Eric Stafford and Another v Cyril John Lee and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE RUSSELL |
| Judgment Date | 10 November 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1110-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1992 |
| Docket Number | 92/1088 |
[1992] EWCA Civ J1110-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EXETER COUNTY COURT
(HIS HONOUR JUDGE WILLCOCK)
Royal Courts of Justice
Lord Justice Nourse
and
Lord Justice Russell
92/1088
and
and
MISS JACQUELINE BAKER, instructed by Messrs Linford Browns (Exmouth), appeared for the Appellants (Defendants).
MR PHILIP S.A. ROSSDALE, instructed by Messrs Orchard & Co. (Exmouth), appeared for the Respondents (Plaintiffs).
The question in this case is whether a right of way claimed by the plaintiffs as appurtenant to their landfalls into the second class of implied easements described by Lord Parker of Waddington in Pwllbach Colliery Company Limited v. Woodman [1915] A.C. 634 and usually known as intended easements.
The question depends on the effect of a deed of gift of freehold land dated 25th March 1955 and made between Mr Percy George Richards (called "the Grantor") of the one part and Mrs Muriel Barbara Walker (called "the Donee") of the other part. The grantor's and the donee's addresses were stated to be in Exmouth, Devon and Colemans Hatch, Hartfield, Sussex respectively. In clause 1 of the deed the parcels were expressed as follows:
" ALL THAT piece or parcel of land situate and having a frontage of One hundred and fifty nine feet to a roadway being Ordnance Survey Number 231 and known as Marley Drive in the Parishes of Lympstone and Withycombe Raleigh in the County of Devon All which said piece or parcel of land is for the purpose of identification only more particularly delineated on the plan annexed hereto and thereon coloured Pink TO HOLD the same unto the Donee in fee simple subject nevertheless to and with the benefit of the restrictions and reservations contained in a Conveyance dated the eighteenth day of February One thousand nine hundred and forty nine and made between Marjorie Alice LittleJohn of the one part and the Grantor of the other part so far as the same affect the property hereby conveyed or any part thereof."
Clause 2 of the deed contained a covenant by the donee by way of indemnity to observe and perform the restrictions and reservations contained in the conveyance of 18th February 1949 so far as the same related to the property thereby conveyed and were subsisting and capable of taking effect. The plan annexed to the deed showed an area of land coloured pink fronting on to a roadway running to its northwest to join the public highway and bearing the legend "Marley Drive". Adjoining the land conveyed on its northwestern boundary was a smaller rectangular enclosure fronting on to Marley Drive and bearing the legend "Woodcote". Adjoining Woodcote on its northwest boundary was another enclosure, slightly larger than Woodcote and nearly square, also fronting on to Marley Drive and bearing the legend "Beechwood". Between Beechwood and the public highway there was shown an area planted with trees of approximately the same area as that of the other three enclosures taken together.
It will at once have been observed that the 1955 deed, although it described the land conveyed as having a frontage to Marley Drive, contained no express grant of a right of way over that roadway. It is that unfortunate omission which, some 35 years later, has led to the dispute in these proceedings. As briefly as I can, I will tell what is left of the story.
By the conveyance of 18th February 1949 Mr Richards, the grantor under the 1955 deed, had acquired what was then the residue of the Marley Estate, including Marley Drive, amounting to about 46 acres in the aggregate. The plan annexed to that conveyance showed enclosures marked Woodcote and Beechwood in the same way as that annexed to the 1955 deed. By a conveyance dated 29th September 1967 Mr Richards conveyed to Mr Robert Davey and the first defendant, Mr Cyril John Lee, the bulk of the land which had been conveyed to him in 1949, including Marley Drive and amounting to some 43 acres. The conveyance was expressed to be subject, amongst other rights, to the rights of way in favour of the properties abutting on Marley Drive to pass and repass thereover. The second defendant, Jacqueline M. Davey, is the successor of Mr Robert Davey.
It appears that on 13th June 1956 Mrs Walker, the donee under the 1955 deed, applied for outline planning permission, presumably to build a dwelling on her land, and that her application was not opposed by Mr Richards. No development was carried out at that time. Since then the property has changed hands several times. On 18th January 1983 the plaintiffs, Mr Eric Stafford and his wife, Mrs Constance Nellie Stafford, were registered at the Land Registry as proprietors thereof with title absolute.
All this time the land comprised in the 1955 deed had remained unbuilt on. It still was, as it always had been, a piece of woodland containing a pond within it. It appears clear that the only practicable means of access to it and egress from it was over and along Marley Drive. On 2nd June 1989 the plaintiffs were granted planning permission by East Devon District Council for the erection of a dwelling house on the land. It was no doubt that which alerted the defendants, as the owners of Marley Drive, to their rights. They asserted that the plaintiffs had no right to use the drive either for construction traffic or for use as residential purposes, if and when a dwelling was constructed. Litigation soon became inevitable. On 5th June 1990 the plaintiffs commenced proceedings in the Exeter County Court claiming a declaration as to their rights. The defendants counterclaimed for a counter declaration and an injunction.
The action came on for trial before His Honour JudgeWillcock, Q.C., in February 1991. The judge delivered his reserved judgment on 26th July 1991, when he granted the plaintiffs a declaration in these terms:
"IT IS HEREBY DECLARED that the Plaintiffs are entitled to a right of way along the roadway known as Marley Drive Lympstone in the County of Devon from the highway at its North-Western end to the gate whose approximate position is shown marked 'X' on the plan annexed to the Particulars of Claim and back for themselves, their servants, agents and licencees on foot or with vehicles, for the purpose of carrying all the necessary building materials for the construction of a dwelling house to be created on the land referred to in paragraph 1 of the Particulars of Claim and for all purposes connected with the use of the said dwelling house for residential purposes."
The judge dismissed the counterclaim. He awarded the plaintiffs three-quarters of their costs on the claim and the whole of their costs on the counterclaim, such costs to be taxed on Scale 3.
At the hearing below no oral evidence was called on either side. The plaintiffs put their case on three different grounds. First, they claimed an easement of necessity. Secondly, they relied on the rule in Wheeldon v. Burrows (1879) 12 Ch. Div. 31. Thirdly, they sought to invoke the principle of Pwllbach Colliery Company Limited v. Woodman. The judge had no difficulty in holding that the plaintiffs could not...
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