Swan v Sinclair
| Jurisdiction | England & Wales |
| Judge | Viscount Cave,Viscount Finlay,Lord Shaw of Dunfermline,Lord Wrenbury |
| Judgment Date | 21 November 1924 |
| Judgment citation (vLex) | [1924] UKHL J1121-2 |
| Date | 21 November 1924 |
| Court | House of Lords |
[1924] UKHL J1121-2
Viscount Cave.
Viscount Finlay.
Lord Shaw.
Lord Wrenbury.
Lord Carson.
House of Lords
After hearing Counsel, as well on Monday the 27th, as Tuesday the 28th, and Thursday the 30th, days of October last, upon the Petition and Appeal of George Swan of No. 150, Stroud Green Road, Finsbury Park, in the County of Middlesex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 20th of December, 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Elizabeth Ann Sinclair, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the Dissolution of Parliament, by virtue of a Writing by His Majesty the King under His Sign Manual, dated the 9th day of October 1924, pursuant to the provisions of the Appellate Jurisdiction Act, 1876, That the said Order of His Majesty's Court of Appeal, of the 20th day of December 1923, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This is an appeal by the plaintiff in the action from an order of the Court of Appeal confirming a judgment of Mr. Justice Lawrence in favour of the defendant, and raises questions relating to an alleged right of way.
In the year 1870 two persons named Dyson and Parker were the owners of a block of land on the east side of Essex Road, Islington, and having a return frontage to Church Road; and on this block of land there stood twelve houses known as numbers 316 to 338 (even numbers, inclusive) Essex Road. Each of these houses faced towards Essex Road and had a garden running back to a wall which formed the eastern boundary of the property and divided by cross walls from the gardens on each side.
On the 27th October, 1870, the owners put the property up for sale by auction in 11 lots; Lot 1 (which was the southernmost lot and included the return frontage on Church Road) consisting of Nos. 316 and 318, Essex Road, Lot 2 consisting of No. 320, Lot 3 of No. 322, and so on up to Lot 11, which consisted of the northern-most house known as No. 338, Essex Road. No copy of the conditions of sale is available, but from the recital contained in the conveyances of Lots 1, 2 and 3 (to be hereafter referred to) it appears that one of the conditions provided for setting aside along the eastern boundary of the land a strip 15 feet wide running north and south, which was to give the occupier of each lot a back way for carriages from and into Church Road; and it is with reference to the right of the owner of Lots 2 and 3 to use this back way over the rear of Lot 1 that the present dispute arises.
Lot 2 at the sale (No. 320, Essex Road) was sold to one James Frederick Corben, and the conveyance to him, dated the 2nd February 1871, contained the following recital, which it is desirable to set out in full:—
"And whereas the said William Dyson and James Parker in exercise of the said power of sale contained in the hereinbefore recited Will and with the assent of the said Daniel Thomas Sharp and Peter Borgnis caused the messuage being Number 320 Essex Road hereinafter described and intended to be hereby conveyed with other messuages and premises known as Numbers 316, 318, 322, 324, 326, 328, 330, 332, 334, 336 and 338 in Essex Road aforesaid comprised in and assured by the said recited indenture of the 7th day of July 1854 to be put up to sale by public auction by Messrs. Newbon & Harding at the Auction Mart Tokenhouse Yard in the City of London on the 27th day of October 1870 in 11 Lots, and it was amongst others a condition of the said sale that the part coloured brown on the plan drawn in the margin of these presents was intended to form a right of way from the back gardens of each house into the Church Road and that the Lots would be sold subject to and with the benefit of such right of way and that the piece of ground marked brown on the said plan of the width of 15 feet at the rear or bottom of the back gardens of each Lot 1 to 10 inclusive would be included in the purchase of each of those Lots but subject to a right of carriage way to the owners of Lot 11 and each of the other Lots through and over the same into the Church Road but such right of way would only belong to the respective purchasers on the determination of the existing tenancies and for that purpose each purchaser (except the purchaser of Lot 3 which was vacant) would have to determine at the earliest possible period the tenancy of the Lot purchased by him and that the respective purchasers were on the completion of their respective purchases to forthwith at the earliest possible period consistent with the determination of the existing tenancies remove the 15 feet of end garden wall and form the before mentioned right of way.…"
The deed then contained a conveyance of Number 320 Essex Road
"together with such right of carriage way into and over the pieces of ground marked brown at the rear of the premises Lot 1 on the said plan into Church Road as in the said conditions mentioned" to James Frederick Corben in fee simple "subject nevertheless as to the part thereof coloured brown on the said plan to a right of way for the owners of the messuages and premises Numbers 322, 324, 326, 328, 330, 332, 334, 336 and 338 Essex Road aforesaid as in the said conditions of sale mentioned."
