Right of way — Reasonable enjoyment — Common intention — Conveyance of woodland fronting road — Plaintiffs wishing to build on land — Defendants owning adjacent land including road — Defendants asserting plaintiffs’ rights only extending to reasonable enjoyment of land as woodland — Plaintiffs obtaining declaration for right of way for vehicles and use of land as residence — Test for discerning common intention — Whether easement necessary to give effect to common intention — Defendants’ appeal dismissed
Since 1983, the plaintiffs, Mr and Mrs S, owned an absolute title to a small parcel of freehold land abutting the north-eastern side of Marley Drive, Lympstone, Devon. They obtained outline planning permission for building a house on the land and they claimed a right of way over Marley Drive: (1) for bringing in building materials; and (2) for residential purposes once the dwelling-house was built. The defendants, the owners of Marley Drive, contended that the plaintiffs were not entitled to use Marley Drive for either purpose. The plaintiffs’ land and the defendants’ Marley Drive were formerly in common ownership being part of the Marley Estate.
In 1949, R purchased part of the estate including Marley Drive. By a deed of gift in 1955, R conveyed a small parcel of land with a frontage of 159 ft to Marley Drive to W. It was that parcel of land which the plaintiffs subsequently acquired in 1983 and which was the subject-matter of the present dispute. Although the deed had described the land conveyed as having a frontage to Marley Drive, it contained no express grant of a right of way over that roadway.
In 1967, R conveyed the bulk of the land, some 43 acres, which had been conveyed to him in 1949 to the defendants, including Marley Drive. The conveyance was expressed to be subject to the right of way in favour of those properties to pass and repass. The land which the plaintiffs acquired still was, as it had always been, a piece of woodland containing a pond within. The only practicable means of access to it and egress from it was over and along Marley Drive. The planning permission for the erection of a dwelling-house for the plaintiffs alerted the defendants — as the owners of Marley Drive — to assert that the plaintiffs had no right to use the drive either for construction traffic or for use in connection with a house if and when it was constructed.
In 1990, the plaintiffs obtained a declaration of their rights — notwithstanding the defendants’ counterclaim for a counter-declaration — in terms that there was an implied grant of a right of way with or without vehicles over Marley Drive: (i) to carry the necessary building materials; and (ii) to use for residential purposes once the house was constructed. The defendants appealed.
Held The appeal was dismissed.
1. In Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, in dealing with implied easements, it was stated that: “The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties …”.
2. It was essential that, in order to imply an easement, the parties should intend that the subject of the grant was to be used in some definite and particular manner. Therefore there were two hurdles to surmount: the grantee had to establish the common intention as to use; then he had to show that the easements claimed were necessary to give effect to it.
3. Such easements were subject to the general rule that they were implied more readily in favour of a grantee than a grantor.
4. It was axiomatic that in construing any conveyance, the court had to take into account the factors in reference to which the conveyance was originally made. However, in the present case, no extrinsic evidence having been adduced by either side, the court could only refer to the 1955 deed of R to W. Provided the grantee could then establish the requisite intention, the law would imply the grant of such easements as might be necessary to give effect to it.
5. While the defendants had admitted that the 1955 deed did pass to W a right to use Marley Drive and that that right had passed to the plaintiffs, they contended that the right was limited to all purposes necessary for the reasonable enjoyment of the land as woodland — a right manifestly inadequate for the plaintiffs’ purposes. However, the material question in a case of intended easement was not how the land was enjoyed in 1955, but did the parties to the 1955 deed intend that it should be used in some definite and particular matter and, if so, in what manner?
6. The requirement that the parties should have intended a definite and particular use for the land did not require that the intention be proved as a certainty. Proof on the balance of probabilities sufficed.
7. In turning to the 1955 deed for assistance, despite the defendants’ submission to the contrary, the conveyance plan could be relied upon for the purpose of establishing a particular intention as to the use to which the land was to be put. The plan was part of the material agreed upon by the parties. There was no reason why their common intention, if not otherwise expressed, should not be implied from the plan as much as from any other part of the agreed material and there was every reason why it should be so implied.
8. In the instant case, the significant feature of the plan was that, in addition to the land conveyed, it showed two other enclosures which were plots of land on which dwellings had already been constructed. The defendants accepted that some appurtenant right of way was intended for those houses over and along Marley Drive.
9. In the court’s judgment, on the balance of probabilities, the parties could only have intended that the land in dispute should have been used for the construction of another dwelling, ie for residential purposes. No other intention could reasonably be imputed to them. The court was satisfied, therefore, that the easements claimed by the plaintiffs were necessary — and no more than necessary — to give effect to the intention so established.
Jacqueline Baker (instructed by Linford Browns) appeared for the appellant/defendants; Philip Rossdale (instructed by Sharpe Pritchard, acting as London agents for Orchard & Co, of Exmouth) appeared for the respondent/plaintiffs.
