Graham v Philcox

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE MAY,LORD JUSTICE PURCHAS
Judgment Date18 Apr 1984
Judgment citation (vLex)[1984] EWCA Civ J0418-1
Docket Number84/0164

[1984] EWCA Civ J0418-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE TUNBRIDGE WELLS COUNTY COURT

(HIS HONOUR JUDGE HAMMERTON)

Royal Courts of Justice.

Before:

Lord Justice May

and

Lord Justice Purchas

84/0164

Case No. 8303346

Finlay Mackenzie Graham

and

Sandra Johnston Graham (His Wife)
Appellants (Plaintiffs)
and
Robert Philcox

and

Pamela Mary Philcox (His Wife)
Respondents (Defendants)

MR. ROBERT REID, Q.C. and MR. D. HODGE (instructed by Messrs. Thomson Snell & Passmore) appeared on behalf of the Appellants.

MR. GERALD GODDFREY, Q.C. and MR. S. BICKFORD-SMITH (instructed by John Pearson, Esq., of New Malden) appeared on behalf of the Respondents.

LORD JUSTICE MAY
1

This is a plaintiff's appeal against a judgment of His Honour Judge Hammerton in the Tunbridge Wells County Court of the 19th October, 1983. The learned judge had before him a claim by the plaintiffs as the freehold owners of premises known as the Coach House, High Rocks Lane, Tunbridge Wells, to the unobstructed use of a right of way from those premises over the defendants' adjoining land known as 6A Hungershall Park, Tunbridge Wells, to that road (Hungershall Park) itself. The learned judge dismissed the plaintiffs' claim and made a declaration on the defendants' counterclaim that there was no subsisting right of way over their land for the benefit of the plaintiffs' property or any part of it. The plaintiffs now appeal against that judgment.

2

The relevant land in this case was at one time all in one ownership. It was known as 6 Hungershall Park and comprised a large house with a garden, together with a coach house with a courtyard at the rear, that is to the south, and abutting what is now called High Rocks Lane—whether this is in law a highway is not entirely clear.

3

In so far as is material for present purposes, by a lease dated the 10th December, 1960 the freehold owner of the whole of the relevant land, one C.J. Maples, let the flat comprising the first upper floor of the Coach House to one Braithwaite for five years from the 1st December, 1960. By the terms of the parcels clause in that lease, the flat was let "together with a right of way for all purposes over the entrance drive to No. 6, Hungershall Park and thence along the west side of the garden as far as the premises hereby demised." On the 1st September, 1963 Braithwaite assigned his interest in the residue of the term granted by the lease to one Devaney.

4

By an agreement dated the 4th November, 1963 Mr. Maples let the ground floor flat in the Coach House to one Wilcox for a term of three years from the 6th July, 1963. That agreement also granted Wilcox a similar right of way to that granted to Braithwaite, but on the other eastern side of the relevant land.

5

Mr. Maples died on the 4th December, 1973. At some time, whether before or after Maples' death does not matter, the big house was converted into two semi-detached houses, namely Nos. 6A and 6B Hungershall Park, and the garden was itself divided into two. No. 6A was the western half of the property, 6B the remaining eastern half.

6

By a conveyance of the 12th November, 1975 Maples' executors conveyed to Wilcox the land on which the Coach House was built together with that building "at present occupied as two self-contained flats erected thereon and known as (The Coach House) High Rocks Lane, Tunbridge Wells".

7

Next, by a conveyance of the 27th June, 1977 the executors conveyed to the present respondents, Mr. and Mrs. Philcox, the freehold of No. 6A Hungershall Park, subject to the right in the tenant of the first floor flat of the Coach House to use inter alia the right of way to Hungershall Park originally granted by the lease of the other flat in the Coach House to Braithwaite of the 10th December, 1960.

8

By a lease and conveyance each of the 16th November, 1977 the successors in title to Wilcox conveyed the Coach House to the present appellants, Dr. and Mrs. Graham, subject to Devaney's continuing statutory tenancy of the upper flat. Subsequently Devaney was persuaded to give this flat up. The plaintiffs then took it over and have thereafter occupied the whole of the Coach House as a residence. For some time the plaintiffs and the defendants were on friendly terms and the plaintiffs continued to use the right of way over the defendants' property, that is to say No. 6A Hungershall Park, as had been enjoyed by Devaney. However, at some stage relations between the two families deteriorated; the defendants locked a gate across part of the right of way and refused to allow the plaintiffs to continue to use it. As a result, the plaintiffs issued these proceedings in the county court, claiming the right to use the right of way, together with an injunction restraining the defendants from preventing them doing so and other consequential relief. Two other less important points arise in this litigation, both of which are largely dependent on the result of the plaintiffs' main claim, and I will deal with them separately at the end of this judgment.

