Odey v Barber
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Silber |
| Judgment Date | 29 November 2006 |
| Neutral Citation | [2006] EWHC 3109 (Ch) |
| Docket Number | Case No: 4BS50591 |
| Court | Chancery Division |
| Date | 29 November 2006 |
[2006] EWHC 3109 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Winchester Combined Court Centre
The Law Courts
Winchester
S023 9LS
The Honourable Mr Justice Silber
Case No: 4BS50591
Marie-Claire Bleasdale (instructed by Wilsons of Salisbury, Wiltshire) for the claimants
Leslie Blohm QC (instructed by Jordans of Cheltenham) for the defendant
Hearing dates: 10–12 and 17 October 2006.
APPROVED JUDGMENT
I. Introduction
Mr. Robin Odey (“the first claimant”) and Nicola Odey (“the second claimant”) together with Trustcorp Limited (“the third claimants”) seek a declaration as owners of Eastbach Court at English Bicknor in Gloucestershire that they have the benefit of a right of way for all purposes with or without vehicles and with or without animals over a track (“the Track”), which borders their land and which belongs to their neighbour Mrs Susan Barber (“the defendant”). They also seek injunctive and other relief while the defendant counterclaims for relief on the basis that the claimants have no rights over the Track
The Track is by the rear entrance of Eastbach Court and the claims to the right of way are different in respect of the left side of the Track as seen from the rear entrance of Eastbach Court from those concerning the right side from that rear entrance. The left-hand part of the track runs down from the rear entrance of Eastbach Court to a road while the right-hand part of the Track goes up from the rear entrance of Eastbach Court to Scramble Field, which belongs to the claimants. So the track runs continuously from the road alongside the rear entrance of Eastbach Court to Scramble Field. The submissions and the issues in respect of the right and of the left-hand sides of the Track are very different and I will have to consider them separately. Miss Marie-Claire Bleasdale, counsel for the claimants, contends that the right of way arises on the left-hand side of the track as there has been continuous user of the left part of it for a continuous period of twenty years by owners of Eastbach Court so that the owners of Eastbach Court acquired a right of way over that part by prescription under the doctrine of modern lost grant. Her submission in respect of the right part of this Track is that there has been an implied grant of a right of way to the claimants' predecessors and so on to them as owners of Eastbach Court.
Mr. Leslie Blohm QC, counsel for the defendant disputes that the claimant or any of them have ever had any right of way over the left part of the Track. He submits that the owners of Eastbach Court have never had a prescriptive or any right of way over the left-hand side of the track as such use as they had was with the consent of the person then owning Eastbach Court, namely Mr. Hubert Knight. Mr. Blohm further contends that any right of way of the claimants or their predecessors over the right part of the Track has been abandoned but that assertion is disputed by the claimants. If it is found that the claimants are entitled to a right of way over any part of the Track, there is then a further dispute to be resolved about the extent, purpose and nature of such a right. Additionally, if it is held that the claimants have a right of way over the right-hand part of the Track, there is then a dispute to be resolved as to whether the appropriate remedy for the claimants should be injunctive relief or damages.
II. The Land
The claimants own Eastbach Court and also the land surrounding it including a field to the north of it, which is known as Scramble Field and which, as its name suggests, has been used for motor-cycle scrambling. This field starts by the end of the right-hand side of the Track. Most of this land is owned by the first and second claimants jointly and part of the land at Eastbach Court is owned by the third defendants as trustees for an Odey family trust but no point is taken by the defendant concerning the right of any of the claimants to make the present claim. The Track is a footpath and so like everybody else the first and second claimants can use it on foot. The present claim relates to other rights as I will shortly explain.
The defendant owns a house adjoining Eastbach Court to the north and which is now known as Whitehall Cottage but which was previously known as Eastbach Lodge. The Track, which belongs to the defendant, is a public footpath running by the side of Eastbach Court and of Whitehall Cottage. As I will explain, if the claimants wish to use the rear entrance of Eastbach Court, they have to use the track with the left-hand part of it leading to the road and with the right-hand part going up the hill to Scramble Field and then to a field beyond it called Flying Field, which was used as its name suggests by aviators.
