Claimants owning right of way over defendant’s land – Whether right of way limited to track existing at time of conveyance – Whether interference sufficient to justify granting of injunction or damages – Judge dismissing claim – Appeal and cross-appeal dismissed
The parties were neighbours in the village of Kingston, Lewes, East Sussex. The claimants enjoyed a right of way over part of the defendant’s land. The right of way extended from the rear of their property to a nearby road and the plan attached to the conveyance showed it as a 40-foot wide strip of land that had printed on it “reserved for road”. Until 1972 there was a 14-foot wide hardcore track within the strip of land. In 1972 the defendant put a 13-foot wide tarmac surface on the hardcore track, which was resurfaced in 1980 and 1984. The defendant placed tree stumps and logs along the side of the track to prevent parking on the grass. Subsequently, the tree stumps and logs were replaced by concrete blocks. The claimants made no financial contributions, for which they were potentially liable, to the construction or repairs of the track. In 1988 they used their right of way for the first time after opening an 11-foot wide entranceway to create a rear entrance to their property for parking and access along the track on to the nearby road.
In July 1996 the claimants issued proceedings against the defendant for interference with the right of way. They sought an order for the removal of trees obstructing access to the rear of their property and an injunction restricting the defendant from blocking access. The judge held that the claimants’ had a right of way that was not confined to the track but which extended to the whole of the 40-foot strip. However, he rejected the claim for an injunction or award of damages on the ground that there was insufficient interference. The claimants appealed. The defendant cross-appealed against the judge’s decision as to the physical extent of the right of way to which the claimants were entitled, contending that it was limited to the roadway constructed by him.
Held: The appeal and cross-appeal were dismissed.
1. The claimant’s right of way was not limited by the language of the grant, or by either the track that existed at the time of the grant or the roadway subsequently constructed. The construction contended for by the defendant would involve rewriting the grant. Accordingly, the judge had been correct to conclude that it extended to the whole of the 40-foot strip.
2. The 13-foot wide tarmac road had been there since 1972 and no objections had been taken to its construction or to the trees and concrete blocks until 1996, and neither the width of the road nor the concrete blocks prevented the passing of vehicles. Accordingly, the judge had been entitled to conclude that there had not been any substantial obstruction of the claimant’s right of way.
Paul Rogers (instructed by Adams & Remers, of Lewes) appeared for the claimants; Christopher Wilson (instructed by Donne Mileham & Haddock, of Lewes) appeared for the defendant.
Thomas Elliott, barrister