9

The plaintiffs' claim was based below and before us on the provisions of section 62(2) of the Law of Property Act 1925. In so far as is material for present purposes, this subsection reads:

"(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses or other buildings, all…ways…easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, houses or other buildings conveyed, or any of them, or any part thereof, or, at the time of the conveyance, enjoyed with…the land, houses, or other buildings conveyed or any part thereof."

10

The plaintiffs' case is that the right of way in dispute was an easement enjoyed and used by Devaney at the time of the conveyance of the Coach House to the plaintiffs' predecessor in title, Wilcox. By virtue of section 62(2) that conveyance operated to convey that right of way to Wilcox, who in his turn conveyed it to the appellants. Counsel submitted that this result flowed from the operation of the clear meaning of the subsection and it was what the learned judge described at any rate at first sight as a logical and simple approach. However, in the result, he rejected the argument. In relation to the conveyance by Maples' executors to Wilcox he said:

"The land was sold by personal representatives. The right of way was not enjoyed by them and it was not part of the property that they were enjoying. The right of way was totally subject matter of the Lease. So far as the purchaser was concerned he also was not enjoying the right of way and he had no right over the right of way as long as the Lease continued. Neither the Transferor nor the Transferee were actually enjoying the easement."

11

A little later in his judgment he summarised his view in this way:

"On the general proposition I have come to the conclusion that so far as the right of way is concerned this was granted by the Lease and came to an end upon Devaney's departure. Thereafter the right of way did not subsist independently of the Lease or dependently on Section 62 of the Law of Property Act."

12

It was on these grounds that the learned judge dismissed the plaintiffs' claim in the action.

13

In this court, Mr. Reid on the appellants' behalf again relied on what he submitted was the clear meaning of section 62(2). He contended that as the result of that statutory provision the conveyance operated to pass to Wilcox and thus to his successors in title the easement over 6A Hungershall Park which I have described. Counsel submitted that the learned judge's approach started from a consideration of the user of the way by the vendor, which was incorrect, and thus he reached the wrong conclusion at the end. What the learned judge ought to have considered under section 62(2) was the use of the relevant way with the land.

14

In support of his submission, Mr. Reid referred us to a number of authorities, among them International Tea Stores Co. v. Hobbs (1903) 2 Chancery 165, where at page 172 Mr. Justice Farwell said:

"The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to enquire whether the way has in fact been used, not under what title it has been used, although you must of course take into consideration all the circumstances of the case."

15

In addition, in Lewis v. Meredith (1913) 1 Chancery 571 at page 579, Mr. Justice Neville was considering the predecessor of section 62(2), namely section 6 of the Conveyancing Act 1881, and said:

"Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any right or easement by the occupiers, but International Tea Stores v. Hobbs shows that 'a right' permissive at the date of the grant may become a legal right upon the grant by force of the general words in section 6 of the Conveyancing Act, 1881. From this point of view that circumstances under which the quasi right enjoyed become immaterial so long as it was actually enjoyed and was of a nature which could be granted, that is to say, a right known to the law."

16

Both these cases were cited with approval in the judgments in this court in the later case of Wright v. Macadam (1949) 2 King's Bench 744. In relation to the instant appeal, the facts of that decided case are of some interest. The defendant landlord let a flat comprising two rooms and the usual offices to Mrs. Wright, one of the plaintiffs, for one week. She remained in occupation thereafter under the provisions of the Rent Restriction Acts and some two or three months later the landlord gave her...

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    ...judgment [in the Second Action] dealing with the enlargement of the dominant tenement by amalgamation and the case of Graham v Philcox [1984] QB 747 was the decision of the [CA] on the second contention raised by Lee Tat [ie, Issue (b) of the Second Action] … 35 It was not disputed that the......
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    ...you must of course take into consideration all the circumstances of the case…” (p 172). 25 That passage was cited by this court in Graham v Philcox [1984] 1 QB 747. It was held that a right of way, originally granted in connection with a five year tenancy of a part of a house, was converted......
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    ...the added parish rooms). This, he submits, is the effect of the governing authorities, most notably Harris v Flower (1904) 74 LJCt 127, Graham v Philcox [1984] 1 QB 747, Peacock v Custins [2001] EGLR 87 and Das v Linden Mews Limited [2002] EWCA Civ 590. 38 Mr Harrison argues the contrary. H......
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