Wilkins and Another v Lewis
| Jurisdiction | England & Wales |
| Judge | Mr Michael Furness QC |
| Judgment Date | 29 July 2005 |
| Neutral Citation | [2005] EWHC 1710 (Ch) |
| Court | Chancery Division |
| Date | 29 July 2005 |
| Docket Number | Case No: HC04 C 02183 |
[2005] EWHC 1710 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Michael Furness QC
(Sitting as a Deputy Judge of the High Court)
Case No: HC04 C 02183
Jonathan Small (instructed by Kingsfords) for the Claimants Caroline Hutton (instructed by Cripps Harries Hall) for the Defendant
Hearing date: 12th July 2005
In this action the claimants, Mr and Mrs Wilkins, claim an injunction and damages for trespass against the defendant, Mr Lewis. The alleged trespass arises out of the use made by Mr Lewis and his employees and visitors, of a road ("the roadway") which runs through the grounds of Morghew Park ("the house"), which the claimants own and live in. The defendant is the owner of the adjoining Morghew Park Estate. He has two lines of defence to the claim. First he says that the use made of the roadway is permitted under the terms of a right of way granted to his predecessor in title as owner by the claimants' predecessor in title. Secondly, to the extent that the use made of the roadway exceeds that permitted by the right of way, the Defendant argues that he and his predecessors have acquired the right to use the road in all of the ways complained of by prescription. This hearing is by way of preliminary issue and is confined to the first line of defence. For the purpose of this hearing the parties have agreed a statement of facts which forms the basis of the findings of fact set out below.
The facts
In 1978 the house and its grounds were in the same ownership as the adjacent agricultural estate known as the Morghew Park Estate. By a transfer dated 9 th October 1978 the then owners of the estate, Wadhurst Park Ltd, conveyed the house and its grounds to a Dr and Mrs Graham-Brown. The access from the public highway to the Estate ran along the roadway, through the grounds of the house, and so a right of way was reserved over the roadway in favour of the estate. The grant of the right of way over most of the length of the roadway was expressed to be "for all times and for all purposes with or without motor vehicles" but was limited to the period of one year from the date of the transfer. This was because in the transfer Wadhurst Park Ltd covenanted during the year in question to construct a new access to the public highway which would have avoided the need to use the roadway to gain access to the estate.
For reasons now unknown, the new access to the highway was not constructed and in consequence the right of way over the roadway was re-granted by Dr and Mrs Graham Brown in a transfer dated 1 st November 1979, this time without time limit but with significantly different words of grant. It is this wording which falls to be construed in this action. So far as relevant it reads as follows:
"� the Transferors as beneficial owners hereby grant � in fee simple to the Transferee and its successors in title owner or owners for the time being of the whole or any part or parts of the land known as Morghew Park Estate comprised in title numbers [here follow a list of title numbers] and its and their invitees and licensees a full and free right of way (in common with all others similarly entitled) with or without vehicles or animals over and along the private roadway coloured red and blue on the said plan in connection with the use of Morghew Park Estate as an agricultural and forestry estate and for the purpose of obtaining access to and egress from such dwellinghouses as and are now erected including the two unoccupied dwellings or former dwellings at Old Heronden and also including not more than two new dwellings that may be erected for agricultural and forestry workers on the said Morghew Park Estate or any part thereof �"
The extent of the estate has changed over the years. At the date of the conveyance in 1979, Wadhurst Park Limited owned the land comprised in the title numbers for the benefit of which the right of way was granted. That land has been described in these proceedings as the core estate. The core estate comprises approximately 1200 acres.
On various dates since the date of the 1979 conveyance, Wadhurst Park Limited acquired other land (approximately 686 acres) adjacent to the core estate. The Defendant acquired the estate as enlarged by these acquisitions in April 2001 from Wadhurst Park Limited. The Defendant has since acquired a small field on the other side of the public highway to the entrance to the roadway. These additional parcels of land are now farmed together with the core estate and, in these proceedings, are known as collectively "the neighbouring land". The neighbouring land now totals approximately 800 acres.
