Wood and Another v Waddington

JurisdictionEngland & Wales
JudgeLord Justice Lewison,Lord Justice McCombe,Lord Justice Richards
Judgment Date21 May 2015
Neutral Citation[2015] EWCA Civ 538
Docket NumberCase No: A3/2014/1899
CourtCourt of Appeal (Civil Division)
Date21 May 2015

[2015] EWCA Civ 538

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRISTOL DISTRICT REGISTRY

Mr Justice Morgan

2BS31308

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Lewison

and

Lord Justice McCombe

Case No: A3/2014/1899

Between:
Wood & Anr
Appellant
and
Waddington
Respondent

Mr Jonathan Karas QC & Mr Simon Atkinson (instructed by Memery Crystal LLP) for the Appellants

Mr Jonathan Gaunt QC (instructed by Irwin Mitchell LLP) for the Respondent

Hearing dates: 13 and 14 May 2015

Lord Justice Lewison

Introduction

1

The question in this appeal is whether Mr and Mrs Wood enjoy rights of way over land at Teffont Magna belonging to Mr Waddington. The claim is put on four alternative bases:

i) The rights were the subject of an express grant;

ii) The rights arose by virtue of section 62 of the Law of Property Act 1925;

iii) The rights were created under the rule in Wheeldon v Burrows;

iv) The rights were created in consequence of the common intention of the parties that the land conveyed was to be used in a definite and particular way.

2

In a detailed and comprehensive judgment Morgan J held that Mr and Mrs Wood were not entitled to any of the rights that they claimed. His judgment is at [2014] EWHC 1358 (Ch) and is available on Bailii.

3

As is usual in these cases the dispute is almost unintelligible without a map. In the Preface to the 17 th edition of Gale on Easements the editors (Jonathan Gaunt QC and Morgan J) made a request to judges to include maps in their judgments. They repeated the request in the Preface to the 18 th edition, so here are two. The first map is a copy of the relevant transfer plan. The second map shows the various features on the ground which are central to the case. In both cases north is at the top of the map.

Map 1

Map 2

The land

4

The land with which we are concerned is part of Manor Farm, Teffont Magna, near Salisbury, Wiltshire all of which was once owned by Mr Crook, who lived in Manor Farm House. In 1998 he sold the land in parts. One part was acquired by Mr and Mrs Sharman (now Lord and Lady Sharman), who were the predecessors in title to Mr and Mrs Wood. The other relevant part was acquired by Mr Waddington. The land was crossed by various farm tracks and two public bridleways. The soil over which the public bridleways ran was part of the land acquired by Mr Waddington. The land acquired by Mr and Mrs Sharman is coloured (or shaded for those looking at a black and white copy) on Map 1. It included Manor Farm House which had been Mr Crook's home, a paddock between the house and the public highway on the western boundary (Wylye Road marked on map 2) and some traditional buildings including a coaching house with stables and tack room. In addition under the transfer they acquired several fields and tracks, including the track which separated the field marked "Small Sands" from the field marked "Home Ground". The southern border of the field marked "Small Sands" is a highway called Old Dinton Road (marked on Map 2). To the east of Small Sands a public bridleway, designated as "Teff 9" on the definitive map (and on Map 2), runs over a track (marked "Track 1" on Map 2) northward from Old Dinton Road. The width of the bridleway itself is 2.5 metres but the track (together with its verges) is wider than that. Track 1 has hedges on both sides. Point D on Map 2 is on a track running from Manor Farm via point T which Mr and Mrs Sharman acquired. That track was metalled and was covered with tarmac, although the hard surface stopped at point D. Point D is part of the way along Teff 9, but is separated from the bridleway itself by a bellmouth. We were told that point D corresponds with the centre line of the hedge which lies on the western boundary of Track 1. The bellmouth is in a clear gap in the hedges both to its north and to its south. Whether Mr and Mrs Wood, as successors in title to Mr and Mrs Sharman, are entitled to cross the bellmouth in order to access the track over which Teff 9 runs (Track 1) and thence to access Old Dinton Road is the first issue in the appeal. The right claimed is not limited to use by pedestrians and animals, but extends to vehicles as well.

