The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult.
Held: Kekewich J said: ‘the peculiar circumstances here are that the land in question is not blocked on all sides, though it is blocked on three sides by land of the vendor. The question arises, is the doctrine which calls into existence a way of necessity applicable to such a case?
In the notes in Pomfret v Ricroft it is thus stated: ‘where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor’s land as incident to the grant; for without it he cannot derive any benefit from the grant.’ ‘A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.’ This statement, by the use of the words ‘surrounded with his own land’ excludes such a case as this where the granted premises are not surrounded by land of the vendor, but abut on one side on land of a stranger. There is no authority for extending the doctrine to such a case as that. In Gale on Easements, 5th edition, the doctrine is stated in almost precisely the same language with this addition: ‘So, too, if the close be not entirely enclosed by my land, but partly by the land of strangers, for he cannot go over the land of strangers, quaere’. For this reference is made to Rolle’s Abridgement and Viner’s Abridgment. I have referred to these volumes, and have ascertained that the quotation is accurate including the quaere, which is to be found in both works, but I have not come across any comment on either the statement or the quaere. It seems to me that the statement is inconsistent with the doctrine as above explained and with the principle on which it has foundered. No such excrescence is justified by the old and often-quoted case all Clarke v Cogge . . .where the extension of the doctrine to a reservation in favour of the vendor or as against the purchaser is established. Some argument was addressed to the peculiar feature of this case -viz that the boundary on the fourth side is a highway, and the fact that such highway runs in a cutting, which would make connection with the granted land difficult. There is no occasion to discuss the right of a man whose land adjoins a highway to make, if he has not already got, access thereto, and the difficulty is met by the observation that the very road over which the purchasers claimed a right of way was constructed so as to overcome it, and making a connection between the vendors land – including the part sold – and the same highway and the same cutting.’
Judges:
Kekewich J
Citations:
(1899) 81 LT 673
Citing:
Cited – Pomfret v Ricroft 1669
A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump.
Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is . .
Cited by:
Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
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: 14 May 2022; Ref: scu.253248