England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
HHJ ROGER KAYE QC (Sitting as a High Court Judge)
7 DL 03656

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/11/2009

Lord Justice Mummery :

Issues

1. Alteration of property use and increase in traffic over rights of way are common causes of neighbour disputes. Consider the two issues in this appeal. First, can this unregistered right of way be used only for agricultural purposes? The trial judge's decision that it cannot be used for residential purposes has scuppered plans for a back land development of three houses (with three car parking spaces allocated to each property) for which full planning permission was conditionally granted in November 2007. Secondly, even if access over the right of way to a residential development is allowed, would the increased intensity of use exceed what is reasonably tolerable and amount to an actionable nuisance? The trial judge thought that this would be a case of excessive user and that he would have granted an injunction to prevent it, even if he was wrong on the purpose issue.
2. Permission to appeal on both points was granted by Lloyd LJ on a renewed application.

Background

3. The properties in question are in Hamsterley, a village near Bishop Auckland, County Durham. The owners of the neighbouring properties are also relations. Mr & Mrs Bee are registered proprietors of Pear Tree House, which fronts the south side of the main village street and has a garden at the back. A rough hard core track (the Track), which is 10' wide at the point where it runs from the main street between the eastern side of the Pear Tree House and a neighbouring house, then passes through a gate and bends westerly in a quarter circle across the Bees' back garden to their double garage, which is part of an extension to the other side of Pear Tree House. Mr & Mrs Bee are claimants in the action and the respondents to the appeal.
4. The Track also serves as an access way to and from an area of back land consisting of 1 acre of land and separated by a gate from the garden at the rear of Pear Tree House. The land is described in some of the documents and in the proceedings as "the Garth": in some parts of the country "garth" describes a small piece of enclosed ground close to a house or other building, rather like a paddock or yard. The Garth lies at the bottom of a steep drop over rough land at the end of the Track by the gate leading into the Garth. It is fallow land, which for many years has only been used for occasional grazing and for storage in dilapidated buildings left over from the days when there was a piggery and a slaughter house on the site. Mr Stephen Thompson is the registered proprietor of the Garth. He is the defendant in the action and the appellant in this court.
5. Mr & Mrs Bee accept that there is a right of way over the Track to and from the Garth, but insist that it is a way of necessity for agricultural purposes only. That was the only necessary purpose existing in 1977 when the right arose on the separation of the ownership of Pear Tree House and the Garth. Without the conceded right the Garth would be landlocked. However, the concession is of little comfort to Mr Stephen Thompson, who obtained planning permission in 2007 to build one detached and two semi-detached houses on part of the Garth. Mr & Mrs Bee object that the only permitted purpose of the way of necessity cannot include residential purposes and that, even if it did, the proposed increase in the use of the Track by residents of properties on the Garth in common with them would be excessive and unacceptable.
6. Although the Track has long existed as a physical feature, no easement of way could have existed over it as long as both Pear Tree House and the Garth were in the same ownership. Mrs Bee's grandmother, Mrs Edith Thompson, inherited both properties from her husband. She had no easement over the Track, as she owned it as part of Pear Tree House and she also owned the Garth. Lord Esher MR stated the obvious in Metropolitan Railway Co v. Fowler [1892] 1 QB 165 at 171 where he said-

"An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land.."

7. Things began to change in 1975 when Mrs Edith Thompson died. Under her will dated 20 September 1974 (clause 4) she left Pear Tree House to her granddaughter, Jane Hodgson, who is married to Mr Alan Bee-

"4. I GIVE to my said Grand-daughter Jane Hodgson my dwellinghouse known as Pear Tree House Hamsterley subject nevertheless to a right of way as existing at the date of my death to the garth at the rear thereof and to Croft Field …."

