Keefe v Amor

I will ask Lord Justice Russell to give the first judgment.

In 1930 a Mr. Wheeler owned a pair of semidetached houses called Nos. 1 and 2 Westlands, Poole, whose only outlet to the highway was through a strip of land some 20 feet wide and 130 feet long, known as "the brown strip", which was also owned by Mr. Wheeler. Mr. Wheeler lived, I think, at No. 2. The parents of the plaintiff (who now owns No. 1, or did when this litigation started) were tenants of No. 1 from Mr. Wheeler for a number of years; and in 1930 they bought from him the freehold. It was registered land, and the transfer contained the following express grant of a right of way: "Together also with a right of way over the land shown and coloured brown on the plan hereto annexed the Purchasers paying a fair proportion in common with the adjoining owners of the cost of keeping the said way in good repair and condition subject to the liability of contributing (in common with the adjoining owners) to the upkeep and repair of the wall on the west side of the said right of way shown and marked with a 'on the plan drawn thereon". The defendant is now the owner of No. 2 Westlands and of the brown strip.

The dispute concerns the nature of the right of way, the purposes for which and the manner in which it can be used. The plaintiff says it is a way for all purposes appropriate to the service of a dominant tenement consisting of a dwelling-house. The defendant says it is only a footway, or, perhaps, alternatively, that if it does extend to vehicles then such vehicles must be limited to those that can pass through a gap approximately 4 feet wide. The defendant in 1962 converted the then existing gap of about 4 ft. 6 ins. in the wall of the highway frontage of the brown strip into one about 7 ft. 6 ins. wide, presumably so that she could have ready access to her house, No. 2, by car. But she contends that she is entitled to keep 3 feet of that extended gap barred to similar use by the plaintiff. This mightappear to be a somewhat curmudgeonly attitude to adopt, but we are concerned with rights and not with attitudes.

The defendant contends that the nature of the right of way is to be ascertained not merely by reading the words of the grant (which do not define its quality with precision) but also by reference to the circumstances and the condition of the property at the time of the grant. She says further that when you do so it is demonstrated that only a footway was intended, or at least that only such user as permitted entry or exit through a 4 ft. 6 ins. gap was intended. It is accepted on her behalf that, taken by itself, the grant would have to be construed as a right of way for all purposes, including vehicles, without limitation on their width.

Now what were the circumstances and the condition of the property at the time of the grant? The inward end of the brown strip abutted on the boundary wall of the plaintiff's property, No. 1 – presumably a wall belonging to No. 1 – in which was a doorway about 3 feet wide, Down one side of the brown strip was the wall referred to in the transfer. Down the other side was a hedge, which at the inward end left a gap of some 7 feet or so, which afforded access between the brown strip and No. 2. At the highway frontage of the brown strip was a wall between the ends of the hedge and the other wall, continuous except for a gap of about 4 ft. 6 ins. between two 14-inch-square brick pillars suitable for a gateway; and from this gateway to the inward end of the brown strip was a gravelled strip appreciably wider than the gateway, with some kind of edging of tiles, and on each side beyond that edging were garden beds and bushes, though apparently not much kept up. In appearance it looked like a footpath rather than a roadway. During the tenancy of the plaintiff's parents (which had lasted since 1903) there did not appear to have been any vehicular use of the brown strip by them.

Now bearing all those matters in mind, do they lead to the conclusion that the grant was of a footway only, or alternatively, If of a vehicular way, then one limited in the dimensions of thevehicle in the manner I have indicated? for myself, I think got. It is argued that that view which I have just expressed means that the plaintiff's parents could, had they been so minded, immediately after the transfer have insisted on the 4 ft 6 ins. gap being widened, pulling down a...