Nickerson v Barraclough (1): ChD 1980

The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building materials and for the occupants of the houses when constructed: yet there was the express negativing of the grant of any way in the second limb of paragraph 7 of the first schedule, despite the need for some grant of a way that appeared from the surrounding circumstances as disclosed by the conveyance itself
I find great difficulty in holding that there has been granted by implication something that the grant expressly negatives
I find it almost impossible to imply a grant in the teeth of the express negation of any grant; and the grant of a way of necessity seems plainly to be one form of implied grant. There is, however, one consideration that is peculiar to ways of necessity that seems to be in point. During argument, I was referred to a sentence in Gale on Easements (14th. Edition 1972), page 177 on the subject of ways of necessity, which runs: ‘The principle appears to be based on the idea that the neglect of agricultural land is contrary to public policy’: and for this two old decisions are cited’.
‘This seems to me to raise a novel point of some difficulty and importance. Put shortly, it is whether on a grant of land in circumstances which otherwise would create a way of necessity or a way implied from the common intention of the parties based on a necessity apparent from the deeds it is open to the parties to negative the creation of such a way by some express term in the conveyance. I cannot think that the point is in any way confined to agricultural land: whatever the actual or prospective use of the land, the question arises whether in the absence of special circumstances public policy will permit the parties to a conveyance to make land inaccessible save by air transport and thus unusable. As applied to the present case, the question would be whether the Court should impose on the second limb of paragraph 7 of the first schedule a qualification which would exclude from its operation any way required for access for building purposes which would otherwise be implied. As the evidence stands, apart from paragraph 7 I would have no hesitation in holding that in the circumstances of the 1906 conveyance there was an implied grant of a way to plot 78a for building purposes; for the contemplated use of the plot was for those purposes, and so the extent of the way is to be measured by those purposes: see Gayford v. Moffatt (1868) 4 Ch. Appeals 133 at 136. As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation.
However, in the absence of full argument on the point I do not think that I ought to decide it’.


Vice-Chancellor Megarry J


Unreported, 1980


Law of Property Act 1925 62


England and Wales


CitedNorth Sydney Printing Property Ltd v Sobemo Investment Co. Ltd 1971
(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a . .

Cited by:

First judgmentNickerson v Barraclough (2) ChD 2-Jan-1980
The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the . .
Appeal fromNickerson v Barraclough CA 13-Dec-1980
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public . .
CitedAdealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
CitedSweet 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 . .
See AlsoNickerson 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 . .
Lists of cited by and citing cases may be incomplete.


Updated: 07 May 2022; Ref: scu.253406