Re Dances way, West Town, Hayling Island
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE UPJOHN,LORD JUSTICE DIPLOCK |
| Judgment Date | 01 February 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0201-1 |
| Court | Court of Appeal |
| Date | 01 February 1962 |
[1962] EWCA Civ J0201-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Russell
The Master of The Rolls
(Lord Evershed)
Lord Justice Upjohn and
Lord Justice Diplock
Mr R. W. Goff, Q. C. and Mr A. C. Sparrow (instructed by Messrs Woodham Smith, Borradailc & Martin) appeared as Counsel for the Appellant.
Mr G. H. Newsom, Q. C. and Mr G. Brian Parker (instructed by Messrs George & George) appeared as Counsel for the Respondent.
I begin my Judgment by expressing some regret, since, for reasons which I stated during the argument, I am afraid that the expenses which have been incurred by the two litigants in this case May not have advanced either of them a yard upon the journey towards the ultimate conclusion of their dispute.
The case has raised a question of difficulty in connection with the Land Registration Act of 1925 and the jurisdiction under the Act and the Land Registration Rules of the same year of the Land Registrar. On the 20th June, 1939) there was a conveyance by Mr Gilbert, the respondent in this Court, to Mr Mousley, the appellant before us, of certain property in Hayling Island. The property is described in the conveyance as being a "piece of land at West Town South Hayling in Hayling Island aforesaid formerly part of an arable close formerly known as 'Dance's Field' and having frontage to West Lane Hayling Inland …more particularly delineated in the plan drawn hereon and thereon coloured pink and brown". The plan I turn to at once. It shows the area in the position stated, fronting, at the north eastern part of it, on West Lane, and there is drawn on the pink land a strip going west and east across the north part and then descending from that strip a long tail, if I may use that phrase, which, bending at one point to the west, then projects beyond the southern limit of the property conveyed and coloured pink and adjoins Station Road. During the last part of its journey, that is to say after it has left the confines of the pink land, the strip is on each aide shown as bounded by a continuous line, whereas for the rest of its existence, save only for part of the southern boundary up in-the north, it is bounded only by dotted lines. The plan has upon its face no indication of the proprietorship of any surrounding land, but, as will be apprehended from the parcels as I have read them, the land indicated by the colours pink and brown were conveyed by this document to Mr Mousley. The conveyance, however, then proceeded with thefollowing somewhat remarkable language: "Excepting and reserving full right of way for all persons entitled to the same their heirs and assigns lessees and tenants families friends visitors and servants and all other persona having occasion to use the sane with or without horses carriages carts and other vehicles and with or without horses cattle sheep or goods and at all times through and over the piece of land shown on the said plan by the colour brown which said pieces of land are of a uniform width of feet" Then by the second clause of the conveyance the purchaser, to the intent that the covenant should be binding so far as may be on the owner for the time being of the property conveyed, but upon the purchaser only so long as he was the owner, covenanted with the vendor for the benefit and protection of the adjoining property of the vendor that the purchaser would observe certain covenants which are set out and which limit the kind of buildings which might be erected on the land, so as to prevent noxious or offensive businesses, caravans, public houses, and the like.
That document, as I have said, is dated 1939, and during the course of Mr Goff's opening of the case we were referred to a number of other extracts from the title. The earliest document to which we were so referred was a plan or copy plan which bad been attached to a conveyance of 1873, and I just note (but for my part I think no conclusion can be drawn from it, especially as we have not seen the deed of 1873) that on this 3elf same piece of land there was shown, in substantially the same position, the area delineated brown and in the shape roughly of a "T" with a very long and twisted tail which is delineated on the plan to the conveyance of 1939. In 1938 the land so shown was marked as land reserved for a road. When the matter came before the Chief Land Registrar at the Land Registry, as I shall later explain, it appeared that the root of title for the purposes of the case could be taken and should be taken as having been a conveyanceof 1911; and it is the fact that those "T" shaped pieces of land were also shown upon the plan attached to the conveyance of 1911. It is to be noted, however, that when the vendor, Mr Gilbert, bought the land in 1935 he obtained conveyance with paroles illustrated on a plan which was free from any such "T" shaped pieces, and the only limitation to what, on the fact of it, would be a perfectly clear title was a short formula expressed as "subject to all public or other rights of way thereover", not indicating any place or parts of the area to which that statement might refer.
