(1) LESLIE LOMAX v (2) MARY PATRICIA LOMAX [2001] EWCA Civ 1099

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE-ON-TRENT COUNTY COURT
(MR RECORDER RW ONIONS)
[2001] EWCA Civ 1099Case No B2/2000/2063Venue Royal Courts of Justice, Strand, London WC2, Monday, 11th June 2001
Between
(1) LESLIE LOMAX(2) MARY PATRICIA LOMAXClaimants/RespondentsJOHN BRIAN WOODDefendant/Appellant
Before
Lord Justice SchiemannLord Justice MummerySir Murray Stuart-SmithMR S DIN (instructed by Roy Thorne & Co, Nottingham NG1 5DT) appeared on behalf of the AppellantMR R OUGHTON (instructed by Messrs Blunts, Cheshire SK1O 1AB) appeared on behalf of the RespondentDate 11 June 2001

LORD JUSTICE SCHIEMANN:

Before

[1]the court is an appeal from part of a judgment of Mr Recorder Onions in relation to a right of way case. The learned recorder delivered a very careful judgment on which I draw heavily for setting out the background to this case.[2]The claimants live in and are the freehold owners of Marl Flat Farm in Staffordshire. The defendant owns land adjoining that of the claimants and in particular owns land over which the claimants claims a right of way. The claimants' land has the OS reference number 1260, 2166, 1473 and 2375 and is collectively referred to as "Marl Flat Farm". The defendant, who is the appellant before us, owns OS field No.3258 which is known as Middle Brown Edge.[3]The claim is that within Middle Brown Edge and a property to the northwest of it is a track-way sometimes referred to as an occupation road. The defendant admits that the occupation road exists but not that the occupation road as it is today reflects the position as it was at the time of the disputed grant.[4]The grant which falls to be construed is dated 24th March 1884. Prior to that time the claimants' and the defendant's land was in common ownership. By virtue of a conveyance of 24th March 1884 between Dennis Bradwell and Charles Boon ("the Boon Conveyance") the claimants' and the defendant's land was conveyed into separate ownership. The Boon Conveyance conveyed to the claimants' predecessor in title Marl Flat. The land was more particularly delineated on the plan drawn on the Boon Conveyance. This conveyance also contained the following grant which we have to construe:
"Together with appurtenances and particularly a right of way in common with others the owners or tenants for the time being of the said Ashmore House premises along the occupation road now existing on the Easterly or Southeasterly side of the piece or parcel of land hereby conveyed to the point where the same reaches the said plot of land called the Patch but without crossing or passing through such plot for the better enjoyment of the plot of Land hereby conveyed."
[5]And so one sees that there is the grant of a right of way which, if one describes the area, concerns an occupation road which runs, broadly speaking, north-south. At the southern end is the highway, and as one progresses northwards one sees on the western side the claimants' land, and on the eastern side the defendant's land.[6]On the same day, 24th March 1884, Dennis Bradwell conveyed to Charles Shufflebotham in a document ("the Shufflebotham Conveyance") Middle Brown Edge:
"Together with all fences hedges ditches... and appurtenances whatsoever... relating to the said land."
[7]The claimants obtained from the recorder a number of declarations none of which are now challenged, save this: Which is No.5 on page 16 in Bundle A:[8]"And it is declared that the Claimants as owners of Ordinance Survey Field Nos.1260, 1473, 1755, 2166 and 2375 (being "Marl Flat") have the right to erect such one or more gates between Ordinance Survey Field No 2166 and Ordinance Survey Field No.3258 (being "Middle Brown Edge") for the purpose of exercising the right of way..." - which had been declared in the previous paragraph which referred to the grant which I have already read.[9]The learned recorder summarised the dispute between the parties thus:
"The Claimants claim the right to construct gates between Marl Flat Farm and in particular OS 2166 which is adjacent to the trackway or occupation road. The Claimants claim the right to construct gates as may be convenient. The Defendant disputes this claim and maintain that even if the right of way exists, the right of way does not give the right to access at any point where the Claimants' land is adjacent to or abuts the occupation road."

