The parties shared a right of way over land. The common way could be used for most of its length, except for an intervening flowerbed on the land of the servient owner.
Held: The existence of the flowerbed was insufficiently permanent or substantial to qualify the express terms of the grant.
Waite LJ said: ‘Where (as in this instance) the words of grant are apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there is in existence at the date of grant some feature on the servient tenement which represents a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it is a matter of construction in every case for the court to determine whether the existence of that obstacle calls for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It is essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to override the instruction, and (conversely) the more solid and permanent the obstruction, the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal.’ and concluded
‘When all these considerations are borne in mind, the intention that is properly to be imputed to the common vendor is in my judgment an intention to allow the dominant owner access for pedestrians and vehicles at every point along the driveway. The fact that this interpretation would carry with it the right to call upon the servient owner to abandon his flowerbed at any point where the dominant owner desired to exercise a right of access does not in my view involve a consequence sufficiently drastic to contradict the plain language of the grant. Nor can it be affected in retrospect by the fact that Miss Walker was a lady who never drove a car and never sought to exercise vehicular access rights in her lifetime. The right was given to her and to her successors in title in language that is too plain to be contradicted by any reference to the contemporaneous topography.’
Judges:
Waite LJ
Citations:
[1993] EGCS 124
Cited by:
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 01 May 2022; Ref: scu.254437