From the Birmingham District Registry
Strand, London, WC2A 2LL
B e f o r e :
|(1) THE COMMISSION FOR NEW TOWNS|
|(2) WORCESTERSHIRE COUNTY COUNCIL||Claimants|
|- and -|
|JJ GALLAGHER LIMITED||Defendant|
Mr John Randall QC and Mr Conrad Rumney (instructed by Messrs. Wood Glaister, Birmingham) for the Defendant.
Hearing dates: 25th to 29th November 2002
Crown Copyright ©
i) It is in fact the Commission, and not the defendant, which owns the freehold of Beoley Lane,
ii) If the defendant owns the freehold of Beoley Lane:
(a) The Commission, as owner of the freehold of the triangle, has a right of way for all purposes over Beoley Lane; and/or
(b) Beoley Lane is a public highway for all purposes – i.e. a public carriageway.
The Position on the Ground
THE FIRST ISSUE: THE OWNERSHIP OF BEOLEY LANE
The relevant facts
"ALL THOSE several pieces or parcels of land containing in the whole [45.197] acres or thereabouts situated at Gorcott Hill in the Parish of Studley in the County of Warwick and being enclosures Nos. 19, 23, 36 and 37 and parts of enclosures Nos. 8, 9, 20, 21, 22, 24, and 27 on Sheets Nos. XXXI-2, 5 and 6 of the Second Edition of 1905 of the O.S. Map for Warwickshire and which said pieces or parcels of land are for the purpose of identification only delineated on the plan annexed hereto and coloured as to part red [and] as to further part blue ..."
The highway presumption
25. The highway presumption has been defined in the following terms:
"Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law is, that the soil of the highway usque ad medium filum passes by the conveyance, even though reference is made to a plan annexed, the measurement and colouring of which would exclude it."
This quote is taken from the headnote in Berridge v- Ward 10 CB (NS) 400, cited with approval by Waite LJ in Pardoe –v- Pennington (1996) 75 P & CR 264 at 269.
"In the ordinary case where it is said that the presumption is that the soil of the highway ad medium filum is intended to pass, that is because, as between owners of land abutting the highway between them, the presumption is, in the absence of knowledge of the precise facts, that each owner does own the soil of the highway ad medium filum. If it turned out that the presumption was not accurate in fact, and that, as between the owners of the properties on the opposite sides of the highway, the highway was unequally divided between the two, then the sole effect of that would be, not that it would negative the presumption that the soil of the highway passed by a conveyance by the owner of the property on one side of the highway, but the presumption would then be that the conveyance passed the soil of the highway so far as it was vested in the conveying party."
"In the case of … Salisbury …, there was enough on the face of the conveyance which was set out in the special case to shew that moiety of the adjoining highway was not intended to pass. That case, therefore, is out of the general rule. There is nothing in the present case to take it out of that general rule."
Willes and Keating JJ agreed in the result.
"When you find the parcels described with reference to the ordnance map, the numbers on that map appear to me to be too important to be left out of account."
At 19 to 20, he concluded that the evidence of the timber valuation, and the fact that it did not extend to the trees on the road, was admissible, not least because reference was made to the valuation in the recital to the conveyance.
"That, of course, after the decision in Berridge –v- Ward, is not conclusive by any means; neither is the acreage coupled with it sufficient to rebut the general presumption. But when we come to look at the recital with respect to the trees, it appears to me that the learned Judge has decided this case rightly upon that recital and upon the fact that the trees which were valued were trees on the property defined in the parcels, but excluding the [road] in question"
"One of the several facts which I have mentioned would not be conclusive; but when we join them altogether it is difficult to say that this piece of land passed by the presumption of law, and that there is not sufficient to rebut the presumption."
"First of all, on the face of the deed, the acreage does not include any part of this road; secondly, it is described by reference to the ordnance map, and the numbers on the ordnance map are copied on the map which is part of this conveyance. This moiety of the road is included in a piece numbered 5, and No. 5 is not referred to in the deed. That is another point. Then you find upon that map on the deed that the freehold land, which includes this wood, is edged with a pink line, and this pink line is so drawn as not to include one moiety of the road."
