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 creation of such a way from, being negatived by an express term in the grant?’ and after discussing case law he said: ‘If such a head of public policy exists, as I think it does, the question is what its bounds are. I do not think it can be said that, whatever the circumstances, a way of necessity will always be implied whenever a close of land is made land-locked. One can conceive of circumstances where there may be good reason why the land should be deprived of all access.
Accordingly, I would not go beyond saying that there is a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access. Alternatively, the point might be put as a matter of construction: any transaction which, without good reason, appears to deprive land of any suitable means of access should, if at all possible, be construed as not producing this result.
Now the wording of the clause in question, paragraph 7 of the First Schedule to the 1906 conveyance, as it appears in the examined abstract and with the contractions expanded, runs as follows: ‘The Vendor did not undertake to make any of the proposed new roads shown on the said Plan nor did he give any rights of way over the same until the same should (if ever) be made’ ‘
And ‘This clause of the schedule seems primarily concerned to relieve the vendor of any obligation to make any of the proposed new roads, in the sense of constructing roadways over the routes shown on the plan. If one disregards public policy and the doctrine of derogation from grant, I think the natural meaning of the second limb of the clause is that until roadways had been constructed on the routes shown on the plan, the purchaser was to have no right of way over the routes along which those roadways were to be constructed. I think, however, that it is also possible, though less natural, to read the second limb as in effect merely reinforcing the first limb. The first limb simply negatives any undertaking by the vendor to make up the new roads; the second limb goes on to prevent the conveyance giving any rights of way over the new roads which might enable the purchaser to claim that, having been granted a right of way over the new roads, he can, by virtue of that right, require the vendor to construct them. On that footing, the second limb does not negative any way of necessity over the unmade sites of the proposed new roads. All that is negatived is any rights of way over the proposed new roads until they are constructed. Nothing, however, was done to negative any way of necessity. I readily accept that this may be regarded as a somewhat strained interpretation of paragraph 7 of the First Schedule; but I do not think that it is so impossible that I must reject it. If, then, in construing this provision I give proper weight to the doctrine against derogation from grant and the rule of public policy, I think that I can construe paragraph 7 in. this particular way, and that I ought in fact to do so. If I am wrong in this, then I would hold, though with some hesitation, that public policy requires that paragraph 7 should not take effect so as to negative the implied grant of a way of necessity. As I have already held, I think that there has been a tacit allocation by user of a way over what is now Scouts Lane, and that this way is a way for building purposes’.
The Vice-Chancellor explained exactly what he meant by a ‘way of necessity’ in that passage: ‘a way implied from the common intention of the parties, based on a necessity apparent from the deeds’.
 ChD 325
England and Wales
First judgment – 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 . .
Cited – North 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 . .
Appeal from – Nickerson 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 . .
Cited – Adealon 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 . .
Cited – Payne v Inwood CA 1996
A claim for an easement based upon section 62 of the 1925 Act failed. There had not been regular use of the path in question with the putative dominant tenement to gain access to it. Roch LJ said: ‘Section 62 of the 1925 Act cannot create new rights . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Appeal from – Nickerson 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.253407