5

The track conveyed to Mr and Mrs Sharman runs westward from point D to point T, when it turns northward to point J. To the north of point J is another public bridleway, designated as "Teff 5" on the definitive map (and on Map 2 by dotted lines). It can be seen that Teff 5 crosses the field called "Horse Ground" at a diagonal and is separated from point J by another stretch of the track some 200 metres long. The judge described that stretch of track as a "hard track". It was also metalled, but not tarmacked. It is marked on Map 2 as "Track 2". The second issue in the appeal is whether Mr and Mrs Wood, as successors in title to Mr and Mrs Sharman, are entitled to cross that stretch of track on foot or on horseback in order to access Teff 5.

6

The rights claimed are pleaded in the Particulars of Claim as follows:

"rights of way from Point D to Old Dinton Road … running along Track 1 … for themselves, their servants, agents and licensees on foot and with or without horses, carriages, motor vehicles and other conveyances at all times and for all purposes;" and

"a right of way from Point J along Track 2 to the point at which the bridleway described as Teff 5 intersects with Track 2 for themselves, their servants, agents and licensees on foot and with or without horses at all times and for all purposes."

7

It is common ground that the rights that Mr and Mrs Wood have can be no greater than those of their predecessors in title. So it is easier to deal with the issues by reference to the rights that Mr and Mrs Sharman acquired when they bought the relevant land from Mr Crook.

8

Since the date of the transfers in 1998 Mr Waddington has greatly improved the surface of Track 1 and has laid tarmac over the bellmouth. Although there are photographs of the land included in the case papers, none of the relevant photographs I think pre-dates those improvements and they are consequently little guide to the physical appearance of the bellmouth in 1998. The other relevant event that has taken place since the date of the transfer is that in 2000 Mr and Mrs Sharman began a livery business in the stables, which did not exist in 1998. Mr and Mrs Wood carry on that business and have expanded it by the addition of an indoor riding arena.

Interpretation of the transfer

9

The first way of putting the case is a question of interpretation of the transfer by which Mr and Mrs Sharman acquired the land. The transfer must be interpreted in the light of the physical features of the land that it purports to convey. In Pennock v Hodgson [2010] EWCA Civ 873 Mummery LJ put it as follows:

"Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction."

10

The land conveyed to Mr and Mrs Sharman was described in the transfer as part Manor Farm "being all that land more particularly delineated and shown coloured pink on the plan annexed hereto ("the Plan")". As I have said that plan is reproduced as Map 1. The Plan showed the track at the northern edge of Small Sands as far as point D within the pink colouring. Thus the track itself (as far as point D) was conveyed to Mr and Mrs Sharman. That is consistent with the reservation in clause 12.1.1.ii of a right of way for the transferor "over and along the road dashed brown between the points marked E-B-C-D on the Plan". The Plan itself was originally drawn on a scale of 1:1500, although the copy in the case papers appears to have been mechanically reduced. It is not (at least to my eye) possible to discern from the Plan the precise location of point D. However the judge found at [24] that point D was not the edge of bridleway Teff 9 but that between point D and the bridleway there was a bellmouth that was conveyed to Mr Waddington. That conclusion accords with the plan attached to Mr and Mrs Wood's Particulars of Claim, based on the registered title plan, which shows point D as being separated from Track 1 by the bellmouth. That conclusion is not challenged on appeal.

11

At the date of the transfer there was no physical barrier between point D and Teff 9. It would therefore have been possible to travel eastwards along the track, past point D and across the bellmouth, in order to debouch onto Track 1.

12

Clause 12 of the transfer contained a number of provisions dealing with ancillary rights. Clause 12.1.1 reserved a number of rights of way to the transferor. These rights were described by reference to lettered points on the Plan. Clause 12.1.2 contained provision for varying the route of those rights of way. Clause 12.1.3 required the transferor to contribute towards the maintenance of those access ways. Clause 12.1.5 contained a right of way for Mr and Mrs Sharman with horses and vehicles "over and along the road dashed brown between points marked A-E on the Plan". That would have given them access to Teff 5 at the point marked "point Z" on Map 2. Clause 12.2 dealt with the water supply to the land. There was what was, in effect, a...

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