Lot 3 at the sale (Number 322, Essex Road) was sold to John Edwin Corben and was conveyed to him by an indenture also dated the 2nd February, 1871. This Deed was in like form as to recitals and otherwise with the above-mentioned conveyance of Number 320.
Lot 1 at the sale (Numbers 316 and 318, Essex Road) was sold to James Jay and was conveyed to him by an indenture dated the 3rd February, 1871. This Deed contained a recital of the condition identical with that contained in the conveyances of Lots 2 and 3 and conveyed the property to the purchaser in fee simple "subject as hereinbefore mentioned or referred to"; but as this lot abutted on Church Road and was intended to become a servient tenement only and not a dominant tenement in respect of the strip of land 15 feet wide, there was, of course, no grant to this purchaser of any right of way.
The Conveyances of the other lots (4 to 11) are not in evidence, but it may be presumed that they were in like form with the Conveyances of Lots 2 and 3.
All the tenancies of the several lots expired within a year and a half after the sale.
The subsequent history, so far as the paper title is concerned, of Lots 2 and 3 was as follows. On the 12th April, 1871, Lot 2 was conveyed by James Frederick Corben to John Edwin Corben in fee simple with and subject to the right of way mentioned in the above conveyance of the 2nd February, 1871. On the 19th May, 1909, John Edwin Corben leased Lot 3, except the strip of land 15 feet wide at the rear thereof, but together with a right of way over that strip, to Davis and Greenland for three years, the lessees covenanting on being required to do so by the lessor to wall off the strip of land from the garden and make and form a roadway upon it. On the 11th August, 1911, John Edwin Corben having died, his executrix conveyed Lots 2 and 3 to the appellant, George Swan, in fee simple with and subject to the right of way.
The history so far as title is concerned of Lot 1 was as follows. On the 21st October, 1873, James Jay leased that Lot, subject to the right of way to the owners and occupiers of Lots 2 to 11, to William George Swan (the father of the appellant) for 50 years from the 24th June, 1872, the lessee covenanting to keep the site of the roadway on the demised land in good repair and, if required, to pay a fair proportion with the owners and tenants of the other lots using the roadway towards keeping it in good repair and towards erecting and maintaining gates at the entrance from Church Road, and also covenanting that the roadway should be used as a private roadway only for the owners and occupiers of Nos. 320 to 338, Essex Road. On the 25th July, 1904, William George Swan having died, his executors assigned this lease to the appellant. James Jay died in July, 1895, having demised the freehold of Lot 1 to the respondent.
Notwithstanding the elaborate provisions contained in the deeds of 1871 for the formation and use of the proposed roadway at the rear of Numbers 316 to 338, Essex Road, no such roadway was in fact (until the appellant's proceedings in the year 1922 to be hereafter mentioned) either formed or used, nor is there any evidence that any person interested in any of the several lots ever desired or requested that it should be formed or made any attempt to use it as a means of access to his premises. The walls dividing the several lots, including those parts of them which ran across the 15 feet strip to the eastern boundary of the land, remained intact, and in places where they fell down were re-built or replaced by fences. The wall dividing the southern end of the proposed roadway from Church Road was not breached; and although the level of the 15 feet strip which it had been proposed to form into a...
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