Barry v Hasseldine: 1952

The grantee’s land was surrounded partly by land of the vendor, and partly by that of other parties, including a disused airfield owned by a third party. For some time following the grant they had been able to obtain access over the airfield by permission of the owner. There was an argument, rejected by the judge, that he had agreed to abandon any claim to access over the vendor’s land. The issue therefore arose as to his legal rights in the event of the permissive right being unavailable.
Held: Where a freehold site is land-locked, there is normally implied a right of way irrespective of any common intention of the parties as to its creation or otherwise. There was a finding of a ‘conditional abandonment’ of a way of necessity, the need for which might or might not arise if the permissive way were lost. If the land is partly bounded by the vendor’s land and partly by the land of a third party, a merely permissive way over the third party’s land (as the only means of access) will not prevent the purchaser acquiring a right over the vendor’s land. The acid test of whether a person needs a way is whether he can compel an adjoining owner to grant him a legal right.
Danckwerts J said: ‘the law would clearly have implied in favour of the grantee of the triangular piece of land a way of necessity – that is to say, a right of way to enable the grantee to obtain access over the grantor’s land in some line to be chosen by the grantor; so that the triangular piece of land would be of some use to the grantee instead of being useless, as it would be if no right of way existed. I am satisfied that the law would have implied such a right notwithstanding that the piece of land granted by the conveyance of 1947 was not completely surrounded by the grantor’s land, but on three sides abutted on to land which belonged to other persons.’ and
‘There is therefore no express authority on the point. In my opinion, however, if the grantee has no access to the property which is sold and conveyed to him except over the grantor’s land or over the land of some other person or persons whom he cannot compel to give him any legal right of way, commonsense demands that a way of necessity should be implied, so as to confer on the grantee a right of way, for the purposes for which the land is conveyed, over the land of the grantor; and it is no answer to say that a permissive method of approach was in fact enjoyed, at the time of the grant, over the land of some person other than the grantor because that permissive method of approach may be determined on the following day, thereby leaving the grantee with no lawful method of approaching the land which he has purchased.’


Danckwerts J


[1952] Ch 835

Cited by:

CitedAdealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
CitedAdealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
CitedSweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Lists of cited by and citing cases may be incomplete.


Updated: 10 May 2022; Ref: scu.253249