Michael David Hillman and Another v Anthony Marlin Rogers and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date19 Dec 1997
Judgment citation (vLex)[1997] EWCA Civ J1219-10
Docket NumberCCRTF 96/1526/C

[1997] EWCA Civ J1219-10





Royal Courts of Justice

Strand, London WC2


Lady Justice Butler-Sloss

Lord Justice Ward

Lord Justice Robert Walker

CCRTF 96/1526/C

(1) Michael David Hillman
(2) Louise Christine Hillman
(1) Anthony Marlin Rogers
(2) Michael Desmond Rogers

MR B SEFI & (MISS C MILSOM—19 December 1997) (Instructed by Aplin Stockton Fairfax, Banbury, OX16 9RU) appeared on behalf of the Appellants

MR GEORGE LAURENCE QC & ANN MCALLISTER & (MISS C MAUGER—19 December 1997) (Instructed by Henmans, Oxford, OX1 1HA) appeared on behalf of the Respondents


This is an appeal with the leave of a single Lord Justice against an order of Judge Irvine made in the Oxford County Court on 7 June 1996. The hearing had taken place over six days at the end of January and the beginning of February 1996. The Judge prepared a draft judgment in manuscript which was sent to the parties. It would have decided the principal issues in favour of the defendants. Counsel for the plaintiffs then drew the Judge's attention to what was then a recently-reported decision of this court, Wheeler v Saunders 1995 2 AER 697. The Judge heard further submissions on that case, and on another point raised by the plaintiff's counsel, on 2 April 1996. Judgment was finally given on 30 May. It was in favour of the plaintiffs on the principal issues. That is the background to the defendants' appeal to this court.


The principal issues in this case were about rights of way over a track capable of giving access to what has been called the red land (purchased by the defendants in 1988) and the green land (purchased by the defendants in 1990). It is therefore necessary to describe the relevant geography in some detail. It is a little complicated, although not quite as complicated as the variety of plans with the papers might suggest.


The land in question lies south of the village of Todmarton in North Oxfordshire. Todmarton is on the B 4035 which runs more or less east-west from Shipston-on-Stour (to the west) to Banbury (to the east). About 2 kilometres to the south is a minor road running south-west from Banbury to the small village of Wiggington. I will call this the Wiggington road. The land in question can best be visualised (though with a certain amount of simplification and stylisation) as two long thin rectangles, parallel to each other and running south from Todmarton: and below them a further area in a shape something like a horse's hoof, its north edge bordering the south edges of both rectangles and its south- east side bordering the Wiggington road.


The western rectangle (which I will, for reasons that will appear, call the Cave land) was originally in single ownership but it came to be divided up, in three unequal portions, into what were referred to at the trial as (from north to south) the red land, the blue land and the green land. The eastern rectangle and the hoof-shaped area south of it make up the original part of Ushercombe Farm. It has been referred to as the brown land and that is how I will refer to it.


There is a track, originally an unmetalled farm track, which is of central importance to this case. It starts at the north, on the B 4035, and runs south down the boundary between the Cave land and the part of the brown land which is to the east of the Cave land. Then about 800m south of Todmarton it turns sharply to the west, away from the boundary with the brown land, until it gets to the western boundary of the Cave land. Then it swings round again towards the south, following the western boundary of the Cave land. In doing so it goes along the northern and western boundaries of the part of the Cave land which has come to be called the blue land. It then peters out in the field within the part of the Cave land called the green land. A small stream runs east-west through the blue land and the adjacent part of the brown land but it plays no significant part in the sequence of events.


I must also identify some buildings whose positions are material to the understanding of how matters developed. The old farmhouse of Ushercombe Farm was sited well away from both roads but fairly near to where the brown land bordered the green land. It had access to the highway (both to the north and to the south) by tracks that have nothing to do with the disputed track. In the 1960's the defendants' father, Mr Frederick Rogers, moved from the old farmhouse to a new farmhouse at the south of the farm, on the Wiggington Road. The new farmhouse had adjacent barns and a milking parlour.


