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 highway’ and across it onto another road, together with a right to construct an extension of that road, as defined by reference to points marked on a plan. The grant of a right of way was in unrestricted language, but the roadway in question was very narrow and was contained by a retaining wall to prevent it slipping down the valley. It was argued that ‘Here is a reservation of a right of way in unlimited language, and, therefore, we can use this right of way for any type of vehicle and any purpose for which the most extensive right of way can be used.’
Held: Farwell J applied the principle that: ‘in judging whether there is an excessive user of the right regard must be had to ‘the circumstances of the case, the situation of the parties and the situation of the land.’ Farwell J accepted a submission that the grant was not an easement but a personal license reserved to the original vendor which was lost when the vendor parted with the property in question. The plaintiff therefore got the land free from any right of the defendant to enter on it for any purpose.
Farwell J
[1934] Ch 190
England and Wales
Cited by:
Appeal from – Todrick v Western National Omnibus Co Ltd CA 2-Jan-1934
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 . .
Cited – Stanton, Mills; Mills v Blackwell and Blackwell CA 15-Jul-1999
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. . .
Approved – Robinson v Bailey CA 1948
The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: ‘While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a . .
Cited – Minor v Groves CA 20-Nov-1997
The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an . .
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 14 November 2021; Ref: scu.254433