8. On 23 January 1976 probate with a copy of the will annexed was granted to the executors named in the will.
9. On 17 January 1977 the executors made an assent of Pear Tree House in favour of Mrs Bee. It was expressed to be subject to "all rights of way and easements affecting the same." That expression was apt to convey existing easements, but not to create a new easement for the benefit of the Garth. The assent contained no express reservation for the benefit of the Garth, as retained land, of any right of way over the Track. The only mention of the will itself was in the second Schedule to the assent, which listed probate of the will as a document to which there was acknowledged to be a right of production.
10. By clause 8 of her will Mrs Thompson left the Garth to her son Mr George Thompson-

"8. I GIVE the garth containing one acre together with the piggery and slaughterhouse erected thereon and together with the right of way from Hamsterley main street across the rear of Pear Tree House at all times and for all purposes connected with the said garth to my son George Thompson."

11. On 25 January 1977 the executors made an assent of the Garth in favour of Mr George Thompson, just 8 days after the assent of Pear Tree House. The assent of the Garth was expressed to be "together with all rights of way and easements affecting the same." On its own, that expression would only convey existing easements. It would not operate to create a new easement over the Track. On 28 February 1989 Mr George Thompson transferred the Garth to Mr Stephen Thompson by Deed of Gift.

The judgment

12. The first issue was title to the right of way. Mr & Mrs Bee accept that a way of necessity was impliedly reserved for the benefit of the Garth on the making of the 1977 assent of Pear Tree House, but assert that it was limited to the agricultural purposes for which the Garth had been used up till then.
13. The judge rejected the limited way of necessity. He said that the court should be astute not to allow the intentions of the testatrix to be defeated by, for instance, the happenstance of the order in which the executors made the assents of the properties in the course of administering the estate. He added that equity looked at the substance rather than the form of the devolution of the two properties. Both assents were intended to give effect to separate gifts of part of what belonged to Mrs Edith Thompson. The assents were sufficiently contemporaneous for the court to regard them "as part of one overall transaction intended to be given effect by the will of Edith Thompson and that they should be regarded and construed in that light." The judge said that in this case it was

"47… perfectly legitimate to consider the terms of the will in the light of the surrounding circumstances to ascertain the true intention of the testatrix as to what property vested with what rights……The assents were intended to give effect to those dispositions [in the will]. The order of actual assent does not matter in the circumstances. They were all part of what should in equity be regarded in substance as one contemporaneous transaction."

14. The judge's conclusion on the title to the right of way derived from one overall transaction was that-

" 50. …the assent to Mr Thompson, albeit second in time, took effect in substance and is to be regarded as if it had contained the words of clause 8 of Edith Thompson's will "together with the right of way from Hamsterley main street across the rear of Pear Tree House at all times and for all purposes connected with the said garth." Likewise the assent in favour of Mrs Bee of Pear Tree House took effect as if had contained the words of clause 4 of the will "subject nevertheless to a right of way as existing at the date of my death to the garth at the rear thereof."

15. On the second and related issue of purpose the judge construed the provisions of the will as read by him into the assents. He took the relevant date as that of the death of the testatrix. That was when the will took effect. He construed clauses 4 and 8 in the light of the surrounding circumstances as at that date. Those circumstances were identified as the agricultural user of the Garth, the presence on the Garth of the dilapidated piggery and slaughterhouse buildings mentioned in clause 8, the residential use of Pear Tree House, the narrowness of the entrance from the main street to the Track, and the steep drop at the gate leading from the back garden of Pear Tree House into the Garth.
16. The judge's conclusion on purpose was that-

" 57. … in my judgment what Mrs Thompson had in mind and was anxious to preserve was the access to the Garth as it then existed and was in fact used to enable it to continue to be used as hitherto used. Given that there was, at her death, no subsisting easement if she had wanted to grant a wider right of the kind contended for by the Defendant all she needed to do was simply to grant a right of way at all times and for all purposes over Pear Tree House to and from the Garth and subject Pear Tree House simply to a right of way at all times and for all purposes to and from the Garth. Reading the two clauses together however the otherwise wide words of clause 8 are in my judgment intended to be cut down by the limitations expressed in clause 4 namely the rights were not to be wider than then enjoyed in connection with the Garth, that is for agricultural purposes only. That, in my judgment, was the user then contemplated by the grantor i.e the testatrix…"