There are three more buildings to be identified. On the part of the Cave land called the blue land was a fine stone-built barn called Ushercombe Barn which has now been converted into a dwelling-house. It is where the plaintiffs live. Then there is a small group of farm buildings on the east side of the red land, adjacent to the track running south from Todmarton and about 500m south of Todmarton. It consists of what was a cattle shed (later used for storage) with a small walled yard and an adjacent but free-standing barn which appears in the exhibited photographs to be made of corrugated asbestos. The Judge called these "the B-C barns" but I will call the group of buildings the cattle-yard buildings and the free-standing barn the white barn. Finally there is on the red land, further north but also adjacent to the track, another barn made of black-painted corrugated iron. I will call this the black barn.


The track running south from Todmarton is, as I have said, of central importance in this case. For ease of identification I will treat it as consisting of four stretches —

(i) the first stretch (of about 500m) from Todmarton as far as the cattleyard buildings;

(ii) the second stretch (perhaps 250m) south from the cattleyard buildings to where the track turns to the west (the Judge referred to this as point D);

(iii) the third stretch (perhaps 150m) west from point D to what the Judge called point E (this stretch marks the southern boundary of the red land and the northern boundary of the blue land); and

(iv) the fourth stretch (perhaps 200m) along the western boundary of the blue land, ending soon after it gets to the green land.


These distances are not accurate but they will assist anyone without a plan to visualise the general layout. I now turn to the history of the matter, although I fear that there are still some more detailed matters of geography to come. I can begin with the position in 1987. The two critical points of time are when the defendants purchased the red land in December 1988 and when they purchased the green land in August 1990. That is when easements came into existence, if they ever did.


In 1987 Mr John Cave owned what I have called the Cave land, together with other land north of the B 4035 which is not relevant. The Cave land has since been sold off in three lots -the red land, the blue land and the green land—and that is (at least in some sense) the cause of all the trouble. While it was all in Mr Cave's ownership the red land consisted of four meadows, the northernmost of which had (at any rate by the time it was sold) an access to the B 4035 at the north-west corner (point Q) well away from the disputed track. That track was then an unmetalled but obvious track which (as to the first and second stretches) ran straight down (but inside) the red land's boundary with the brown land. There was no wall, hedge or fence between the track and Mr Cave's meadows (except for a short piece of wall and two small adjacent wings of post and rail at the cattleyard buildings). On the boundary of the brown land, on the other hand, there was a more or less continuous barrier of hedge and (in any gaps) post and rail fence, and in places a low bank. The photographs seem to show a gappy hedge on the south side of what I have called the third stretch but nothing turns on that. The blue land consisted of a rough meadow and some lightly wooded land surrounding Ushercombe Barn. The green land consisted of another three meadows, with land forming part of the brown land to the east and south.


At that time the freehold of the brown land belonged to Mr Frederick Rogers alone. He had bought it in 1947. But the farm was let by him, under a written tenancy agreement, to a partnership consisting of himself, his wife, and his two sons Mr Anthony Rogers and Mr Michael Rogers (the defendants). That was the position until Mr Frederick Rogers died in 1992. The Rogers brothers now own the farm consequent on an assent made on 21 January 1994, but the tenancy of the three surviving partners continues.


In 1987 Mr Cave was thinking about reducing his farming activities. He was thinking of selling his land south of the B 4035 (the Cave land) but in the meantime he let the grass keep of that land—that is, he granted licences (not protected under the Agricultural Holdings Act 1986) allowing neighbours to graze their stock and make hay. The Judge found that in the autumn of 1987 Mr Cave let the grass keep of most of the blue and green land to the Rogers family partnership, and in 1988 the partnership had the grass keep of all the blue and the green land. The Judge specifically found that in both 1987 and 1988 the defendants (as partners) used the whole length of the track to get to that land.


The Judge also found that the red land had been used under licences granted by Mr Cave. He found that in the spring and summer of 1988 a Mr Tompkins had grazed the northernmost part of the red land...

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