Right of way to Iken church over grounds of former rectory a right of passage on foot only–Parochial council’s unsuccessful appeal from judgment of Megarry J–Important dictum concerning effect of section 65 (1), LPA 1925–Purchaser, not vendor, is proferens of a right created by reservation in a conveyance
This was an
appeal by Iken Parochial Church Council from a judgment of Megarry J on July 26
1973 dismissing their action concerning the extent of a right-of-way over a
30-yard-long strip of land leading to the churchyard at Iken, Suffolk, over
former glebe land conveyed by the Bishop of St Edmundsbury and Ipswich to the
respondent, Mr Bertram Clark, in 1945. The first plaintiffs, St Edmundsbury and
Ipswich Diocesan Board of Finance, took no part in the appeal.
Mr J E
Vinelott QC and Mr S G Maurice (instructed by Finnis, Christopher, Foyer &
Co, agents for R J Winyard, of Southwold) appeared for the appellants, and Mr J
Harman QC, Mr G Lightman and Mr A G Boyle (instructed by Cameron, Kemm, Nordon
& Co) represented the respondent.
Giving the
reserved judgment of the court, SIR JOHN PENNYCUICK said that Iken church and
churchyard were wholly surrounded by the grounds and glebe lands of the former
rectory, an area of some 23 acres conveyed to the respondent, Mr Clark, by the
Bishop of St Edmundsbury and Ipswich in 1945. A narrow road or lane, a public
highway known as ‘Church Lane,’ ran up to the defendant’s boundary, from where
a way about 100 yds long ran up to the church porch, crossing the defendant’s
property for about the first third of its length. The conveyance of 1945 was
subject to ‘a right-of-way over the land coloured red on the . . . plan to and
from St Botolph’s Church.’ At that time
there was no indication that the way was any sort of roadway, and it looked
like a somewhat derelict pathway. For a number of physical reasons, use by
vehicles would have been difficult. Mr Clark claimed that the way reserved by
the conveyance was a right-of-way on foot, and disputes arose between him and
the church authorities, culminating in certain incidents in 1971. The
authorities issued their writ on July 26 1971, claiming among other relief a mandatory
order for removal of gates erected by Mr Clark at the southern end of the way.
Megarry J held that by reason of the provisions of section 65 (1) of the Law of
Property Act 1925, the reservation of the way in the 1945 conveyance operated
without any regrant. It should be construed against the church authorities and
in favour of Mr Clark, so that on the true construction of the words used the
right-of-way was limited to one on foot. The second plaintiffs now appealed.
Their
Lordships felt no doubt that the proper approach to the construction of a
conveyance containing a reservation of a right-of-way was that upon which the
court construed all documents, ie one must construe the conveyance according to
the natural meaning of the words contained in the document as a whole, read in
the light of the surrounding circumstances. It had been suggested that one
first construed the relevant words in isolation and then looked at the
surrounding circumstances in order to see whether they cut down the prima
facie meaning of the words, but this seemed contrary to well-established
principle. As for the maxim omnia praesumuntur contra proferentem
applied by Megarry J, their Lordships thought it necessary to make clear that
this presumption could only come into play if the court found itself unable, on
the material before it, to reach a sure conclusion
to be taken into account in reaching the conclusion. Here their Lordships had
indeed reached a sure conclusion, and on that footing the presumption did not
come into play, so that the view they intended to express upon it was not
necessary to their decision. In their judgment, section 65 (1) of the Law of
Property Act 1925 did not alter the rule established under the previous law by
which it was the purchaser of property, not the vendor, who was the proferens
as far as a right created by reservation was concerned.
Taking the
words of the reservation in the present case and construing them in the manner
indicated, their Lordships felt no doubt that Megarry J’s conclusion was
correct. The surrounding circumstances were matters of fact lying within the
province of the judge, who heard numerous witnesses and visited the site. There
were no grounds upon which Megarry J’s findings of fact could be impugned.
Apart from his view on the presumption, he had stated the law correctly and
reached the proper conclusion, and the court could not usefully elaborate it.
The appeal would be dismissed with costs.
