Wood and another v Waddington

Conveyance – Right of way – Easement – Parties owning land previously in common ownership – Claimant asserting right of way over defendant’s land – Defendant counterclaiming for infringement of right of way – Whether claimants establishing rights of way in relevant transfers – Whether boundary between land supporting defendant’s counterclaim – Claim dismissed – Counterclaim dismissed The claimants and the defendants owned neighbouring land which had previously been in common ownership. A dispute arose between the parties when the claimants asserted that they had the benefit of rights of way on foot and on horseback for all domestic purposes over the defendant’s land. The rights claimed were all rights of access to and from the claimants’ land. The claimants contended that all the rights which they claimed: (i) had been expressly granted in the transfer to their predecessors in title; (ii) were advantages enjoyed with the land transferred to their predecessors in title and had become easements pursuant to section 62 of the Law of Property Act 1925; and (iii) were to be implied into the transfer to their predecessors either under the rule in Wheeldon v Burrows (1879) 12 Ch D 31 or to give effect to the way in which the land transferred was intended to be used, or on some other basis. The claimants argued that the rights of way claimed were liberties, privileges and advantages enjoyed with the land pursuant to section 62 of the 1925 Act. The relevant clauses in the transfers to their predecessors also introduced a limitation that the privileges etc had to be “of a continuous nature” which did not appear in section 62. The defendant made a counterclaim alleging that the claimants had built upon a track running across their land, thereby infringing his admitted right of way. The resolution of that issue depended on the precise boundary between the parties’ land. Held: The claim was dismissed. The counterclaim was dismissed.(1) Considering all the provisions of the transfers and the particular wording of the relevant clauses, for the purposes of the general words in those clauses, a right of way was not a liberty, privilege or advantage “of a continuous nature”, giving those words their established conveyancing meaning. There were clear signs in the transfers that the parties were adopting the established meaning and were not intending to deal with rights of way at all. The subsequent conduct of the parties was not admissible for the purpose of construing the general words in the transfers. The use made of the various accesses after the land was divided was of no real assistance in construing the transfers. The relevant clauses referred to easements “of a continuous nature now used and enjoyed” which focused on the mode of use and enjoyment prior to, and at the date of, the division of the land and not on the different facts as to use and enjoyment after that date. In any event, the subsequent use of the various accesses was in no way probative of the intentions of the parties when the land was divided: St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572, Ali v Lane [2007] 1 P&CR 26; [2006] PLSCS 242, Haycocks v Neville [2007] 1 EGLR 78; [2007] 12 EG 156, Piper v Wakeford [2008] EWCA Civ 1378 and Armbrister v Lightbourn [2013] 1 P&CR 248 considered. (2) A right of way was capable of being granted pursuant to section 62 where the advantage in question was enjoyed with the land conveyed. The effect of section 62, where it operated, was to create an easement for the benefit of a dominant tenement which was a burden on a servient tenement. The land conveyed would be the dominant tenement and the land retained would be the servient tenement. The use of the word “with” suggested that, before the conveyance, there must have been a relationship between the land to be conveyed and the land to be retained so that it could properly be said that the advantage was enjoyed with the land to be conveyed: Broomfield v Williams [1897] 1 Ch 602, Green v Ashco Horticulturist Ltd [1966] 1 WLR 889, White v Taylor (No 2) [1969] 1 Ch 160 and Selby District Council v Samuel Smith Old Brewery (Tadcaster) Ltd (2000) 80 P & CR 466 considered. There was no absolute rule that a right of way could not be claimed under section 62 where there had not been diversity of occupation before the relevant conveyance. The advantage must have been “enjoyed” in the period before the conveyance “with” the land conveyed so that, after the conveyance, it would be appurtenant to the land conveyed as the dominant tenement. For those purposes, a consideration of how the advantage was actually used and whether it was apparently for the benefit of the land conveyed and a burden on the land retained was important. On the facts of the present case, the claimants were not able successfully to rely on section 62 to assert any of the rights of way which they claimed. The access had been used rarely. There was no pattern of regular user of the advantage claimed: P & S Platt Ltd v Crouch [2004] 1 P & CR 18 and Alford v Hannaford [2011] EWCA Civ 1099; [2011] PLSCS 236 applied; Long v Gowlett [1923] 2 Ch 177 considered. (3) The rule in Wheeldon v Burrows required the rights claimed to be continuous and apparent in that they were used and enjoyed for the benefit of the land conveyed; necessary for the reasonable and convenient enjoyment of the property conveyed; and not inconsistent with the express terms of the conveyance. The rule was one of intention based on the proposition that a grantor might not derogate from his grant. It was much more difficult for a grantor of land to contend that he had impliedly reserved an easement over the land granted; it was the duty of the grantor to reserve the easement expressly out of the grant. On the evidence in the present case, the claimants had failed to show that the rights claimed had been necessary for the reasonable and convenient enjoyment of the land conveyed: Borman v Griffith [1930] 1 Ch 493, Ward v Kirkland [1967] 1 Ch 194, Sovmots Investments Ltd v Secretary of State for the Environment [1977] 2 EGLR 22, Millman v Ellis (1995) 71 P&CR 158 and Wheeler v Saunders [1996] Ch 19 considered. Moreover, the claimants had failed to show that there had been a common intention as to some definite and particular user or that the right claimed was necessary to give effect to that common intention: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, Stafford v Lee (1992) 65 P & CR 172 and Donovan v Rana [2014] EWCA Civ 99; [2014] PLSCS 54 applied. (4) As regards the defendant’s counterclaim, on the evidence, the boundary between the two ownerships was along the edge of the concrete track as it existed at the date of the relevant transfers. On that basis, notwithstanding the construction of the new buildings, there remained available to the defendant a sufficient width of track over which he had a right of way so that his right had not been substantially interfered with: Eastwood v Ashton [1915] AC 900, Pennock v Hodgson [2010] EWCA Civ 873 applied; Dixon v Hodgson [2011] EWCA Civ 1612 and Cameron v Boggiano [2012] EWCA Civ 157 considered. Martin Hutchings QC and Simon Atkinson (instructed by Memery Crystal LLP) appeared for the claimants; Jonathan Gaunt QC (instructed by Michelmores LLP) appeared for the defendant. Eileen O’Grady, barrister