17. Finally, on excessive user the judge said this in the same paragraph-

"57. …..Having regard to the fact that it was conceded by the defendant (rightly in my judgment) that the user of the track and the rear of Pear Tree House as a domestic residence and as a means of access to their own garage could not be ignored and would be in common with the persons deriving title under the Defendant it seems to me that on the evidence I saw and heard there would likely to be endless trouble over cars coming and going over and across the narrow track and entrance way. The odd car, van, tractor or agricultural vehicle is one thing: daily cars (up to nine permitted by the planning permission quite apart from visitors and other callers), visitors and regular postal, rubbish, oil and sewage [services] seems to me to be quite different to that contemplated at the time."

18. The judge concluded that, even if he was wrong on the issue of permitted purpose, he would have granted an injunction against Mr Stephen Thompson-

"58 …since user of the kind I have just set out would seem to me to be excessive and more than likely to cause a nuisance to the owners for the time being of Pear Tree House as well as the other owners and occupiers of the houses on the Garth trying to enter or exit their properties…."

19. The court order contained a declaration as to user of the right of way for agricultural purposes only and an injunction forbidding use of the right of way for purposes other than agricultural purposes.
20. Mr Stephen Thompson appeals against the judge's rulings on the second and third issues. Mr & Mrs Bee have served a respondent's notice challenging the judge's ruling on the first issue. I shall deal with each issue in logical order.

