England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 1998/0596/2

(HIS HONOUR JUDGE WEEKS QC )

Royal Courts of Justice

Strand

London WC2

Wednesday 28 July 1999

B e f o r e:

LORD JUSTICE BROOKE

MRS JUSTICE HALE DBE

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KATHLEEN ALEXANDRA LODER

Claimant/Respondent

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1. TIMOTHY ROGER GADEN

2. VERIAN ANNE GADEN

3. THOMAS GADEN Defendants/Appellants

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR P BIRTS QC (Instructed by Scaiff & Co, Worcester, WR1 1DN) appeared on behalf of the Appellants.

MR B SEFI (Instructed by Messrs Bishop & Sewell, London, WC1B 3RJ) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

Wednesday 28 July 1999

JUDGMENT

MRS JUSTICE HALE: This is the judgment of the court.

The appellant defendants (“the Gadens”) appealed from the order of His Honour Judge Weeks QC on 22 April 1998 in the Bristol County Court sitting at Gloucester containing declarations as to the nature and extent of their rights of way over Sydenham Lane, near Broadwell in Gloucestershire. Their principal contentions were either that Sydenham Lane was a highway or that their private right of way was more extensive than that declared by the judge, who had limited it to ‘all purposes in connection with the use of those lands [ie the western part of the land owned by the first and second Defendants] as agricultural land’. On 20 April 1999, we handed down judgments dismissing their appeals on both points. The background essential to an understanding of the present judgment is contained in our earlier judgments and will not be repeated here.

As is often the case, the matter is of very great practical and financial importance to the Gadens. There are two reasons for this: first, they have for some (but less than twenty) years carried on a haulage business from their land to which Sydenham Lane is the only access, and they wish to be able to carry on doing so; and secondly, they have obtained planning permission to build a dwelling house on their land.

Accordingly the matter was relisted for further argument on three questions raised on their behalf by Mr Birts QC in his skeleton argument of 12 May 1999: (i) whether the right of way extends over the whole width of the lane from the hedge on the northwest side to the ditch on the southeast side; (ii) whether the Gadens have a right of way for domestic and/or residential use in connection with the use and enjoyment of their land as agricultural land; and (iii) whether the bundle of rights enjoyed by the Gadens includes the right to carry on their present agricultural haulage business.

The Gadens contend that there should be an expedited new trial of all three issues, before a Judge of the Chancery Division, who should be directed to investigate the whole history of the lane as known and determine its prescriptive width and user under the doctrine of lost modern grant as well as at common law. Alternatively they seek a determination by this court in their favour on the first two issues, recognising that the third has already been determined against them both at first instance and on appeal.

The width of the lane

His Honour Judge Weeks QC declared that the Gadens' easement:

‘. . . does not extend over:

(a) the existing grass verges either side of the hard carriageway; and

(b) the area shown on the plan attached hereto enclosed by a line drawn in red.’

This declaration was challenged in the grounds of appeal and in Mr Birts' original skeleton argument of 15 February 1999, principally on the basis that the lane was a highway to which ‘the usual hedge to hedge’ presumption would apply: see Turner v Ringwood Highway Board (1870) LR IX Eq 418. Mr Sefi on behalf of Mrs Loder accepts that the issue was not fully argued before us in relation to the Gadens' private rights and that it is proper for us to consider that matter in a further judgment.

Mr Birts argues that the right of way extends from the hedge on one side of the lane to the ditch on the other for the whole of its length. But in reality the problem lies at the mouth of the lane where it joins the public highway. If the width of the lane is as restricted as the judge declared it to be, the Gadens have difficulty manoeuvring their lorries and trailers in and out of the junction.

The area referred to in (b) of the judge's declaration is outlined and hatched in red on a plan drawn up by Mrs Loder's surveyor, Mr Anstis. It consists of a strip on each side of the lane (narrowing towards the road junction on the northeast side but broadening on the southwest side), between the central area described as 'tarmac covered with gravel' and (on the northeast side) a grass verge and ditch and (on the southwest side) a very narrow grass verge and hedge. These strips are described as ‘gravel’ save at the very end on the southwest side, where it bends to meet the road, where it is described as ‘hardcore covered with gravel’.

The judge explained that Mr and Mrs Gaden had:

“... spent considerable sums of their own money in improving the lane and raising the surface by eighteen inches in order to make access easier for their lorries, but that does not entitle them to any increased rights of access. See Mills v Silver [1991] Ch 271, especially at p 287 per Dillon LJ.”

He went on to consider the verges:

“The verges plainly belong to Mrs Loder and I find that the established track is wide enough for ordinary one way traffic and that there is no right to use the verges. Indeed, Mr and Mrs Gaden have not done so to any significant extent except at the mouth of the lane. Here Mrs Loder was careful to acquire in 1979 a portion of land to the west of the lane in order to preserve the configuration of the lane and its hedges. She then laid tarmac at the entrance to the lane in order to divert the water into the ditch as the east side.

I find that the tarmac was laid to the edge of a grass verge or bank which ran along the line M to U on the plan of Mr Antiss [sic], the plaintiff's surveyor. The bank did not form part of the carriageway of the lane but the last section, T to U, does form part of the public highway.”

This was a finding of fact upon a simple conflict between the evidence of Mrs Loder on the one hand and Mr and Mrs Gaden on the other.

Mrs Loder explained that she had laid the tarmac at the mouth of the lane ‘perhaps two years after I got there after the first flood had been down and taken all the gravel away from the lane’; and ‘The tarmac was especially laid to extend from the verge on one side to the hedge and verge on the other side. The hedge and verge consisted of a bank and the tarmac was put there to guide the floodwater when it came into the ditch and stop it taking all the gravel down the lane.’ Asked ‘Did the tarmac stretch from grass to grass at that part of the lane?’, she answered ‘Yes, it did.’ Asked again ‘Do you say the line at the edge of the tarmac was the edge of the lane at the time when you had the tarmac laid?’, she answered ‘Yes’. When it was put to her in cross-examination that in fact there was a little area of unmade up lane before a grass bank that occupied about half the area where it says, “Hardcore covered with gravel”, up to the word “hardcore”, if you like, from the tarmac. . .’ , she replied ‘Positively no, because what would have been the point of me putting down the tarmac to stop the water coming in if I'd allowed room at the edge for it to get by?’

The second defendant, Mrs Gaden, however, contended that when they first went there the verge was ‘Oh, about a foot, two foot, I'd say a foot.’ In cross-examination she said that ‘there was a substantial grass verge there’ and later ‘. . . there was a foot to two foot, right? I'm not exact, right? . . . But what you're actually trying to say to me, did the tarmac go to the grass verge or did it go to the whatsit. It did not go to the grass verge, there was gravelly stuff in between. Well, that's how I see it.’ She repeats that ‘there was gravel between the tarmac and the verge’, indicating about a foot then and overleaf ‘between six inches and a foot then’.

The first defendant, Mr Timothy Gaden, said that ‘I think she only put the minimum down’. Then ‘From the hedge there was a foot of grass and then there was about two foot of gravel there’. He then says that all the two foot of gravel was lane. The Allardines had done it earlier. Mrs Loder had tarmacked some of it later. Under cross-examination he was asked ‘You say that the tarmac was laid short of the verge and the hedge?’ and answered ‘Yes, very much so. Three foot short I should think.’ He later said ‘The Allardines made the hump and the gravel. She only merely tidied up when the gravel was washed away. Yes, I'll give you a hump.’ When asked ‘What, are you saying there was a hump but only part of it tarmac and the rest of it gravelled?’ he answered ‘Yeah. Most of it tarmacked and three foot gravelled, I should think, giving an opinion.’

Although the judge's finding is in summary form, it is quite clear that he preferred the evidence of Mrs Loder on this point. He was entitled to do so. Her evidence as to where she had laid the tarmac, and why, was clear and straightforward. The Gadens' evidence was less straightforward and also provided no explanation as to why, if Mrs Loder was laying tarmac to prevent gravel being washed down during a flood, she should nevertheless leave two feet or so of gravel at the side of the tarmac. Quite apart from whatever impression the learned judge formed of the witnesses themselves, Mrs Loder's evidence was on the face of it more plausible than that of the Gadens.

Mr Birts also argues that the lane is very old and was originally a mud track. Common sense dictates that pedestrians and vehicles will, at least from time to time, have used the whole of the width available to them. Mr Sefi, however, points out that there is no evidence of any substantial use by vehicles until the childhood of Netta Humphris. In her witness statement she says that it was then a mud track and remembered her father's tractor sinking axle deep in mud. In her oral evidence she agreed that the lane was very rough beyond the farmhouse but that her father could get down in his pickup, and with the old American army lorry that they had after the war, and that she could get down in her mini traveller. There was something of a dispute between her and Mr Timothy Hill as to how passable the lane had been until improvements made first by the Scarrotts and later by the Gadens. Mr Hill stated in his witness statement that in the 1950s the lane was very overgrown, the ditches were not clear, and it was relatively impassable particularly when wet, and in his oral evidence that when he first knew the lane in 1965 it would not have been possible to take lorries up and down it. The judge did not find it necessary to resolve this conflict: none of this evidence is of any help in determining the configuration of the lane and verges, save perhaps that Mr Hill specifically rejected the suggestion put to him that 'it would be fair to say that the boundary lane is a bit of a moveable beast'.

Hence Mr Birts' speculation as to the use of the whole width of the lane when it was a mud track is just that. In any event, occasional digression onto the verges will not create a prescriptive right to drive on them: see Ironside, Crabb and Crabb v Cook, Cook and Barefoot (1971) 41 P & CR 326.

We can see no reason at all to disturb the learned judge's finding of fact as to the width of the lane in the area covered by the plan or to hold that the right of way extends over any greater area than the existing track.

Other uses

As to use for access to a house, the learned judge said, between the two passages quoted earlier:

“A fortiori Mr and Mrs Gaden have no right of access to the dwelling house which they propose to build on the land and for which they have recently obtained planning permission. To acquire such a right they will have to negotiate either with Mrs Loder or with the owners of the adjoining land.”

Mr Birts now suggests that a detailed examination of the history of the lane and the surrounding land over the past 1000 years is required in order to show the uses to which this ancient and, in his words, 'very important' lane was put. He suggests that, as it was undoubtedly used for access to a number of fields which were in different ownerships, all sorts of agricultural uses may be envisaged. These might include the growing and cutting of hay, but also the bringing in of hay from neighbouring land, and even a farmhouse.

He argues that the learned judge was wrong to rely simply upon the evidence of use over the past twenty years. This was to concentrate solely on the statutory provision in section 2 of the Prescription Act 1832, which reads as follows:

“No claim which may lawfully be made at the common law, by custom, prescription or grant, to any way or other easement, . . . when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claims may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.”

This, it is said, ignored the other two legal bases for establishing a right other than by express grant. The first of these is the common law doctrine arising from actual enjoyment of the right 'during the time whereof the memory of man runneth not to the contrary', otherwise known as the date of legal memory. This was fixed by the Statute of Westminster 1275 as 1189, the death of Henry II, and has never been altered. The obvious inconvenience of this was lessened by an assumption that if there had been enjoyment for as long as anyone could remember then it had existed since the date of legal memory. But this did not apply when it could actually be shown that enjoyment had begun at a later date.

To mitigate this the courts developed during the 18th century the second doctrine, of a ‘lost modern grant’. The ‘gist’ of this was summed up, according to Gale on Easements (16th edition, 1997, paragraph 4-07) by Farwell J in Attorney-General v Simpson [1901] 2 Ch 671, at 698. ‘When the court finds an open and uninterrupted enjoyment of property for a long period unexplained, omnia presumuntur rite esse acta , and the court will if reasonably possible, find lawful origin for the right in question’. However, until the leading case of Dalton v Angus (1881) 6 App Cas 740, it was not clear whether or not the presumption of a lost grant was real or fictional: in other words whether it could be rebutted by showing that no grant had in fact ever been made.

Viewed against the background of these two earlier rules of the common law, the meaning and effect of section 2 of the Prescription Act 1832 becomes a little clearer. After twenty years' enjoyment a right of way could not be defeated by showing that it had in fact begun later than the date of legal memory. Further, juries would no longer be required to find as a fact that the long user was based upon a lost grant. And, after forty years, it would be deemed 'absolute and indefeasible' unless there was express consent.

Since we heard argument on this part of the appeal, the relevant principles of English law have been authoritatively restated by Lord Hoffmann in R v Oxfordshire County Council, ex p Sunningwell Parish Council [1999] 3 WLR 160 at pp 165B - 167C.

Mr Birts supports his argument by reference to the strenuous efforts made by the courts to find a lawful origin for a right which has long been exercised. He cites Halsbury's Laws of England , 4th edition, volume 14, paragraph 77:

“Every presumption is made in favour of long user. Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that it is reasonably possible to presume in favour of such a right.”

He cites the cases of Mercer v Denne [1904] 2 Ch 534 (affirmed [1905] 2 Ch 538) and Goodman v Saltash Corporation (1882) 7 App Cas 633, in support of that proposition, and also Neaverson v Peterborough RDC [1902] 1 Ch 557, CA, at 573, where Collins MR said that the court was 'endowed with a great power of imagination' for the purpose of supporting ancient user.

There are several serious difficulties with this argument. The essence of the difficulty is that all this judicial effort is employed in order to find that a use and enjoyment which has been proved to have taken place for a very long time has a legal basis for its continued enjoyment as of right. It is not employed in order to discover a use which has not in fact been enjoyed.

Hence it is not suggested that there is any fresh evidence as to the use to which the Gadens' land and the lane were put over the centuries which could be placed before the court which would conduct such an enquiry. If there were, it is difficult to believe that any such evidence would meet the test laid down in Ladd v Marshall [1954] 1 WLR 1489, CA.

The findings of the learned judge as to the use to which the Gadens' land was put before they began their haulage business were quite clear:

“In my judgment the overwhelming purpose for which the eastern and western parts were used up to the end of 1976 was agriculture. There were isolated occasions of use for other purposes. Mr Charles Scarrott dumped one or two old cars there. He took his family for motor bike scrambles for a short time. He allowed Mr Gaden to store stones for a few years, but the predominant use was agriculture for both the eastern and the western parts, if one includes in agriculture the grazing of horses.”

The ‘isolated use for other purposes’ referred to there would not be sufficient to found a prescriptive right to use the lane for those purposes. The agricultural use, on the evidence, was of grazing and cutting hay, feeding stock on supplies brought onto the land and some storage of supplies or equipment used by the owners for the purpose of farming their land. We accept that because the lane served fields in different ownership it may have been used by neighbours to transport the produce of those fields from one field to another even in different ownerships. But there is no evidence or reason to suppose that it was used to bring in substantial quantities of produce or other goods from elsewhere, store them, and then export them once more. Hence there is no evidence of use for a haulage business, whether of purely agricultural supplies or of anything else. Nor is there any evidence of residential use, whether in connection with farming or otherwise. Mr Birts' suggestion that a very small building appearing on the Ordnance Survey maps of 1885 and 1902 might have been a cottage was clutching at straws.

Prescriptive rights, however and whenever they are acquired, depend upon proved use of the land: see, for example, Willes J in Williams v James (1867) LR 2 CP 577, at 581 - 582:

“The distinction between a grant and prescription is obvious. In the case of proving a right by prescription the user of the right is the only evidence. . . . I agree . . . that in cases like this, where a way has to be proved by user, you cannot extend the purposes for which the way may be used, or for which it may reasonably be inferred that parties would have intended it to be used. . . . I quite agree also with the argument that the right of way can only be used for the field in its ordinary use as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place .” (emphasis supplied)

Some trouble was obviously caused in the later case of Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362, by the observation of Bovill CJ in Williams v James , at 580, that:

“When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which the land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burden.”

But in the Wimbledon case , the Court of Appeal clarified and limited this. Thus James LJ said at 368:

“. . . I am satisfied that the true principle is the principle laid down in these cases, that you cannot from evidence of user of a privilege connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form or for whatever purpose the property may be changed, that is to say, if a right of way to a field be proved by evidence of user, however general, for whatever purpose, qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the was for the purpose of the manufactory or town so built.”

And Mellish LJ said at 371 - 371:

“Is there any such evidence of user for purposes beyond what was necessary, and beyond what was reasonably required for the occupation of the land in its existing state , as that we can find that the right extends beyond that?” (emphasis supplied)

Baggallay JA summed matters up succinctly at 374:

“Then the second question is, whether the right to use this way being limited to the particular purposes, as to which there has been actual proof, can be extended to the purposes for which the Defendant desires to use it. I think he cannot do that consistently with the rules of law which have been from time to time enunciated, and particularly in the case of Williams v James , that you must neither increase the burden on the servient tenement nor substantially change the nature of the user.”

The same principle has been applied more recently in Mills v Silver [1991] Ch 271, CA, Dillon LJ at 287:

“. . . a prescriptive right of way differs from a right of way by express grant in that the extent of a prescriptive right of way is limited by the nature of the user from which it has arisen: see Wimbledon & Putney Commons Conservators v Dixon (1875) 1 Ch D 362. If the dominant owner under a prescriptive grant cannot increase the burden on the servient tenement by building further buildings - e.g. additional houses - on the dominant tenement, I do not see why he should be entitled to increase the burden on the servient tenement by building a made road over the servient tenement . . .”

It is fanciful to suggest that if no use other than the ordinary uses of fields like these could be proved ‘up to the end of 1976’ for the purpose of section 2 of the Prescription Act 1832, it could nevertheless be proved for the purpose of the doctrine of lost modern grant, still less for the purpose of a common law doctrine which depends upon use from 1189. There can be other differences between the three methods of acquiring easements by prescription which mean that a person may succeed on one but not on another, but there is no difference between them in this respect. There is no reason to disturb the judge's findings as to the use of the land and the lane up to the end of 1976. There is also no reason to disturb his conclusion that the Gadens' present business, and their proposed house (whether or not it can be regarded as a farmhouse), amount to a substantial change in use and an additional burden upon the servient tenement.

Hence Mr Birts' suggestion that the matter should be sent back for retrial before a High Court Judge who would investigate the whole history of the lane is either misconceived, for the reasons given above, or an attempt to relitigate matters which have already been determined against the Gadens both at first instance and on appeal. If there is any doubt about the meaning of the declaration made by the judge, which was agreed between counsel as a result of his judgment, then it can be further clarified by reference to what was actually being done with the land and the lane at the time.

We also view with deepest dread Mr Birts' suggestion that ‘there will be further litigation’. Unless new evidence emerges which can meet the stringent tests laid down in Ladd v Marshall, we can see no basis upon which it could succeed. We have now adjudicated upon all the issues the Gadens invited us to decide on this appeal. The matter is of course of very considerable importance to them, but the fact remains that when they came to these insignificant pieces of pasture land they were not being used for anything like the purposes for which they have later been used by the Gadens and for which they now wish to extend their use. The solution to their problem lies, as suggested by the learned judge, in negotiation with their neighbours rather than in this or any other litigation.

We would therefore dismiss the whole of this appeal.

Order: Appeal dismissed with costs. Leave to appeal to House of Lords refused.