Dewan and Others v Lewis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE ELIAS,LORD JUSTICE PITCHFORD |
| Judgment Date | 09 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1382 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 2010 |
| Docket Number | Case No: B2/2010/0732 |
[2010] EWCA Civ 1382
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
HHJ Milwyn Jarman Qc
Before: Lord Justice Carnwath
Lord Justice Elias
and
Lord Justice Pitchford
Case No: B2/2010/0732
9CF02774
Matthew Wales (instructed by R. George Davies & Co) for the Appellants
Graham Walters (instructed by Keppe Rofer, Solicitors) for the Respondent
Hearing date: Tuesday 23rd November, 2010
Introduction
This is an appeal against one aspect of the order made by HH Judge Jarman QC in the Cardiff County Court. The case was concerned with the existence and extent of the rights attached to the land of the respondents (Mr and Mrs Lewis) (“the dominant tenement”), over a private road known as Old Station Road, Talyllyn. The private road links at its west end to the public Talyllyn Road, and provides access to a group of six cottages known as Cobbstown, some 200 yards east. The dominant tenement is an area of agricultural land to the south and east of Cobbstown, some of it until the 1960s enclosed by a triangular railway junction (“the triangular area”). The lines have since been removed. The private road provides access, through a gate near Cobbstown, to the triangular area, and through it to the rest of the dominant tenement to the east.
The old station building (“Old Station”), which has been converted to residential use, also has access by the private road, as do some additional houses built since the mid 1980s along the north side of the private road. The private road is mainly unfenced. The frontages of the houses to the private road have been laid out with lawns and ornamental trees. Although their owners now accept the existence of a right of way to the agricultural land to the east, they are understandably anxious to limit the scope for potential disturbance by unrestricted use for driven animals. Although, as I understand it, the respondents have no present intention of using the way for this purpose, they maintain their right to do so.
The proceedings began when the appellants (who live at 4 Old Station) and other neighbours sought an injunction prohibiting any use of the private road by the respondents. They counterclaimed for a right of way, either by implied grant by virtue of a conveyance in 1970; or by prescription or lost modern grant, arising from use between 1986 and 2006. The judge rejected the first ground, but upheld the second. He made a declaration that
“… the Defendant is entitled by way of prescription to a right of way at all times for agricultural purposes with or without animals and with or without vehicles…”
The existence of that right is not now in dispute on this appeal. The sole issue concerns the extent of the right. The appellant submits that the right should be limited by the insertion of the words “(except for the purpose of driving stock)”.
It is fair to observe that the issue of driving stock did not loom large for most of the hearing before the judge. It was not flagged up as a distinct issue in the pleadings, even in the further particulars of the defendant's case on prescription, which made no mention of animals other than horses. Nor was it dealt with as a separate issue in the judgment. However, as we were told by Mr Wales for the claimant, he indicated during the hearing that he would be seeking a specific exclusion of the driving of stock from any declaration. There is a transcript of the post-judgment argument, in which he raised the issue again. After a short discussion, with some limited reference to authority, the judge declined to make such an exclusion. He said:
“…the most I can do is indicate the view that it should include stock, but there will have to be a very clear understanding that it must be related to the use that has been made in the past, and one must be very wary of the excessive user…”
The defendants appeal on this issue alone.
Relevant History
The issues before the judge required an examination of the history of the ownership and uses back to 1970 and before. The much more limited issue in this court means that a brief summary is sufficient.
In 1940 Brynderwen Farm was conveyed to Mr Thomas Harris. The farm consisted of a substantial holding of land to the west of the Talyllyn Road, the farmhouse and farm buildings to the east of the Talyllyn Road, and a large meadow bounded on the east by the triangular railway junction. The farm also included an island of pasture beyond the junction to the east, which was originally accessed by a track across the junction.
Old Station Road was the former access to Talyllyn Station and the dwellings known as Cobbstown, all of which were owned by the British Railways Board, who also owned the triangular area. The railway closed in the 1960s and the rail track was removed.
In 1970 Mr Thomas Harris purchased part of BRB's holding within the triangular area, following which a gate was erected at the north-west corner (point A on the plans), and a fence was erected along the northern boundary. In 1971 the remainder of BRB's holding at Talyllyn Station and the junction, including the private road, was conveyed to Mr and Mrs Stephens. They converted the former station building into a dwelling house, sold off various plots of land to developers, and sold the cottages at Cobbstown individually. The appellants (Mr and Mrs Dewan) bought the former station building, including a stretch of Old Station Road, in 1985.
Brynderwen Farm continued to be farmed by Thomas Harris until his retirement in about 1979. At about this time the land to the west of the Talyllyn Road was let to Mr Philip Williams and his brother; the triangular area and the rest of the dominant tenement to the east, were let to Mr & Mrs Probert.
Mr Thomas Harris died in 1982, leaving his widow Jenetta Harris living at Brynderwen Farm. The farm was vested in Jenetta Harris and her children. In about 1991 Richard Harris (son of Thomas Harris) moved to Brynderwen with his wife Adrienne Harris. In 1992 they took formal tenancies or licenses of various parts of the farm, including the dominant tenement. They conducted a livery business. In the early to mid 1990s the dominant tenement was let to Mr Philip Williams and this letting continued until around 2004 to 2005.
In 2005 the remainder of Brynderwen Farm to the east of the Talyllyn Road was transferred to Richard & Adrienne Harris. Richard died later that year. The respondent purchased his holding in 2006, including the dominant tenement. Jenetta Harris died in 2010 shortly before the commencement of the trial.
Evidence of use
In considering the evidence as to the use of the private road to serve the fields making up the dominant tenement, it is important to keep in mind that it was not the only access to those fields, at least for anyone occupying Brynderwen Farm or on reasonable terms with the occupants. The former access across the line of the former junction remained. As the judge said:
“Regard must be had to the fact that this (Station Road) was not the only way to the triangular land or the land beyond. In times when the weather was good, it may have been more convenient to use the meadow and the track across the triangular land. That does not mean to say that it is not also convenient at other times, and in particular wet times, to use the road. I do not accept the submission that this would be confined to the winter months. It may be that was when the user was most pronounced, but wet weather can occur at any time of the year.” (para 46)
The only direct evidence of use of the track for driving cattle came from a Mr Lindsell. The judge referred to his evidence when dealing with his first period (relevant to the use at the time of the 1970 conveyance), and before coming on to the 1980s (para 22). He summarised the evidence as follows:
“Mr Lindsell lived in a property backing on to the old station from 1970 to 2007, and he recalls Mr Stephens buying that property. There was a discussion between the two about a stile at the end of Mr Lindsell's property. He recalls stock being taken down the land from the farm. He did not accept the recollection of Mrs Rennison that the dairy herd at the farm had been disbanded after about 1970. He said that he recalls standing on Talyllyn Road to make sure the stock coming up the lane would not turn right up towards Llangorse but would turn left down the road to the farm. He said he helped the Harrises frequently on this basis. He could not recall the track towards the southern part of the triangular land being used.”
There was evidence that the Proberts had used the dominant tenement for grazing livestock, and that they had used Station Road for access, but no specific evidence that they had driven cattle along it. In the following period, the evidence of Philip Williams, who had the grass keep of the dominant tenement from the mid 1990s until about 2004, was that he would use route through the farmyard at Brynderwen to move stock. Mr Wales relies particularly on the transcript of cross examination of Philip Williams:
“Q The prime route down to that land would be through Brynderwen yard. Would you accept that?
A One of the routes. If we were moving livestock, we would go through Brynderwen yard.
Q There was no question of moving livestock by other routes?
A Unless I was checking stock.
Q There was no question of moving livestock by any other routes? That is the route that you would have used if you were moving stock?
A Yes, unless I was checking the...
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