6.1 An express grant or reservation of a right of way is construed by reference to the terms of the grant in the light of the surrounding circumstances at the time of the grant. In Canon v Villars,1it was said that a very material circumstance ‘is the nature of the locus in quo over which the right of way is granted’. The position is the same in the case of an implied grant or way of necessity where one looks at the extent of the actual or contemplated use at the time of the grant or to the necessity of the claimed right at the time the right arose.2Where the right is prescriptive, one looks at the scope of the historic user on which the right is based, from which it follows that prescriptive use of a way for agricultural purposes will not entitle the dominant owner to use the way for other purposes, although it will still be permissible to increase the volume of such use unless it is associated with a radical change in the identity or nature of the dominant land.3
6.2 For instance, a right to use a narrow passageway implies a right on foot only. Even the grant of a general right of way will have limits where the width of the way and its physical character suggest that the permitted user may be limited to the width of the way or the nature of the property with which the right was granted.4In Todrick v Western National Omnibus Company Ltd 5 (which was reversed on appeal on other grounds6), the court ruled that in judging whether there is excessive user (which constitutes an actionable trespass and may be restrained by injunction) regard must be had to ‘the circumstances of the case, the situation of the land and the situation of the parties at the time of the grant’. This case involved the passage along a country lane of a 3 ton bus where the road at its entrance was only 7 feet 9 inches wide and the width of the bus was 7 feet 6 inches, leaving only one and a half inches clearance on each side. The road itself
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was bounded by a retaining wall of only limited strength and, in light of these circumstances, Farwell J ruled that at the time of the grant the use of the lane by a large bus could not have been contemplated by the parties and constituted excessive user.
6.3 White v Richards7concerned the grant of a right to pass ‘on foot and with or without motor vehicles’ over a dirt track just under 9 feet wide. The servient owners’ home was only around 9 feet away from the track and they complained about the dominant owner’s use of the way with mostly heavy lorries of 38 tons laden weight on average 14–16 times per day, some at excessive speeds with, as a result, the track itself and its surroundings being torn apart. The Court of Appeal upheld the decision of the trial judge that the defendant’s use of the track was excessive and to grant an injunction preventing the use of the way by any vehicle with an overall width in excess of 9 feet or exceeding 10 tons laden weight, and that the use of the right of way should not be such as to unreasonably interfere with the rights of any other person to use it. The case applied Todrick v Western National Omnibus Co Ltd 8 in its analysis of the approach to the construction of a grant which depended on the intention of the parties, which had to be ascertained from the words of the grant read in the light of the surrounding circumstances, which included the physical characteristics of the way which could operate to diminish the unrestricted words of a grant. The authorities show that an unlawful use of such a right may consist either in its use by unauthorised vehicles (of which Todrick is an example) or in an excessive use of it by authorised vehicles (White v Richards involved unlawful use in both respects). Another example of use of the second kind is Jelbert v Davis,9which involved the grant of a right of way in general terms. The Court of Appeal ruled that although the grant was general, the dominant land could not be used for purposes outside the reasonable contemplation of the parties at the time of the grant. In this case, the court disallowed the new use of a track over agricultural land as an access to land for which planning permission had been obtained for use as a site for a maximum of 200 caravans or tents.
6.4 Because the right of way has to be appurtenant to the dominant land, it cannot be used as a means of access to neighbouring land of the dominant owner. In Harris v Flower,10Romer LJ said that ‘If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B’.
6.5 On the other hand, if the dominant owner had been using the right of way as a means of access to other land at the time of the grant then there may be scope for an implied grant of access to that other land. Although the rule in Harris v
7(1993) 68 P & CR 105. The case raised a subsidiary issue involving the extent of the right of passage with animals. The Court of Appeal ruled that the grant included a right of way with horse-drawn carriages and carts but although the dominant owner had a right to ride or lead horses he was unable to drive cattle along the track.
8[1934] Ch 190.
9[1968] 1 WLR 589.
10(1904) 74 LJ Ch 127 at 132.
Flower prevents a right of way to a piece of land from being used for access to land beyond it, the rule does not apply where the piece of land conveyed constituted an actual or intended means of access to the land beyond, whether the conveyance took effect by virtue of express words or of section 62 of the Law of Property Act 1925.11
ANCILLARY RIGHTS AND REPAIRS
6.6 A right of way may either be limited in some way (i.e. as to time or mode of user) or general (i.e. where it may be used at all times, with or without vehicles). Such a right will be accompanied by ancillary rights which are necessary for the enjoyment of the right for the purposes for which it was granted (e.g. to repair or to improve the way)12and, if necessary, the dominant owner may enter the servient land in order to carry out repairs.13Where a right of way exists, neither the dominant nor servient owner is required to maintain or repair it, although either owner has the right to do so.14Nor is there any right to deviate from a right of way in the event that it has become impassable15except where it has been obstructed by the servient owner.16It may be that the servient owner has reserved a right to alter the route of the right of way, in which case its route may be diverted in circumstances when it might otherwise be an actionable interference although, in such cases, the existence of an equally convenient right of way may well affect the remedy available to the holder of the obstructed right.17
11Nickerson v Barraclough [1980] Ch 325 at 336. Megarry V-C took the view that it was a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access in a case such as this where a way could be implied from the common intention of the parties based on a necessity apparent from the deeds. On appeal at [1981] Ch 426, the court ruled that the doctrine of the way of necessity was based on implication from circumstances, not public policy, which could play no part in the construction of a document. In the result, the court ruled that an implied grant arose entitling the claimant to the user appertaining at the time of the original acquisition of the adjoining land.
12Newcomen v Coulson (1877) 5 Ch D 133 at 143–144; Jones v Pritchard [1908] 1 Ch 630 at 638;
Mills v Silver [1991] Fam 271 at 286H–287A.
13Jones v Pritchard [1908] 1 Ch 630 at 638.
14Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61 at [80], [2004] 2 AC 1 at [80].
15Bullard v Harrison (1815) 4 M & S 387.
16Selby v Nettlefold (1873) 9 Ch App 111. In this case, the court ruled that a right existed entitling the dominant owner (without committing a trespass) to deviate over the grantor’s land where the servient owner had obstructed a towpath by the erection of a bridge.
17Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749, where a road over which the defendants enjoyed a right of way was to be realigned in order to make safe a dangerous road junction. The court considered that the public benefit arising from the road works and the need to avoid damaging uncertainty entitled the claimant to a declaration that none of the defendants would be entitled to an injunction should the road scheme be implemented. See also Heslop v Bishton [2009] EWHC 607 (Ch), where the court ruled that although the servient owner could not unilaterally alter the route of a right of way (subject to exceptions, applying Greenwich) the availability of a new route was relevant to remedy (i.e. where the court may decline to grant an injunction although there was no reason why it should
32 Restrictions on the Use of Land
6.7 Use of the right of way may also be conditional upon payment for expenditure on maintenance and repair, and its enjoyment may even be suspended until such time as...
