Giles v County Building Constructors (Hertford) Limited: ChD 1971

A right of way had arisen by prescription in favour of land which had two detached dwelling houses on it.
Held: The right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of six flats, a bungalow, a house and eight garages, a redevelopment which also involved constructing a roadway on the dominant land so that traffic could pass over it, rather than merely up to it. Rather than involving a change of identity or a radical change of character, the development was ‘evolution rather than mutation’. ‘To some extent, of course, the matter must be one of degree, because I quite see that the erection of a skyscraper block of flats upon the [dominant property] might well be said to cause a radical change in the character of the dominant tenement which alters its identity. But that is not what is proposed here.’
Brightman J set out two presumptions of law applying to the soil of a roadway: ‘As I understand the law, there are two presumptions relative to the ownership of the soil of a roadway. One presumption operates in certain circumstances when the conveyancing history of the land and the road is unknown. This presumption supplies a fact of which there is no direct evidence, namely, the ownership of the road. The presumption is that the owner of the land abutting on the road is also the owner of the adjoining section of road up to the middle line, There is no room for this presumption when the conveyancing history of the land and the road is known from the time when they were in common ownership as in the case before me. In such a case, there is, in certain circumstances, a totally different presumption which is more in the nature of a canon of construction that a conveyance of the land includes half the adjacent roadway. The distinction between the two presumptions, if the second one can properly be called a presumption, is clearly drawn by Joyce J. in Mappin Brothers v Liberty and Co Ltd [1903] 1 Ch 118. I need not refer to that case because Mr. Jopling, in his able argument, accepted the distinction and told me that he based his submission only on the second presumption, as indeed I am sure he must. Mr. Jopling relied on Norton on Deeds, 2nd ed. (1928), p. 252, for a correct statement of the nature of the second presumption.
A conveyance of land abutting on a highway, or a non-tidal river, passes the adjoining half of the highway, or of the river bed.
The presumption may be rebutted, but it is not rebutted (i) by the land being described as containing an area which can be satisfied without including half the road or river bed; (ii) by the land being described as bounded by the road or river bed; (iii) by the land being referred to as coloured on a plan, whereon the half of the road or river bed is not coloured; (iv) by the grantor being owner of the land on both sides of the road or river; or (v) because subsequent events not contemplated at the time of the grant show it to have been very disadvantageous to the grantor to have parted with the half of the road or river bed, but which if contemplated would probably have induced him to reserve it.
It is a well-settled rule of construction that, where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side by a public thoroughfare, then half of the road passes unless there is enough in the expressions of the instrument or in the surrounding circumstances to show that this is not the intention of the parties’: per Swinfen Eady J., Central London Railway v City of London Land Tax Commissioners [1911] 1 Ch 467, 474.’
Brightman J
(1971) 22 PandCR 978
England and Wales
CitedWimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .
CitedBritish Railways Board v Glass CA 1965
An easement arising by prescription involves a fictional lost grant. The court considered the extent of user of an easement in relation to a prescriptive right of way for the benefit of land used as a caravan site: ‘A right to use a way for this . .

Cited by:
CitedMcAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
CitedPaton and Another v Todd ChD 11-May-2012
The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
Held: The claimant’s . .

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Updated: 10 April 2021; Ref: scu.194017