The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he padlocked the gate open. At various time over the history of the gate it had been left constantly open, and mostly closed. Then, after a burglary, the police advised B to keep it closed. The parties had discussed an electronic gate. One gate post was built on the other neighbour’s land.
Held: The post had now been acquired by adverse possession.
Norris J said: ‘Where there is a right of way and it is gated by the owner of the servient tenement it will frequently be the case that the application of the principles set out in Pettey v Parsons and the approach suggested . . in BandQ plc v Liverpool and Lancashire Properties . . will lead to an injunction ordering the removal of the gate, unless some means of reducing the inconvenience to something less than substantial can be found.
If the gates are closed and the Heslins or their visitors are coming home then the Heslins have to approach the entrance slowly and, if they see the gates shut, either (a) park the car at the kerbside (perhaps turning off the engine and locking up if there is a sole occupant in the car), get out, walk up the pavement or across the road, open the gates, return to the car and then drive through; or (b) park the car nose up to the gates, with the length of the car crossing the pavement and protruding into the road and into the path of the traffic, get out, open the gates, return and drive through. If the Heslins are leaving home then they can simply park on the driveway, leaving the engine running, whilst someone gets out to open the gates, and then drive through. It is one thing to do this on a summer evening: and another to do it in the depths of winter or during a downpour. Whilst the Heslins dramatised the exercise I have no doubt that if the gates were closed whenever they wanted to pass through them, then they would be seriously inconvenienced, as would their predecessors in title have been.’
Norris J
[2014] EWHC 3267 (Ch)
Bailii
England and Wales
Citing:
Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
Cited – B and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
Cited – Joyce v Rigolli CA 2-Feb-2004
An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . .
Cited – Drewell v Towler 4-Jun-1832
In trespass for cutting lines of the plaintiff and throwing down linen thereon hanging ; defendant pleaded, that he was possessed of a close, and because the linen was wrongfully in and upon the close he removed it. Replication, that J. G. being . .
Cited – Suffield v Brown 15-Jan-1864
To imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a . .
Cited – Maggs (T/A BM Builders) v Marsh and Another CA 7-Jul-2006
. .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 02 November 2021; Ref: scu.537536
