The case concerned a dispute over the boundaries of the respective parties’ land. Specifically, Mr and Mrs Wood (the “Claimants”) intended to carry out equestrian activities on their land and over two bridleways which crossed the land owned by Mr Waddington (the “Defendant”). This intention conflicted with the shooting business which the Defendant carried out on his land.
The Claimants argued that they had rights of way over the Defendant’s land, on the basis that the rights had been expressly granted to their predecessors in title by clauses in the transfer deed
Prior to September 1998, the land owned by the Claimants and Defendant was in the common ownership of Mr Crook. In September 1998, part of the land was transferred to Mr and Mrs Sharman (the “Sharmans”) and part was transferred to the Defendant. The Sharmans transferred most of the land they acquired to the Claimants in July 2009.
The transfer deed to the Sharmans included a clause which stated that the land was transferred, together with a right of way for them at all times and for all purposes to pass and repass over the road in question. The transfer also provided that the Sharmans could enjoy the right of way with or without horses and to drive horses and various other animals. The key clause in the transfer to the Sharmans upon which the Claimants relied provided that their land was sold “subject to and with the benefit of all liberties, privileges and advantages of a continuous nature now used or enjoyed by or over the land” purchased by the Defendant. The Claimants also referred to an identical clause in the transfer to the Defendant, which held that the land transferred to him was sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the land.
The Claimants claimed a right of way on the basis of three grounds:
The rights claimed were expressly granted in the transfer to their predecessors in title, the Sharmans, and reserved out of the transfer to the Defendant;
The rights claimed were advantages enjoyed with the land transferred to the Sharmans, and became easements under s. 62 of the Law of Property Act 1925 (LPA 1925); and
The rights claimed were to be implied into the transfer to the Sharmans either under the rule in Wheeldon v Burrows (1879) 12 Ch D 31, or to give effect to the way in which the land transferred was intended to be used, or on some other basis.
The Claimants argued that the rights of way claimed were expressly granted in the transfer to the Sharmans by operation of the clause mentioned above. The Claimants submitted that the rights of way claimed were “liberties, privileges and advantages” and they were “of a continuous nature”. It was accepted that the rights were not in continuous use, but it was argued that they were continuous and apparent rights.
The Court reiterated that a right of way was not a continuous right, but that it can be an apparent right, however the Court noted that the clause relied upon by the Claimants restricted the advantages to those “of a continuous nature”. The Court considered that the inference to be drawn from the wording of the clause was that it was insufficient that a right claimed under the clause was apparent and therefore the clause did not intend to encompass rights of way. This inference is further supported by the existence of another clause in the transfer, which specifically dealt with similar rights.
The Court concluded that a right of way was not a liberty, privilege or advantage “of a continuous nature” and that the transfers did not intend to deal with rights of way. Therefore the rights claimed were not expressly granted.
Grant under s.62 LPA 1925
The Claimants submitted that the rights claimed were granted to the Sharmans under s.62 LPA 1925, which holds that a conveyance of land shall convey with the land all those liberties, privileges, easements, rights and advantages enjoyed with the land at the time of the conveyance.
It was unclear how s.62 LPA 1925 operated where there was no “diversity of occupation” prior to the transfer, i.e. where both parts of land were held by the same person. The Court commented that a right of way is capable of being granted by operation of s.62 LPA 1925 as the rule is not necessarily confined to those pre-existing easements and rights. However, the Court noted that the wording of s.62 LPA 1925 requires that the advantage claimed must have actually been enjoyed with the land within a reasonable period of time before the conveyance, rather than having been exercised as part of the rights of the common owner of the land.
The Court focused on the decision in Long v Gowlett  2 Ch 177. In this case, the Court held that in order for a “privilege, easement or advantage” to pass under the LPA provisions, something would need to be done over the land burdened by the claimed right of way which was not something which was within the rights of the occupying owner. The act constituting the claimed right of way would need to arise out of the ownership or occupation of the benefitting land separately from the ownership or occupation of the burdened land. The rule in Long v Gowlett therefore requires that where there has been common ownership of both parts of land, the rights of way claimed are necessary or continuous and apparent.
The Court did not consider that the rights claimed in this instance had been granted under s.62 LPA 1925. The Court considered that the rights claimed either failed on the grounds that there was no evidence that they were enjoyed with the land for any reasonable length of time prior to the transfer, or they did not satisfy the rule laid out in Long v Gowlett. This was because the rights claimed had been exercised by the wife of the common owner of the land, Mrs Crook. However, when she exercised these rights, she was not utilising a public right of way, rather she was simply riding on her husband’s land. This use by Mrs Crook, would not operate to make one part of the land subject to a burden for the benefit of another part of the land.
The Claimants argued that the rights claimed had been implied on two grounds, the first ground was based on the rule established in Wheeldon v Burrows (1879) 12 Ch D 31 and the second ground was based on common intention in the transfer to the Sharmans.
Wheeldon v Burrows requires that the rights claimed were continuous and apparent in that they were used and enjoyed for the benefit of the land conveyed, they were necessary for the reasonable and convenient enjoyment of the land conveyed and they were not inconsistent with the express terms of the conveyance.
As each of these criteria must be satisfied under the rule in Wheeldon v Burrows, the Court focused on the requirement that the rights claimed were necessary for the reasonable and convenient enjoyment of the land. The Court concluded that each of the rights claimed failed on this point and could not therefore have been granted impliedly under Wheeldon v Burrows.
The second claim for an implied grant was based on the common intention of the parties when the land was transferred. This requires that there was a common intention between the parties to the transfer as to a definite and particular user, and that the right claimed was necessary to give effect to that common intention. The Court could not find any evidence to suggest that there was a common intention at the time of the transfer. Although, the Sharmans did use the land to start a livery business from their property, the Court could not infer that this was their intention at the date of the transfer and there was no communication of any such intention to the transferor which would justify such an inference.
The case provides a useful examination of the different ways of trying to show that a right of way exists and confirms that pursuant to s.62 LPA 1925, even where the parts of land concerned were in common ownership, a right of way can still be established where the right of way is continuous and apparent.
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