The conveyancing process had left a house in Dorking without any access to the public highway otherwise than by public footpaths to its side and rear. The question was whether a vehicular way over land which had been conveyed to the defendants had been impliedly reserved for the house. The County Court judge had concluded on the evidence that, while it might be very inconvenient not to be able to access the house by car, it would not be said that the absence of vehicular access rendered it unusable ‘in the ordinary sense of the word’.
Held: It was not practicable to explore the presumed intention of the parties at the relevant time. Dillon LJ said: ‘It is of course well established that a way of necessity may arise by implied reservation as well as by implied grant. The law as to ways of necessity is in some respects archaic, and it may be that it was time that it was given closer consideration as against modern circumstances. As matters stand, however, there is a considerable difference between a way of necessity and a way which is implied to give effect to the presumed intention of the parties.’
Judges:
Dillon LJ
Citations:
(1987) 56 P.and C.R. 1
Jurisdiction:
England and Wales
Cited by:
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 21 July 2022; Ref: scu.253282