Todrick v Western National Omnibus Company Ltd

JurisdictionEngland & Wales
Date1934
CourtCourt of Appeal
[CHANCERY DIVISION] TODRICK v. WESTERN NATIONAL OMNIBUS COMPANY, LIMITED. [1932. T. 838.] 1933 Oct. 19, 20, 23, 24. FARWELL J.

Easement - Right of Way - Contiguity to dominant Tenement necessary - Contiguity must be effective - Excessive User.

Where an easement consists of a right of way not only must it be appurtenant to and for the benefit of the dominant tenement but also it must be contiguous and give direct access to the dominant tenement. Further, in judging whether there is an excessive user of the right regard must be had to “the circumstances of the case, the situation of the parties and the situation of the land.”

Ackroyd v. Smith (1850) 10 C. B. 164 discussed.

Thorpe v. Brumfitt (1873) L. R. 8 Ch. 650 and United Land Co. v. Great Eastern Ry. Co. (1875) L. R. 10 Ch. 586 applied.

WITNESS ACTION.

The plaintiff was the owner of a house known as “Skidden House” in St. Ives, Cornwall. To the south of the house was a roadway leading from the west from a highway (Skidden Hill) to garages at the eastern end. These garages and a property on the south of the roadway known as “Penwyn,” The Terrace, St. Ives, had belonged to a Dr. Nicholls. Dr. Nicholls also owned property to the east of “Penwyn,” hereinafter described as the “blue-land.” In 1921 Dr. Nicholls sold “Penwyn” and the garages to a Mrs. Ralfe, reserving to himself and his successors a perpetual right of way along the roadway aforesaid with power to extend it on to the blue-land. The reservation was in the following terms: “Excepting and reserving in fee simple unto the Vendor his heirs and assigns owner or owners from time to time of all or any part of the Vendor's said adjoining property on the east of the said hereditaments (coloured blue on the said plan attached to these presents) and all persons going to or from any part of the last mentioned property a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public highway called Skidden Hill over across and along the private road or way coloured yellow on the said plan between the points marked ‘A’ and ‘B’ on the said plan and the right to construct an extension of such road or way between the points marked ‘B’ and ‘C’ on the said plan subject nevertheless to the payment by the Vendor to the Purchaser as from the making by the Vendor of such extension of the said road or way of a fair proportion of the expense of maintaining and keeping the whole of the road and the entrance gates thereof between the points marked ‘A’ and ‘C’ in repair.” At the date of the conveyance October 15, 1921, the above roadway was some 35 yards in length and was not made up beyond the garages, which were on the north side of it. If extended for five or six yards it would have impinged directly on to the blue-land. Dr. Nicholls subsequently bought some land north of his blue-land and by a deed dated March 22, 1926, made between Mrs. Ralfe and himself the right to extend the roadway on to the north-land was substituted for the original right reserved by the deed of October, 1921. The result of the change was that the proposed extension would never touch the blue-land effectively but would pass over a strip which was closed at its eastern end by a wall some 6 feet in height. East again of this wall there was a sharp declivity of the land and a sharp rise still further east, in other words there was what can be described as a deep, sharp depression or gully east of the wall. In 1927 Mrs. Ralfe died, and the plaintiff, Dr. Todrick, purchased the garages and the roadway from her trustees subject to the existing right of way. The defendant company in 1930 acquired all the blue-land and the land north of it from Dr. Nicholls for the purpose of building a garage for their omnibuses. This garage was of special design: the roof was made to form a departure station for their vehicles, being accessible from a highway, The Terrace, on the south. To use the garage the omnibuses had to come by the roadway from Skidden Hill past the plaintiff's garages, but as a simple extension of the roadway eastwards would give a difficult means of access, they built the approach on a ramp which overtopped the wall (already mentioned) at the eastern end of the roadway. The plaintiff objected strongly to the making of this approach, which made the driving of cars in and out of his own garages more difficult. The defendant company, however, completed their work, and the plaintiff brought the present action to assert his rights. He contended that the defendants had no right of way at all along the roadway, for the reason that the right alleged to have been given pertained only to the “blue-land” and not to the land north of it. Alternatively if such right existed, there had been an excessive user of that right which should be restrained. He also made a claim for damage to his property caused while the work was in progress.

The defendants averred that the conveyance to them of the lands included the user of the right of way and the power to extend the same on to their property, and that the user to which it was to be put would not be excessive. As regards the alleged damage they paid 10l. into Court as being a sufficient discharge.

