Johnstone v Holdway
| Jurisdiction | England & Wales |
| Judge | JUSTICE UPJOHN,LORD JUSTICE ORMEROD |
| Judgment Date | 18 December 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1218-1 |
| Date | 18 December 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J1218-1
Lord Justice Ormerod
Lord Justice Upjohn and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
From: His Honour Judge Rountree - elston County Court
Mr. Guy Seward (instructed by Messrs. Galbraith & Best) appeared on behalf of the Appellant (Defendant).
Mr. Christopher Slade (instructed by Messrs. Hunter & Co., Agents for Messrs. Coodes Hubbard & Co., St. Austell) appeared on behalf of the Respondents (Plaintiffs).
I will ask Lord Justice Upjohn to deliver the judgment of the court.
This is an appeal from an order dated the 25th July, 1962, of His Honour the late Judge Roantree.
The short point is as to the validity of a right of way reserved over certain land conveyed to the defendant's predeces-sors in title by a conveyance dated the 12th February, 1948, and made between George Horace Johnstone (thereinafter called "the Vendor") of the first part The Trewithin Estates Company (thereinafter called "the Company") of the second part and Charles Henry Booustow (thereinafter called "the Purchaser") of the third part. The conveyance recited first that subject to the agreement mentioned below the vendor was seised in fee simple free from encumbrances of the property intended to be conveyed; secondly that by an agreement dated the 1st April, 1936, made between the vendor of the one part and the company of the other part the vendor agreed to sell to the company inter alia the said property but no conveyance had been executed by the vendor. There followed the usual recital of an agreement for sale to the purchaser. Then the conveyance witnessed that in consideration of the sum of £450 paid by the purchaser to the company the vendor as trustee and the company as beneficial owner conveyed to the purchaser: first the site of certain fish cellars, winch house, old quarry and land situate at Church Cove, The Lizard, in the County of Cornwall as delineated on the plan drawn on the conveyance and coloured pink; secondly a boat house also at Church Cove coloured blue. Then followed two exceptions and reservations in these terms: "Excepting and Reserving to the Vendor all mines and minerals and mineral substances as more particularly specified in the First Schedule hereto And Secondly" (and laow follows the reservation the subject-matter of this action) "Except and Reserving unto the Company and its successors in title its or their tenants and workmen and all other persons authorised by the Company or its successors in title a right ofway at all times and for all purposes (including quarrying) with or without horses carts and vehicles of all types and description described between the points marked 'A' and 'B' on the said plan". The plan drawn on the conveyance showed the right of way going across the premises firstly described from "A" to "B", that is roughly speaking from the north-west to the south- east part of the property, point "A" being on the north-west boundary of the property and point "B" being on the south- east boundary. At point "B" the right of way terminated on a highway. As appears from the plan, on the north-west of the property conveyed there was and is a quarry. This conveyance was the only document of title which was put in evidence because shortly before the hearing, the plaintiffs' documents of title were shown to Mr. seward appearing for the defendant and it is now conceded that these documents show that at the date of the 1948 conveyance the company were the owners of land and a quarry bounding the north west of the land conveyed to the purchaser and coloured pink on a plan annexed to the otatement of Claim and that the plaintiffs are now the owners of that land and quarry as the company's successors in title. It was also admitted at the hearing that the defendant is the successor in title of the purchaser under the 194b conveyance and that she was a purchaser for money or money's worth.
Mr. Seward for the defendant has argued before us that the 1948 conveyance was ineffective to reserve a valid right of way across the property conveyed and that he is entitled to that property freed and discharged from the easement thereby purported to be created. The grounds of this submission may be very shortly stated. He submits truly that it is of the essence of every easement that there must be a dominant tenement and a servient tenement. He then argues that the 1946 conveyance does not define the dominant tenement for the benefit of which the right of way was reserved. He submits that it is essential to the valid creation of every easement that the dominant tenement must be defined in the deed itself and that no extrinsic evidence isadmissible to define it. He points out that in every properly drawn conveyance it should he made plain in the deed itself what is the land for the "benefit of which the easement is taken and he referred to one or two forms in Key & Elphinstone's Precedents: see for example the 15th Edition, Volume 1 page 589 and page 850. No one doubts that in a properly drawn conveyance containing a grant or reservation of a right of way the proper and safe course is to identify therein, if necessary by reference to a plan, the dominant tenement for the benefit of which the easement is taken. That is the wise course. But the question we have to determine is whether that is essential to the validity 8 of the easement or whether it is permissible to identify the dominant tenement by inferences from facts...
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