Statutory construction — Registered land — Register of caution — Plaintiff owning property for benefit of which three rights of way reserved — Defendant seeking declaration that two rights of way being extinguished — Defendant entering caution — Plaintiff alleging caution wrongly entered — Whether action relating to interest in land — Whether easement was “land” comprised in plaintiff’s title — Whether pending action intended to “destroy” interest in land — Court at first instance holding that action relating to interest in land — Plaintiff’s appeal dismissed
The plaintiff was the registered owner of Rodborough Fort, Stroud, Gloucestershire. It was a large house built in the 18th century and entirely surrounded by Rodborough Common, which was designated a Site of Special Scientific Interest under the Wildlife and Countryside Act 1981. Both the fort and common belonged to F, who, in 1937, donated the common to the National Trust. Three vehicular rights of way were reserved over the National Trust property from the fort to nearby public highways. The present plaintiff, W, acquired the fort in 1988 and the property register included a statement that the land had the benefit of the three rights of way reserved by the 1937 gift.
The National Trust commenced proceedings in May 1988 in Stroud County Court for declarations that two of the three rights of way had been extinguished or abandoned and it registered the proceedings as a land charge under section 5(1) of the Land Charges Act 1972, which provided that a pending action, writ or other interest in registered land could be protected by lodging a caution in the Proprietorship Register in respect of a “pending action for trespass and abandonment of rights of way…”.
The plaintiff sought an order that the caution be vacated on the ground that it was improperly registered and was not directed to the merits of the purported abandonment. On the issue of the rights of way, judgment was in favour of the plaintiff in that the judge found that they had not been extinguished. The National Trust proceeded to vacate the caution.
The plaintiff sought damages under section 56(3) of the Land Registration Act 1925 on the ground that the caution had been lodged without reasonable cause. The 1972 Act provided that “pending land action” meant any action or proceeding pending in court relating to land or any interest in or charge on land. The issue concerned whether the proceedings were “relating to land or any interest in land”. The plaintiff submitted that the claim by the National Trust did not fall within section 17. She argued, inter alia, that the action was one in which the National Trust sought a declaration that there was no interest in land; that it did not relate to the fort in any way; and that while it did relate to the easements, the National Trust’s case was that those easements no longer existed.
Held The appeal was dismissed.
1. The issue was whether an action by a servient owner asserting that an easement over his land had ceased to exist was a pending land action within the meaning of section 17 of the 1972 Act and could therefore be protected by a caution registered against the dominant owner’s registered land pursuant to section 59(1) of the 1925 Act.
2. It was clear from a line of authorities that the land to which the action related had to be comprised in the title against which the caution was registered. An easement was an incorporeal hereditament appurtenant to a dominant tenement, but constituting an interest in the servient tenement. Although an easement could not exist in gross it was nevertheless itself “land” as defined in the 1925 Act: see section 205(1)(ix) of the 1925 Act.
3. An easement was therefore that familiar creature of English land law: an estate or interest carved out of a larger estate or interest, but nevertheless constituting an hereditament in its own right. It was a burden upon the servient tenement, but also itself “land” vested in the proprietor of the dominant tenement.
4. Further one could register a pending action against the registered title to an interest in land when the action was aimed at establishing that such interest had ceased to exist. In Selim Ltd v Bickenball Engineering Ltd [1981] 1 WLR 1318, a freeholder commenced an action for forfeiture of a long lease for breach of the repairing covenants. He lodged a caution against the registered leasehold title to protect the claim as a pending action. It was held that proceedings by the owner of an estate in land out of which some lesser estate or interest had been carved and which were intended to “destroy” that estate or interest related to the latter land within the meaning of section 17 of the 1972 Act just as much as proceedings to acquire it. That reasoning was adopted and applied to the present case at first instance and the Court of Appeal agreed with it.
5. Although that disposed of the appeal, the court wished to add something about the practical difficulties which could be caused by the registration of cautions. In registered conveyancing, by section 55 of the 1925 Act, the effect of a caution prevented the registration of further dealings with the land unless it had been withdrawn or vacated. It could therefore have the practical effect of preventing a transaction which would have caused no prejudice to the cautioner, for example, because it would have been binding upon him whether protected by caution or not — such as easements, as in the present case, which were legal interests binding upon purchasers of the servient tenement whether they had notice of them or not. They were overriding interests to which all transfers of registered land were made subject by section 70(1)(a) of the Act. A cautioner could equally well in certain cases thus be protected by an injunction and cross-undertakings in damages designed to ensure that the interest would be binding upon a transferee and his successors: see Clearbrook Property Holdings Ltd v Verrier [1974] 1 WLR 243; and Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146.
David Fletcher (instructed by Eggletons, of Gloucester) appeared for the appellant; Roger Evans MP (instructed by Winterbothams, of Nailsworth) appeared for the National Trust.
