Nickerson v Barraclough

JurisdictionEngland & Wales
JudgeLORD JUSTICE BUCKLEY,LORD JUSTICE BRIGHTMAN,LORD JUSTICE EVELEIGH
Judgment Date15 December 1980
Judgment citation (vLex)[1980] EWCA Civ J1215-4
Docket Number1975 N No. 2617
CourtCourt of Appeal (Civil Division)
Date15 December 1980
Between:
Erna Nickerson
Plaintiff (Respondent)
and
(1) Terence Alfred Joseph Barraclough
(2) John Letten Mountain and
(3) John Thomas Roberts
Defendants (Appellants)

[1980] EWCA Civ J1215-4

Before:

Lord Justice Buckley

Lord Justice Eveleigh

and

Lord Justice Brightman

1975 N No. 2617

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

On Appeal from the High Court of Justice

Chancery Division

(The Vice-Chancellor, Sir Robert Megarry)

MR. PETER MTLLETT Q. C. and MR. F. M. FERRIS Q. C. (instructed by Messrs. Sharpe, Pritchard & Co., Solicitors, London WC2, agents for Messrs. Bates & Mountain, Solicitors, Grimsby) appeared on behalf of the Defendants (Appellants).

MR. P. V. BAKER Q. C. and MR. SPENCER G. MAURICE (instructed by Messrs. Lee, Bolt on & Lee, Solicitors, London SW1P 3JT, agents for Messrs. Roythorne & Co., Solicitors, Spalding) appeared on behalf of the Plaintiff (Respondent).

LORD JUSTICE BUCKLEY
1

I have asked Lord Justice Bright man to deliver the first judgment in this appeal.

LORD JUSTICE BRIGHTMAN
2

This is an appeal by the first defendant from a decision of the Vice-Chancellor relating to a claim by the plaintiff to a right of way over the defendant's land. The plaintiff is the owner of a field at New Waltham in Lincolnshire. According to the pleadings the field is at present used by the plaintiff as a paddock. A ditch runs along the east side of the field; the ditch is spanned by a bridge at the north- east corner of the field. The bridge was constructed in or before the year 1908. It was first made of old railway sleepers and was 8 ft. wide. It was replaced by a more substantial structure in the early 1970's. The bridge gives on to a road known as Scouts Lane, which runs parallel to the ditch and to the side of the field. Scouts Lane belongs to the defendants. The lane goes northwards and joins the public highway, Humberston Avenue, at a distance of about 150 yards from the corner of the field; Humberston Avenue runs east and west. The learned Vice-Chancellor held that there was, appurtenant to the field, a right of way for all purposes over the bridge and along Scouts Lane.

3

I shall call the field "the pink land". The defendants do not, so far as this appeal is concerned, seek to challenge the existence of a right of way. They seek to limit it in two respects, by confining the width of any bridge to 8 ft. and by restricting user to a means of access to the pink land "for ordinary agricultural purposes and as a sports ground for the playing of amateur sports and games". The limitation sought to be imposed would, for example, preclude the use of Scouts Lane for the transport of building materials to the pink land or theuse of Scouts Lane as an accommodation road to the pink land once it was built on.

4

None of the Conveyancing documents contains any express grant of a right of way over Scouts Lane for the benefit of the pink land. The right of way, whatever may be its extent, must depend upon implication or prescription in some form.

5

The pink land and Scouts Lane originally formed part of the Carrington Settled Estates. At the beginning of this century an area to the north and south of Humberston Avenue began to be laid out in building plots. We are concerned only with the plots which lie to the south of Humberston Avenue. The western boundary of this part of the area was delineated as a proposed 36 ft. road running north and south, which later became Enfield Avenue. The plots numbered 7 to 28 fronted on Humberston Avenue, extending eastwards from the future Enfield Avenue. Immediately to the south of plots 7 to 28, in line with such plots so that they were back to back, were plots 45 to 66. Immediately to the south of plots 45 to 66 and forming the southern boundary thereof, there was delineated another 36 ft. road, which I shall call "the proposed East-West road". Fronting on the southern verge of the proposed road and lying immediately beneath plots 45, 46 and 47, plots 77 and 78 were later laid out. Plot 77, which tapered to the southward, was directly in line with plots 45 and 46. Plot 78 was in line with plot 47. Between plots 14 and 52 on one side and plots 15 and 55 on the other side, there was delineated a third proposed 36 ft. road, which I shall call "the original proposed N-S road". This intersected the proposed E-W road. Between plot 78 and the proposed N-S road, in line with plots 48, 49, 50 and 51, was a field out of which the pink land wasultimately carved. There appears from the plan of the whole of the building estate to have been a total of seven proposed roads intersecting the estate.