Mr Mousloy, having thus acquired the property which I have described, proceeded, as we understand, to execute certain developments upon it, in the course of which he sold off part of the land coloured pink on the 1939 conveyance and in fact also sold in 1940 either the whole or the greater part of the southern end tailpiece of the letter "T", the piece coloured brown. In 1959 he made application for registration of his title of the property that remained. I assume – though we have not gone in detail into the matter – that he then for registration to the Land Registry the conveyance dated in June 1939. The Land Registry thereupon upon the property register inserted a statement of the property thus described: "The freehold land shown and edged with rod on the plan of the above title filed at the Registry registered on 12th October 1959 being in", and thon it names the area of Hayling Island. If you look at the plan and compare it with the plan on the conveyance of 1939, it is apparent what has, so to speak, been shorn off the original subject matter bought in 1939, but there remains still marked on the plan the pieces in the "T" shape which I have described, save that the tail has become very much shortened. The entry in the Land Registry proceeded as follows: "Note: The conveyance dated 20th Juno 1939 referred to in Entry Number 1 of the Charges Register contains the following exceptions and reservations and this registration takes effect subject thereto". There is thenset out verbatim the provision from the 1939 conveyance beginning "Excepting and reserving", which I have already road. The entry in the Land Registry concludes: "Romark: The land colored brown on the plan referred to is tinted brown on the filed plan". It is not necessary for mo to make any further reference to the registered title except to say that it shows in the proprietor-ship register Mr Mousley's name as being the freehold owner of the title absolute. The next thing that happened which it is relevant to discuss is that in the year 1960 its Mousley applied to the Land Registry, under the powers to which 1 shall presently more particularly allude, for a direction by the Registrar that the note of the so-called exception and reservation should be deleted from the register.
It is at this stage, I think, necessary that I should make reference to certain of the sections of the Act and to certain of the rules. Section 70 (and I will pass at once to that section) is a section which declares that "all registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to" what are called "overriding interests", and it is not in doubt that "overriding interests" include a right of way. Sub-section (2) of the same section is as follows: Where at the time of first registration any easement", and then other items arc named, "created by an instrument and appearing on the title adversely affects the land, the registrar shall enter a note thereof on the register". There is a third sub-section which, so far as relevant, Is as follows: "Where the existence of any overriding interest mentioned in this section", (and that would, as I have already said, include an easement) "is proved to the satisfaction of though registrar or admitted, he may enter notice of the same on the register, but no claim to an casement not created by an Instrument shall be noted against the title if the proprietor of such land shows sufficient cause to the contrary". Section 82 provides for rectification of the register. Sub-suction (1):
"The register may be rectified pursuant to an order of the Court or by the Registrar, subject to an appeal to the Court, in any of the following cases", and the paragraph lettered "h" is: "In any other case where, by reason of any error or omission in the register, or by reason of any entry made under a mistake, it ray be doomed just to rectify the register".
I turn to the Land Registration Rules, which have the effect of the Act of Parliament itself. Rule 197 is devoted to what is called in the heading " Miscellaneous entries". I do not propose to take up time by reading it, but it has seemed to no (and I do not think: it is now in issue) that if a note is to be entered on the register pursuant to Section 70(3), thon it would, or would normally at any rate, be as a result of an invocation of the procedure under Rule 197. From what I have said, it will perhaps be appreciated that in my view (and again I think I not saying anything which is really in issue) the entry made in the...
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