A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court judge found that the track in question was on average 8 feet 10 inches. He held that only vehicles whose wheel base was limited to 8 feet and which were no more than 9 feet wide could use the track. Even this, as he noted, would allow an overhang of a foot or so, and was, in his words, ‘more than generous to the defendants’. The judge considered and expressly rejected a submission that the way could be used by agricultural vehicles which extended beyond the grass verges at the side
Held: The appeal failed.
Nourse LJ considered the construction of such a deed and said: ‘The nature and extent of a private right of way created by express grant depend on the intention of the parties which must be ascertained from the words of the grant read in the light of the surrounding circumstances.’ and ‘The judge was right to focus his attention on ‘the track’. There was no other point from which he could start . . Here the words of the grant, to the extent that they are clear, identify nothing but the track, so that it is only from the physical characteristics with (sic) the width of the way can be ascertained.’ The surrounding circumstances will include the width and physical characteristics of the track.
Judges:
Nourse, Stewart-Smityh, Mann LJJ
Citations:
[1993] 68 PandCR 105
Jurisdiction:
England and Wales
Cited by:
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. . .
Cited – Wilkinson and The Estate of Brian Wilkinson v Farmer CA 22-Oct-2010
The court considered whether there was a compelling reason to allow a second application for leave to appeal against an order settling the width of a right of way.
Held: The appeal was allowed. Very limited facts could be established from the . .
Cited – Oliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 27 October 2022; Ref: scu.254434