Mulvaney v Jackson and Others

JurisdictionEngland & Wales
JudgeLord Justice Latham,Lord Justice Mance,Lord Justice Simon Brown
Judgment Date24 July 2002
Neutral Citation[2002] EWCA Civ 1078
Date24 July 2002
CourtCourt of Appeal (Civil Division)
Docket NumberCase no: B2/2001/1962

[2002] EWCA Civ 1078

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRESTON COUNTY COURT

(District Judge Ashton)

Royal Courts of Justice

Strand,

London WC2A 2LL

Before

Lord Justice Simon Brown

Vice President of the Court of Appeal, Civil Division

Lord Justice Mance

Lord Justice Latham

Case no: B2/2001/1962

Between
Elizabeth Carole Rachel Mulvaney (Nee Scott)
Claimant/Respondent
and
(1) Colin Gough
(2) Bryan Holmes
(3) Thomas Holmes
(4) Emily Jackson
Defendants/Appellants

(As handed down by the Court)

Lord Justice Latham
1

This appeal is concerned with an easement to which the respondent claims that she is entitled over land adjacent to her cottage, 7, East View, Galgate, Lancashire. Her cottage is one of a group of cottages which forms a block shaped like a reversed "L", with the west aspect of the "L" facing Chapel Street, and the southern side being bordered by a lane running east to west at right angles from Chapel Street. The respondent's property is the eastern most cottage. It lies on the junction between the lane and a strip of land running along the east side of her property of at least carriageway width which emerges onto open land on the north. Behind the cottages, within the confines of the inverted "L", and emerging onto that strip of land is an area which forms the back yard of the cottages. The dispute is over the extent of the respondent's rights to use the back yard and the strip of land which are owned by the appellants. I shall refer to the back yard and the strip of land together as the "blue land".

2

The cottages and the blue land were at one time owned by the appellants' predecessor in title, Joseph Holmes, who died on the 5 th December 1950. The cottages were gradually sold off. When the respondent's cottage was sold in 1970, the conveyance included:

"…. a right of way at all time and for all purposes in common with the vendors and all persons having the like right over and above the open yard adjoining the said premises and coloured blue on the said plan ("the blue land")."

3

The respondent, however, claims that the right appurtenant to her cottage is more extensive by reason of the use of the blue land that has been made over the years. She had tended a garden on the strip of land consisting of a grassed area and a flower bed abutting the wall along the east side of the strip. On the 11 th April 1996, she returned to her cottage to find that a JCB had been used to remove the flower bed and part of the grassed surface of that area. The appellants were clearly seeking to exercise what they believed were their rights over that strip of land in order to create vehicular access to land both to the north and to the east. They were intending to gravel its surface, and had deposited gravel for that purpose. From the relevant dimensions set out on a plan with which we have been provided they clearly considered that they would be unable to obtain sufficient width for vehicular access unless the flower bed was removed, particularly as the respondent's back door opens outwards onto the strip of land.

4

The respondent commenced proceedings claiming a declaration that she was entitled to "freehold rights" over the blue land "for the purposes of cultivating, mowing and otherwise enjoying the same and hanging washing" being a right acquired by use and passing as part of the title under s. 62 of the Law of Property Act 1925. The appellants contended that the right claimed could not exist as an easement as it was so extensive that it amounted to nothing less than the right to shared possession of the blue land, so that, accordingly, the respondent was only entitled to the express grant of the right of way recorded in the conveyance to which I have referred. This argument was later modified to assert that the right claimed effectively excluded the appellants from any use of the land, and was for that reason incapable of amounting to an easement.

5

The action was heard as a fast track case by District Judge Ashton in the first instance. He heard the evidence and concluded that the use claimed was a long established use and was capable of amounting to an easement. On the 9 th November 2000, he granted a declaration that the respondent was entitled to reinstate and maintain the flower bed in question. The appellants appealed. The appeal was heard by HHJ Kershaw as a review of the District Judge's decision; and he dismissed the appeal on the 16 th July 2001. He held that the facts found by the District Judge were sufficient to found an easement known to law. The question before us is whether he was right.

6

The relevant findings of fact were set out in the judgment of District Judge Ashton; it is necessary to set these out in some detail. He said:

"This case concerns the environment of a cottage known as 7, East View, Galgate, Lancashire, owned and occupied by the claimant. It is one of a group of cottages situated in East View and Chapel Street with an enclosed back yard. Most if not all of these cottages have been provided with modern amenities but they were originally served by water closets in the yard and such buildings still exist although now used for other purposes if at all. The cottages were acquired by Joseph Holmes in 1932 and occupied by tenants, but following his death in 1950 the trustees of the estate have progressively sold them and some have changed hands several times since. Although rights were not always expressed in the same way, the policy of the trustees was (when possible) to sell just the cottages with rights over the yard and to retain ownership of the water closets. Thus when No. 7 East View (the claimant's cottage) was sold off to Mrs Plahatu in 1970 the conveyance merely included

"a right of way at all times for all purposes in common with the vendors or persons having the like right over and upon the open yard adjoining the said premises coloured blue on the said plans".

Yet in 1959 when No 1 East View was sold the conveyance had included, in addition to express water supply and coal bunker rights:

"… A right of way and of use for drying purposes, over and in the said yard …. upon payment of a proportionate part of the expense of repairing and maintaining the same."

