have been of opinion that the Plaintiff had, by allowing it
so to remain closed, led them into incurring expense, and therefore could not
prevent their acting on the impression that he intended to abandon his right.
Further down
he says:
… in Ward
v Ward; Pollock, and Alderson, B held that mere non-user of a way did
not, in the absence of the acquisition of rights by other parties in
consequence of it, amount to an abandonment, but only raised the inference that
there had been no occasion to use it …
It seems to
me, therefore, that, while the proof of abandonment in itself is extremely
difficult, the position might be different if the defendants were able to show
some form of proprietary estoppel. In this case, however, proprietary estoppel
was neither pleaded nor proved and I agree with my Stuart-Smith LJ that the
various acts which were done were not of the sort of significance which would
in any way have made it unjust, for example, for Mr Stephens to be required to
remove his supporting brickwork and to substitute a steel joist instead.
The next
question is whether the extent of the right granted from 1888 was restricted by
the terms of the subsequent conveyances in 1934 and 1948. There again, I agree
with what Stuart-Smith LJ has said. I would only draw attention to the fact
that there is authority upon the construction of a conveyance in similar terms
for the purposes of section 62(4) of the Law of Property Act 1925. In this
case, the easement being appurtenant to the freehold of the dominant tenement
would have passed whether section 62 was there or not, but section 62 is also a
ground upon which the easement would pass since it expressly refers to
easements and says that the easement will pass unless the express language of
the conveyance shows a contrary intention. In Hansford v Jago [1921]
1 Ch 322 and Gregg v Richards [1926] Ch 521, Russell J in the
first case and the Court of Appeal in the second case, concluded that there was
no room in such a case for the canon of construction usually known as expressio
unius exclusio alterius. It is in no way inconsistent for there to be a
grant of a limited right so as to restrict the ambit of the covenant for title
and at the same time an implied grant under section 62 or the common law of a
wider right, in so far as the grantor is able to grant it. In this case, there
was, on the face of the documents, no reason whatever why the vendor in 1934 or
in 1948 should have wanted to pass on less rights than he actually had. On the
other hand, as Stuart-Smith LJ has said, there is a perfectly good explanation
for his having wanted to restrict the ambit
me to be the explanation, and to justify a construction of the conveyance which
does not cut down upon the rights conferred in 1888.
Finally on the
remedy, I should mention that Mr West, in submitting that his client should be
granted a mandatory injunction, relied upon a decision of my own in Oxy Electric
Ltd v Zainuddin [1991] 1 WLR 115 as support for the proposition that
the fact that the plaintiffs did not apply for an interlocutory injunction was
immaterial to whether they should be granted a final one at the trial. That
case goes no further than deciding that failure to apply for an interlocutory
injunction is not a reason for striking out the action as frivolous and
vexatious. It by no means follows that it is not a matter to which regard may
be had in deciding whether a final injunction should be granted. In this case,
it was quite clear that delaying the commencement of the works on the
defendants’ land until this action had been determined was going to involve a
risk of financial loss to the defendant. The question was, who should bear the
risk of that financial loss if their claim turned out to be wrong? The
defendants offered the plaintiffs the opportunity of preserving the status quo
on condition that they were willing to give a cross-undertaking which would
impose that risk upon them. That the plaintiffs declined to do. In those
circumstances, the defendants, being advised that they had an arguable case, went
ahead and averted the loss by going forward with the building. In my judgment,
that was not an unreasonable thing for them to do. In those circumstances, I
think it would be quite wrong to penalise them by ordering their building to be
torn down. For those reasons, I entirely agree with the judgment that
Stuart-Smith LJ has delivered.
Saville LJ agreed
and did not add anything.
Appeal
allowed.