6

I turn now to the Conveyancing document the first of which was a conveyance of 20th September 1900. The owner of the Carrington Estates sold and conveyed to Mr. George Alward, plots 7 and 8, which lay in the corner between Humberston Avenue and the future Enfield Avenue, plots 45 and 46, which were to the south of, and in line with, plots 7 and 8, and plot 77, on the other side of the proposed E-W road, which was in the corner between that road and the future Enfield Avenue and in line with plots 45 and 46. This conveyance contained a grant of a right of way for all purposes "over and along the proposed streets or roads adjoining the premises thereby conveyed shown on the said plan". That is taken from an abstract which is marked as having been examined with the original in 1936. "The said plan" appears to have meant the plan to the particulars of sale which covered the whole area, and not the smaller plan which was drawn on the conveyance. In the result I apprehend that Mr. Alward clearly acquired a right of way for all purposes over the future Enfield Avenue and the proposed E-W road, or at any rate the adjoining parts thereof, in connection with his enjoyment of the five plots conveyed to him. I think it is arguable that the right of way extended to the original proposed N-S road, since the expression "all the proposed streets or roads" might be thought to apply to more proposed roads than two, in which case the word "adjoining" would have been used in the broader sense of proximity. I mention this point only to dismiss it, because it need not be pursued. The site of the future Scouts Lane, which is the roadwe are concerned with, did not at the end of the day coincide with the site of the original proposed N-S road; that is a point which will become clearer a little later.

7

The next Conveyancing document is dated 18th April 1901 By that conveyance Mr. Alward acquired from the Carrington Estates plots 47 and 78, which were alongside plots 46 and 77, which he had previously acquired. This conveyance contained an identical grant of a right of way for all purposes over all the adjoining streets or roads, save that the examined abstract records the addition of the words "when and so soon as the same shall have been made". On the face of the conveyance that formulation purported to leave Mr, Alward as the owner of plots 47 and 78, without any means of access thereto, for an undefined period. Admittedly he could pass on to such plots from plots 46 and 77 respectively, but he could not properly use plots 46 and 47 as a means of access to Humberston Avenue via the ease-ment granted by the 1900 conveyance in the absence of an express or implied grant to that effect, because ho conveyance expressly made plots 47 and 78 dominant tenements quoad such easement: see Harris v. Flower, 74 Law Journal (Chancery), 127. Some implication needs to be made in the 1900 conveyance as a matter of business necessity in order to give a sensible meaning to the conveyance. Exactly what that implication should be does not arise for decision in this case. In fact, the grant by the 1901 conveyance of a contingent future easement of way was probably void for perpetuity, but that problem does not have any added significance.

8

Next comes the most important conveyance, which is dated 8th December 1906. Before I turn to its contents, it will beconvenient to refer to the plan attached to it. This indicates the happening of two intermediate events: first, it seems that Mr. Alward had acquired plot No. 9, fronting on to Humberston Avenue; secondly it indicates that the original proposed N-S road had been moved one plot westwards so as to run between plots 13 and 51 on one side and plots 14 and 52 on the other side. The proposed N-S road in its new location came to be known as Scouts Lane, and it will be convenient to refer to it by that name hereafter. Scouts Lane did not become a properly made up road until 1963 In its early days it was a mere track; in the 1930's it was roughly surfaced with clinker.

9

By the 1906 conveyance Mr. Alward acquired the land lying between plot 78 to the west and Scouts Lane to the east, known as plot 78A. The proposed E-W road formed the northern boundary of the land and was not included in it. The southern boundary of the land was in line with the southern boundaries of plots 7 and 78. There was also conveyed to Mr. Alward a strip of land 4 ft. wide, going from the south- east corner of plot 78A to the south-west corner of that plot and then along the southern boundaries' of plots 77 and 78, until it joined the future Enfield Avenue. The conveyance did not expressly grant any rights of way for the benefit of plot 78A. The narrow strip 4 ft. wide plays no part in this case and can be ignored; it did not form a practical access to plot 78A

10

I said that the conveyance did not grant any express rights of way. In fact it did the reverse, because stipulation 7 in the first schedule to the conveyance (according to the oratio oblique of the examined abstract) said, "The vendor did not undertake to make any of the proposed new roads shown on the said plan, nordid he give any rights of way over the same until the same should, if ever, be made". "The said plan" here is the plan to the conveyance. That is the...

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