The plaintiff owned a house in Cornwall and a private roadway to the South leading from a highway to the west to garages at the eastern end, which also belong to the plaintiff. The property which included the roadway and the garages had been conveyed to his predecessor in title by N by a conveyance which contain the reservation to N and his successors of a perpetual right-of-way along the roadway with power to extend some yards to land further East belonging to N which was shown on a plan attached to the conveyance and coloured blue. Subsequently N bought some land north of the blue land and by a deed a right to extend the roadway to this land was substituted for the right to extend it directly onto the blue land. The result of this was that when the roadway was so extended it could substantially only obtain access to the Blue land over an intervening strip of the Land to the north of it. The defendant company having purchased the blue land and the land to the north built a garage for motor omnibuses on the blue land and proceeded to extend the roadway to the intervening strip and carry it over the strip to the Blue land. As part of the blue land where the garage stood was much higher than the road way defendant company in order to obtain a gradual slope continued the roadway on the plaintiff’s land by means of a concrete ramp, which, by the time it reached the 5 ft wall between the plaintiffs land and the intervening strip was almost the height of the wall. The plaintiff objected strongly to the making of this ramp, which made access to his garage more difficult, and brought an action claiming a) that the defendants had no right of way over the roadway for the reason that the right alleged to have been retained the right alleged to have been given pertained only to the Blue land to which there was no direct access from the roadway; or alternatively b) that there had been excessive use of the right 1) by reason of the building of the ramp and 2) by reason of the user of the roadway for motor buses.
Held: it was sufficient that a right of way should be beneficial in respect of the ownership of the Land to which it purported to be made appurtenant, and there need be no physical contiguity between the way and the dominant tenement; but 2) there had been excessive user in regard both to the building of the ramp and to the user of the roadway for motor omnibuses
Lord Hanworth MR, Romer and Maugham LJJ
[1934] Ch 561, [1934] All ER Rep 25, (1934) 103LJ Ch 224, (1934) LT 163, (1934) 78 Sol Jo 318
England and Wales
Citing:
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 14 November 2021; Ref: scu.669787