Lease — Right to use footway — Supermarket as tenant — Supermarket trolleys — Trolleys used over and stacked on footway — Whether right of use as a footway includes trolleys — Whether landlord estopped from denying right to stack trolleys — Whether trolleys may be parked in car park — Whether reasonable time for revocation of licence given
The plaintiffs are the landlords in respect of supermarket premises in St Ouen’s Centre, Worsley, Manchester; the defendants are the tenants holding an underlease dated October 10 1973. By the underlease the tenants are entitled to a “full and free right of way … on foot only along the pedestrian walkways coloured yellow … and the right to use the Car Parks for the parking of cars … by the Tenant … and customers …”. The walkway and car park, which lay to the west of the premises, were not part of the demise. The landlords contended that: (1) the right to use the walkway by customers could not be exercised with supermarket trolleys; (2) the tenants had no right to stack trolleys on the walkway; (3) the tenants had wrongfully erected trolley parks in the car park; and (4) the tenants permitted stray trolleys to be left in the car park and elsewhere in the area.
Held The claim was dismissed in part and the tenants counterclaim for a declaration granted.
1. There was persuasive authority in R v Mathias 175 ER 1191 that the use of a public footpath would include the usual accompaniments of foot passengers; in the circumstances of the grant of the underlease and the right of way, the parties must have contemplated that customers would be supplied with trolleys; between 1974 and 1986 there had been no complaints about trolleys by the landlords; and since 1979 there had been trolley parks in the adjoining car parks. The use of the walkway by customers with trolleys was therefore not a trespass.
2. By reason of permitting the tenants to improve the premises on the assumption that they had the right to stack trolleys on the walkway, the landlords were now estopped from asserting that the tenants had no right of stacking. Effect was given to the equity by conferring on the tenants the right in the nature of an easement of stacking.
3. The tenants had a mere licence to keep the trolley parks in the car park; that licence was revoked and the trolleys parks are to be removed.
4. The tenants did not cause or allow trolleys to be abandoned and were not liable in trespass.
Minister of Health v Belloti [1944] KB 298 considered.
David Oliver QC and Bartley Jones (instructed by Davies Wallis Foyster) appeared for the plaintiffs; and Alan Steinfeld QC and Jonathon Arkush (instructed by Berwin Leighton) appeared for the defendants.
