Use at time of grant was determinative
The parties disputed the use of a covered right of way between their properties. One property had been converted to use as a bar, and opened the rear as a beer garden with customers using the passage. The neighbours said that the right of was was limited with the words ‘as now used by her tenant’ to non business use. The bar owner appealed a decision that it was so limited. The bar had been formerly used as a fishmongers.
Held: The issue was not as to construction of the conveyance but as to the use at the time when the right was granted. As such and given the difficulties in establishing the details from such a long time ago, it could not be shown as required by the rules, that the judge’s finding that customers would not have used the passageway was wrong. The appeal failed.
Sedley LJ: ‘Judge O’Brien had simply to consider the probable usage, shortly after the First World War, of a fishmonger’s shop with its frontage on a shopping street of an English market town and with rear access through a side alley. Was it even remotely likely that customers would use, or be expected to use, the rear access? No respectable tradesman would have asked or encouraged them to do so, and no respectable customer would have expected to do so or wanted to be seen doing so. The overwhelming likelihood was that the rear access was used only by suppliers, by Mr Collinson’s own delivery cart and possibly by trade customers.’
Mummery LJ, Sedley LJ, Wilson LJ
[2008] EWCA Civ 1318
Bailii
Civil Procedure Rules 52.11(3)
England and Wales
Land
Updated: 01 November 2021; Ref: scu.278348
