McIlraith v Grady
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WINN,MR JUSTICE BAKER |
| Judgment Date | 05 July 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0705-1 |
| Date | 05 July 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0705-1
The Master of the Rolls (Lord Denning)
Lord Justice Winn and
Mr Justice Baker
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From His Honour Judge Carey-Evans Norwich County Court
MR MICHAEL HOWARD (instructed by Messrs Jaques & Co., Agents for Messrs Hill & Perks, Norwich) appeared as Counsel for the Appellant.
MR P. GARLAID (instructed by Messrs Chittock Francis & Rack, Norwich) appeared as Counsel for the Respondent.
A dispute has arisen in the small village of Horsham St. Faith, which is a few miles from Norwich. It concerns a right of way between two houses. Many years ago the two houses were owned by a brewery company. One of them was a public house called "Cross Keys". The other was a grocer's shop. In between them there was a passageway leading to the back. The tenure was copyhold tenure. In 1901 there was a surrender enrolled in the rolls of the manor whereby the grocer's shop was sold to a Mr Chapman. The brewery company granted to Mr Chapman a right of way over the passageway leading to the bask. The grant was in these words: "The said Company hereby grant and convey unto the said David Thomas Chapman his heirs and assigns a right with or without horses carts and carriages to pass and repass through over and along the yard forming part of the Cross Keys Estate leading from the main road from Norwich to Aylsham to the back of the premises so surrendered as aforesaid end also the right of taking water from the pump or well standing in the yard of the said Cross Keys public house".
The grocer used the right of way for years. His successors used it too. One of them became the sub-postmaster and carried on the village post office in the shop. The post office vans used to go along the passageway and load and unload mail. The sub-postmaster in 1953 put up a little wall at the back of his premises. Thereafter the post office vans did not go right around to the back of the shop. They stopped in the yard for the ten minutes or so to load and unload. A few years ago Mr Moilraith acquired the grocer's shop and post office. The vans used the way and stopped in the yard as before. No-one objected to their doing so.
At some time or other the "Cross Keys" public house gave up its 1icense and became a private dwelling-house. It was bought in 1966 by Mr Grady. He took objection to the vehicles going into the yard. He said he bad young children there andhe objected to the vehicles going there and leaving the gates open. He did not like the noise of the post office van coming in at 5 o' clock in the morning. So he obstructed the way. He tied up the gates and did all sorts of things to hinder their passage. Whereupon Mr Moilraith brought proceedings against Mr Grady in the County Court for an injunction to restrain him from obstructing the right of way.
At the hearing Mr Grady appeared in person and put his case as best he could. The Judge decided against him. He held that Mr Grady bad obstructed the right of way. He granted an injunction against him for the future and he awarded £50 damages against him for the past.
Despite the Judge's order, the passage continued to be Obstructed. On one occasion a van was left there over the weekend: on another occasion a bicycle was left in the way: a dustbin was put there; and the gates were often jammed. So Mr Moilraith moved the County Court Judge to commit Mr Grady for contempt of court.
On the committal proceedings Mr Grady employed a solicitor. Mr Grady went into the witness box and said to the Judges "It was not me who left the van: it was my son. I did not leave the cycle there, it was the children who left it. I did not cause the obstructions". He did not do himself much good when he said to the Judge: "I don't care a lot about court orders". In the result the Judge held that he was guilty of a contempt and committed him to Norwich prison for seven days. Whereupon Mr Grady appealed. We suspended the committal order pending the appeal. He has appealed on both matters, the original action in which the injunction was granted against him and the committal order. I will deal with each in turn.
The first appeal is on the right of way. Mr Howard before us has taken a point, which Mr Grady did not himself take in the County Court. It may not strictly be open to him, but as Mr, Grady was in person, we have thought it right to considerit. Mr Howard said: The deed of grant of the right of way only gives a right "to pass and re-pass through over and along". It does not give any right to stop or halt on the right of way. He submitted that where there is only a right to pass and re-pass, there is no right to halt except in case of necessity, such as, for instance, if a car broke down or a horse went lame. He suggested that Bulstrode v. Lambert. 1953, 1 Weekly law Reports, page 1064, supported that proposition. I do not think it does. Every grant must be construed in the light of the circumstances. In that case it was held that there was a right to bring goods to the auction mart and by implication a right to halt to load and unload. So here. There was a narrow passageway leading into a small yard. There was necessarily imported, in addition to an actual right to pass and repass, also a right to stop for a reasonable time for the purpose of loading and unloading. I should have thought it obvious in 1901 that carts could...
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