In order to make my explanation of the nature of the dispute more comprehensible, I append to this judgment two plans which counsel agree show the area with which this trial is concerned The position of the defendant's house and Eastbach Court are shown shaded respectively and marked 1 and 2 on the plan attached to this judgment, which is marked Plan 1 and which has a legend attached to it. It will be seen that the Track lies on the defendant's land by its boundary with the claimants' land and it extends from point B to point C. Counsel have agreed that the Track is about 100 yards in length but nothing turns on its precise length. The defendant has placed a fuel tank, a stone wall and a pedestrian gate at the end of the right-hand part of the Track furthest away from the road at point C and this separates the Track from Scramble Field. The Track continues beyond this gate but then the Track is then on Scramble Field, which is the claimants' land.
It will be seen from plan 1 that there is Gate A in the boundary wall of Eastbach Court which leads on to the middle part of the Track and that is the rear gate or entrance of Eastbach Court. The main entrance of Eastbach Court is at the front of it furthest away from the Track. The left part of the Track leads downhill to the road and it is common ground that there was a gate marked B close to where the Track meets the road. The right part of the Track ascends towards the fuel tank and the pedestrian gate at gate C, which has been placed by the defendant at the end of the Track furthest away from the road and which, as I have explained, separates the Track from the Scramble Field. So before impediments were placed on the Track by the defendant, the Track provided vehicular access from Eastbach Court at Gate A first by its left side down to the road at gate B and second by its right side up to Gate C to Scramble Field and to the land beyond it.
Before moving on to describe the path of the Track within Eastbach Court, it is necessary to explain that the after the defendant blocked vehicular access to the right side of the Track, the claimants' predecessors as owners of Eastbach Court, the Symonds brothers and various motor-cycle scramblers constructed with others a new track (“the new Track”) and this leads from the road to Scramble Field and it is marked [] on the plan. The new Track goes behind Whitehall Cottage on the claimants' land and significantly it does not border Eastbach Court. So the new Track is of use to those going from the road to Scramble Field but unlike the Track, it does not provide direct access from the rear entrance or any part of Eastbach Court either to the road or to the Scramble Field.
I must now explain the vehicular arrangements within Eastbach Court when it was used as a working farm, which is what it was until 1989 which was the period during which it was contended that there had been continuous use of the Track for vehicles and for animals. Plan B shows that within Eastbach Court, there was a Track which ran from its main entrance around but just within its perimeter. This Track came out by Gate A just by the Track and can also be seen in Plan A marked []. When I consider the evidence, I will explain the various farming activities within Eastbach Court which showed the use which the claimants contend was made of the Track. At the start of the hearing, I together with counsel visited the area with which this case is concerned and we also heard the evidence of a very elderly witness at Eastbach Court.
III. The history of the ownership of Eastbach Court and Whitehall Cottage.
Until 1962, Eastbach Court and the surrounding land including the Track, Whitehall Cottage, Scramble Field and the Flying Field were owned by Mr H.A. I. Machen or by his personal representatives. This property was then sold in two separate lots after Mr. Machen's death in 1958. From 7 May 1962 until 3 May 1963 Eastbach Court was owned by James Smith (Bicknor) Ltd, which was the company run by Mr. Clifford Jones, who was the father-in-law of Mrs. Shirley Jones, who gave evidence in this case. This property was then conveyed to Mr. Peter Pope Davies on 3 May 1963 and he remained its owner until 3 February 1964 when he sold it to Mr. John Symonds and his brother Mr. David Symonds who is always known as “Sam” and that is how I shall refer to him. The Symonds brothers farmed together as partners and they both gave evidence in support of the claimants' case.
In 1989, Mr. David Rowe-Beddoe (who did not give evidence or make a witness statement) became the owner of Eastbach Court which he subsequently sold to the first and second claimants on 29 November 1996. The third claimants are trustees of an Odey family trust known as “The Felix Trust” and they have been the legal owners of a part of Eastbach Court since 15 April 2003.
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