Bridle v Ruby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE RALPH GIBSON,MR JUSTICE CAULFIELD |
| Judgment Date | 17 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1217-4 |
| Docket Number | 87/1303 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1987 |
[1987] EWCA Civ J1217-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRENTWOOD COUNTY COURT
(HIS HONOUR JUDGE TURNER)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Ralph Gibson
Mr Justice Caulfield
87/1303
and
MR TIMOTHY SCOTT, instructed by Messrs Iliffes (Agents for Messrs E. Edwards Son & Noice of Billericay), appeared for the Appellants (Defendants).
MR SIMON EDWARDS, instructed by Messrs Hughes & Co. (Billericay), appeared for the Respondent (Plaintiff).
Immediately prior to 3rd January 1956 the land and buildings known respectively as Nos. 12 and 13 Stockwell Close, Billericay were in the ownership of C. Paine & Sons Ltd., the developers of the Stockwell Close estate.
On that day the freehold of No. 12 was transferred to one Simpson. The transfer, as originally drafted, reserved to the transferor and its successors in title a right of way, with or without vehicles, over the driveway of No. 12. This reservation was, however, deleted on execution of the transfer, the deletion being initialled by the parties.
Mr Simpson thus acquired No. 12 free of any right of way over his driveway.
Some nine days later the developers transferred No. 13 to one Godfrey. The draft transfer again reserved a right of way to the transferor and its successors over part of the land, but on execution this also was deleted and initialled by the parties.
In neither transfer did the developers purport to grant any right of way over the adjoining property. On the transfer of No. 12 they could have but did not grant a right of way over No. 13. On the transfer of No. 13 they were not, having previously transferred No. 12 without reservation, capable of granting any right of way over it.
No. 12 remained in the ownership of Mr Simpson until his death and was thereafter in the ownership of his widow until she sold to the defendants on 14th January 1977.
No. 13 remained in the ownership of Mr Godfrey until 12th December 1958, when it was transferred to a Mrs Harvey, who retained it until she transferred it to the deceased plaintiff, Mr Bridle, on 2nd April 1962.
In 1981 a dispute arose between Mr Bridle and the defendants concerning Mr Bridle's assertion that he was entitled to a right of way over the driveway of No. 12, and in 1982 Mr Bridle commenced proceedings in the Brentwood County Court to establish his right of way and to restrain the defendants from obstructing it.
By his particulars of claim Mr Bridle sought to establish his right of way on one of two alternative grounds, prescription and implied grant. At the trial in 1985 both of these grounds failed, the first by reason of an interruption in the period of alleged user, and the second because, No. 12 having been first transferred without reservation, there could be no implied grant. He was however permitted to amend his claim at the trial in order to found his claim on the doctrine of a lost modern grant.
On this ground His Honour Judge Turner upheld his claim. The defendants now appeal to this court.
It is not necessary to set out the detailed history of the user of an alleged right over the driveway of No. 12 by Mr Bridle and his predecessors for it is accepted by the defendants that, unless such user cannot, by reason of mistake, avail Mr Bridle, he and his predecessors have established 22 years' user as of right and are entitled to succeed on the basis of the doctrine of lost modern grant, such being a judge-made fiction devised to cure the injustice caused by the difficulties of establishing a right by prescription at common law and, later, by prescription under the Prescription Act 1832.
The mistake relied on is that Mr Bridle and his predecessor, Mrs Harvey, when exercising the alleged right of way both believed that they were doing so by virtue of an express grant by virtue of the conveyances in January 1956.
The defendants advance two separate but overlapping propositions. The first is that a lost modern grant will only be issued where the state of affairs is otherwise inexplicable. Here, it is said, the state of affairs is easily explicable on the basis of a mistaken belief in the existence of an express grant. Secondly, it is said that, for the acquisition of an easement by user, the user must not be based on a mistaken view as to existing rights.
Although, as I have said, it is unnecessary to set out the detailed history of the user of the alleged right by the owners of No. 13, some basic facts require to be noted. The user established was from some time shortly after the original conveyance to Mr Godfrey until mid-1978, a period of some 22 years.
In Tehidy Minerals v. Norman [1971] 2 Q.B. 528, Lord Justice Buckley, giving the judgment of the Court of Appeal, said:
"In our judgment Angus v. Dalton (1877) 3 Q.B.D. 85; (1878) 4 Q.B.D. 162; (1881) 6 App.Cas. 740 decides that, where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.
"If this legal fiction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgment it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing impossibility) should not be permitted to displace the fiction. Precisely the same reasoning must, we think, apply to a presumed lost grant of a profit a prendre as to an easement."
From this it is apparent that, in the present case the only grant which can be presumed is one between the date of the original conveyance and mid-1958. Since Mr Godfrey did not sell until December 1958, the grant, if it is to be presumed, must therefore be a grant made by Mr Simpson to Mr Godfrey; Mr Simpson, being the freehold owner of No. 12, was clearly capable of making such a grant and evidence direct or circumstantial that he did not do so is inadmissible.
During the period mentioned Mr Godfrey built a garage on No. 13, which was only accessible by use of the driveway of No. 12 and he so used it. Thereafter, first Mrs Harvey and then the plaintiff used the driveway without objection from Simpson, in the mistaken belief that the deeds entitled them so to do, but the judge specifically found that neither Mr Godfrey nor Mr Simpson can have been mistaken.
Returning to the passage cited from the judgment of Lord Justice Buckley, the question which arises is whether the enjoyment of the use of the driveway of No. 12, first by Mr Godfrey and later by Mrs Harvey and Mr Bridle, had "the necessary qualities to fulfill the requirements of prescription".
Since, subject to the effect of the mistaken belief of Mrs Harvey and Mr Bridle, it is accepted that it had, it is unnecessary to investigate in any detail the precise nature of such requirements as laid down in the cases, and I can turn directly to those authorities which bear on the question of the effect of mistake.
It is convenient to begin with Earl de la Warr v. Miles (1878) 17 Ch.D. 535, a decision of the court. In that case it was sought to set up a claim by prescription to take litter. It was contended that the claim must fail because the litter had been taken by reason of an erroneous belief that a certain decree conferred the right. This contention was rejected. At page 594 Lord Justice Brett said:
"If they so claimed it, and perhaps they did, that seems to me to be immaterial. Therefore I think that the user has been established, and I think it is clear that the Defendant and his predecessors, whatever view they took of their rights, at all events assumed to take litter as a matter of right whether the lord permitted them or not, and in my opinion the view they took of their right is not material." See also Lord Justice Cotton at page 597:
"It is said, however, that nearly all the persons who cut litter did it, not in respect of their own particular farms, but under a general supposition that the decree gave them a right to do so, or that there was some custom which justified it....
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