Allen v George & Anor [2004] EWCA Civ 396

Case No B2/03/2333(A)[2004] EWCA Civ 396
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRESTON COUNTY COURT
(HIS HONOUR JUDGE MADDOCKS)
Venue Royal Courts of JusticeDate Tuesday, 16 March 2004
Strand
London, WC2
B E F O R E:
THE MASTER OF THE ROLLS
(Lord Phillips of Worth Matravers)
LORD JUSTICE CLARKE
LORD JUSTICE JACOB
Between
ROBERT FENWICK ALLENAppellant-v-
Between
SUSAN GEORGERespondentEILEEN PATRICIA GEORGERespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR G BLANCHFLOWER (instructed by Messrs Sampson Horner, Bradford, BD1 3AZ) appeared for AppellantMR C VANE (instructed by Messrs Thomson Wilson Pattinson, Kendal, LA9 4QA) appeared for Respondents
J U D G M E N T
[1]LORD PHILLIPS, MR: I will ask Lord Justice Jacob to give the first judgment.

LORD JUSTICE JACOB: This is an appeal from a decision of 3 October 2003 from His Honour Judge Maddocks, sitting in the Preston County Court in Manchester. It is a right of way dispute.

[3]The parties live in a house called The Wray in Grasmere. The Wray is now divided into two dwellings, nos 1 and 2. This came about for the following way. In 1959 the house was bought by two couples, the Griffiths and the Brooks. Shortly after the purchase it was divided into two dwellings, one for each couple. At the time nothing was done about the legal title, which remained vested in both couples; all lived in harmony.[4]In 1971 the parties decided to sell as two separate dwellings. Therefore, prior to the sale, it was necessary formally to divide up the ownership by a Deed of Partition, the key document in this case. The deed conveyed no 1 to the Brooks and no 2 to the Griffiths. There have been subsequent sales and conveyances, the details of which do not matter. Currently no 1 is owned by the defendants, Miss Susan and Miss Eileen George. They acquired their property in 1993. Number 2 is owned by Mr and Mrs Allen who acquired it in 1974. Mr Allen is the claimant and the appellant.[5]The property is approached by a common drive. This leads, first, to no 1 on the north side where there is a shared carport and an outbuilding. From there the only access to no 2 is past the front or past the back of the house, either way skirting some of no 1; you have to walk a little.[6]The Deed of Partition has annexed to it two plans, one showing the division of the house and the other showing the ground plan of the area round the houses. The ground plan has portions marked in brown, to which I will refer in more detail.

The judge described it thus in paragraph 4 of his judgment:

"The house is approached by a common drive from the East over National Trust land to a gate where it enters the land of No 1, which is edged blue. At that point the drive continues past the North side of No 1, edged brown. The brown edging then follows the walls of the house on the North side and continues between the House and an outbuilding where there is a right angle turning to a strip, also edged brown, on and along the West side of the house to the land edged red of No 2. At the front of the house there is a similar narrow strip edged brown adjacent to the front ie the East side of the house and across the blue land of No 1 to the boundary edged red of No 2. It is this strip which is in issue."

The judge added this:

