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 necessity.
Held: The defendant’s appeal succeeded. Public policy could play no part in the construction of a document between private parties, and the doctrine of necessity was derived from the factual circumstances only. The condition in the 1906 grant had not been fulfilled. The plaintiff was entitled only to the easements as they existed at the time of a 1922 conveyance and were therefore implied into it by section 62.
Megarry V-C said: ‘take as an example a case where Plot A consists of a footpath some 3 feet wide and 100 yards long, running from land near a public highway up to Plot B. If there is an express grant of a right of way to Plot A over land which lies between Plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of Plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to Plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means to access to Plot A. for the purposes for which Plot A is used, namely, as a means of access to Plot B. In the result, the way can be used a means of access to Plot B via Plot A, notwithstanding Harris v Flower. If Plot A is not used as an actual means of access to Plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply.’
Judges:
Megarry V-C
Citations:
(1981) 125 SJ 185, [1981] 1 Ch 246
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Nickerson 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 . .
See Also – 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 – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 28 June 2022; Ref: scu.429653