British Railways Board v Glass

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE HARMAN
Judgment Date29 Jul 1964
Judgment citation (vLex)[1964] EWCA Civ J0729-4

[1964] EWCA Civ J0729-4

In The Supreme Court of Judicature

Court of Appeal

From Mr Justice Ungoed-Thomas

Before

The Master of the Rolls

(Lord Denning)

Lord Justice Harman and

Lord Justice Davies

British Railways Board
Plaintiffs Appellants
and
George Albert Glass
Defendant Respondent

MR RAYMOND WALTON, Q. C. and MR MARTIN BUCKLEY (instructed by Mr M. H. B. Gilmour) appeared as Counsel for the Appellants.

MR JEREMIAH HARMAN (instructed by Messrs C. Grobel, Son & Co., Agents for Messrs Gill & Macdonald, Bath) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

There is a level crossing over the railway line at Bathampton. For nearly a hundred years it was used by the farmer to get across the line from his farm to the neighbouring village. He used it for his horses and carts. It had gates which he opened and closed himseif. Just before the war the farmer allowed a few people to put caravans on to one of his fields. It is a field of nearly six acres. Six of the caravans have been there for twenty years. The occupiers of these caravans have used the crossing for themselves and their cars. Since the war the farmer has allowed many more caravans on to the field. At one time there were as many as twenty-nine caravans on the field. All the occupiers used the crossing. Several of them had cars. You can imagine what a burden this puts on the crossing. There are 80 to 100 trains a day up and down on this stretch of line. The drivers do their best, no doubt, to avoid accidents, but they cannot see the cars as their approach is concealed from the railway. There was one accident in 1945 and another in 1960. The Railways Board feel that they must do something to remedy the position. So they have brought this action in which they seek to stop the crossing being burdened in this way by the caravan dwellers. They seek an injunction to restrain the owner of the farm using or allowing the crossing to be used for the caravan camp, or at any rate for more than six caravans.

2

The owner of the farm claims that he has a right to use the crossing for as many caravans as he likes. He puts it on two grounds: (1) On a conveyance of 1847 when he says his predecessor in title was granted a general right of way for all purposes. (2) On a claim by prescription to use the crossing for his "caravan site" for as many caravans as his site will accommodate.

3

(1) The 1847 Conveyance. In the year 1847 the Wilts and Somerset Railway Company determined to construct a railway line from Bath to Westbury and Weymouth. They had to acquireland compulsorily for the purpose. They had power to do so under the Railways Clauses Consolidation Act, 1845, which was incorporated into their private Act. That Act contained elaborate provisions as to what was to happen when the railway ran through a man's land and severed one portion of his land from the other. The Railway Company were to ensure that he could get across, as ha did before, from one part of his land to the other. They were to construct bridges and arches: or allow him to cross at level crossings, as the case might require. These works were by the statute to be done "for the accommodation of owners and occupiers of land adjoining the railway". They have ever since been called "accommodation works". The rights of the owners and occupiers over these works are very different from their rights over public rights of way. The owners and occupiers were entitled to have their access to and fro restored to them - so as to make good the severance - according to the use they then made of their land, or any use that might' reasonably then be anticipated. But not for any greatly increased use which no one could anticipate.

