Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip.
Held: The removal of the wall was not justified. In the absence of express rights to do so, the cross rights were to be construed in the context of the physical situation when granted. The original plan setting out the rights had shown the wall as it was, and it was not for the dominant land owners to choose at what point they were to have access.
Morritt LJ discussed the appropriate principle of construction, saying: ‘Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties’ intention was as expressed in the deed.
The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances. Thus, in Todrick v Western National Omnibus Co Ltd [1993] 1 Ch 190, St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) and White v Richards [1993] 68 PandCR 105, the physical circumstances did so operate. But, by contrast, in Bulstrode v Lambert [1953] 1 WLR 1064, Keefe v Amor [1965] 1 QB 234 and Charles v Beach [1993] EGCS 124 they did not.
Judges:
Morritt LJ, Wilson J
Citations:
Gazette 28-Jul-1999, [1999] EWCA Civ 1852
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Bulstrode v Lambert ChD 1953
The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court . .
Cited – Todrick v Western National Omnibus Co Ltd ChD 1934
A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public . .
Cited – White v Richards CA 1993
A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court . .
Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
Cited – St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) ChD 1975
A reservation contained In a conveyance must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances.
Held: Sir John Pennycuick said: ‘Mr Vinelott contended that the proper method of construction . .
Cited – Charles v Beach 1993
The parties shared a right of way over land. The common way could be used for most of its length, except for an intervening flowerbed on the land of the servient owner.
Held: The existence of the flowerbed was insufficiently permanent or . .
Cited by:
Cited – Lomax and Another v Wood CA 11-Jun-2001
Land owners were granted a right of way over an occupation road to the highway. They had other means of access to the highway, but eventually sought to construct a gateway onto the occupation road. The owners of the occupation road resisted. It was . .
Cited – Oliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 19 May 2022; Ref: scu.83732