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 policy could not assist the court in that task. Brightman LJ said: ‘In this court we have heard a great deal of argument about ways of necessity – what is the basis, how they can be acquired and whether they can be lost.
I have come to the conclusion that the doctrine of way of necessity is not founded on public policy at all but upon an implication from the circumstances. I accept that there are reported cases, and textbooks, in which public policy is suggested as a possible foundation of the doctrine, but such a judgement is not, in my opinion, correct. It is well established that a way of necessity is never found to exist except in association with a grant of land.’
Buckley LJ said: ‘I entirely agree with the judgment which has been delivered by Brightman LJ. In particular, in my judgment the law relating to ways of necessity rests not upon a basis of public policy but upon the implication to be drawn from the fact that unless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intended that some way giving access to the land should have been granted.
Public policy may inhibit the parties from carrying their intention into effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must be ascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence of surrounding circumstances.’

Brightman LJ, Buckley LJ
[1981] Ch 426, [1981] 2 All ER 369, [1981] 2 WLR 773
England and Wales
Appeal fromNickerson 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 . .
Appeal fromNickerson 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 . .

Cited by:
CitedAdealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
CitedManjang v Drammeh PC 1990
The owner of a strip of land alongside the River Gambia and which was ‘regularly and without inconvenience’ accessed by his customers from the river failed in a contention that his land was ‘landlocked’ so as to give him a way of necessity over . .
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 . .

Lists of cited by and citing cases may be incomplete.


Updated: 20 December 2021; Ref: scu.253281