A. Title

21. The starting point is to establish how the right of way over the Track was created. Rights of way may be created by deed, either expressly or by implication. (Creation by prescription or statute does not arise in this case.) On this fundamental point the parties are poles apart.
22. Mr James Thom QC, appearing for Mr Stephen Thompson, supports the judge's treatment of the documents as a single transaction creating an express right of way. On this approach the right of way is derived from the express terms of the 1974 will read together with the two assents made by the executors in 1977 to give effect to the will. He accepts that title to the properties did not pass direct to the beneficiaries under the will, as would have happened by virtue of a devise in a will before the conveyancing reforms of the Land Transfer Act 1897. After that title to the deceased's real property passed to the executors, who, in due course, assented to vesting of title in the beneficiaries. He accepts that the assents and not the will itself are the documents of title to the properties.
23. In brief, Mr Thom's case is that the judge correctly held that, by the two assents, the executors gave effect to the gifts of the two properties separately devised by the will. It was all one transaction. The terms of clauses 4 and 8 of the will are to be read into the respective assents in order to give effect to the dispositions made by the testatrix and to the intentions expressed by her.
24. Mr Bruce Walker, appearing for Mr & Mrs Bee, continues to concede no more than an implied way of necessity over the Track for agricultural purposes only. The judge rejected it. In his respondent's notice in this court Mr Walker re-iterates that Mr Stephen Thompson is unable to point to any express reservation of a right of way over the Track. His only title to a right of way over the Track arises by the necessity for an implied reservation on the first assent. That necessity arose at the time of the assent of Pear Tree House from the admitted facts of the landlocked character of the Garth and its agricultural use.
25. Mr Walker's contention is rooted in the remorseless logic of conveyancing law and practice. It runs like this. At the date of her death Mrs Edith Thompson was the freehold owner of both Pear Tree House and the Garth. On her death the title to both properties passed to her executors, not to the beneficiaries. No right of way could have existed while both properties were owned by her or were vested in her executors. You cannot have an easement over your own land. You enjoy rights over your own land by virtue of owning it, not by virtue of acquiring a specific and limited right over a part of it. A right of way over the rear garden of Pear Tree House for the benefit of the Garth could (and should) have been expressly created by reservation upon the assent of Pear Tree House to Mrs Bee. For this purpose you must look at, and only at, the assent of that property. That is the document that passes title. You do not look at the will. Since 1897 a will devising realty has not been a document passing title direct to the devisees of land.
26. No express right of way for the benefit of the Garth as retained land was reserved in the assent of Pear Tree House to Mrs Bee. The absence of an express reservation is fatal to the claim, since the only right of way which could have been impliedly reserved by law was one of necessity. That right would be limited to the purpose for which the right was necessary at the time of the first assent. Implied reservation would, in substance, operate as a re-grant by Mrs Bee of what was needed to gain access to the Garth for the purposes for which it had been and was then used: see Corporation of London v. Riggs (1880) 13 Ch D 798 at 807; and St Edmundsbury and Ipswich Diocesan Board of Finance v Clerk (No 2) [425] 1WLR 468 at 478-479. The purposes at the relevant time were agricultural purposes only. In the case of a way of necessity the purpose remains what was necessary at the time when the right is implied. Without the agreement of the parties it cannot be altered.
27. Despite the logical attraction and cool clarity of Mr Walker's treatise on title I think that the judge was right not to accept it. It is flawed as a theory to fit this case because, without any legal justification, it requires the court to ignore totally the relevant intentions expressed by the testatrix in her will on the very matter of a right of way over the Track for the benefit of the Garth. The fact that the assent is the document of title to Pear Tree House does not consign the will to the scrap heap when ascertaining the intentions of Mrs Edith Thompson.
28. In truth Mrs Thompson was the grantor of the two properties gifted by her will. She identified the properties and expressly mentioned the right of way. The assents, on which Mr Walker focuses, were the appropriate conveyancing mechanism by which the executors gave effect to the terms of the will. I agree that the vesting of the legal estate in the properties was by force of the assents, but, in order to ascertain the legal position on the right of way, it is legitimate to read and construe the assents together with the will, all being part and parcel of the same transaction.
29. Mr Thom QC rightly accepts that title to the right of way cannot be derived simply from the will and that title is derived via the assents. However, the assents are silent on the right of way over the Track. Recourse may be legitimately had to the will not to derive title to the properties, but to determine the right mentioned in its terms, which are to be read with the conveyancing documents of title. In that way effect can be given to the expressed intentions of the testatrix.
30. The single transaction approach to the assents and the will is warranted both by statute and common law. First, statute. It provides that, unless a contrary intention appears, the assents relate back to the death of the deceased: s36(2) Administration of Estates Act 1925. The effect of relation back is that the assents operate to vest title to the estate or interest in the properties at the same moment as the will takes effect. Thus, on the death of the testatrix, the will took effect and, by relation back, so did both assents, simultaneously with the will and with each other. That is a strong indicator that, even though the assent and not the will is the document of title, the testamentary gifts and the conveyancing machinery for effecting them are in substance one overall transaction for the purpose of ascertaining the extent of the rights of the will beneficiaries.
31. The one transaction approach to the creation of the right of way over the Track is supported by the authorities, even allowing for the fact that some of them preceded the changes made by the 1897 Act to the devolution of title to land on death to the personal representatives instead of directly to the devisees. Phillips v. Low [1892] 1 Ch 47 is authority for the proposition that there is applicable to devises of the testator's property to different grantees the same salutary principle that governs the implication and acquisition of easements on the contemporaneous grants to different grantees of properties previously in the ownership of the grantor. The comment of Chitty J at page 51 that "A will operates as a simultaneous conveyance … to the devisees" has to be read subject to a caveat taking account of the legislative changes to the devolution of title to realty on death. In substance, however, the approach in that case is still valid. In determining the nature and extent of the right of way and its limitations, the assents of the properties devised should be construed together with the will making the devises. Adapting the language of the later case of George Attenborough & Son v. Solomon [1913] AC 76 at 83 it can be said that the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative because of the assents of them made by her executors.
32. I would add that it cannot have been either the express or implied intention of the parties to the assents that, depending on the order in which the assents were made, the beneficiaries might get more or less than what Mrs Edith Thompson intended they should inherit under her will. The wording of the will, not just the wording of the assents, is of particular relevance in identifying the purpose for which the right of way to the Garth may be used.
33. Mr Thom also argues that, if necessary, the court could read the words of clauses 4 and 8 of the will into both assents by a process of construction which is permissible in order to correct a clerical error, such as the omission of a reservation of a right of way from the first assent. He cited KPMG LLP v. Network Rail Infrastructure Ltd [2007] EWCA Civ 363 at paragraph 44 and following. It is unnecessary to express any view on the scope of that difficult area. I prefer simply to note it. I decline to be drawn into an opinion about it. I take the same position about the suggestion by Etherton LJ in the course of argument that there may be room for the application in this case of the benefit and burden principle in Halsall v. Brizell [1957] Ch 169. It is a useful principle of justice, which it is unnecessary to apply to do justice here.

