Shannon Ltd, The v Venner Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS |
| Judgment Date | 17 December 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J1217-1 |
| Court | Court of Appeal |
| Date | 17 December 1964 |
[1964] EWCA Civ J1217-1
Lord Justice Willmer
Lord Justice Danckwerts and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
MR JOHN ARNOLD, Q. C. and MR J. MAURICE PRICE (instructed by Messrs Slaughter & May) appeared as Counsel on behalf of the Appellants (Plaintiffs).
MR HAROLD LIGHTMAN, Q. C, and MR MICHAEL BOWLES (instructed by Messrs Bulcraig & Davis) appeared as Counsel on behalf of the Respondents (Defendants).
LORD JUSTICE WILLMER: I have asked Lord Justice Danckwerts to read the Judgment of the Court.
This is an appeal from the Judgment of Mr. Justice Pennycuick dated the 30th April, 1964.
In the action a right of way is claimed by the Plaintiff Company, The Shannon Limited, over certain laid now belonging to the Defendants. There is no doubt that there is a right of way created by a grant in a deed, but the issue in the action is as to the dominant tenement, that is to say, to what part of thePlaintiff Company's land is the right of way attached.
The grant of the right of way is contained in a Conveyance dated the 6th February, 1930, and the issue depends, of course, on the true construction of that deed, which is open to certain conveyancing criticisms, without which the need for this action would not have arisen.
But, in order to appreciate the situation, it is necessary to refer-to a number of other conveyances. At the beginning of the history all She land which la material to the case belonged to William Fur mage Palmer. The documents in the case have been exceptionally well reproduced for the purpose of the hearings, and there is a very clear plan attached to the Writ shewing the different pieces of land in distinctive colours. The only trouble is that, in accordance with usual conveyancing practice, the pieces of land dealt with by each conveyance naturally tend to be coloured pink on the plan attached to the relevant conveyance. All the land with which the case is concerned is situate at New Maiden in the County of Surrey.
The story starts with a Conveyance dated the 8th June, 1927, by Palmer and his mortgagees to the Plaintiff Company of the land which, on the Writ plan, is coloured green. It is coloured pink, except for a mysterious blue strip, on the Conveyance plan.
The land is adjacent on the east to the Kingston By-Pass Road, and on the south side, to a road called Burlington Road, A short distance away on the west is the Beverley Brook. The land formed part of the Blagdon Estate, and a short distance to the north there was a farm called Blagdon Farm. I should mention (as the Plaintiff Company's Counsel referred to this) that the mortgagees gave in the deed an acknowledgment of the purchasers' right to documents and the vendor gave an undertaking as to these, if they came into his possession, but the materiality of these Provisions for the present question is not apparent.
On this piece of land the Plaintiff Company "built a factory, which was so constructed that it could be extended as block without difficulty.
On the 6th February, 1930, there was a Conveyance by palmer and him mortgagees to the Plaintiff Company of a further piece of land which lay to the north of the Plaintiff Company's land (the land shewn coloured green on the Writ plan), which last mentioned land on the plan attached to this conveyance was marked Shannon's Factory". The land conveyed was described in the parcels as "All that freehold piece or parcel of land forming part of the Blagdon Estate situate in the parish of Merton in the company of Surrey containing by admeasurements about four acres one rood eighteen perches and four square yards" and to the of land recently sold by the Vender to the Company and "bounded on the North partly by the Beverley Brook and partly by land sold by the Vendor to the Trustees of Westminster United and which parcel of land is more particularly delineated on the plan annexed hereto and there on coloured pink".
The land thus coveyed is reproduced on the plan, for reasons. voice appear later, by the colours purple, pink and (including the portions which are hatched in black).
Immediately following on the above-mentioned parcels is a grant of the right of way which is in dispute, expressed as follows: "Together with a right of way for all purposes for the Company and their successor:: in title their tenants and servants and all persons authorised by the. Company in common with the Vendor and all others authorised by him over and along the private estate drive of the Vendor as coloured yellow on the said plan", subject to the-Company making a contribution to the upkeep of the estate drive.
This estate drive is coloured brown on the Writ plan happens to be also a public bridle way or footway, but this does not appear to be of any importance. The deed then proceedsto grant a further unimportant right of way to the Plaintiff company, and then assigns to the Plaintiff Company the "benefit of a covenant for indemnity contained in a Deed of 1925 "so far as it enures for the "benefit of the said premises hereby conyeyed" Then comes the habendum to the Company in fee simple. There follows a covenant and undertaking as to the documents of title.
This is, of course, the document which the Court has to construe. But it is impossible to understand the manner in which the case has arisen without stating the documents which are later in date.
The next document is a Conveyance dated the 12th May, 1930, and made between Palmer, Some trustees, and some mortgagees, the Plaintiff Company and the Defendant Company, by which the Defendant Company first came into the picture as owners of property adjacent. to that of the Plaintiff Company. By this Conveyance, the Defendant Company acquired land, which is, of course, coloured pink on the conveyance plan (but yellow on the Writ plan) and also (Clause 2): "All that the private estate drive of Mr. Palmer as coloured brown on the said plan subject to the public bridle way or footpath affecting the same", and to a right of way granted in 1925, "and to the right of way granted to The Shannon Limited by a Conveyance dated the 6th day of February, 1930".
Clause 3 contains a provision that "in consideration of the grant next hereinafter contained the Purchasers" that is, the Defendant Company "as Beneficial Owners and to the intent that such right hereby granted shall become annexed to the said land coloured green hereby grant and release (so far as regards the said laud coloured pink and brown) unto The Shannon Limited in fee simple All that the full right to build to any height upon the land coloured green notwithstanding that such buildings "way obstruct any light or air to the land coloured pink andbrown or to any parts thereof respectively to the intent that The Shannon limited and their successors in title owner or owners for the time being of the said land coloured green or any part or parts thereof may from time to time erect "buildings on the said land coloured green or any part thereof in such positions and to such height as they may desire", and so on, There are then further provisions giving the unrestricted right to "build to the purchasers on the land so acquired "by them and giving The Shannon Limited right to use the land coloured green for all purposes which are not obnoxious or objectionable to the purchasers. The land coloured green on the plan attached to this conveyance comprised the whole of the Plaintiffs' land, including both that, acquired in 1927 and that acquired under the Sonveyance of the 6th February, 1930.
By a Conveyance dated the 22nd July, 1930, the Plaintiff Company conveyed to the Defendant Company a piece of land coloured pink and brown hatched black (which on the writ plan is coloured purple and purple hatched black) "Reserving nevertheless cut of the said premises unto the Vendors" that is, the Plaintiff Company "in fee simple a right of way for all purposes and at all times for the Vendors and their successors in title their tenants and servants and all others authorised by them over and along the said roadway...
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Jackson way Properties Ltd v Smith and Others
...With regard to the admissibility of extrinsic evidence, reliance had been placed by the Smiths on The Shannon Limited v Venner Limited [1965] 2 WLR 718. The decision of the English Court of Appeal provides a useful analysis as to the correct approach to the construction of a deed of convey......
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