The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, and that use as an access for a new residential development was beyond the permitted use.
Held: The judge had interpreted the grant too restrictively and had not respected the deliberately wide choice of words.
However the interpretation of the extent of use was a matter of fact and degree for the judge, and his view should not be overturned in the absence of clear error. None had been shown. The words ‘all purposes’ did not authorise an increase in use to a level at which the use was more than would be reasonably tolerable, and might amount to a nuisance.
In a right of way of necessity, the purpose of use remained what had been necessary at the time when the right was implied. Without the agreement of the parties it could not be altered.
Mummery, Etherton, Sullivan LJJ
[2009] EWCA Civ 1212
Times, Bailii
England and Wales
Citing:
Cited – Corporation of London v Riggs CA 1880
The court considered whether a right of way of necessity had been granted: ‘the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the . .
Cited – KPMG Llp v Network Rail Infrastructure Ltd CA 27-Apr-2007
The parties disputed the interpretation of a break clause in their lease. Carnwath LJ said that courts should not readily accept that parties have made mistakes in formal documents: ‘correction of mistakes by construction’ is not a separate branch . .
Cited – Philllips v Low ChD 3-Nov-1891
There had been a conveyance of land with a house on it whose window looked onto other land of the vendor.
Held: There was an implied ancillary right that the window would not be obscured by act of the vendor. There is applicable to devises of . .
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
Cited – Metropolitan Railway Co v Fowler CA 1892
Lord Esher MR said: ‘An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land..’ . .
Cited – McKay Securities Ltd v Surrey County Council ChD 9-Dec-1998
Where a grant of a right of way is ‘for all purposes’ its use will not be limited by the purposes for which the dominant land was used at the date of the grant. The very general expression was to be given its ordinary unvarnished meaning, as a . .
Cited – George Attenborough and Son v Solomon HL 19-Nov-1912
The court asked whether an executor could validly pawn an asset of the estate. Also, the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative . .
Cited – Roslingand Others v Pinnegar CA 9-Oct-1998
When asked to interpret the permitted extent of use of a right of way, the court may assist the parties by working out for them some guidelines as to what would be a reasonable user rather than simply making a general injunction forbidding excessive . .
Cited – Hurt v Bowmer 1937
The expression ‘as at present enjoyed’ with reference to a right of way was not a reference to, or a limitation of, the purposes for which the way was used, such as agricultural purposes, but was to the quality of user in the sense of the manner in . .
Cited – Jelbert v Davies CA 1968
Lord Denning MR explained that even a right granted in wide terms like ‘at all times and for all purposes’ is not a sole right, if it is used in common with others, and it does not authorise unlimited use. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 09 November 2021; Ref: scu.380346