4

These were the arrangements made in 1847 between the Railway Company and the owner of the farm and fields at Bathampton. By a conveyance made in 1847 the owner conveyed a strip of land to the Railway Company. The railway severed his lands. The conveyance contained special provisions as to his rights of crossing. It is plain to my mind that the draftsman had at his elbow Sections 68 to 74 of the Railways Clauses Consolidation Act, 1845. In many places he uses the self-same words as the statute. So much so that you cannot really understand what is meant unless you have the statute beside you. So approaching the conveyance, the effect is plain: The Railway Company paid the owner £5,500 in satisfaction for the value of the land actually taken for the railway and also "in full compensation for any damages sustained or to be sustained by reasonof the severing or dividing of such lands". If the conveyance had stopped there, the owner would have waived all rights to accommodation works (see the proviso to Section 68) and his lands would have been completely severed without any means of crossing the railway. But the owner was saved from complete severance of his lands by reason of two exceptions which entitled him (1) to a right of crossing twelve feet wide with all manner of cattle, (2) to have the company make an arch ten feet wide and nine feet high under the railway for the passing and re-passing of cattle. To my mind those were two exceptions to the waiver. They were truly exceptions and not fresh grants. They restored to the owner a right to have the level crossing and the arch as accommodation works. By these exceptions the parties agreed upon the nature and extent of the accommodation works: but they were still accommodation works and the right of way over them was a right co-extensive with the right granted by the statute. The phrase "with all manner of cattle" was to make clear that it was not only a way on foot or with horses and carts, but also with cattle, see Ballard v. Dyson (1808) 1 Taunton, p. 279. The "close called cowshed or cowleaze and marked with the number 17" was simply to designate the actual plot of land across which, there was to be the level crossing, that is, the place of it geographically. It was not done to delimit the dominant tenement.

5

On this construction of the conveyance, the right of way of the owner over the crossing was a right to use it as an accommodation work. The extent of this right has been authoritatively defined in these words: "The owner of the adjoining lands was entitled, when the railway was made, to a convenient passage over the railway sufficient to make good; so far as possible, any interruption which the construction of the railway caused by severance in the working of his farm, including, I should say, any alteration or extension of that working which could or ought to have seen contemplated by the partieswhen the accommodation works were made and accepted", see Great Northern Railway Co. v. M'Alister. 1897, 1 Irish Reports, p. 587, p. 602, approved and adopted by this Court in Great Western Railway Co. v. Talbot, 1902, 2 Chancery, p. 759 at p. 766. The owner and his successors could therefore use the level crossing in those days with his men, his horses and carts, and his cattle: and he could use it so as to get from the farm and the fields on the one side of the railway to the road and village on the other side. He would not suffer from the severance at all. In these days he can use the crossing for farm purposes with his tractors and his lorries, and for getting from his farm to the road and the village, but he is not entitled to turn his land into a different Kind of use altogether, as, for example, a caravan site, and thereby increase the burden on the crossing beyond anything that could reasonably have been contemplated when the railway was built.

6

It is said, however, that by the conveyance the Railway Company conveyed to the owner of the adjoining lands a general right of way which was so extensive that the owner has a right to change the character of his lands altogether, and still claim the right of way. So much so that, if he so desired, he could put a manufactory on his land and compel the Railway Company to submit to the passage of multitudes of people and convoys of lorries over the crossing. If the Railway Company had ever considered that this conveyance could be so interpreted, I am sure they would not have signed it. It is incompatible with the safe working of the railway. No Court before 1958 would ever have so construed it. Every Court would have said it was ultra vires for the Railway Company to make a general grant of a right of way which was incompatible with the working of the railway. The principle was laid down by Baron Parke in 1833 at the beginning of the railway era, see Rex v. Inhabitants of Leake (1833) 5 Barnwall & Adolphus at p. 476: and there is nothing in the recent case of British Transport Commission v. Westmorland County Council. 1958 Appeal Cases, p. 126, to throw doubt on it.

7

The owner relied on the case of South Eastern Railway Co. v. Cooper. 1924, 1 Chancery, p. 211. But that was very different. There the Railway Company diverted a highway; and the owner was entitled to have a right given to him 'analogous to, and as valuable as, that which the owner already had over the highway", see per Lord Justice Sargant at p. 234. Here he was not entitled to any more than an accommodation work. And that, in my opinion, is all he got. He did not get a general right of way for all purposes.

8

(II) The Prescriptive Right. The owner says that alternatively he obtained a right by prescription. The Judge found that for the twenty years before the action, from 1942 to 1962, there had been six caravans on the site permanently, but that there had been ten or eleven there at times from 1942 to 1945 and thereafter, and increased to twenty-eight or twenty-nine immediately before the issue of the writ. It is clear that by prescription there is a right of way for six caravans. But is there a right for twenty-eight or twenty-nine caravans?

9

It is quite clear that, when you acquire a right of way by prescription, you are not entitled to...

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