B e f o r e :
LORD JUSTICE NOURSE
and
LORD JUSTICE RUSSELL
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ERIC STAFFORD
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and
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CONSTANCE NELLIE STAFFORD
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-v-
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CYRIL JOHN LEE
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and
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JACQUELINE M. DAVEY
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Limited, Room M104,
Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU).
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MISS JACQUELINE BAKER, instructed by Messrs Linford Browns (Exmouth), appeared for the Appellants (Defendants).
MR PHILIP S.A. ROSSDALE, instructed by Messrs Orchard & Co. (Exmouth), appeared for the Respondents (Plaintiffs).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE NOURSE: The question in this case is whether a right of way claimed by the plaintiffs as appurtenant to their land falls into the second class of implied easements described by Lord Parker of Waddington in Pwllbach Colliery Company Limited v. Woodman [1915] A.C. 634 and usually known as intended easements.
The question depends on the effect of a deed of gift of freehold land dated 25th March 1955 and made between Mr Percy George Richards (called "the Grantor") of the one part and Mrs Muriel Barbara Walker (called "the Donee") of the other part. The grantor's and the donee's addresses were stated to be in Exmouth, Devon and Colemans Hatch, Hartfield, Sussex respectively. In clause 1 of the deed the parcels were expressed as follows:
"ALL THAT piece or parcel of land situate and having a frontage of One hundred and fifty nine feet to a roadway being Ordnance Survey Number 231 and known as Marley Drive in the Parishes of Lympstone and Withycombe Raleigh in the County of Devon All which said piece or parcel of land is for the purpose of identification only more particularly delineated on the plan annexed hereto and thereon coloured Pink TO HOLD the same unto the Donee in fee simple subject nevertheless to and with the benefit of the restrictions and reservations contained in a Conveyance dated the eighteenth day of February One thousand nine hundred and forty nine and made between Marjorie Alice Littlejohn of the one part and the Grantor of the other part so far as the same affect the property hereby conveyed or any part thereof."
Clause 2 of the deed contained a covenant by the donee by way of indemnity to observe and perform the restrictions and reservations contained in the conveyance of 18th February 1949 so far as the same related to the property thereby conveyed and were subsisting and capable of taking effect.* The plan annexed to the deed showed an area of land coloured pink fronting on to a roadway running to its northwest to join the public highway and bearing the legend "Marley Drive". Adjoining the land conveyed on its northwestern boundary was a smaller rectangular enclosure fronting on to Marley Drive and bearing the legend "Woodcote". Adjoining Woodcote on its northwest boundary was another enclosure, slightly larger than Woodcote and nearly square, also fronting on to Marley Drive and bearing the legend "Beechwood". Between Beechwood and the public highway there was shown an area planted with trees of approximately the same area as that of the other three enclosures taken together.
It will at once have been observed that the 1955 deed, although it described the land conveyed as having a frontage to Marley Drive, contained no express grant of a right of way over that roadway. It is that unfortunate omission which, some 35 years later, has led to the dispute in these proceedings. As briefly as I can, I will tell what is left of the story.
By the conveyance of 18th February 1949 Mr Richards, the grantor under the 1955 deed, had acquired what was then the residue of the Marley Estate, including Marley Drive, amounting to about 46 acres in the aggregate. The plan annex to that conveyance showed enclosures marked Woodcote and Beechwood in the same way as that annexed to the 1955 deed. By a conveyance dated 29th September 1967 Mr Richards conveyed to Mr Robert Davey and the first defendant, Mr Cyril John Lee, the bulk of the land which had been conveyed to him in 1949, including Marley Drive and amounting to some 43 acres. The conveyance was expressed to be subject, amongst other rights, to the rights of way in favour of the properties abutting on Marley Drive to pass and repass thereover. The second defendant, Jacqueline M. Davey, is the successor of Mr Robert Davey.
It appears that on 13th June 1956 Mrs Walker, the donee under the 1955 deed, applied for outline planning permission, presumably to build a dwelling on her land, and that her application was not opposed by Mr Richards. No development was carried out at that time. Since then the property has changed hands several times. On 18th January 1983 the plaintiffs, Mr Eric Stafford and his wife, Mrs Constance Nellie Stafford, were registered at the Land Registry as proprietors thereof with title absolute.
All this time the land comprised in the 1955 deed had remained unbuilt on. It still was as, it always had been, a piece of woodland containing a pond within it. It appears clear that the only practicable means of access to it and egress from it was over and along Marley Drive. On 2nd June 1989 the plaintiffs were granted planning permission by East Devon District Council for the erection of a dwelling house on the land. It was no doubt that which alerted the defendants, as the owners of Marley Drive, to their rights. They asserted that the plaintiffs had no right to use the drive either for construction traffic or for use as residential purposes, if and when a dwelling was constructed. Litigation soon became inevitable. On 5th June 1990 the plaintiffs commenced proceedings in the Exeter County Court claiming a declaration as to their rights. The defendants counterclaimed for a counter declaration and an injunction.
The action came on for trial before His Honour Judge Willcock, Q.C, in February 1991. The judge delivered his reserved judgment on 26th July 1991, when he granted the plaintiffs a declaration in these terms:
"IT IS HEREBY DECLARED that the Plaintiffs are entitled to a right of way along the roadway known as Marley Drive Lympstone in the County of Devon from the highway at its North-Western end to the gate whose approximate position is shown marked 'X' on the plan annexed to the Particulars of Claim and back for themselves, their servants, agents and licencees on foot or with vehicles, for the purpose of carrying all the necessary building materials for the construction of a dwelling house to be created on the land referred to in paragraph 1 of the Particulars of Claim and for all purposes connected with the use of the said dwelling house for residential purposes."
The judge dismissed the counterclaim. He awarded the plaintiffs three-quarters of their costs on the claim and the whole of their costs on the counterclaim, such costs to be taxed on Scale 3.
At the hearing below no oral evidence was called on either side. The plaintiffs put their case on three different grounds. First, they claimed an easement of necessity. Secondly, they relied on the rule in Wheeldon v. Burrows (1879) 12 Ch. Div. 31. Thirdly, they sought to invoke the principle of Pwllbach Colliery Company Limited v. Woodman. The judge had no difficulty in holding that the plaintiffs could not establish an entitlement to the easement they claimed on either of the first two of those grounds. But he held that they could do so on the third. The defendants now appeal to this court. The plaintiffs have put in a respondents' notice seeking, if necessary, to have the judge's decision affirmed on one or other of the first two grounds.
Lord Parker's statement of the relevant principles in Pwllbach Colliery Company Limited v. Woodman [1915] A.C., at page 646, starts with his saying that apart from implied grants of ways of necessity, or of what are called continuous and apparent easements (i.e. those passing under the rule in Wheeldon v. Burrows), the cases in which an easement can be granted by implication may be classified under two heads. Having dealt with the first class, where the implication arises because the right in question is necessary for the enjoyment of some other right expressly granted, he continues, at page 646:
"The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the' grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. See Jones v. Pritchard [1908] 1 Ch 630 and Lyttelton Times Co. v. Warners [1907] AC 476. But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use."
Intended easements, like all other implied easements, are subject to the general rule that they are implied more readily in favour of a grantee than a grantor. But even there, as Lord Parker points out, the parties must intend that the subject of the grant shall be used in some definite and particular manner. If the grantee can establish the requisite intention, the law will then imply the grant of such easements as may be necessary to give effect to it.
There are therefore two hurdles which the grantee must surmount. He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it. Notwithstanding the submissions of Miss Baker, for the defendants, to the contrary, I think that the second hurdle is no great obstacle to the plaintiffs in this case. The real question is whether they can surmount the first.
It is axiomatic that in construing any conveyance you must take into account the facts in reference to which it was made. But here, no extrinsic evidence having been adduced on either side, we can refer only to the 1955 deed. At one point it seemed possible that some assistance might be gained from the terms of one of the restrictions in the 1949 conveyance, subject to which the 1955 deed was expressed to have effect. However, for reasons which need not be gone into, I agree with Miss Baker that that did not prove to be the case.
The defendants admitted in their defence that the 1955 deed did pass to Mrs Walker a right to use Marley Drive and that that right had passed to the plaintiffs. But they have at all times contended that the right was limited to use for all purposes necessary for the reasonable enjoyment of the land as woodland, being the manner of its enjoyment in 1955. Such a right is manifestly inadequate for the plaintiffs' purposes.
The first point to be made about the defendants' contention is that, although it may sometimes come to the same thing, the material question in a case of an intended easement is not how was the land enjoyed in 1955, but did the parties to the 1955 deed intend that it should be used in some definite and particular manner and, if so, what? As to that question, Miss Baker has submitted that in our present state of knowledge, or rather the lack of it, we cannot point to any definite or particular manner of intended use. She says that Mrs Walker may already have had a home in the neighbourhood and that the intention may have been that she would use the land for a paddock, a vegetable or a flower garden of her own, for a market garden, an apiary or for some other horticultural or agricultural use.
In my view Miss Baker's submissions are unrealistic. The requirement that the parties should have intended a definite and particular use for the land does not require that the intention be proved as a certainty. As always, it is enough that it is proved on the balance of probabilities. What help do we get from the 1955 deed in this regard? First, it is to be observed that Mrs Walker's address, far from being in the neighbourhood, is stated to be in distant Sussex. Secondly, and far more significantly, there is the plan.
Miss Baker, while accepting that a conveyance plan which is expressed to be for the purpose of identification only may yet be relied on in order to solve problems left undecided by the parcels - she referred us to Wigginton & Milner Limited v. Winster Engineering Limited [1978] 1 W.L.R. 1462 and Scott v. Martin [1987] 1 W.L.R. 841 - has submitted that such a plan cannot be relied on for the purpose of establishing the parties' intention as to the use to which the land should be put. I cannot see why that should be so. The plan is part of the material agreed on by the parties. There is no reason why their common intention, if it is not expressed, should not be implied from that as much as from any other part of the agreed material. There is every reason why, if it can be, it should be so implied.
The significant, indeed the eye-catching, feature of the plan here is that it delineates, as the land conveyed, a plot adjoining and of comparable area to two other enclosures, each adjoining the other, which, from the legends they bear, are seen to be plots of land on which dwellings have already been constructed. In these circumstances and given, as the defendants accept, that some appurtenant right of way was intended over and along Marley Drive, what are the probabilities as to the intended use of the land? In my judgment, on the balance of probabilities, the parties can only have intended that it should be used for the construction of another dwelling to be used thereafter for residential purposes. I cannot see what other intention could reasonably be imputed to them. Having got to that point, I am satisfied that the easements , claimed by the plaintiffs and declared in their favour by the judge are necessary, and are no more than are necessary, to give effect to the intention so established.
On that footing it is unnecessary to deal with the alternative grounds on which the plaintiffs would have relied in order to support the judge's decision. As at present advised, I think that the judge was plainly right to reject them. But since we have not called on Mr Rossdale to answer the appeal, it is inappropriate to express a concluded view to that effect. Judge Willcock gave a judgment full of wise thoughts on conveyancing and practical common sense. My only possible criticism of it is that he relied in part on Mrs Walker's application for planning permission in June 1956, some 15 months after her acquisition of the land, and Mr Richards' lack of objection to it. Not having heard Mr Rossdales' submissions on the point, I am doubtful whether those were matters which could be relied on in order to judge the parties' intention at the date of the 1955 deed. However, reliance on those matters was unnecessary. It is clear that the judge's decision was correct. I would affirm it and dismiss the defendants' substantive appeal accordingly.
LORD JUSTICE RUSSELL: I agree.
(Discussion on costs followed)
LORD JUSTICE NOURSE: We now have to deal with a question of costs. As I said in my main judgment, the judge awarded the plaintiffs three-quarters of their costs on the claim and the whole of their costs on the counterclaim. Miss Baker submits that in doing that the judge erred in a manner which entitles this court to interfere with his decision and to make a different order in its place.
Miss Baker takes two points. First, she points out that the defendants served a notice to admit facts which was never responded to before the trial, when the facts were admitted. She says that costs were incurred in the attendance of a witness, or perhaps more than one witness, who was there to prove those facts. In the circumstances, referring to Order 20, rule 2(2) of the County Court Rules 1981, Miss Baker submits that the costs of proving the facts and the costs occasioned by and thrown away as a result of the plaintiffs' failure to admit them should be borne by the plaintiffs under a specific order to that effect.
Secondly, Miss Baker points out that in an answer to a request for further and better particulars given on 18th September 1990 (some four or five months before the trial), the plaintiffs stated that they were not alleging that it was actually intended by the parties to the 1955 deed that Mrs Walker would erect a dwelling house on the land. However, at the trial they were given leave to withdraw that concession and amend their pleadings accordingly. Miss Baker points, correctly, to the fact that it was only on the basis of an intended easement that the plaintiffs succeeded at the trial. Accordingly, she says that, in accordance with normal practice, the amendment being vital to the plaintiffs' success, they ought to have been ordered to pay the defendants' costs down to the amendment. She accepts that, subject to those two specific orders, the defendants would have had to bear the plaintiffs' costs of the action. But she says - and I have no doubt that she is right - that that would have been a better result from the defendants' point of view than that which follows from the judge's order.
A question of costs is a matter for the judge's discretion. This court will not interfere except on very well established principles which need not be restated. Having listened to Miss Baker's submissions, I am not satisfied that the judge did not correctly reflect the points which she has raised by depriving the plaintiffs of one-quarter of their costs. It has not been shown either that he did not take those points into account or, having taken them into account, that he was not entitled, in the exercise of his discretion, to deal with the matter in the way that he did. In those circumstances, I would dismiss this part of the defendants' appeal as well as the first.
LORD JUSTICE RUSSELL: I agree.
Order: Appeal dismissed with costs.
