Snell & Prideaux Ltd (Plaintiff v Dutton Mirrors Ltd (Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 22 April 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0422-3 |
| Docket Number | 93/0167/B |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 1994 |
[1994] EWCA Civ J0422-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(His Honour Judge Micklem)
Before: Lord Justice Stuart-Smith Lord Justice Hoffmann and Lord Justice Saville
93/0167/B
MR. J. WEST (instructed by Messrs Shakespears, Birmingham) appeared on behalf of the Appellant/Plaintiff.
MR. A. MANN Q.C. and MR. D. STOCKILL (instructed by Messrs Stanley Coleman & Hill, Birmingham) appeared on behalf of the Respondent/Defendant.
LORDJUSTICE STUART-SMITH: This is an appeal from a judgment of His Honour Judge Micklem sitting as a Deputy High Court Judge and given at Birmingham on 8th December 1992, whereby he held that the plaintiffs had established a right of way over land owned by the defendants but only to the extent that the plaintiffs could go on foot and with trolleys and barrows, not with vehicles, horses or carts, which was the full extent of the easement which the plaintiffs claimed. The judge held that, notwithstanding the fact that the defendants had constructed a building which occupied a part of the passageway in question, the plaintiffs had sustained no substantial damages. He awarded the plaintiffs £2 nominal damages and ordered the plaintiffs to pay the defendants' costs of the action. The plaintiffs now appeal against that judgment.
The plaintiffs are the freehold owners of Nos 6 to 9 Ernest Street, Birmingham, and they are industrial premises. The defendants are the freehold owners of the land to the north of the plaintiffs' premises, also fronting on to Ernest Street. The defendants' premises abut the plaintiffs' premises. The plaintiffs claim a right of way over the strip of land 12 feet wide adjoining their premises on the defendants' land. It is a claim of a right to use that strip of land.
In September 1989, the defendants, having recently bought the premises, began building operations on the land which resulted in a building completed in June 1991. That building restricts the access of the plaintiffs to a width of 4'6" at the front of the Ernest Street end and 3'9" at the rear end of the right of way. The plaintiffs' title to the right derives from a conveyance in 1888 to the plaintiffs' predecessors in title. That conveyance was by a William Martin to Mr. Croft:
"All that piece of land being part of the windmill Hill Estate and situate in and fronting to Ernest St. in Bham afsd and bounded at the back by Florence St. and on one side thereof by a road or passage 12ft wide …. Together with full liberty for the said E.C. Croft and his hrs and assns at all times thereafter with or without horses carts and other vehicles servants workmen and others to use the sd streets called Ernest St. and Florence St.and the sd intended party road 12ft wide thrnbfe desck and to put and maintain grates into the sd party road for the purpose of lighting the cellars of the houses or other bldgs to be created on the sd land the sd E.C. Croft his hrs and assns contributing from time to time with the lessees owners or occupiers of the adjoining land his and their proportionate share of the expense of maintaining the same road in good repair and condon AND ALSO ALL THOSE two manufacturers offices and prems fronting Ernest St. afsd ….."
Florence Street, which is there referred to, is at the rear of the premises. At the time of the grant, there was in fact no complete way through from Ernest Street along the passage to Florence Street because the level changed at about half way at the end of the plaintiffs' factory. According to the 1888 ordnance survey map, it appears that No. 6 was then used as a bonnet factory. There was an access to the bonnet factory under a covered way into an internal yard of the factory. There was also access via the passage to a public house and other houses on the land to the north.
By 1902 the southern end of the passage, that is to say that part leading to Florence Street, had become blocked up. There was a building built across the whole of the passageway at that end. Also a building had been erected at first floor level over the Ernest Street entrance to the passageway. It was the width of the passage and extended some 6 metres back from the frontage on Ernest Street. There was a staircase up to that building and a lavatory underneath the staircase, but that did not impede the entrance way to the passage from Ernest Street.
