The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: ‘While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a principle which must not be allowed to carry the court blindly. Obviously the question of the scope of the right of way expressed in a grant or reservation is prima facie a question of construction of the words used. If those words are susceptible of being cut down by some implication from surrounding circumstances, it being, to construe them properly, necessary to look at the surrounding circumstances, of course they would be cut down. Todrick’s case is a very good example of the sort of application of the rule which Farwell J was enunciating. Finding, as he did, a right of way reserved over a hereditament which was in such a physical condition that it was not capable of carrying such heavy traffic as omnibuses, he was unable to construe the grant in such a way that the grantee would be entitled to take over the road vehicles which were wider or heavier than the road could be asked to bear. There were two factors. The breadth of the omnibus, which would only allow 1 1/2′ margin at either side as it went through a certain arch, and the strength of the retaining wall and the effect on it of the passage of motor omnibuses and heavy vehicles over the part of the road held up by it made it clear that that kind of thing never could have been contemplated. The learned judge, I think, really came to his conclusion on this ground. He looked at the subject matter of the reservation, namely the piece of ground over which the easement was to exist, and, finding it in the condition which I have mentioned, he construed the right of way as limited in its user.’
Lord Greene MR
[1948] 2 All E R 791
England and Wales
Citing:
Approved – Todrick v Western National Omnibus Co Ltd ChD 1934
The grant of a right of way was in unrestricted language, but the roadway in question was very narrow and was contained by a retaining wall to prevent it slipping down the valley. It was argued that ‘Here is a reservation of a right of way in . .
Cited by:
Cited – Minor v Groves CA 20-Nov-1997
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.254473