The position of the various parcels of land can be summarised as follows. The house lies to the north of the core estate, and the highway lies to the north of the house. The roadway runs north-south through the grounds of the house, and quite close to the house itself, connecting to the roadway in the north, and to the network of roads which runs through the estate to the south. The neighbouring land is in three blocks. The two largest blocks lie to the east and northwest respectively of the core estate. Each of these blocks is connected by roads or tracks to the road network on the core estate and thence to the roadway. The smallest part of the neighbouring land lies to the north of the house, across the public highway from the point at which the roadway enters the highway. It is possible to gain access to the public highway from the core estate and from each of the blocks of neighbouring land without using the roadway. It is however much less convenient to use these access points than to use the roadway, which is why the roadway remains the principal means of access to the estate.
Wadhurst Park Limited and, since April 2001, the defendant, have farmed the core estate and the neighbouring land together as one estate. The farm buildings, offices and dwellings on the estate are and have at all material times been situated on the core estate. The neighbouring land has always been bare land, and is currently used for arable farming or set aside.
The agreed statement of facts gives a fairly detailed account of the use made of the roadway in relation, in particular, to the neighbouring land. This account is impossible to follow without the benefit of a plan, but for present purposes it is sufficient to appreciate that the roadway is used for two basic purposes. One is as a means of access to the estate from, as it were, the outside world. For example, all deliveries for use on the estate including the neighbouring land are made over the roadway and goods, materials, supplies, equipment, machinery delivered to and used on any part of the estate including the neighbouring land are brought down the roadway and stored on the core estate. The other use is as means of communication between the core estate and the neighbouring land. For example, at harvest time most, though not all, of the grain harvested from the neighbouring land is taken by lorry directly from the neighbouring land on to the public highway and driven on the highway to the top of the roadway, and thence to the storage facilities on the core estate.
All crops harvested on the estate including the neighbouring land are stored on the core estate for anything up to a year (depending on the price the defendant can obtain for the grain at any given time). When sold they are transported off the estate via the roadway.
In 1979 there was no storage of crops belonging to third parties, but in the 1980s, Wadhurst Park Ltd converted an existing building into a 750 tonne storage facility and also built a 750 tonne storage facility on the core estate. Wadhurst Park Ltd stored their own crops in them. When they had the capacity they also used the storage facility for third parties' crops. Crops belonging to third parties would be transported to and from the estate via the roadway. The defendant now intends to store other farmers' potatoes on the estate, whenever he has the capacity to do so.
There are various cottages on the core estate. The only vehicular access to these cottages to and from the highway is and was at all material times over the roadway. In 1979 all the habitable dwellings on the estate were occupied by employees or former employees of the estate. Since 1979 but before the acquisition of the estate by the defendant the freeholds of two of the dwelling houses had been sold out of the core estate for use as private residences.
Today, some of the cottages are occupied by estate workers. Other properties are let out or are intended to be let out by the defendant on the open market under assured shorthold tenancies.
There was no farm shop, or other direct sale of produce to the public, on the estate in 1979. From sometime in the 1980s until the estate was sold to the defendant in April 2001, Wadhurst Park Ltd ran "the Morghew Speciality Food Shop" on the core estate. Among other things, this sold wild boar farmed on the estate, venison farmed on the Wadhurst Estate and crayfish farmed on the estate. Initially, until new office and retail premises were built following a major fire at the estate offices, customers would purchase produce directly from freezers in the farm manager's house. From November 2001 the defendant sold potatoes to the public from one of the estate buildings (on Saturdays only), rebranding it as "The Potato Shop". This operation is now closed. The defendant now maintains an "honesty" stall located outside the estate office on the core estate. Potatoes are sold from this store to the local public. The store is advertised with signs and leaflets in the locality.
All visitors to the previous shop and the...
To continue reading
Request your trial