Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which ran roughly north-south. This parcel of land was then subdivided and within it and next to the footpath on its southern side was No 93 which fronted onto Charminster Road. The land of No 93 ran back to the private road. Mr Parsons sold No 93 to Mrs Pettey (the plaintiff). It was agreed between them that the footpath to the north of No 93 should be widened, so the existing fence on the north side of the footpath was set back a further 6 feet. That footpath/road was also conveyed to Mrs Pettey in the same conveyance. But Mr Parsons reserved to himself as vendor, and as owner of the land lying to the north of the footpath/road, a right of way to himself, his tenants, servants and all others authorised by him or them ‘to pass and repass . . with or without animals, carts and carriages’ over and along the pathway/road, but no vehicle was to remain stationary on it.
Mr Parsons then built new shops on the land which he had reserved to himself to the north of the footpath/road. The shops nearest the footpath/road were not built right up to it but set back a little and the fronts of them were in an arc, leaving a roughly triangular space between the shops and the footpath/road which, at this point, had no fence on it. This triangular-like open space between the footpath/road down to Charminster Road was about 16 feet 2 inches (or very nearly 5 metres) long on the footpath/road side of it. Mrs Pettey then put up a fence along this 16 feet 2 inch stretch ie. on her land but at the boundary of her land and that of Mr Parsons. She also put up a gate at the eastern end of the footpath/road which could be fastened back to the wall of No 93. Both were removed (one way or another) by Mr Parsons.
Mrs Pettey sought declarations that she was entitled to erect the gate and the fence, but she said that she was prepared to put a gate in the fence so that Mr Parsons could have reasonable access to the footpath/road from his land.
Held: The erection by the servient owner of a building that encroached by, say, one foot on to a ten foot wide domestic driveway would not constitute an actionable interference with a right of way over the driveway. Where a right of way was granted over a roadway, but no point of access specified, the only limitation should be that of reasonableness.
The erection of a gate across the right of way was not necessarily a sufficiently substantial interference with the right of way to be actionable. Whether there was a substantial interference was a question of fact in each case.
Lord Cozens-Hardy MR said that the issue of whether there was a right to enter on the footpath/road ‘merely by defined gates or passages’ or whether there was a right to enter ‘at any other place where it is desired’ was a question of the construction of the deed itself. He regarded Mr Parson’s case as a ‘wholly untenable proposition’ at least after the construction of the shops.
Judges:
Pickford LJ, Lord Cozens-Hardy MR and Swinfen-Eady LJ
Citations:
[1914] 2 Ch 653
Jurisdiction:
England and Wales
Cited by:
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 12 April 2022; Ref: scu.220697