B. Construction

34. Mr Thom QC says that the judge was wrong to limit the right of way to agricultural purposes. The judge arrived at that position by not giving enough weight to the words "at all times and for all purposes connected with the said garth" in clause 8. He ought to have given that very general expression its ordinary unvarnished meaning, as was done in Mc Kay Securities Ltd v. Surrey County Council [1998] All ER (D) 703. The meaning of the expression is as clear in plain English as it is familiar to conveyancers as a formula for the grant of a right of way without any limitation on purpose.
35. The judge was over-influenced, Mr Thom submits, by the reference in clause 4 of the will to "a right of way as existing at the date of my death " in order to read down the width of the words in clause 8. He says that that expression in clause 4 could only relate to the physical route of access. It could not relate to a legal interest in it, as no "right of way" could exist as a legal interest at any time that the properties were in common ownership. The judge should have followed the decision of Bennett J in Hurt v. Bowmer [1937] 1 All ER 797 when he held that the expression "as at present enjoyed" was not a reference to, or a limitation of, the purposes for which the way was used, such as agricultural purposes, but was to the quality of user in the sense of the manner in which it was exercised i.e. on foot or with vehicles.
36. On construction I initially shared the view of the judge, though for rather different reasons. Reading clause 8 I was struck by the detail given about the Garth: not just its location and area, but also its use and condition, particularly the references to the piggery and the slaughterhouse on it. The overall impression created on reading the clause was that the right inhabited an agricultural/rural setting rather than an urban residential context. This was confirmed by the surrounding circumstances at the date of the death of Mrs Edith Thompson. Further, I took the view that the reference to the purposes being "connected with the said garth" related back to the piggery and the slaughterhouse mentioned earlier in clause 8. Finally, like the judge, I thought that the link to the right of way "as existing" in clause 4 was indicative of a restricted purpose limited to agriculture.
37. On further consideration and closer reading, however, I am persuaded by Mr Thom's primary point that the judge's construction does not give full force to the powerful generality of the expression in clause 8 of "at all times and for all purposes" (my emphasis). They are plain words which should be taken to mean what they say, unless the clause, read as a whole, and a compelling context clearly cut down "all purposes" to "agricultural purposes." I have reached the conclusion that there is insufficient justification in either the text of the will or in the context for diminishing "all purposes" to a restricted purpose. If that was indeed the intention, it would not have been difficult for the draftsman to spell out the desired restriction, but he did not do so. I have read the judgment of Etherton LJ on this point and agree with it.

C. Excessive use

38. This court does not interfere with a trial judge's evaluation of matters of fact and degree, unless it was shown that he erred in principle or that his conclusion was plainly wrong, being one which no reasonable tribunal could have reached. Mr Thom attacks the finding of excessive use on three grounds.
39. First, the setting. He says that the judge disregarded the rural setting of the properties and failed to appreciate that the situation at the back of Pear Tree House was quite different from the case of traffic driving across a suburban back garden to reach the Garth. I reject this criticism. It is clear from reading his judgment as a whole that the judge was well aware of the setting and the circumstances of the dominant and servient tenement and the nature of the Track.
40. Secondly, other users of the right. Mr Thom says that the judge took account of the difficulties that would arise with the use of the Track as between the various occupants of the residential development on the Garth. As that was irrelevant to the claim by Mr & Mrs Bee, the judge erred in law. Although potential difficulties as between occupants of residences on the Garth is not a major point of legitimate concern to Mr & Mrs Bee, I do not agree that this led the judge into legal error. There was sufficient material relating to the significant increase in user that would probably occur to justify the judge's inferences about the likely effect on Mr & Mrs Bee's enjoyment of their property and the Track used by them in common with the owners/occupiers of the Garth.
41. Thirdly, and finally, alternative scenarios. Mr Thom complains that the judge failed to consider whether a residential development of less than three houses on the Garth could be occupied without causing a nuisance to Mr & Mrs Bee. There is no foundation for this criticism in law or in fact. Indeed, it is unfair on Mr & Mrs Bee, who were not required to meet such a case, and on the judge, who was not asked to decide the case on any other basis than there was a planning permission for 3 houses and that that was the use which Mr Thompson proposed to make of the Garth. There was no pleading, evidence or argument at trial relating to a lesser or alternative development to the one for which full planning permission had been granted. It would not be just to allow the point to be raised for the first time on appeal.
42. In my judgment, the judge was entitled, on the evidence that he heard and on the points argued before him, to conclude that the proposed user would be excessive. It could not be justified simply by reference to "all purposes" which does not authorise use to the point of an unreasonable level of interference with the rights of the servient owners to their property and to use the way in common with the occupiers of the dominant tenement: see Jelbert v. Davies [1968] 1 WLR 589 in which Lord Denning MR explained at page 595 D that even a right granted in wide terms like "at all times and for all purposes" is not a sole right, if it is used in common with others, and it does not authorise unlimited use. Mere change of the Garth by itself to residential use may not be unlawful, but the Track must not be used excessively so as to interfere unreasonably or substantially with the rights of Mr & Mrs Bee to use the Track or to enjoy the rest of their property.
43. Fixing practicable limits on the quantity of permissible use for the future may be a difficult exercise. As in Rosling v. Pinnegar ...1987) 54 P & C R 124 the court may assist the parties by working out for them some guidelines as to what would be a reasonable user rather than simply making a general injunction forbidding excessive use. In this case, however, the judge was never asked to engage in that exercise or to rule whether use by the occupants of one house or two houses on the Garth would be reasonable.
44. In the light of the judgments of this court the parties will have to reconsider their positions. They should seriously consider settling any further differences about the right of way without yet more litigation. As this case shows litigation of the neighbour kind is sometimes uncertain in outcome, often punishing in costs and, win or lose, is always, for those who are still neighbours (and in this case relatives), far from the Swiftean ideal of "sweetness and light."

Result

45. I would allow the appeal against the terms of the declaration and substitute a different declaration to the effect that the defendant's right of way to the Garth does not permit user for the three residences proposed to be erected on the Garth.
46. I would dismiss the appeal against the grant of an injunction but with a variation in its wording to the effect that the defendant is prohibited from using the right of way for the purposes of access to and from three residences proposed to be built on the Garth.

Lord Justice Etherton:

47. I agree with Mummery LJ. I add a few comments of my own on the interpretation of clause 8 of the will since we are differing from the clear and careful judgment of the Judge on that issue.
48. If the words "for all purposes connected with the said garth" in clause 8 are read literally, the use of the right of way is unrestricted save that George Thompson and his successors in title could only use the right of way in connection with the Garth and not some other area of land.
49. A literal approach is supported by the common use of the words "for all purposes" in grants of easements to distinguish such general use from a more restricted use, such as for residential or agricultural purposes. This common usage was as current at the date of the will in 1974 as it is today: see the Encyclopedia of Forms and Precedents (4^th ed) (1966) Vol. 7 para 42, and (5^th ed) (2005) vol. 13(1) para 42, and Emmet and Farrand on Title Vol 2 paras. 17.084 and 17.085.
50. The question, then, is whether the terms of the will or extrinsic circumstances provide the context for a more restricted interpretation of that standard phrase. The reference to the "piggery and the slaughterhouse" do not do so. At the date of the will the slaughterhouse had not been used as such for many years and, although the piggery was used occasionally, both structures were or were becoming dilapidated. It was conceded by counsel for Mr and Mrs Bee that at the date of the will there was no likelihood of the slaughterhouse ever being used as such again. Moreover, I am doubtful whether the slaughterhouse would properly be considered to be agricultural use. The reference to those structures is more naturally read as a means of identifying the piece of land called "the garth" in clause 8.
51. The words "connected with the garth" in clause 8 do not indicate a limitation of the phrase "for all purposes", except insofar as they restrict use to the purposes of the Garth and not some other piece of land, such as the adjacent Fogg Hall Garth. This derives some independent support from the history of access to the Garth in paragraph 17 of the judgment, which refers to the testatrix causing the access to the Garth via Fogg Hall to be fenced off and the subsequent development of Fogg Hall.
52. Unlike a deed of grant of an easement, the will had no effect at the date it was executed. A will takes effect from the date of death. We must assume that the testatrix was advised about and understood the law in that respect. That assumption is reinforced by the qualification "as existing at the date of my death" in clause 4 of the will. The Judge's interpretation creates a doubt. On that interpretation, does clause 8 mean "for all purposes connected with the use to which the Garth is put at the date of this will" or "for all purposes connected with the use to which the Garth may be put at the date of my death"? Adopting a conventional approach that the will speaks from the date of death, the latter would be the more likely meaning, but that is a meaning which it would be extremely odd for the testatrix to have adopted. Why would she wish to confine the right of way to a future and so uncertain use of the Garth? The former approach would be even more odd, for why should the testatrix wish to confine the right of way to a use (at the date of the will) which might be superseded by some alternative use to which the Garth may be put at the date the will takes effect? That might render the express right of way entirely inoperable.
53. Clause 4 of the will does not suggest a different conclusion by virtue of the reservation of a right of way "as existing at the date of my death to the garth" in that clause. A right of way cannot exist in law or equity while the land is in common ownership: a person cannot have a legal or equitable right of way over their own land. Clause 8 could not operate before the testatrix's death. Clause 4 cannot therefore be directed at all at the gift in clause 8. It is either referring to a legal right of way that might be granted to a third person prior to the testatrix's death or it is merely referring to the physical route of the access to the Garth that might be in existence at the time of the testatrix's death. On either footing, it can throw no light on the extent of the permitted use of the right of way under clause 8.
54. Nor do the physical circumstances of the Garth at the date of the will provide a persuasive case for a restricted interpretation of the permitted use of the right of way in clause 8. The physical state and condition of the access to the Garth and the use of the Garth at the date of the will are described in paragraphs 18 and 19 of the Judge's judgment. The Judge summarises the use of the Garth as being that it was used occasionally but exclusively for agricultural purposes, but in the main seems to have been left fallow and used for occasional grazing purposes and the dilapidated buildings for storage. The access itself was difficult, owing to a steep drop over rough land at the end of the track by the gate leading into the Garth, but it could be negotiated by a Land Rover or cattle truck. It is important on this issue to keep separate the question of the permitted use under the express terms of clause 8, and excessive use amounting to a nuisance. What is clear is that vehicles could gain access to the Garth along the path across the rear of Pear Tree House. Furthermore, the very limited and occasional use of the Garth for grazing purposes and storage is, if anything, more consistent with a literal interpretation of the phrase "for all purposes" in clause 8 since it would permit a different and more productive or profitable use of the land by the testatrix's son, whereas a restrictive one would confine the Garth to the continuation of a very limited, and possibly unproductive and unprofitable use.

Lord Justice Sullivan:

55. I agree that the appeal should be allowed for the reasons given by Mummery LJ and Etherton LJ.