A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an adjoining close, upon which he was erecting certain houses, used the way for carting building materials to A.’s close for the purpose of using them upon his own land :- Held, that it was properly left to the jury to say whether B.’s use of the road was a bona fide exercise of the right of way to A’s close, or a mere colourable mode of getting to his own land.
Such ‘a mere colourable use’ of a way for the purpose of entering the dominant land (when the real purpose was some other) will fall outside the grant.
Citations:
[1864] EngR 82, (1864) 16 CB NS 81, (1864) 143 ER 1055
Links:
Cited by:
Cited – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Cited – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 02 May 2022; Ref: scu.281796