The recorder said this:

"There are three existing gateways from the Claimants' land at Marl Flat Farm onto the occupation road..."
[11]The first of these and the most southerly is the Farm Gate. There is no dispute over this gate. It goes on to the occupation road but at a point where the land was not owned by the defendant or his predecessor in title. It is accepted that the claimants have a right of way from the public highway up to the farm gate to give them access to Marl Flat farmhouse.[12]The next gate is a little bit further north and it is described as the Swinson Gate. It was described by the recorder as giving access to what were obviously originally out buildings of Marl Flat Farm. That leads on to a part of the occupation road which is in the ownership of the defendants. It seems that this gate was constructed by a Mr Swinson in, the recorder finds, 1981, and the point is made that, for getting on for a hundred years, nothing had been constructed there.[13]The third potential entrance is something described as the Northern Gap which is simply a gap in the hedge marked by an iron gate which did not give the recorder the impression of having been in regular or recent use. That is just south of the boundary between Middle Brown Edge and the Patch. The recorder found, and there was no dispute between the parties, that the boundary between Marl Flat and Middle Brown Edge is the middle line of the hedge or fence which is to be found to the west of the occupation road. He found that there had been an entrance at the northern gap for over 20 years and this entrance had been used for farming activities for the Marl Flat farmhouse.[14]Originally the defendant had claimed an injunction prohibiting the claimants from entry on to the defendant's land at all, but that was refused by the judge and there is now no dispute left in relation to that.[15]In substance the point in dispute between the parties is that as at present the claimants want to be allowed to continue to use the land in the form and with the exits which were there when she acquired the property, and the defendant wants to make sure that there are no declarations which burden his, the defendant's land, to a greater degree than the relevant conveyance warrants.[16]The defendant's strongest point is that there is a gap of about 3 yards (or a little more) between the middle line of the hedge and the side of the occupation road which land undoubtedly belongs to the defendant and which the claimants have to cross in order to gain access on to the occupation road at any point north of the farm gate.[17]The learned recorder found that there was no evidence before him as to which of the Boon and Shufflebotham Conveyances was executed first. But the point that impressed the recorder was this. He found that the words of the grant, which I have recited, clearly refer to the right of way going up to a specific point, namely the patch and no further. The patch is on the western side of the occupation road but just north of a point where the defendant's land ceases, and so we have the broad picture that a right of way has been granted by the defendant's predecessor in title to the claimants' predecessor in title which extends along a stretch of road of occupation road and then stops. Clearly one explanation of the grant of that right of way is to enable the claimants to get access on to the occupation road and thereafter make their way south to the main road. The only other possible explanation for the grant of such a right of way by the defendant's predecessor in title to the claimants' predecessor in title is that it may conceivably have been envisaged that in due course third parties would grant further rights of way over further bits of this occupation road and various other paths or tracks which lead to it which might in turn be of some use to the claimants' predecessor in title. But there is absolutely no evidence of this at all.[18]The learned recorder felt that on the balance of probability there was a mistake in the Shufflebotham Conveyance and that the exception of the right of way over the occupation road was not recorded in the conveyance. He found that the occupation road, as far as can be ascertained from the physical inspection, follows the same route now as it did in 1884. He pointed out that in 1884 the Marl Flat farmhouse had not yet been constructed, and it is clear from an Ordinance Survey map of 1899 that it had not been constructed by then. But from a further Ordinance Survey of 1925, it is clear that by the time we were in the 20th century the farmhouse had been constructed. There is no evidence as to when the southern gate to the claimants' land was constructed but it must have been between 1899 and 1925.[19]The recorder took the simple approach to this case that there was absolutely nothing which could be gained by the claimants from the grant of the easement unless it be that he, the claimants, could have access on to that road at least at one point of his choosing. As it seems to me that consideration is a strong one. The possible suggestion of possible future grants by other unidentified persons for further rights of way to unidentified places which might be of some use to the claimants' predecessor in title seems to me to be far too speculative to be taken into account when construing the relevant conveyance.