Mr Dickinson had sold, on the same day in 1839, a piece of land in three separate lots, one to Mr Dearle, and another to Mr Moss. An existing track through Mr Dearle’s lot gave access to Mr Moss’ lot and was used for that purpose for several years after the sale, but there had been no express grant or reservation of a right of way. The use was later disputed by the defendant, Mr Dearle’s successor, but was confirmed by the court.
Held: It could not be ascertained which grant came first. If the grant to Mr Moss had come first, the right over the retained land of Mr Dickinson was covered by well-established principles of implied grant. However: ‘Secondly, assume that the conveyance to Mr. Dearle was executed the first. In this case the Rye Holme closes were for a short period of time the property of Mr. Dickinson after the property in the land conveyed to Mr. Dearle had passed out of him. There is no doubt apparently a greater difficulty in holding the right of way to exist in this case than in the other; but according to the same very great authority the law is the same, for (Sergeant Williams’) note proceeds thus: ‘ So it is when he grants the land and reserves the close to himself;’ and he cites several authorities which fully bear him out.
It no doubt seems extraordinary that a man should have a right which certainly derogates from his own grant; but the law is distinctly laid down to be so, and probably for the reason given in Dutton v. Taylor 2 Lutw.1487, that it was for the public good, as otherwise the close surrounded would not be capable of cultivation.’ A grantee of land might claim a right of way of necessity over the grantor’s land even though there were prospects of an alternative access over land of a third party.
Judges:
Baron Martin
Citations:
(1853) 9 Ex 1
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 01 May 2022; Ref: scu.253408