Evershed K.C. and Greenland for the plaintiff. This case concerns an alleged right of way. Three questions arise: first, whether on the construction of the grant any right of way exists; second, whether there can be any easement not serving the dominant tenement; and third, if there is an easement, there has been an excessive user of that right. On the first question we submit that the document is only capable of the interpretation that the grant was intended to be annexed to the “blue-land” and no other. The second question, on which there is no direct authority, is the most substantial. Here we have an alleged right of way over a piece of land which does not lead directly and necessarily to the dominant tenement, and in my submission there is no easement at all but merely a personal licence and not assignable. The case is covered by the principles in Ackroyd v. SmithF1, where a right of way did not touch land which was made the dominant tenement. There it was held that the easement must be appurtenant to and for the benefit of the dominant tenement. Two other cases may be of assistance to your Lordship on this part of the case. In Thorpe v. BrumfittF2 the right of way led to a small triangular piece of land which was conveyed by the defendants to the plaintiff, who thereby had a better use of his yard to which the land was contiguous. The Court was able to hold on the construction of the grant that the land conveyed was part of the yard and that the right of way led to the yard and not merely to the intervening triangular plot. In Callard v. BeeneyF3 a farm of seventy acres was conveyed including a field No. 169 with a right of way over field No. 171 belonging to the vendors. The Court held that the dominant tenement was the whole farm and not merely field No. 169. In my submission the original grant was made appurtenant to the blue-land only, and as that land did not impinge at all in our view and only to a trifling extent even in the defendants' view on the right of way, we have an attempt to grant a right of way appurtenant to land to which it does not lead or to which it may not lead and is a right in gross.

[They referred also to Gale on Easements, 11th ed., p. 19, and Theobald's Law of Land, 1902 ed., p. 157.]

As regards the excessive user the making of the ramp speaks for itself. The only right given was the right to extend the existing roadway. Moreover the roadway was not fit for anything but light traffic, and it was never contemplated that it should be used for heavy omnibuses. The mere fact that the user to which a right of way is put was never contemplated is not of itself conclusive, but in my submission the user must be reasonable. I would refer your Lordship to Newcomen v. CoulsonF4; Bidder v. North Staffordshire Ry. Co.F5; and White v. Grand Hotel, Eastbourne, Ld.F6

Daynes K.C. and P. J. Sykes for the defendants. It is not right to say that you must have physical contiguity between the servient and dominant tenement, none of the cases go as far as that. Ackroyd v. SmithF7 was dealt with on a demurrer, and the question was whether the pleadings were right. The demurrer is set out at the bottom of p. 172 and the terms of the grant at p. 177. That case is not very easy to understand.

[FARWELL J. But it does say that the grant was an easement in gross.]

Daynes K.C. It says that an easement must be connected with the enjoyment or user of the land but there is no phrase in that case that requires physical contiguity to create an easement. [He referred to the judgments of Byles J. and Keating J. in Bailey v. Stephens.F8] In the cases referred to by my learned friend, nowhere is it laid down that there must be physical contiguity. All that it is necessary to show is that the easement is connected with the useful enjoyment of the property. The deed of March 15, 1921, granted an effective right of way and the substituted right of way on March 22, 1926, could not derogate from that grant. The deed of March 22, 1926, created an easement of a right of way appurtenant to the blue-land. On the other part of the case it has been suggested that the grant did not include the right to pass heavy motor vehicles over the roadway, but the grant of a right of way over country is essentially a grant of a right to make the right of way effective: United Land Co. v. Great Easters Ry. Co.F9

Greenland in reply.

Oct. 24. FARWELL J. The plaintiff is the owner in fee simple of a house known as “Skidden House” in St. Ives in the County of Cornwall and of certain land adjoining that house. Included in the land so owned to the south of the house there is a roadway over which the defendants claim to have a right of way...

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22 cases
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    ...that is all that the parties can have reasonably contemplated at the time of grant: Todrick v Western National Omnibus Company, Limited [1934] Ch 561. To put it another way, an express right of way “should not be used for something for which it obviously could not be used”: Rosling v Pinne......
  • Alan Joseph Bate v Affinity Water Ltd
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    ...on the surface of the Property, out into Potter Street and then ultimately into the town water system. Before the decision in Todrick v Western National Omnibus Co [1934] Ch 561, CA, it had been thought that the dominant and servient tenements had to be contiguous. That case made clear tha......
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    ...in Voice v Bell (1993) 68 P & CR 441 at 444–445. 12 (1873) LR 8 Ch App 650 at 657–658. 13 See Todrick v Western National Omnibus Co Ltd [1934] Ch 561 at 14 Megarry and Wade, The Law of Real Property, 6th ed (2000) at 1080 [18–045]. 15 [2002] 1 WLR 1815 ; [2001] 2 All ER 827. 16 (1904) 74......
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    ...judge below was varied accordingly. 70 White v. Grand Hotel Eastbourne was considered and distinguished by Farwell J in Todrick v. Western National Omnibus Co. Ltd [1934] 1 Ch 190. The facts were complex. A vendor sold land with a reservation for the benefit of certain land of “a perpetual ......
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1 firm's commentaries
  • Construction Of A Right Of Way
    • United Kingdom
    • Mondaq UK
    • 9 Octubre 2023
    ...because that is all that the parties can reasonably have contemplated at the time of grant (Todrick v Western National Omnibus Company [1934] Ch 561). Taking into account that at the time of the grant the same grantor had granted a right of way in the same terms for the benefit of a third p......
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    • Wildy Simmonds & Hill Restrictions on the use of land Part I. Easements and profits à prendre
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    ...& Wade at 30-008. 3 Megarry & Wade at 30-009. 4 Milner’s Safe Company Ltd v Great Northern & City Railway Co [1907] 1 Ch 208 at 221. 5 [1934] Ch 190 at 207. 6 [1934] Ch 561. 30 Restrictions on the Use of Land was bounded by a retaining wall of only limited strength and, in light of these ci......

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