The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the land arguing that the shooting rights substantially reduced the value. The defendant sought residential development of the land.
Held: The right of way was not to be interpreted too closely. No rectification was to be ordered since though the defendant knew of the plaintiff’s mistake, his position as reflected in the final form of deed was as he had said he insisted upon. The plaintiff argued that the residential development of the land would impede the sporting rights granted. As to the negative declaration ordered, the judge had correctly exercised his discretion.
Judges:
Lord Justice Potter Lord Justice Sedley Lord Justice Carnwath
Citations:
[2003] EWCA Civ 2
Links:
Jurisdiction:
England and Wales
Citing:
Cited – VT Engineering Limited v Richard Barland and Co Limited ChD 1968
The court was asked whether a right of way ‘at all times and for all purposes’ over a roadway included an ancillary right to lateral and vertical ‘swing space’ in the course of loading and unloading in the exercise of the principal right.
Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Cited – Peech v Best CA 1931
The defendant owned a 700 acre farm. He granted to the plaintiff ‘the exclusive right of shooting and sporting in over and upon it’ for a term of fourteen years. With still some four years of the term to run, he conveyed 12 acres of the farm for the . .
Cited – VT Engineering Limited v Richard Barland and Co Limited ChD 1968
The court was asked whether a right of way ‘at all times and for all purposes’ over a roadway included an ancillary right to lateral and vertical ‘swing space’ in the course of loading and unloading in the exercise of the principal right.
Cited – Camilla Cotton Oil Co v Granadex SA HL 1976
The jurisdiction to grant a negative declaration was not as confined as suggested by Pickford LJ, but his words ‘warn us that we must apply some careful scrutiny’. . .
Cited – Camilla Cotton Oil Co v Granadex SA CA 1975
. .
Cited – Guarantee Trust Co of New York v Hannay and Co 1915
A negative declaration should be granted by the court only in exceptional circumstances: ‘I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every . .
Cited – Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust and Others ChD 11-Jun-1998
The plaintiff had acquired land to build a hospital, which would require re-alignment of a link road, over which the defendants had rights of way. The land was also subject to a restrictive covenant in favour of the defendants. The defendants did . .
Cited – Messier-Dowty Ltd and Another v Sabena Sa and Others CA 21-Feb-2000
The defendants sought a declaration that they would not be liable in respect of their potential involvement in a pending action. The appellants asserted that such a declaration could not be granted since no proceedings were yet in issue. The court . .
Cited by:
Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 07 June 2022; Ref: scu.178801