"It scales at 6'6" as between the two lines, one being the front wall of the house, the other a discontinuous line drawn on the plan."
I draw attention to that sentence because it is common ground that you cannot scale up from the plan annexed to the Deed of Partition. Both sides are agreed upon that and, to some extent, the judge's reasoning may have involved carrying out the scaling up exercise. To the extent that it does, neither side supports it.[7]The issue is, what rights are conveyed over that strip of land in the front of the house? I will describe that in more detail. The house is divided up so that no 1 has a ground floor room facing east over the strip in dispute. No 2 has the first floor, also facing east. The ground floor room has French windows with two steps down, the second of which juts out from the wall down to ground level. When you go down those steps you stand on about a yard of flat slate which then meets a slate path running parallel to the house. The path itself is thus between 5 feet and 6 feet from the wall of the house (about which I cannot be precise). The path itself does not have very sharp edges, the slates from which it is made varying in shape and size. It is about 3 feet wide on average. There is clear, undisputed evidence that this path was laid in 1969 by the Griffiths' son, Dr Griffiths. The nature of the dispute[8]The respondents, Miss Eileen and Miss Susan George, contend that the only right of way conferred upon the partition was over the slate path itself. The appellant says it was more extensive, conferring a right to bring vehicles across in front of the house, following the line of, but wider than, the path. The appellant says it is wide enough to bring a car of more or less any size across, the only real restraint being the width of the front gates of the whole the property which are about 8-feet 6 inches.[9]The judge rejected both sides' contentions. He held that there was a right of vehicular access across the front of the house but limited to a width of 6-feet 6 inches straddling the slate path more or less evenly. Mr Allen appeals, saying the width should be sufficient to drive a modern car across, possibly up to 8-feet 6 inches. The Georges' cross appeal saying that the width is only that of the slate path. Neither side really supports the judge, although they would prefer to have his decision than an adverse decision.[10]It is common ground between counsel that the proper approach in law is to read the deed as it would be read at the time in the context of the land and all the surrounding circumstances. The Deed[11]Recital 2 recites the purpose:
"Several years ago the estate owners effected a division of the said dwellinghouse into two separate dwellinghouses the northerly portion of the main building becoming known as Number 1 The Wray and being occupied solely by Mr and Mrs Brooks and the southerly portion of such building becoming known as Number 2 The Wray and being occupied solely by Mr and Mrs Griffiths but no formal partition of the premises was ever effected. 3. The parties have now agreed to effect a legal partition of the premises in manner hereinafter appearing and that nothing shall be paid by either party by way of equality of partition."
[12]This came about because there were going to be onward sales, so there was obviously a need to define formally each party's rights in a legal document to show their relevant purchases. The Deed of Partition, so far as material, then conveyed:
"(d) a right of way with or without vehicles and animals at all times and for all purposes in common with Mr and Mrs Brooks and all others having the like right over and along such of the passageways which are within the land hereinafter conveyed to Mr and Mrs Brooks and edged brown in the ground plan annexed hereto."
Later in the document there was a reservation about a wholly different pathway which reads as follows:
"the right for Mr and Mrs Brooks Griffiths and their successors in title to pass and repass with or without animals over and along the pathway edged brown within the land hereinbefore conveyed to Mr and Mrs Griffiths."
What right of way was conveyed? The document, somewhat oddly, refers to "passageways", which suggests, in normal usage at least, some sort of enclosed path with a wall on one side or the other. But, plainly, if one looks at the drawing, the word is being used in this document in a wider sense. It covers, for example, the rights to come through from the gates. I read the word "passageways" as just "ways". I do not think anything turns on the precision of language as regards that particular word.[13]For the appellant, Mr Blanchflower says at the time of division when properties were going to be sold off there was an obvious need for proper access to the front door of no 2 and the only way was in front of the house. He says that the draftsman knew when to leave out a reference to vehicular access because he plainly did so in the last passage to which I have just referred. Moreover, on the evidence, at the time there was grass on either side of the slate path. If one thinks of the house in that way, one can see how the vehicular access would straddle that path but the vehicular access was plainly necessary.[14]Mr Vane, for the respondents and cross-appellants, says that, first, there was a right to the car port at the back being created. Why, he asked, would one bother with that if there was to be a right to drive a car across the front of the house? Secondly, he says that, if the question had been raised at the time, it would be inconceivable that anyone would let cars pass in front of the house, particularly the French windows, spoiling the view and interfering with the direct access to the garden. That conclusion is reinforced if one refers to the rule in conveyancing that, in the case of an express grant, the grantee has the right to improve the access that he has been given. Here, for instance, the appellant wants to lay a gravel drive (or something similar) in front of the house. It may be, and it probably is the case, that the parties did not know of that rule of law in 1971. But this document was drawn up by an apparently experienced conveyancer who surely would have known. Moreover, Mr Vane refers to the angle of this supposed vehicular access. It is acute and difficult. If that was truly intended to be a place where a car would be turning south from the drive, one would have expected some sort of curved arrangement to be put in the conveyance, but there was none.[15]Mr Vane submits that it is improbable that anybody would create a vehicular access where the wheels of the car would inevitably run over the grass. This is one of the wetter parts of the country and it would inevitably create a muddy, unattractive appearance in front of a good looking house.[16]Finally, Mr Vane points to the other places marked in brown on the plan. There are places where one manifestly could not put a car. The most acute of these is at the back of the house where, as we have seen in the photograph, there is a passage only about 3 feet wide.[17]He submits that it follows that, first, it is necessary to identify the passageway. If it is possible for vehicles to drive on it, the grant then conveys the right to do so. But, it is passageway first, then, if possible, a right of way for vehicles. You do not start with a vehicular right of way. The obvious passageway at the time was the slate path. It follows that one cannot put any vehicle on it which is wider than the slate path. I accept those submissions and reject the appellant's arguments.[18]Nor am I impressed with the argument that, at the time of the creation of this partition, it was necessary to create an access to the front door of no 2. It seems to me that the carport was the intended place for the owner of no 2 to put a car. The fact that you had to walk a short distance from the car to the house is neither here nor there.[19]I am not impressed by the express reference in another part of the Deed of Partition which does not refer to vehicular access. It was common ground in the argument before us that that particular path is not one over which a car could ever be driven. It was simply creating, in a separate part of the document, the right to go up and down a particular pathway to which no-one would ever want to or could take any kind of conveyance.[20]I believe that the most self-evident point is that, when this was created, it is wholly improbable that the parties contemplated creating, in effect, a small road in front of the house. If that is what they had wanted to do, then many things would have been different. I construe this document as identifying the passageways ways first and then conferring the right to put a vehicle on it which will fit on the passageway, not the other way round.[21]One other point that seemed to occupy some time before the judge related to whether or not, at the time of the partition, there was a grassy strip between the slate path and a flower bed adjacent to the house. The judge held that there was. This was used in support of the argument that there was a right for cars to straddle the slate path. To my mind, that is not of great significance one way or the other. If there was a patch of grass on other side, it is a bit more arguable that there was an intention to create a way for a car, but only slightly so.[22]I am not convinced that the judge was right about his finding, although there was a witness whose evidence he accepted. The judge did not deal with a photograph, which must have been taken in the summer of 1970, which shows no grass between the house and the slate path. But in the end it does not matter one way or the other.[23]I would therefore dismiss the appeal and allow the cross-appeal.

LORD JUSTICE CLARKE: I agree.

[25]LORD PHILLIPS, MR: I also agree. It seems to me that the slate pathway was the only existing way which could properly be identified as the passageway that ran within the land edged brown at the front of the house. It was only along that pathway that the Deed of Partition gave a right of way with or without vehicles and animals at all times and for all purposes.

Order

Appeal dismissed. Cross appeal allowed. Order of judge below set aside and a Declaration that on a true construction of the Deed of Partition dated 22 April 1971 made between Henry Wesley Griffiths, Viola Griffiths, William Brooks and Sabina Brooks(1) Henry Wesley Griffiths and Viola Griffiths(2) and William Brooks and Sabina Brooks(3) the claimant's right of way across the front of No 1 The Wray is confined to the flagged path running parallel to the front wall of No 1 The Wray. Appellant to pay the Respondent's costs, summarily assessed in the sum of £6,500 to include counsel's fees and VAT. Detailed assessment of the costs below, if not agreed.