Wood v Waddington
On 21 May 2015, the Court of Appeal handed down its judgment in Wood & Anr v Waddington [2015] EWCA Civ 538. Lewison LJ gave the lead judgment, reversing the decision of Morgan J at [2014] EWHC 1358 (Ch), and allowing the appeal of Mr and Mrs Wood, who were entitled to acquire two rights of way under section 62 of the Law of Property Act 1925.
The Court rejected the appellants’ first argument, that clause 12.3.3 of the transfer was an express grant of the claimed right. By that clause, the Property 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 Property”. The issue was whether the right of way claimed was “continuous”.
Lewison LJ agreed with the judge below that a right of way is not continuous: “continuous easements are those that are enjoyed without any human activity; such as rights of light, rights of support, rights of drainage and so on”. The right claimed was “a right to use the ways, not the ways themselves”. Although for the purposes of the rule in Wheeldon v Burrows, a right of way could be “continuous and apparent”, rendering the word “continuous” “all but superfluous” in that context, as a matter of ordinary language “continuous” means “uninterrupted or unbroken”. There is a well-defined category of easements which are “continuous” in this latter sense. Clause 12.3.3 was therefore interpreted as being confined to easements of that category.
The appellants’ second argument, relying on s62, was successful. Following the remarks of Patten LJ in Alford v Hannaford [2011] EWCA Civ 1099, where there is no diversity of occupation of the land retained and the land sold prior to sale, s62 can only result in the grant of easements where the exercise of the relevant rights had been continuous and apparent (in the Wheeldon v Burrows sense).
Lewison LJ said that what was important where the right in question is a right of way “is the extent to which there are visible signs of a track or road”. Morgan J had found that there was a potholed track, and a sign indicating a turning, which were visible signs that the track which was the subject of the first claimed right had been used for the benefit of the conveyed land, since the obvious inference was that vehicles would continue down the track conveyed to the predecessors in title to Mr and Mrs Wood. In relation to the second claimed route, there were also visible signs of vehicular use. These visible signs were sufficient to render each route continuous and apparent for the purposes of the rule in Wheeldon v Burrows.
Use of the way once per month was held to be sufficient to establish both apparent use and a regular pattern of use. Use to that extent can support a claim to have acquired an easement by prescription, so there was no reason why it could not also support a claim under s62. It was argued on behalf of Mr Waddington, relying on s62(4), that a contrary intention had been expressed in the transfer so that s62 did not apply. This was because various rights of way had been specifically granted or reserved, obligations as to the maintenance of those ways were expressed, and clauses 12.3.3 and 12.5.3 covered the same ground as s62 but were confined to “continuous rights” which rights of way are not.
The Court rejected that argument: “The grant in the written terms of a conveyance of a limited right will not exclude the operation of s62 to confer a greater right than that which is contained in the terms of the conveyance itself.”
The next issue was the scope of the rights conveyed under s62. In respect of the first right, the use proved was vehicular use, but the right claimed extended to use on foot and on horseback as well. In respect of the second right, the use proved was again vehicular use, but that was not claimed. Instead, a right limited to use on foot and with animals was claimed. The Court held that, assuming that the transfer included a right of way using vehicles, “it would also have entitled the grantee to use the way on foot or on horseback (but not to drive animals)”.
The final issue was whether any rights to use the ways on horseback were limited to use for domestic purposes, no livery business having existed on the land at the time of the conveyance. The Court held that the right treated as expressly included under s62 was not limited to use for specific purposes, only as to the manner of use (i.e. on horseback). “The mere fact that use changes from domestic to commercial does not of itself amount to use in excess of the right granted… a mere intensification of use is not something to which the servient owner is entitled to object.”
Case summary by Toby Boncey
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