Cordell v Second Clanfield Properties Ltd

JurisdictionEngland & Wales
Date1968
CourtChancery Division
[CHANCERY DIVISION] CORDELL v. SECOND CLANFIELD PROPERTIES LTD. [1968 C. No. 4203] 1968 July 5, 8 Megarry J.

Vendor and Purchaser - Conveyance - Easement - Reservation to vendor of right to use access roads - Whether construed against purchaser as grantor of easement - Law of Property Act, 1925 (15 & 16 Geo. 5, c. 20), s. 65 (1).F1 - Easement - Right of way - Reservation to vendor in grant - Access roads - Whether construed against purchase as grantor - Law of Property Act, 1925, s. 65 (1).

The plaintiff conveyed five parcels of land to the defendant company and retained a piece of land immediately beside one of the conveyed parcels; the conveyance reserved to the plain tiff a right of way over any estate roads constructed on the land conveyed. The defendant company constructed a housing estate on their land. Opposite the middle of the common boundary the defendant company for some time left undeveloped a plot 57 or 58 feet wide; when the defendant company commenced erecting a bungalow on the plot leaving a 12-foot access way to the plaintiff's land, the plaintiff issued a writ claiming, inter alia, a declaration that he was entitled to a right of way, at all times and for all purposes, 28 feet wide over the plot and an injunction ordering the defendant company to pull down so much of the bungalow as interfered with this right of way.

On a motion claiming, inter alia, injunctions restraining the defendant company from constructing any further buildings on the plot and from finishing the bungalow:—

Held, refusing the injunctions, (1) that as the bungalow was substantially completed and nothing would suffice the plaintiff save the complete removal of part of the building and since there was no threat of the defendant company constructing further buildings on the plot, an injunction to restrain com pletion would be of no use to the plaintiff.

(2) That by section 65 of the Law of Property Act, 1925, a reservation of any legal estate operated without any regrant by the purchaser and that accordingly the reservation of the right of way in the conveyance should be construed against the plaintiff and not against the defendant company, and that, being so construed, it did not impose on the defendant company any obligation to construct any such road as the plaintiff claimed.

Dicta of Upjohn J. in Bulstrode v. Lambert [1953] 1 W.L.R. 1064, 1068; [1953] 2 All E.R. 728 and Denning L.J. in Mason v. Clarke [1954] 1 Q.B. 460, 467; [1954] 2 W.L.R. 48; [1954] 1 All E.R. 189, C.A., not followed.

Observations on the authority of textbooks and articles by judges (post, p. 16F).

The following cases are referred to in the judgment:

Bulstrode v. Lambert [1953] 1 W.L.R. 1064; [1953] 2 All E.R. 728.

Mason v. Clarke [1954] 1 Q.B. 460; [1954] 2 W.L.R. 48; [1954] 1 All E.R. 189, C.A.; [1955] A.C. 778; [1955] 2 W.L.R. 853; [1955] 1 All E.R. 914, H.L.(E.).

Savill Brothers Ltd. v. Bethell [1902] 2 Ch. 523. Y.B. 11 Hen. 4, Mich., fo. 37 (1409).

No additional cases were cited in argument.

MOTION.

By a conveyance dated March 10, 1966, the plaintiff, Alfred James Cordell, conveyed five parcels of land at Chandler's Ford, Eastleigh, Hampshire, to the defendant company, Second Clanfield Properties Ltd.

On June 14, 1968, the plaintiff issued a writ and a notice of motion. By the writ he claimed, inter alia, a declaration that he was entitled to a right of way over part of the defendant company's land, and an injunction ordering the defendant to remove such part of the building as obstructed that right of way. By the notice of motion the plaintiff claimed, inter alia, injunctions restraining the defendant company from completing the building on the plot and from constructing further buildings thereon.

M. A. F. Lyndon-Stanford for the plaintiff. The reservation in the conveyance ought to be construed against the defendant company, as being the purchaser; the defendant company is thus the grantor of the easement reserved by the vendor: see Bulstrode v. Lambert [1953] 1 W.L.R. 1064 and also the judgment of Denning L.J. in Mason v. Clarke [1954] 1 Q.B. 460, 467, where words reserving sporting rights in a lease operated not by way of reservation proper, but by regrant by the tenant. See also the passage in Megarry & Wade's Real Property, 3rd ed. (1966), p. 826, where it is said that a grant is in general construed against the grantor and the rules governing grants apply equally to reservations.

Rupert Evans for the defendant company. The first hurdle is the conveyance. The question is whether the regrant is to be construed against the defendants. There is no clear authority to show that in a fee simple conveyance of land a right of way reserved to a vendor is to be construed against the purchaser. The nearest case is Bulstrode v. Lambert [1953] 1 W.L.R. 1064, but the remarks there are very tentative and the cases afford little assistance.

From the wording of section 65 (1) of the Law of Property Act, 1925, it would seem that a reservation is effective without any regrant.

MEGARRY J. By a conveyance dated March 10, 1966, executed pursuant to a contract dated April 5, 1965, the plaintiff conveyed five parcels of land at Chandler's Ford, Eastleigh, Hampshire, to the defendant company. The plaintiff retained land (which has been called “the grey land”) which was immediately contiguous to one of the parcels conveyed; and the conveyance contained a provision

“excepting and reserving unto the vendor for the benefit of his adjoining land coloured grey on the plan a right of way over any of the estate roads constructed on the property hereinbefore described to obtain access to such adjoining land and also a right of drainage through any sewers or drains constructed thereon.”

It is not altogether clear whether it is the word “described” that is used in that part of the conveyance, or whether it is the word “conveyed”; but it does not seem to make any real difference. The defendant company has been constructing a housing estate on the land conveyed, and until recently had some hope of being able to build on the grey land as well; for the contract between the parties gave them the right to this land also if an outline planning permission for the erection of certain dwellings was obtained within 18 months of the date of the contract. Planning permission...

To continue reading

Request your trial
24 cases
  • St. Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 Diciembre 1974
    ...to the company a legal easement or an equitable easement". 24 The opposing view was expressed by Mr. Justice Megarry in Cordell v. Clamfield Properties Ltd, 1969 2 Chancery, 9, (upon motion and without being referred to Johnstone v. Holdway) and in the present case (after a full review of ......
  • Whitfield v Attorney-General
    • Bahamas
    • Supreme Court (Bahamas)
    • Invalid date
  • T.A. (Nigeria) v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 16 Enero 2018
    ...who in this particular case had to live through the adage of Megarry J. (as he then was) that ' argued law is tough law': Cordell v. Second Clanfield Properties Ltd. [1969] 2 Ch. 9, at Failure to particularise the relationship with the child 17 A notable fact in this case is the extremely ......
  • Zambia v Meer Care and Others
    • United Kingdom
    • Chancery Division
    • 29 Junio 2007
    ...was intended to confirm and in my view it plainly did. In this context I remind myself of the observations of Megarry J in Cordell v Second Clanfield Properties [1969] 2 Ch 9 at page 16 of the difference between academic writings and legal arguments in 367 Finally in the case of Barnes v T......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT