England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BANBURY COUNTY COURT
(His Honour Judge Morton Jack)

		Royal Courts of Justice Strand London WC2
		15th July 1999

LORD JUSTICE MORRITT: This is an appeal of the defendants, Mr and Mrs Blackwell, brought with the leave of Sir Anthony McCowan, from the order of His Honour Judge Morton Jack, sitting in the Oxford County Court and made on 15th May 1998. The judge concluded that the right of way over the land of the claimants, Major and Mrs Mills, at Dean, Charlbury in Oxfordshire, to which the Blackwells were entitled, did not entitle the Blackwells to demolish a length of wall so as to widen the exit from the right of way onto their land from 4 feet 6 inches to over 12 feet. In consequence the judge directed the Blackwells to reinstate the part of the party wall they had caused to be demolished. He also dismissed their counterclaim.

As is evident, the action concerns a right of way, and that right was expressly reserved by a conveyance dated 6th May 1981. The true construction of such a reservation must be ascertained in the light of the circumstances as they existed at the time of the execution of the deed, not confined to, but principally, the physical layout.

The area of the land in question may be described thus. the village of Dean is to the south-east of Chipping Norton. It may be approached along a minor road leading south from the B4026 between Chipping Norton and Charlbury. That road effectively bisects the village of Dean. To the west of the road lies Dean Manor Cottage; to the east of the road, opposite Dean Manor Cottage, is Hill House; to the east of the road but south of Hill House is, first, a plot of land comprising about a quarter of an acre to which I shall refer as "the green land". The green land is bounded on the west by the road and on the south by a dry stone wall 4-5 feet in height, in which there was and is a gate giving access to the green land from the strip of land over which the right of way was reserved. South of the dry stone wall, therefore, is the strip of land which runs south-east from the road to the west to three garages to the east. The length of the strip of land giving access from the road to the garages is between 60-70 feet. The strip of land is the site of the disputed right of way and I shall refer to it as "the yellow strip".

In 1961 Mr and Mrs Blackwell moved into Hill House and have lived there ever since. The property opposite Dean Manor Cottage and property to the south of it was in the ownership of Mrs Bain. In about 1969 the three garages at the westerly end of the yellow strip were built, presumably by Mrs Bain or at her behest, and the yellow strip running from the garages to the road was concreted so as to give an access way which was made up for 12 feet in width. It runs, as I have indicated, from the road at the west to the garages at the east.

In 1970 Mrs Bain replaced the farm gate which had formerly existed in the dry stone wall and which had been about 12 feet wide with a wicket gate of about 4 feet 6 inches wide. There was no gap between the wicket gate and the ends of the wall, save such as would have been necessary for the purposes of hanging the gate so that it could be maintained and closed. Thus in 1970, or thereabouts, the means of access from the yellow strip to the green land, but not to the garages, was in effect reduced from about 12 feet to about 4 feet 6 inches.

To the south of the yellow strip and to the south and the west of the garages was part of Mrs Bain's property known as Newbrook House. In October 1972 she sold that, together with the southernmost garage, to a family called Noakes and subsequently that land was sold (whether mediately or immediately) to the present owners, the Clanmorrises.

The relevant conveyance occurred on 6th May 1981. On that date Mrs Bain sold to Mrs Burke-Jacklin Dean Manor Cottage, the yellow strip and the middle of the three garages. She reserved to herself, for the benefit of the other garage and the green land, a right of way in the following terms:

"Except and Reserving:

(ii) unto the Vendor or other the owners or owners and occupiers for the time being of the garage and that part of the Vendor's retained land as is hatched green on the said plan (in this sub-clause (ii) called `the green land') full and free right and liberty (in common with all other persons entitled to a like right) at all times and for all purposes connected with the present and every future use of the garage and the green land respectively with or without motor and other vehicles of every respective description and whether laden or unladen to go pass and repass along the access shown coloured yellow on the said plan for the purpose of gaining access to and egress from the garage and the green land respectively the Vendor contributing one-third of the cost of keeping the said access in good repair and condition ..."

It is the terms of that reservation and the proper construction of it which lie at the root of this case.

Before leaving the conveyance I should refer to certain other of its terms. The third exception and reservation was one to the vendor or the owners or occupiers for the time being of her retained land, which was more extensive than merely the green land referred to in reservation (ii),:

"... the right to use all or any part of the Vendor's retained land for building or other purposes whether or not such use shall obstruct or diminish the access of light and air now or at any time hereafter enjoyed by the Purchaser or her successors in title to any part of the property hereby conveyed to or for any building or other erection now or hereafter to be erected thereon ..."

It will be recalled that the boundary between the yellow strip and the green land was a dry stone wall in which, by this date, there was a wicket gate 4 feet 6 inches wide. In that connection, Clause 2(a) of the conveyance is relevant. That provided:

"(a) that the wall dividing the garage from the adjoining garage building to the south and the wall between the points lettered A and B on the said plan shall be party walls and shall be repairable and maintainable as such."

Point lettered A on the plan is the western extremity of the wall at the road side end and point B on the plan is the eastern extremity approximately at the north-eastern corner of the garage. In Clause 3 the purchaser covenanted with the seller in paragraph (b) "not to obstruct the said access coloured yellow on the plan", and the conveyance contained other normal provisions to be found in a transaction of that sort.

To complete the conveyancing history; in September 1983 Mrs Bain sold to Mrs Burke-Jacklin the third garage which she, Mrs Bain, had previously retained. Thus at that date Mrs Burke-Jacklin had the northern two garages and the owners of Newbrook House had the southernmost garage. On 3rd October 1985 the claimants, Major and Mrs Mills, bought Dean Manor Cottage, the two garages and the yellow strip from Mrs Burke-Jacklin. In June 1994 the Clanmorrises bought Newbrook House either from the Noakes family or from an intermediate purchaser from them. Then on 9th August 1994 Mrs Bain transferred the green land and the benefit of the right of way to Mrs and Mrs Blackwell who, as residents of Hill House, had used the green land for some years as either the licensee or the tenant of Mrs Bain.

In May 1997 Mr and Mrs Blackwell's builder removed part of the dry stone wall so as to enlarge the gateway giving access from the yellow strip to the green land from 4 feet 6 inches to 11 feet 6 inches, in the course of which a further 6 feet of wall collapsed. It seems that this is connected in some way with an arrangement between the Blackwells and the Clanmorrises, whereby the southern most part of the green land is to be sold by the Blackwells to the Clanmorrises so that they own land on both sides of the yellow strip. The Mills objected and instituted these proceedings in the Oxford County Court in June 1997.

The matter came in due course before His Honour Judge Jack on the 14th and 15th May 1998. He heard the action over two days. In his commendably short judgment he described the essential facts and the nature of the issue. His decision is contained in the passage at page 2B of the transcript running to 3B, and I will read it in full:

"The grant of the right of way is extremely badly worded and the plan is exceedingly imprecise. It is agreed that I should take the way as starting at the road end of the red land and as being a separate grant in favour of the green land in the terms I have set out.

I have to decide whether the way is wider than 4 feet 6 inches at its junction with the green land. The defendants stress that it is to be connected with every future use of the green land and with motor and other vehicles of every description. But every possible future use might include uses, perhaps commercial or industrial which required a huge width and way in and out. And what is the width of a motor or other vehicle of every description? Is it that of a scooter, a saloon car, a tractor, a JCB, a combine harvester or some even more gigantic vehicle? That leaves out of consideration what `other vehicles' might mean.

It is impossible to define the right of way simply by reference to the terms of the conveyance. It is perfectly plain that one must consider the instrument in the light of its surrounding circumstances as at 6th May 1981. The facts are that at that date the gate was only 4 feet 6 inches wide, that it had been only that width for some twelve years, and that the party reserving the right of way had herself narrowed it by the extension of a permanent structure. Furthermore, in the same deed she made that extension a party wall, and put it in joint ownership.

It seems to me clear that the intention of the parties was that at the entrance to the field the way should only be the width of the existing opening. It is equally clear that the right of way stopped at the wall. It cannot possibly have been intended to go on through an undefined length of party wall."

For Mr and Mrs Blackwell, Mr Randall QC has submitted that the judge wrongly narrowed the express words of the reservation by reference to the surrounding circumstances in respect of the future development on the green land and normal in 1981, let alone now normal, motor cars.

In the written argument submitted by counsel for the Blackwells in advance of the hearing it was also submitted that the judge had wrongly failed to construe the reservation contra proferentum; in this case the proferens being Mrs Bain and the Mills being her successor in title, and therefore in favour of Mrs Burke-Jacklin and now Mr and Mrs Blackwell. It was also submitted in the written argument (but did not feature in the oral argument) that where two parts of a deed are inconsistent then it is the earlier provision which should prevail.

Mr Randall wisely, and in my view correctly, confined his submissions to the first of those propositions. In doing so, he placed considerable emphasis on the wide words of the reservation. He submitted that the reservation was clear that there should be vehicular access to the green land in respect of each and every future use of the green land. He suggested that those words were plain, and were simply not capable of being limited by any consideration of surrounding circumstances. He suggested, by reference to a case to which I shall refer shortly, that the consequence of Mr and Mrs Blackwell being entitled to require the removal of a section of the wall was not so drastic as to contradict the plain language of the reservation. He also submitted that the words of the reservation were apt to contemplate access at every point along the boundary of the yellow strip and the green land. He submitted that there was nothing in the original reservation to limit the Blackwells to one particular line of access, or only through the existing gate of either its existing width or of a greater width. He submitted that the Blackwells' demand that the existing access way should be widened was not unreasonable, but that the maintenance of the obstruction over the vehicular right to which they were entitled by the Mills was a derogation from the grant made by the Mills' predecessor in title. In reference to certain points put to him in the course of argument, Mr Randall submitted that the creation of the dry stone wall as a party wall did not affect the matter one way or another. He tested that proposition by considering the hypothesis either that the wall was owned by the Blackwells or that the wall was owned by the Mills.

On behalf of Major and Mrs Mills, counsel's written argument effectively submitted that the judge was right for the reasons he gave but gave more legal theoretical reasons behind it for supporting that proposition. They rely on the fact that the yellow strip does not extend up to the party wall, but was separated from it by a narrow strip of land owned by the Mills. For my part I do not think, if that point was maintained (and I do not think in the end that it was) it is one that one can place any reliance on. I propose to approach the matter on the footing, whether it be the case or not, that the boundary between the ownerships was the party wall and not any intermediate point between the party wall and the concreted area of the strip.

It is then to the question of the proper construction of the reservation, the first point that Mr Randall particularly relied on, to which I now return. It is not disputed that the reservation in the conveyance of 5th May 1981 must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances. That much is made plain by the passage in Sir John Pennycuick's judgment of the court in St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468 at page 476. It is not necessary, I think, to quote it as I have effectively summarised it. But it is worth referring to the passage on the following page, 477C-D. Sir John Pennycuick's judgment reads as follows:

"Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction. Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction. But that is emphatically not the position here, where the reservation is in the loosest terms, i.e. simply `right of way.' Indeed those words call aloud for an examination of the surrounding circumstances and, with all respect, Mr Vinelott's contention, even if well-founded, seems to us to lead nowhere in the present case."

Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties' intention was as expressed in the deed.

The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances. Thus, in Todrick v Western National Omnibus Co Ltd [1993] 1 Ch 190, St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) and White v Richards [1993] 68 P&CR 105, the physical circumstances did so operate. But, by contrast, in Bulstrode v Lambert [1953] 1 WLR 1064, Keefe v Amor [1965] 1 QB 234 and Charles v Beach [1993] EGCS 124 they did not.

I start, therefore, with the terms of the reservation. Omitting irrelevant words, it is in these terms:

"The full and free right ... at all times and for all purposes connected with the present and every future use of the garage and the green land respectively with or without motor and other vehicles of every respective description ... to go pass and repass along [the strip] for the purpose of gaining access to and egress from the garage and the green land respectively ..."

It will be noted that the full width of the various provisions with regard to purposes, vehicles and the dominant tenement, all are preceded or used in conjunction with the word "respective" or "respectively". Indeed it seems to me that a considerable part of the argument for the Blackwells relies upon that fact. It is, of course, the case, as submitted for the Blackwells, that the terms of the reservation are very wide if taken literally and full effect is given to the words "respective" and "respectively". But to my mind their very width indicates the need to construe them by reference to the physical characteristics of the land at the time of the reservation. The yellow strip is physically not capable of accommodating modern construction or agricultural vehicles. Thus, "vehicles of every description" must be limited by reference to those which can physically "go pass or repass along" the strip. To the same extent the right to use the yellow strip for "all purposes" must be limited to those purposes for which it is capable of being used. The submission for the Blackwells denies any similar restriction in respect of gaining access to the green land. But I can see no logical basis on which it is possible to stop short of the conclusion that that part of the reservation must be limited by reference to the physical characteristics also.

In Bulstrode v Lambert [1953] 1 WLR 1064 at page 1069 Upjohn J (as he then was) declined to limit the extent of the express reservation of a right to pass and repass over the whole of the yard coloured brown, by reference to the restriction at the point of entry consisting of a pair of gates hung on substantial pillars. The other terms of the grant, by its reference to workmen and the auction mart, were confirmatory of the width of the right granted.

Likewise, in Keefe v Amor [1963] 1 QB 344 the Court of Appeal declined to limit the extent of the right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. But, again, there were other special features, not least that the grant was over the whole 20 feet width of the strip, not merely a 4 feet 6 inch passage down it. Russell LJ expressly contemplated that the day after the grant the grantee might compel the demolition of the gateway so as to permit the exercise of the right granted in clear terms the day before.

In Charles v Beach [1993] EGCS 124 the physical circumstances were such that the common way might be used for most of its length, save for an intervening flowerbed on the land of the servient owner. The Court of Appeal held that the existence of the flowerbed was insufficiently permanent or substantial to qualify the express terms of the grant. The proposition was expressed by Waite LJ (in the Lexus transcript which the parties have obtained) at page 6 in these terms:

"Where (as in this instance) the words of grant are apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there is in existence at the date of grant some feature on the servient tenement which represents a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it is a matter of construction in every case for the court to determine whether the existence of that obstacle calls for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It is essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to override the instruction, and (conversely) the more solid and permanent the obstruction, the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal."

Waite LJ then went on to consider various relevant circumstances and reached his conclusion midway down page 7 in these terms:

"When all these considerations are borne in mind, the intention that is properly to be imputed to the common vendor is in my judgment an intention to allow the dominant owner access for pedestrians and vehicles at every point along the driveway. The fact that this interpretation would carry with it the right to call upon the servient owner to abandon his flowerbed at any point where the dominant owner desired to exercise a right of access does not in my view involve a consequence sufficiently drastic to contradict the plain language of the grant. Nor can it be affected in retrospect by the fact that Miss Walker was a lady who never drove a car and never sought to exercise vehicular access rights in her lifetime. The right was given to her and to her successors in title in language that is too plain to be contradicted by any reference to the contemporaneous topography."

In all of those cases the obstruction was on the site of the way itself. In this case the obstruction occurs not on the servient tenement but at and in the party wall structure as constituted by the same conveyance. The Blackwells do not contend that they are entitled to have the whole of the wall removed so that they may gain access to the green land at all points along the way. They do, however, claim the right to make an opening of sufficient width at a point of their choosing, subject only to that point being a reasonable exercise of their right. They rely in that connection on the judgment of Warner J in National Trust v White [1987] 1 WLR 907. At page 913 Warner J said:

"Each was concerned [`each' being the cases Cooke v Ingram and Pettey v Parsons] with the resolution, in particular circumstances, of the inevitable conflict between the dominant owner's right of access to the way and the servient owner's right to fence his land. No hard and fast rule emerges from those cases, let alone any rule that could be applied mechanically in the circumstances of the present case. The guidance that those cases do afford is, I think, this, that whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would, in that case, constitute an unreasonable demand depends, of course, in the first instance on the proper construction of the grant and then on the factual circumstances."

The features apparent in all those cases do not appear to me to be present here. In this case there is no problem in obtaining access to or from the road, or to or from the garages. The whole of the width of the yellow strip is available for that purpose. Indeed, the reference to a one-third contribution to the maintenance of the yellow strip suggests that the parties envisaged that its primary use was as access to the garages. But the reserved right stops at the boundary between the yellow strip and the green land. That boundary is, or is to the south of, the wall which runs up from the road and was declared by the same conveyance to be a party wall. It would be quite inconsistent with that part of the conveyance to find that the person by whom the party rights were conveyed, Mrs Bain, was entitled to demolish parts of the wall without the consent of the person to whom it was conveyed, Mrs Burke-Jacklin, in order to widen the access from the yellow strip to the green land which she had reserved to herself, even if it takes effect by way of re-grant as a matter of conveyancing. Such a right, if intended, should be reserved by clear words. Indeed Clause 2(a) of the conveyance contemplates that the party wall will be maintained and retained, not that it will be demolished at the wish of Mrs Bain.

The problem does not stop there. The case for the Blackwells is that they are entitled to vehicular access to and egress from the green land and are entitled to demolish the party wall insofar as it stands in their way. But the conveyance is silent as to the point or points of such access or egress. It would be absurd to conclude, and Mr Randall does not submit, that the Blackwells were entitled to demolish the whole of the party wall so that access and egress might be obtained from any point along the whole length of the strip. But why should they be entitled to choose an access point anywhere they may reasonably select, when it is absolutely plain from the physical layout at the time of the conveyance that the access point was at and through the gate 4 feet 6 inches wide. This is not a case like Charles v Beach where access could be obtained at any point, nor Cooke v Ingram [1893] Ch 671 where the grant expressly permitted access at any point along the common boundary. It seems to me that the specific point of access and egress must be ascertained from the physical circumstances prevailing at the time; and if reference is necessary to such circumstances to supply the point of access and egress, I do not see why it should not also supply its limitations. The restriction of the width of the gateway from the strip to the green land was and is of a permanent nature. It had been made eleven years before the conveyance of the strip. I do not accept that there is anything insubstantial or transient about a dry stone wall. There is nothing in the conveyance to suggest an intention on the part of the parties that the point or extent of the access or egress should be anywhere or to any extent greater than what was then capable of enjoyment.

At the end of the day, the point is a short one and for the reasons I have tried to explain I agree with the judge and would dismiss this appeal.

MR JUSTICE WILSON: I agree.

ORDER: Appeal dismissed with costs. Permission to appeal to the House of Lords refused. (Order not part of approved judgment) ____________________