The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an order requiring to remove what had already been built.
Held: The pavement did not form part of the right of way, and had been conveyed to them by implication of the section. A dominant owner of land subject to a right of way may build on his land up to the very edge of the right of way established.
Millett LJ said: ‘I know of no principle of law which precludes the owner of land from building right up to the boundary of his land. If this land abuts on a right of way, building right up to the end of his land does not interfere with the right of way. It is of course true that if he leaves the land unbuilt on, it may be that vehicles properly using the right of way may from time to time be able to deviate onto the adjoining land and temporarily trespass upon the land by driving over it, or commit a technical trespass by permitting part of the superstructure of the vehicles to intrude into the airspace over the adjoining land. But they have no right to do so. In the case of dispute, in my judgment, the dominant owner has no cause for complaint if he is restricted in his user of the way to the exact width of the way.’
Judges:
Hirst LJ, Millett LJ, Swinton Thomas LJ
Citations:
Times 20-Nov-1997, [1997] EWCA Civ 2565, (2000) P and C R 136
Statutes:
Law of Property Act 1925 62(2)(ii)(a)
Jurisdiction:
England and Wales
Citing:
Cited – Robinson v Bailey CA 1948
The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: ‘While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a . .
Cited – Todrick v Western National Omnibus Co Ltd ChD 1934
A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public . .
Cited – Bulstrode v Lambert ChD 1953
The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court . .
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
Cited by:
Cited – Phelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 19 May 2022; Ref: scu.81061