And there was the standard agreement and declaration that all easements and quasi easements should remain as they existed under one ownership. In 1974 when No 9 Chapel Street was sold such provisions were reduced to:

"The joint use of the yard or ground to the rear of the said property coloured blue on the said plan."

One may wonder whether any distinction was intended, but in practice none was adopted by the residents and development of the yard by the owners would be effectively prevented by the terms of the conveyance of 1950 (of which there were several). The many witness statements from existing and former residents testify not only to a "communal" yard on "the blue land" but also to happy relationships between all residents. I am satisfied that over the decades, and certainly predating these sales, the entirety of the yard was used by the residents as amenity and garden land on a shared basis. That would have been the intention when the cottages were built in the 19 th Century and the way it was occupied when in common ownership. Nothing appears to have been done when the cottages were sold off to prevent this long established regime from continuing and no distinction appears to have been made as regards any part of the land invariably shown coloured blue on these deeds.

The evidence shows certain "ground rules" or understandings grew out of the need to avoid anarchy and this included provision of washing lines, space for dustbins and allocation of small flower beds so that the yard would resemble a domestic garden and be more attractive as an amenity enjoyed by all. To the extent the late Joseph Holmes and subsequently the trustees continued to own some of these properties they must have known and indeed acquiesced in what was going on and benefited from the higher prices that would be obtained when they came to sell individual properties. Whilst the yard regime was not spelt out in conveyances it was recounted to prospective purchases and I am satisfied that there was no systematic attempt by either the Holmes family to inform initial and successive owners that all this was done with their permission which could be revoked at any time on a whim. Purchases were inclined to take the situation on trust and not to insist that it was spelt out in the deeds.

In so far as pieces of land were allocated for cultivation adjacent to each cottage this was part of the overall scheme. Acceptance by all would be essential because these small flower beds inevitably obstructed the mutual rights of way over the yard. Whilst each registered resident could say: "That is my garden", this would not be a claim to legal ownership but allocation as part of the overall scheme of the communal garden. During some period one occupier may have less time or be uninterested in the chore of garden maintenance and I have no doubt that an informal arrangement would be made with someone else for the upkeep of the allocated land. But generally each flower bed was regarded as being attributed to a particular cottage. The unallocated part of the yard was grassed over and there is evidence that people took it in turns to cut this and keep it tidy. There is an abundance of evidence, collected by the claimant in the form of both statements and photographs, of the enjoyment of the communal yard – now a garden – by the residents over many years. There is also evidence of steps being taken by certain residents to...

To continue reading

Request your trial
4 cases
  • Polo Woods Foundation v Shelton-Agar and Another
    • United Kingdom
    • Chancery Division
    • 17 June 2009
    ...overall, may establish a different right or no right at all. In this context, see paragraph 23 of the judgment of Latham LJ in Jackson v Mulvaney [2003] 1 WLR 360. 26 Great care must, I consider, therefore be taken in assessing the extent of any right established where the claim to it is ba......
  • Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 4 April 2017
    ...out, if this is legally possible, and a dislike of seeing them defeated by the technicalities of suggested rules of law" (see also Jackson v. Mulvaney [2003] 1 W.L.R. 360 per Latham LJ at page 368G-H). 39 Thirdly, it is common ground that there can in theory be a grant of an easement which ......
  • Douglas Craig Schmuck v Opua Coastal Preservation Incorporated
    • New Zealand
    • Supreme Court
    • 29 October 2019
    ...enter into a contract] and, if at all possible, to uphold the contract despite any omissions or ambiguities”. 35 Jackson v Mulvaney [2002] EWCA Civ 1078, [2003] 1 WLR 360 at 36 CA judgment, above n 1, at [81]. 37 At [82]. 38 At the hearing, Mr Every-Palmer suggested photographs of the scr......
  • Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another
    • United Kingdom
    • Chancery Division
    • 7 December 2015
    ...is hardly consistent with ouster or shared possession. In this connection, I should mention that Mr Randall QC referred me to Jackson and others v Mulvaney [2003] 1 WLR 360 as an example of a case where (in that case) prescriptive rights to a communal garden arose but this did not prevent t......
3 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books The Law of Property
    • 5 August 2021
    ...Mountford v Scott, [1975] Ch 258 ...................................................................... 224 Mulvaney v Jackson, [2002] EWCA Civ 1078, [2003] 4 All ER 83 ............ 141, 142 Myers v Johnston, [1923] 4 DLR 1152, 52 OLR 658 (CA) ................................. 142 Nachtigal......
  • Other Interests in Land
    • Canada
    • Irwin Books The Law of Property
    • 5 August 2021
    ...42. See also Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd , [1915] AC 599 at 617 (PC); Mulvaney v Jackson , [2002] EWCA Civ 1078, [2003] 4 All ER 83 at para 20; Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd , [2017] EWCA Civ 238, [2017] Ch 516 at para 51, ......
  • Easements
    • United Kingdom
    • Wildy Simmonds & Hill Restrictions on the Use of Land Part I. Easements and profits à prendre
    • 30 August 2016
    ...19 Megarry & Wade at 30-010–30-019. 20 Coventry v Lawrence [2014] UKSC 13. 21 Re Ellenborough Park [1956] Ch 131; Jackson v Mulvaney [2002] EWCA Civ 1078, [2003] 1 WLR 360, where the court declared that the claimant was entitled to an easement to use land as a communal garden for recreation......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT