COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
Mr Recorder O'Toole
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE NEUBERGER
| GWYNFA MYFANWY ADAM
|- and -
|DIANA ELIZABETH SHREWSBURY
DAVID J SHREWSBURY
Mr Stephen Bickford Smith (instructed by Messrs Gwilym Hughes & Partners) for the Respondent
Hearing dates : 26th July 2005
Crown Copyright ©
Lord Justice Neuberger :
"The Purchaser [i.e. the claimant] hereby covenants with the Vendor [i.e. Mr Thomas] that within a reasonable time after the Vendor has at his own expense excavated the garage space hatched blue on the plan hereto annexed to the level indicated on the site plan she will erect a stock proof fence along the [south-eastern and south western] boundaries [including the three protruding sides of the site hatched blue] separating the property hereby conveyed [i.e. Tan-y-Ffordd] from the adjoining land of the Vendors [i.e. Bryn Coed] and the Purchaser further covenants that she and her successors in title will thereafter be responsible for maintaining and repairing the said fence."
"I would have a shared garage space alongside the garage for dwelling 3… and… he would be excavating the site. He told me that the excavation would be carried out by him at his expense but once that was done, I would of course have to pay for the cost of erecting a garage on my garage space… He told me that… a roadway would be made to the joint garage space, half of which would serve me and the other half of which would serve dwelling… 3. At that stage it was Mr Thomas's intention to develop the site himself, and I had no reason to doubt him when he was telling me that he would be excavating the foundations for both garages…"
"The function of a gate is different from that of a fence. A gate is intended to prevent ingress and egress only when it is shut. It is of the essence of a gate that it can be opened whereas a fence cannot be opened and… the covenant to fence does not refer to a gate."
"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. … 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."
"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."
Lord Justice Clarke
Lord Justice Ward