Ralph Anthony Jameson (Plaintiffs) Appellants) Guy Crossley Meates v (1) James Manley Respondents) (2) Doris Manley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE PURCHAS |
| Judgment Date | 04 September 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0904-1 |
| Date | 04 September 1986 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0779 |
[1986] EWCA Civ J0904-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE CHOPE)
Royal Courts of Justice.
Lord Justice May
and
Lord Justice Purchas
86/0779
Plaint No. 8300288
MR. ANDREW SIMMONDS (instructed by Messrs. Bower Cotton & Bower, London agents for Messrs. Becke Phipps of Northampton) appeared on behalf of the Appellants.
THE RESPONDENTS appeared in person.
On the 7th and 8th October, 1985 His Honour Judge Chope had before him in the Plymouth County Court substantial litigation in relation to various premises on the Thorn Estate in Wembury, Devon. The parties before him were the present appellants as plaintiffs, who sued as the executors of a Mrs. Meates on the one hand, and the defendants (the respondents before us), Mr. and Mrs. Manley, who occupied and continue to occupy premises known as "The Gardens" in that area. By a reserved judgment on the 11th October, the learned judge made various declarations and orders in relation to the matters in issue between the parties on the pleadings in the litigation. It is, I think, pertinent to comment that the defendants appeared in person, as they have appeared in person before this court. That is their right and that was their right in the court below. It has not, however, led to that degree of certainty which is desirable in what are in effect boundary disputes between them and the personal representatives of their erstwhile neighbour.
It is, I think, unnecessary to go into detail about the majority of the issues which came before the learned judge and which he decided. However, one issue in particular is part of the subject matter of the instant appeal.
The background facts—merely to set the picture—are these. The deceased Mrs. Meates, until her death in December 1981, occupied premises known as Rose Cottage, Thorn, Wembury. In 1965 she acquired adjoining property known as "The Gardens", Thorn, and then conveyed that property, not very long thereafter, by a conveyance of the 18th November, 1965 to a Mr. and Mrs. Baskerville. In so far as is material for present purposes, there was reserved out of that conveyance of "The Garden" to the Baskervilles a right of way for the vendor Mrs. Meates and her successors in title "the owner or owners for the time being of 'Rose Cottage' aforesaid or any part thereof and the adjoining property to the north and north west and the enclosure situate to the east of the property hereby conveyed to pass and re-pass at all times and for all purposes with or without vehicles over and along the way shown coloured brown across the property hereby conveyed but so that the said way shall not be used for driving cattle or other livestock thereover".
The present plaintiff-appellants are the successors in title as the personal representatives of Mrs. Meates, deceased. The present defendant-respondents are the successors in title of the Baskervilles by purchase. It is unfortunate that in the conveyancing over the years wholly inadequate plans, if any, were employed or attached to or referred to in any of the conveyancing documents. Indeed, in one instance at least, although the conveyance referred to a plan for the purposes of identification, nobody has been able to find the appropriate plan and certainly it is not attached to the original conveyance. This all added to the confusion that there was as to the precise relationship of the two parcels of land particularly concerned in this litigation.
It is to that right of way, coloured brown, to which I have just referred, that one of the issues before the learned judge related. The plaintiffs before him were contending for the existence of that right of way and also that it had been obstructed by a caravan, the property of the defendants, which they had placed in a position which was in effect on the direct line of the right of way for which the plaintiffs contended.
The learned judge, having heard all the evidence and been shown all the relevant deeds, found that the right of way as contended for existed and that the plaintiffs, as the persons then entitled to the property known as Rose Cottage, were entitled to exercise those rights, to which I have referred, over that right of way, and also found as a fact that the caravan, which I have mentioned, placed there by the defendants, blocked that right of way. The passage from the note of his judgment put before us referred to the allegation of obstruction, mentioned one of the witnesses who said that the caravan was certainly on the direct line of the right of way, and continued:
"But it doesn't block access entirely. I am satisfied that there is a blockage, despite the removal of the rose bed."
The rose bed played a part in the history of this matter, but need not be further referred to for the purposes of the present appeal. Then the learned judge continued:
"But so long as the Defendants undertake to make a proper width available round the caravan with a hardcore base I will not grant an injunction."
The learned judge, with all respect, made no enquiry, we understand, of the representative for the plaintiffs whether an undertaking in lieu of an injunction would be acceptable. The defendants for their part were prepared to give that undertaking and, indeed, since the hearing before the learned judge they have laid hardcore and made a way round the caravan so that people and vehicles can pass from the start of the right of way to the end of it, albeit in the middle they have to deviate on this new hardcore round the caravan.
Thus for present purposes, as between the plaintiffs themselves and the defendants themselves, the situation is to a large extent satisfactorily arranged. But it leaves the plaintiffs (the appellants) as the executors and trustees of Mrs. Meates' estate in some difficulty. One only has to ask more or less rhetorically, "What would the position be if they conveyed Rose Cottage with the benefit of the right of way to purchasers?", and we understand that at any rate negotiations for such a sale are at an advanced stage; or alternatively, "What would the position be vis-a-vis the occupiers of Rose Cottage if in due course the Manleys decided to sell 'The Gardens'?" In either of those two instances, what would be the standing, if any, of the undertaking which the Maneys in this situation gave to the court?
For my part, I think one need say no more than this. It is at least very doubtful whether that undertaking could be enforced against the Manleys' successors in title. Equally, the successors in title of the Manleys could not rely on that undertaking as against the owners of Rose Cottage.
Speaking for myself, I have considerable sympathy both with the learned judge below on this point and also with the Manleys. He was seeking to achieve a result which would enable the right of way to be used without any necessity of removing the caravan, but in doing so, as it seems to me, he imposed in effect a compromise on the plaintiffs about which they had not been asked and to which they objected.
A similar situation arose in a case to which our attention was drawn, that of Charrington v. Simons & Co. Ltd. [1971] 1 W.L.R. 598. It is unnecessary to go into the facts of that case in any detail. It was again a case concerning the right of way along a track. The learned trial judge, having found the legal rights between the respective parties, nevertheless expressed himself ready to suspend the operation of the injunction, which as a matter of law it might have been said should have followed, provided that the defendants carried out certain ameliorative works in very much the same way as the laying of the hardcore round the caravan in the instant case, which could be said to be ameliorative works in relation to the right of way in the conveyance of the 18th November 1965 with which we are concerned.
When the matter came before the Court of Appeal on the appeal of the plaintiff, the court took the view that the approach adopted by the learned judge, with the same intent as that adopted by the learned judge in the instant case, namely to achieve what was thought to be a fair result in all the circumstances, was wrong in law. The Court of Appeal allowed the appeal and deleted from the order of the learned judge at trial so much of that order as suspended the operation of the relevant injunction. In the course of giving the reserved judgment of the court, Lord Justice Russell said this at page 602:
"In our judgment the judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff's land which must lead to greatly increased harm to his business, as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution. If the judge, in his judgment, had said to the plaintiff that he would not grant the injunction unless the plaintiff consented to submit to these works, and the plaintiff refused so to give consent, it would not in our judgment have been a proper ground on which to withhold the injunction to which the plaintiff was otherwise entitled. The course taken by the judge was, it seems to us, no different in substance.
We accordingly allow the appeal on this point, with the result, we think, that so much of the order as suspends the operation of the injunction and is...
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