Ives (E. R) Investment Ltd v High
| Jurisdiction | England & Wales |
| Date | 1967 |
| Court | Court of Appeal (Civil Division) |
Easement - Right of way - Equitable rights of passage - Proprietary estoppel - Whether “equitable easement” - Whether registrable as land charge -
In 1949 the defendant, a builder, bought the site of a bombed house in Norwich and started to build a house on it. About the same time W. bought an adjoining double site and started to build a block of flats there. W. encroached on the defendant's site, putting the foundations of the flats a foot over the boundary into the defendant's land some feet below ground level.
The defendant objected to the trespass. At a meeting between the parties on November 2, 1949, it was orally agreed between them that W. was to be allowed to keep the foundations of the flats on the defendant's land and that the defendant was to have a right of way from the back of his house across the yard of W.'s flats so as to give access to a side road. Letters passed evidencing the agreement which was acted on by both sides.
In 1950, W. sold his site to the Ws., who knew of the agreement. Soon afterwards both the defendant's house and the block of flats were finished. The defendant used the way across the yard. In 1959, relying on the right of way, he built a garage which was so constructed that it could only be used by means of the yard. The Ws. raised no objection to the building of the garage or to the defendant's use of the yard for access to it. In 1960, the Ws. got the defendant to resurface the yard and he paid one-fifth of the cost of this work.
In 1962, the Ws. put up the block of flats for sale by auction. The particulars of sale referred to the defendant's right of way over the yard. At the auction the property was sold to the plaintiffs. The conveyance of January 1, 1963, of the block of flats from the Ws. to the plaintiffs stated that the property was conveyed subject to the right of way.
The right of way was never registered as a land charge. The plaintiffs claimed that as it was not registered under Class C (IV) as an estate contract or under Class D (III) as an equitable easement, it was void against them under section 13 of the
On appeal by the plaintiffs:—
Held, dismissing the appeal (per Lord Denning M.R. and Danckwerts L.J.) that, by reason of the mutual benefit and burden under the agreement of November 2, 1949, and the acquiescence of the plaintiff's predecessors in the rights thereby acquired, the defendant had in equity a good right of way across the yard which did not need to be registered under the
Per Lord Denning M.R. The right of the defendant to cross the yard was not a right such as could ever have been created or conveyed at law. It subsisted only in equity. It therefore still subsists in equity without being registered. Any other view would enable the owners of the flats to perpetrate the greatest injustice (post, p. 396A). I know that this greatly restricts the scope of Class D (III) land charges, but this is not disturbing (post, p. 396C).
Per Danckwerts L.J. Section 199 of the
Per Winn L.J. Whether or not such equities as arise from merely standing by whilst expenditure is incurred under a mistake of fact or law, or from attempts both to approbate and reprobate a deed, are capable of registration under the
Per curiam. The agreement of November 2, 1949, was a concluded agreement and the parties merely contemplated that it would be put into force (post, pp. 392E, 397D, 401G). The owners of the flats had not acquired title to the space in the defendant's land occupied by the foundations under the
APPEAL from Norwich County Court.
The plaintiffs, E. R. Ives Investments Ltd., claimed damages for trespass limited to £5 and an injunction restraining the defendant, J. W. High, from trespassing on a yard at the rear of 73/75, Earlham Road, Norwich, a property owned by the plaintiffs which adjoined the defendant's property, 77, Earlham Road. By his defence, the defendant admitted that he had walked or driven across the yard and that he intended unless restrained by injunction to continue to do so. He denied that such acts were wrongful or constituted trespasses. The defendant alleged, inter alia, that in or about October, 1949, Russell Westgate, the then owner of 73/75, Earlham Road, Norwich, and the yard, began to erect a block of flats upon the site and in so doing inadvertently built foundations or footings so as to encroach and trespass on the defendant's property to an extent of some 12 to 14 inches at a depth of at least 8 feet 4 inches; that at a meeting on the site on November 2, 1949, it was orally agreed that the foundations and footings should be allowed to remain as sited notwithstanding the encroachments and that the defendant should have a right of way with or without motor vehicles over and across the yard for the purposes of access, an agreement which was confirmed by letters; that the siting of the foundations and footings and the exercise of the rights of way had been and were enjoyed by virtue of reciprocal licences, pursuant to the said agreement, and that the plaintiffs having continued since their purchase of 73/75 and the yard to enjoy the benefit could not repudiate or revoke the burden thereof; that in or about 1959, with the full knowledge and approval of Flight Lieutenant and Mrs. F. M. Wright, the then owners of 73/75 and the yard, the defendant erected a garage in such a position that the only vehicular access was over the yard and that in 1962, with the knowledge and consent of the Wrights, the defendant contributed a one-fifth part of the expense of resurfacing the yard; that if the defendant's right of way over the yard was not by virtue of reciprocal licences which could not be revoked or repudiated, the matters alleged constituted express or implied representations by Westgate or the Wrights that the defendant was entitled as of right to an easement of way over the yard for the purpose of access to his property or the garage and that by reason of such representations by their predecessors in title the plaintiffs were estopped from denying that the defendant had such an easement.
By way of counterclaim the defendant contended that if, which he denied, his licence had been revoked, such revocation also operated to terminate the plaintiff's licence to continue the siting of the foundations or the same had been revoked by a letter of November 1, 1965, and as the foundations had not been removed a mandatory injunction to remove them was sought.
In reply, the plaintiffs claimed that the foundations had been continuously sited in their existing position since 1949 and that the defendant was barred by the Statute of Limitations from claiming their removal; further, that in or about October, 1949, the defendant had orally agreed with Westgate that he would not in the future seek to have the foundations and footings removed, and could not now be heard to say the contrary.
On April 28, 1966, Judge Carey-Evans dismissed the...
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