"However, I agree that those facts alone, after the decision in Berridge –v- Ward, although they are very strong and significant, might not be enough to rebut the presumption; but then we have another fact [sc. a valuation of the timber excluding the trees on the road] which, added to those facts, to my mind does turn the scale. The presumption is, I think, rebutted by an accumulation of facts, a few of which alone, or it maybe any of which alone, might not be enough to rebut it; but when you get the force of the whole accumulation, that ... seems to me ... sufficient to rebut the presumption."
The judgment of AL Smith LJ was to much the same effect (see at 24 and 25).
i) Beoley Lane is a highway, part of which adjoins the triangle which was conveyed by Mr Adams to the Council;
ii) The soil of the whole of that part of Beoley Lane which adjoined the triangle was owned by Mr Adams;
iii) The highway presumption therefore applies to the whole of that part of Beoley Lane which adjoins the triangle;
iv) It is for the defendant, standing effectively in the vendor's shoes, to establish that the highway presumption is rebutted;
v) The effect of the cases, and of normal principles of construing contracts, is that the presumption will be rebutted if it is sufficiently clear, from the terms of the conveyance and/or from the surrounding circumstances, that the vendor was intending, and/or the vendor had good reason at the time, to retain the soil of the adjoining highway;
vi) One must therefore look at the terms of the conveyance and the surrounding circumstances and ask oneself whether, taken as a whole, they rebut the highway presumption;
vii) The fact that Beoley Lane was not mentioned or included in the 1971 conveyance, or marked on the plan as included within the land to be conveyed, is plainly not enough to rebut the presumption: otherwise the presumption would be virtually always redundant;
viii) The fact that Beoley Lane had a plot number and the 1971 conveyance identified the properties to be conveyed by reference to plot numbers which did not include Beoley Lane, is a factor which should be taken into account and militates against the presumption;
ix) The fact that the property to be conveyed was the subject of a valuation (referred to in the 1971 conveyance) which clearly did not extend to any part of Beoley Lane, provides some basis for rebutting the presumption, but it is of limited value given that there is no evidence that any part of Beoley Lane had any value, and there is real reason for thinking that it had no value;
x) In view of the imminent construction of the Coventry Highway (obliquely referred to in the 1971 conveyance by virtue of the mention of section 214 of the Highways Act 1959, and identified more plainly by pecked lines on the plan attached to the conveyance), the evidence as to the virtual absence of any local use of Beoley Lane, and the complete absence of any evidence as to the use of Beoley Lane for access to Mr Adams's retained land, there is no real force in the point that Mr Adams might have wanted to retain that part of Beoley Lane adjoining the triangle, in order to obtain access to his retained land;
xi) The notion that the vendor might have wanted to retain that part of Beoley Lane in order to be able to participate in any eventual development value of the triangle is irrelevant, as it was not in the minds of the parties at the time;
xii) The requirement of Redditch (via the Council as purchaser under the 1971 conveyance) to obtain a significant section of the relevant part of Beoley Lane for the construction of the Coventry Highway (evident from the plan attached to the 1971 conveyance) is a substantial factor in favour of the highway presumption applying, especially as Mr Adams retained no other land needed for the construction of the highway, and Redditch already owned the land needed for that purpose, on the other side of Beoley Lane.
"(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
(4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained"
"It is not suggested in any of the cases that that must be an expression in absolute terms, but it is worth noting that the word used in the sub-section is 'expressed' and not, as in some other cases … 'unless the contrary intention appears'".
"Under those circumstances I do not think the … canon of construction, 'expressio unius exclusio alterius,' is appropriate here."
The observations of Sargant LJ at 534 and 535 are to much the same effect.
THE SECOND ISSUE: A PRIVATE RIGHT OF WAY
"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 THIRD ISSUE: PUBLIC CARRIAGEWAY
The relevant legal and factual background
"This Property has considerable frontages to a Road leading from Beoley to the Birmingham and Alcester Road, and to a Road leading from Beoley to Mappleborough Green ..."
i) The highway presumption, but not section 62, has resulted in Beoley Lane being vested in the Commission, through the medium of the 1971 conveyance, and it has therefore not been acquired by the defendant;
ii) If that is wrong, and Beoley Lane is owned by the defendant, the Commission cannot claim any private vehicular right of way over Beoley Lane;
iii) In any event, the evidence establishes that, on the balance of probabilities, Beoley Lane is a public carriageway.