Davis v Whitby
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP,LORD JUSTICE ORR |
| Judgment Date | 08 November 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1108-2 |
| Date | 08 November 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1108-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Vice-Chancellor Burgess.
The Master of the Rolls (Lord Denning),
Lord Justice Stamp and
Lord Justice Orr
Mr B. K. LEVY (instructed by Messrs E. & D. Westbrook, Staines) appeared on behalf of the Appellant (Defendant).
Mr GIDLEY SCOTT (instructed by Messrs Rowe & Maw, Agents for Messrs Versluys & Co., Staines) appeared on behalf of the Respondents (Plaintiffs).
This case raises a new point on the law of easements. There is a row of houses in a terrace at Englefield Green. They are Nos. 49, 51, 53, 55, 57 and 59 Vegal Crescent. They were built in the year 1927 and conveyed to separate owners. Each house has a garden about 60 feet long. At the far end of the garden, the householder has a shed where he keeps his wheelbarrow, his tools and so forth. Each can get to it by walking down his garden. But each can also get to it by means of a path at the end of the garden leading round the back and out by the side of the terrace. This path is very useful for carrying coals to the coal shed instead of through the house; also for vegetables and so forth. The question is whether the owners and occupiers of each of the houses have a right of way along the path from the bottom of the gardens out to the road. The evidence shows that, at any rate from the year 1935, there was a pathway which ran across the middle of all the gardens. The occupiers of the houses used this middle path for carrying their vegetables, pushing their wheelbarrows and so forth out into the path at the side and then to the road. There was evidence that this middle path was used for 15 years, starting at any rate from 1935 to 1950.
In 1950 there was a re-arrangement. It was very inconvenient to have a path going across the very middle of the gardens. The occupiers of the three houses numbered 55, 57 and 59 came to an arrangement whereby, instead of the middle path, they substituted a path at the end of their gardens. Each could go along this end path and out in a path on the side of 59 leading to the road. The other three householders thought this was a good idea. So Nos. 53, 51 and49 did the same. The path in the middle was closed. A new path was made at the bottom of the gardens. It was laid out in this way: There was a fence between No. 53 and No. 55 so that the occupier of No. 53 could not get out that way. But he now had a gate at the bottom of his garden by which he could get into No. 51 and go along the path behind 51 and 49 and out into the road. Likewise the occupier of No. 51 could go along a path behind No. 49. In addition, the then owner of No. 49 went to a good deal of expense. He put a fence up alongside the new pathway, and moved his shed down to that end. The evidence shows that from 1950 onwards the occupiers of those three houses - 53, 51 and 49 - used this pathway at the end of their gardens to get out and go round to the front. That went on quite satisfactorily for the next 18 years.
In 1964 Mr Whitby bought No. 49. It was registered with a clean title. In 1966 Mr and Mrs Davis bought No. 51. It was registered at the Land Registry with a right of way over the passageway leading from the back into Vegal Crescent. Shortly afterwards, those two owners were at variance. The owner of No. 51 wanted to put some ash down. The owner of No. 49 objected. He said, there was no right of way over this pathway at the back at all. So, in 1968 Mr and Mrs Davis (No. 51) brought an action against Mr Whitby (No. 49) to establish the right of way over the pathway.
Vice-Chancellor Burgess found the facts substantially as I have stated. It was proved that for 15 years from 1935 to 1950 the owners and occupiers of No. 51 had used the middle path across the garden. For 18 years they used the path at the end of the garden.
The Defendant says that the two paths must be considered separately; under the Prescription Act of 1832, in order to establish a right of way, there has got to be user as of right for 20 years without interruption. The Defendant says that there is no right of way along the middle path because 15 years is not enough: and there is no right of way along the back path because. 18 years is not enough. So there is no right of way under the statute.
The Plaintiff says that the two paths must be considered together. The 15 years user ofthe middle path can be added to the 18 years of the back path so as to make 33 years altogether, which is more than the required 20 years. Both Counsel told us that there is no authority in the books covering such a situation.
Some help can however be found from Payne v. Shedden, in 1834, two years after the Act was passed. It is reported in 1 Moody and Robinson at page 382....
To continue reading
Request your trial
-
Property Point v Kirri
...a normal sized vehicle parking in the Garage to turn on the remainder of the Yellow Land. This is a case with similarities to both Davis v. Whitbyinfra, and Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch. D. 362, where the fact that the user had used various different tracks......
-
Bakewell Management Ltd v Brandwood and Others
...open, free from force and not dependent upon any precatory permission from the servient owner serves a well recognised public policy. In Davis v Whitby [1974] 1 Ch 186 Lord Denning MR said, at page 192, that "…. the long user as of right should by our law be given a lawful origin if that ca......
-
Bakewell Management Ltd v Brandwood and Others
...the judgment of this court in Tehidy Minerals Ltd. v. Norman [1971] 528, 552; to the judgments of Lord Denning M.R. and Stamp L.J. in Davis v Whitby [1974] 1 Ch. 186, 192; and especially to the illuminating speech of Lord Hoffmann in Reg. v Oxfordshire C.C. Ex P. Sunningwell P.C. [2000] 1 ......
-
Poste Hotels Ltd v Tracey Anne Cousins
...open, free from force and not dependent upon any precatory permission from the servient owner serves a well recognised public policy. In Davis v Whitby [1974] Ch 186 Lord Denning MR said, at p 192, that “the long user as of right should by our law be given a lawful origin if that can be do......