[20]When one looks at the situation on the ground one sees that in practice the occupation road runs almost on the boundary of the claimants' land. When one goes towards the north end of the occupation road one sees that there is an area known as the Patch which separates the claimants' land from the occupation road; it is broadly triangular in shape and is of some significant size. It is quite clear that no right of way is given over the patch, and the obvious explanation is that the patch was some use to somebody. There is, however, at the extreme southern end of the patch a tiny little area known as the Wedge in which, so the evidence goes, occasionally the defendant and his father I think used to get grass for the purpose of making hay. But it is a very small area of land and not one of any substantial worth. As it seems to me the most natural way of construing the conveyance is to do as the recorder did, namely say that it entitled the claimants to make an exit from their land on to the occupation road.[21]That of course is not a wholly unlimited right to construct, for the sake of argument, 15 exits on that bit of road. It is right to say the claimants have never claimed that it is. But there is a limiting factor, as I would accept and as the claimants accept, that, to quote the words of Swinfen Eady LJ in Petty v Parsons [1914] 2 Ch 653 at 667:
"It is a question of construction in a deed granting a right of way whether the way that is granted is a way so that the grantee may open gates, or means of access to the way, at any point of his frontage, or whether it is merely a way between two points, a right to pass over the road, and is limited to the modes of access to the road existing at the date of the grant."
[22]Pickford LJ said in the same case that, assuming the right of access from every part of the land from which access is required to every part of the way, such access should be given as will give reasonable opportunity for the exercise of the right. As Gale on Easements puts it (at page 348 in the 16th Edition):
"It has been said that no hard and fast rule emerges from the cases but that the guidance that they do afford is that, whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would constitute an unreasonable demand depends on the proper construction of the grant and then on the factual circumstances."
[23]So there is a limit to what the claimants can do as so far as I can tell they have always accepted.[24]Mr Dinn, who has argued the case for the appellant, set out the facts, as I have stated, that there was no dispute as to the access from the farm gate which does not touch his lands at all, and that in principle as a matter of law there was no right of access to any point of the occupation road other than by the farm gate. But as a matter of practice and because things have gone on for in any event a decade or two his clients were perfectly content with the existing use of Swinson Gate.[25]He put forward a suggestion as to why the right of way might have terminated at the patch, but he did not produce any reasoning as to why the grant should have been made at all, unless it was designed to give the grantee something which he did not have before and which was going to be of some use to him. That, as I say, lead (I think perhaps from a suggestion from me rather than from Mr Dinn) to the suggestion that there might possibly be further connections to further parts; but as I say I regard that as being far too speculative.[26]The law in relation to these cases is not really in dispute between the parties and was usefully set out by Morritt LJ in Mills v Blackwell , unreported, a judgment delivered on 5th July 1999 in the court which consisted of Morritt LJ and Wilson J in which Morritt LJ said that a reservation, which was what was in issue in that case, must be construed in the context of the deed as a whole and in the light of the surrounding circumstances. That is common ground in the present case. Morritt LJ cited with approval from a judgment of Warner J in National Trust v White [1987] 1 WLR at 907 where at page 913 Warner J said in relation to earlier authority:
"The guidance that those cases do afford is, I think, this, that whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would, in that case, constitute an unreasonable demand depends, of course, in the first instance on the proper construction of the grant and then on the factual circumstances."
[27]Morritt LJ's case was one where it was necessary to pull down a substantial part of the party wall in order to construct an access and egress and the court decided that on the facts of that case that was such a major work that it could not be assumed that that was in the mind of the parties. But in the present case, as it seems to me, what was in the mind of the parties must have been exactly what the recorder thought, namely, that there should be the opportunity of making an access on to the conveyance road at some point which suited the grantee as and when he decided to build a house and do whatever else he wanted to do on his land.[28]For those reasons I would dismiss this appeal.

SIR MURRAY STUART-SMITH: I agree.

LORD JUSTICE MUMMERY: I also agree. (Appeal dismissed; costs postponed).

Cited in 1 later judgment