“The reason part of the land only was sold to Kempstone was that I, through Parbrook Limited, had found an investor in Jersey who wanted a stand alone company in which to participate. It was agreed to use Kempstone Limited for such purpose. Parbrook at the time had other interests in various ventures and in any case wanted to exercise a degree of control over the proposed venture as it did not want Kempstone to ‘run off’ with the deal on its own.”
“Mr Hussain does not give a very full account of matters relevant to the decisions to sell the larger parcel of land to Kempstone and to retain the smaller, rear of parcel of land. He refers to negotiations with an investor with a view to entering into a joint venture to develop both parcels of land, but it is not clear, for example, whether any joint-venture agreement was entered into. It appears that Mr Hussain decided to retain the rear land in the hope that anything built on that land would face Merantun Way and have access to it. It seems to me that the expectation, at that time, was that there was likely to be access from the rear land on to the highway. Mr Hussain chose to retain the red land. I infer from all the evidence available to me that Mr Hussain had hoped to be able to develop the land to the south and to do so by gaining access to the highway and not from and to High Path. Initially, the rear land was thought likely to be incorporated into the new highway. That did not happen, but Mr Hussain then sought planning permission for a petrol station and car wash facing Merantun Way. It appears to me that Mr Hussain took the view that it would benefit him to retain the red land. The sale by Dunbar in March 1994 was not a hostile act on the part of the bank. The sale was consistent with Mr Hussain's desire to dispose of some land and to retain and develop the red land.”
“At the date of the transfer by Boastdean to Kempstone in 1989, Merantun Way had been built to the south of the red land. The red land was not surrounded by land owned by Kempstone. To the west and east land was owned by third parties. To the south was the highway. On that ground alone, following Titchmarsh, the claimant has not demonstrated that it is entitled to the grant of an easement of necessity. ”
“The evidence indicates that it was not the common intention of the parties that the red land should have access to High Path over the green land. Before the red land and green land were split, Mr Hussain proceeded on the basis that he wished to take advantage of the fact that the red land adjoined the highway. Until the application for planning permission for a petrol station and car wash on the red land was refused, the intention was to look south, not north. Mr Hussain's focus was to the south. His principal intention was to retain and use the red land in a way which contemplated access to and egress from the land by way of the highway to the south. When the green and red land were split, there was of course no express reservation of easement and no evidence that anyone contemplated the need for this. ”
“It seems hardly necessary to state the essentials for the implication of such an easement. There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtained only over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v Barraclough) to imply the reservation of an easement of necessity.”
“…, in my judgment the law relating to ways of necessity rests not upon a basis of public policy but upon the implication to be drawn from the fact that unless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intended that some way giving access to the land should have been granted…. Public policy may inhibit the parties from carrying their intention into effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must be ascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence of surrounding circumstances.”
“It seems to me to have been laid down in very early times--and I have looked into a great number of cases, and among others several black-letter cases The black-letter books are described by Sir William Holdsworth (at pg.525 Vol. 2 of A History of the English Law, 4th Ed., Methuen/Sweet and Maxwell, London 1936) as being printed editions of the Year Books, which were early case notes created from the reign of Edward l to Henry Vlll. It seems likely ‘black-letter cases’ were those taken from the black-letter books. The black-letter books are now thought not to be an accurate transcription of the Year Book manuscripts; FW Maitland was of the view that “of mere, sheer nonsense those old black-letter books are but too full…”
“The general rule… is that a grant is construed in favour of the grantee. Therefore normally no easements will be implied in favour of a grantor; if he wishes to reserve any easements he must do so expressly.” (para 18-097) Conversely: “In favour of a grantee easements are implied much more readily, on the principle that a grant must be construed in the amplest rather than in the narrowest way.” (para 18-102)”
“… two propositions may be stated as that I call general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz., that a grantor shall not derogate from his grant.”
“… the way was not a way of necessity because the defendants could, though at some expense, cut a way from the public road.”
“There is no authority for extending the doctrine to such a case as that. In Gale on Easements, 5th edition, the doctrine is stated in almost precisely the same language with this addition: 'So, too, if the close be not entirely enclosed by my land, but partly by the land of strangers, for he cannot go over the land of strangers, quaere'. For this reference is made to Rolle's Abridgement and Viner's Abridgment. I have referred to these volumes, and have ascertained that the quotation is accurate including the quaere, which is to be found in both works, but I have not come across any comment on either the statement or the quaere. It seems to me that the statement is inconsistent with the doctrine as above explained and with the principle on which it has founded.”
“If the matter depends on implied grant from which the grantor cannot derogate, it seems immaterial that there is adjoining land owned by a third party.”
“The North Sydney case was decided in the Supreme Court of New South Wales by Hope J., sitting in Equity. Put very shortly, the facts were that a company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a contiguous car park owned by that authority. The proposed sale to the local authority went off, and the company was left with its retained land, which was landlocked. The company then sought a declaration that its retained land had a way of necessity over the land sold; and this claim failed. Over twenty authorities (half of them English) were cited in argument, including Packer v. Wellstead, 2 Sid. 111 and Dutton v. Tayler, 2 Lutw. 1487… The company contended that it was entitled to a way of necessity by virtue of public policy, and that the intention of the parties was irrelevant. The purchaser contended that public policy was irrelevant, and that the company was entitled to no right of way, since the intention of the parties was that the company should have no such right….”
“… the claim to a way of necessity was made by the vendor, and not, as in the present case, by successors in title of the purchaser; and although ways of necessity are in a special position, the law is far more ready to imply the grant of easements than it is to imply their reservation. There is a doctrine against derogating from a grant, but not against derogating from a reservation….”