Harris v Flower: CA 1904

The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way was appurtenant (‘the Pink Land’) and partly on other land (‘the White Land’). A claim was put forward on behalf of the plaintiffs that the right of way had been abandoned, on the ground that, as it was practically impossible to separate the lawful from the excessive user, the right of way could not be used at all.
Held: The appeal, based upon this contention, failed. There had been no abandonment, but the user of the way for access to the buildings so far as they were situate upon land to which the right of way was not appurtenant was in excess of the rights of the defendants, and a declaration was made accordingly, with liberty to apply. An alteration to provide for a mode of enjoyment by the dominant tenement with the effect of increasing the restriction beyond its legitimate limit will not be allowed. The use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept. A right to pass over plot A to reach plot B cannot be used as a means of access to plot C, unless it was so used at the time of the grant.
Vaughan-Williams LJ rejected a claim of a right of way for land the claim as excessive, on the basis that the uses for the additional land: ‘cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the Pink land . . It is not a mere case of user of the pink land with some usual offices on the White Land connected with the buildings on the Pink Land.’ and
‘I cannot help thinking that there not only may be, but there must be, many things done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land . . under these circumstances it seems to me that, notwithstanding the fact that the buildings on the white and on the pink lands are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the use of the way is for the purpose of giving access to land to which the right of way is not appurtenant.’
The use of the factory would increase the volume of traffic on the way beyond the level permitted by the grant: ‘This particular burthen could not have arisen without the user of the white land as well as of the pink. It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole of object of this scheme is to include the profitable user of the white land as well as the pink, and I think access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink, and I think we ought under these circumstances to restrain this user.’
Romer LJ said: ‘I think that it is impossible to say that this large building is to be regarded as if wholly erected on the land coloured pink, nor can it be said that every user of the way for the purposes of the land coloured white is one for the proper enjoyment of the land coloured pink. I will take one instance. The defendant has used, and claims a right to use, this right of way for the purpose of carrying building materials for the part of his buildings on the land coloured white. That, to my mind, is a user of the right of way for passage over the land coloured pink for the enjoyment of this land coloured white. It is impossible to say that by reason of one building being on both lands the defendant has made the right of way which was granted for the enjoyment of the one a right of way for the enjoyment of both, and that is what the defendant is really doing. That would substantially enlarge the grant of the right of way. The servient tenement is not obliged to submit to the carrying of building materials for the purpose I have indicated; and other incidences might easily be given which would result in using the right of way for purposes of the land coloured white, and not for the true and proper enjoyment of the land to which the way was appurtenant.’ and ‘The law really is not in dispute. If a right of way [is] granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B . . in the present case the defendant might have erected a building on the land coloured pink [the dominant tenement] and used it for a contractor’s business, and made use of the right of way for that purpose; but what he is really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the white [the white land being a non-dominant tenement which the defendant also owned and which adjoined the dominant tenement], and [thereby use] the land coloured pink as a mere continuation of the right of passage from the pink to the white. That is not what is justified by the grant, and the plaintiff is entitled to say it is in excess of the grant, and a declaration in his favour ought to be made accordingly.’
Cozens-Hardy LJ said: ‘What is the right of way? It is a right of way for all purposes – that is, for all purposes with reference to the dominant tenement. The question is whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement. The land coloured white is entirely landlocked by the acts of the defendant. The only access is by the passage over the land coloured pink; and it is, in my judgment, impossible to use the right of way so as to enlarge the dominant tenement in that manner.’

Vaughan-Williams LJ, Romer LJ, Cozens-Hardy LJ
(1904) 74 LJ Ch 127, (1904) 91 LT 816
Citing:
CitedSkull And Another v Glenister And Others 1864
A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an . .
CitedWilliams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .

Cited by:
CitedWall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
CitedNickerson v Barraclough CA 2-Jan-1981
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by . .
AffirmedPeacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
CitedEDF Energy Networks (EPN) Plc v BOH Ltd and Others ChD 4-Dec-2009
. .
CitedSite Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others ChD 13-Jan-2010
. .
CitedSmith and Another v Muller and others CA 17-Dec-2008
. .
CitedWall v Collins and Collins Chd 11-Aug-2009
The claimant sought orders to protect his freedom to use a right of way over neighbouring land. . .
CitedDas and others v Linden Mews Ltd CA 1-May-2002
. .
CitedCdc2020 Plc v Ferreira CA 5-May-2005
. .
CitedWilkins and Another v Lewis ChD 29-Jul-2005
. .
CitedSinclair v Morrison, McNealis LRA 9-May-2012
LRA Easements and Profits A Prendre – Acquisition of easement by prescription; easement on foot over existing right of way granted by deed; identification of the dominant tenement; whether user as of right; . .
CitedWilliams, Williams v Madden, Goodsell, Hubbard (Easements and Profits A Prendre) LRA 17-May-2012
LRA Prescriptive right of way established by the Applicants for the benefit of their home over a strip of roadway belonging to the Respondents who were on notice of their use of that land. The use of the way with . .
CitedGiles v Tarry and Another CA 21-Jun-2012
. .
CitedPrice and Another v Nunn CA 31-Jul-2013
. .
AppliedJobson v Record CA 1998
A right of way was granted for all purposes connected with the use and enjoyment of the dominant tenement as agricultural land. The dominant tenement was used for the purpose of storing timber felled on neighbouring land and the question was whether . .
CitedMiller v Tipling 1918
(Ontario Court of Appeal) Mulock CJ Ex said: ‘The law is well established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 10 November 2021; Ref: scu.252423