By 1908 a building had been erected at the western end of the passageway and occupied part of the passageway. It was common ground that the plaintiffs' predecessors had abandoned any part of the way occupied by the building at the Florence Street end and also by the 1908 building. The judge held that the easement contained in the grant of 1888 over the passageway continued, save and insofar as it had been abandoned by the plaintiffs or their predecessors. He concluded that the plaintiffs had abandoned the right to use the passage for vehicles other than trolleys and barrows. They had retained the right to go on foot and use trolleys and barrows. It is against that finding that the appellants appeal.
I must therefore turn to the subsequent history after 1908. At some stage, which is not known, Nos 6 and 9 came into common occupation. That occurred, it appears, before the war. During the war No. 6 was badly bombed. In 1944 Mr. Stephens took a weekly tenancy of the 1908 building, the passageway and the room over the passage, fronting on to Ernest Street. By 1950 the plaintiffs, who by this time owned the dominant tenement, had re-built their factory. The effect of the re-building was that there was a loading bay and a garage fronting on to Ernest Street. The vehicular access to and from the passageway, which appears in the 1888 ordnance survey plan, had been bricked up, and a sliding door, some 7' high and 4'6" wide, had been constructed into the passageway, that being constructed as a part of the 1950 reconstruction. It is not clear at what stage the original vehicular access to the passageway had been blocked up. It was the defendants' case at the trial that it had been blocked up before 1950 and perhaps as early as 1908. The judge held that the evidence about that was inconclusive. In any event, he was satisfied that, even if that opening had been blocked up, there must have been some other door on to the passageway which had been made at the time of the blocking up. In my judgment, there is no reason to differ from the judge's finding on that point.
In the late 1960s or early 1970s Mr. Stephens built a brick pier roughly in the middle of the passageway to support the beam which itself supported the overhead room. With that pier in position, vehicles could no longer go down the passageway beyond the point of the pier, unless it was removed. In February 1973 the plaintiffs had a valuation of their premises by surveyors. The valuation refers to the benefit of the right of way. In August 1974 Mr. Gould, who had been the agents for Mr. Stephens' lessors, made a statutory declaration, in the course of which he refers to the "right of access over the right of way by all persons entitled to use the same". On 5th December 1974 the owners of the servient tenement conveyed the property to Mr. Stephens, he having previously been, as I have indicated, a weekly tenant. In March and April 1976 Mr. Stephens erected some fencing on the servient tenement. It extended from the 1908 building towards Ernest Street at a slight angle away from the plaintiffs' property, and then turned at an angle, going straight across the passageway. The result was that about half of the passage at that point was blocked off. He did not take the fencing straight across the passageway, thereby blocking the entrance to the plaintiffs' side door. He also erected some gates at the Ernest Street entrance to the passage. After a year or so at least, Mr. Bowker, who was married to the manager of the plaintiffs' factory at the time, had the keys to those gates. By this date, if not earlier, Mr. Stephens had installed machinery in the form of two lathes under the overhead workshop, and it is plain that the area of the passage was substantially cluttered up with materials, such that it was difficult to pick one's way to the plaintiffs' side entrance by the sliding door. Mr. Stephens had earlier, in about 1960, erected two brick piers adjacent to the plaintiffs' wall but they caused no real obstruction.
The plaintiffs called a witness, Police Constable Taylor, whose father had worked at the plaintiffs' premises until his death in January 1961. Mr. Taylor's evidence was that he used to visit his father at the factory, usually on a Saturday. The plaintiffs' vehicles had been driven up the passageway to a point adjacent to the side door where there was a tap and the vehicles had been washed in that position. He also said that on about 20 occasions loading and unloading of those vehicles had taken place via the side door.
After 1975, it was Mr. Bowker's evidence that the passageway was seldom used by the plaintiffs, that the sliding door was used as a fire door, that it was open in summer and that the passage was used for occasional visits by the Trent Water Authority who apparently used it for one of two purposes, either to suck out a sump which appears to have been in the factory itself or else to take samples of the plaintiffs' effluent from manholes in the passage.
In March 1977 there was a further valuation report on behalf of the plaintiffs, which again refers to the right of way. Neither this valuation nor the earlier ones...
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