Neutral Citation Number: [2011] EWCA Civ 61
Case No: A3/2009/1419
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LIVERPOOL DISTRICT REGISTRY
THE HON MR JUSTICE DAVID RICHARDS
VICE-CHANCELLOR OF THE COUNTY PALATINE OF LANCASTER
Claim No 8LV30042
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/02/2011
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE LONGMORE
and
LORD JUSTICE RICHARDS
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Between :

	(1)	ALAN ERIC CAMPBELL
(2)	MAUREEN CAMPBELL	Appellants	
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	WILLIAM  T BANKS & ORS	Respondent	

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MR LAWRENCE McDONALD (instructed by Hodge Halsall Solicitors) for the Appellants
MR NICHOLAS DK JACKSON (instructed by Messrs Cockshott Peck Lewis) for the Respondents

Hearing date: 3rd December 2010
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Judgment

Lord Justice Mummery: 
Introduction
1.	This appeal arises out of a neighbours’ quarrel over a disputed bridleway along two interconnecting lanes, Headbolt Lane and Carr Lane, situated on the land of one of them. It has thrown up a legal point on the operation of s.62 of the Law of Property Act 1925 and its potential for the automatic creation of new easements on the sub-division of land previously in single ownership.
2.	On a conveyance by a vendor selling part of his land, the part conveyed may become a dominant tenement and the land retained by him, or sold by him to a different purchaser, may become a servient tenement. In this fashion a facility previously enjoyed over part of the vendor’s land for the benefit of another part of the vendor’s land may be transformed into a legal easement for the benefit of dominant land now in different ownership.
3.	Take the history of title to land in this case. The title to both the freehold properties now respectively owned and occupied by Mr & Mrs Campbell (the Appellants) and by Mr & Mrs Banks (the Respondents) was once vested in the Trustees of the Scarisbrick Estate. The Trustees once held thousands of acres in the vicinity of Scarisbrick Hall not far from Ormskirk and Southport in West Lancashire. As and when freehold properties were auctioned off by the Trustees, often, as here, to sitting tenants in diverse occupation of parts of the Estate, there was potential scope for the application of the very general words of s.62.
4.	Subject to the expression of a contrary intention in the operative conveyance, s.62 can operate (in the words of one academic commentator) to “upgrade” a facility, such as a continuous and apparent quasi-easement actually enjoyed with the land, into a legal easement for the benefit of that land. The facility obviously could not have been a legal easement while the properties in question were in common ownership and occupation, because the essence of an easement is that it is a right existing over someone else’s land.
5.	The material part of the section reads as follows:-
“(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements,  rights, and advantages whatsoever, appertaining or reputed to appertain to the land or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”    
6.	In order to determine whether s.62 is applicable to this case it is necessary to describe the layout of the land and the two lanes in question and then to examine the title acquired by the parties from their predecessors in title, derived ultimately from the Scarisbrick Trustees.
7.	The Appellants are the registered proprietors of the freehold title to land at New Cut Lane, Halsall, near Ormskirk. They live in a house there. They have built on part of the land a stable block from which they ran the business of the Alamo Stables.  They acquired the land in two tranches in the 1980s, the first part (98a New Cut Lane/16 Headbolt Lane) in June 1986 and the rest which adjoins it (98 New Cut Lane) in June 1988. The land was previously used as a pig and cattle farm and for other agricultural and horticultural uses.
8.	The Respondents are registered proprietors of the freehold title to two neighbouring arable farms lying on either side of 98 New Cut Lane: to the east is Crantum Farm West on which Headbolt Lane is situated, and, to the west, is Boundary Farm, on which Carr Lane is situated. Those two farms were sold off by the Scarisbrick Trustees in 1953 as Lots 111 and 112 in an auction. In 1994 the Respondents, as sitting tenants, bought the freehold of the two farms  from the then freehold owners.
9.	Headbolt Lane and Carr Lane run along the top of banks that are raised above  the level of surrounding land which is flat, open, low-lying drained farm land.  The lanes have surfaces made-up of hard core. They are one vehicle’s width. 
10.	The Appellants claim a right of way for horses with riders over both lanes to and from the Alamo Stables. If established, that right would enable riders on horseback leaving the Alamo Stables to head south down Headbolt Lane to the point where it joins Carr Lane. They could then travel west along Carr Lane, joining the public highway at Heathfield Road. From there they could either travel back to the Alamo Stables by the same route or by a different route following the public highway to 98 New Cut Lane. 
11.	The Respondents accept that the Appellants are entitled to an express right of way on foot, with vehicles and for horses along that part of Headbolt Lane that runs north, by the side of and co-extensively with the Appellants’ property, to the join the public highway at New Cut Lane. That right, subject to an obligation to contribute to maintenance costs, was expressly granted to the Appellants’ predecessor in title, Mrs Elizabeth Hillier, in a conveyance by the Scarisbrick Trustees to her on 31 July 1953.  As a sitting tenant she purchased the freehold of part of that property being 1.787 acres of arable accommodation land sold by the Scarisbrick Trustees as Lot 116 at the same 1953 auction as the Trustees sold off the freehold title to Crantum  Farm West and Boundary Farm to the Respondents’ predecessors in title. The 1953 conveyance makes no mention of any right of way of any kind over other parts of Headbolt Lane or over Carr Lane.       
12.	 The Respondents dispute the Appellants’ claims to a bridleway over the southern part of Headbolt Lane and over Carr Lane. In 1999 they erected a locked gate at the western end of Carr Lane where it joins Heathfield Road,  but providing an unlocked side access for pedestrians. The gate previously there had been unlocked for many years.  In about October 2002 the Respondents erected a locked gate on the southern stretch of Headbolt Lane. In December 2003 the Appellants removed the gateposts. In March 2008 the Respondents re-erected the gate in the same position. Their action led to these proceedings begun by the Appellants on 16 May 2008. An interlocutory order was made by Patten J on 21 May 2008 that the Headbolt Lane gate be left open and unlocked pending trial.
The appeal          
13.	This appeal is brought with a limited permission granted by this court on 26 April 2010 at the hearing of the Appellants’ renewed application. The order appealed is that of David Richards J dated 22 May 2009. He dismissed the Appellants’ claims.   
14.	The action was fought by the Appellants in person at a 5 day trial lasting from 26 to 30 January 2009. The judge visited the site at the parties’ request. The Appellants’ case was that, by erecting and locking gates coupled with alleged acts of harassment and intimidation, the Respondents had obstructed horse riders from the Alamo Stables exercising equine rights of way over the lanes. Those claims were based on an express grant in the 1953 conveyance, on 20 years’ use and lost modern grant, and on the dedication of the lanes as public highways.
15.	There was oral evidence from both sides about the use of the lanes. The focus of the evidence was on the 20 year period down to 2002 in the case of Headbolt Lane and down to 1999 in the case of Carr Lane, those being the respective dates on which the Appellants’ use of the lanes was contested. There was also evidence dating back to the mid-19th century relating to alleged  public rights of way over the lanes.  
16.	In a careful and detailed reserved judgment the judge examined the documentary and oral evidence in depth and made clear findings of fact. He rejected the Appellants’ claims mainly on the ground that the evidence did not establish the existence either of the private rights or the public rights claimed over the lanes. 
17.	Section 62 is not mentioned in the judgment. When the judge sent his  judgment in draft to the parties for correction of typing mistakes and the like the Appellants took no point on the absence of s.62 as the basis of their claims. They raised a more radical point, namely that their claim had been for a pedestrian right of way and that, for lack of evidence, they had abandoned their original claim to equine rights of way. On full consideration of their written representations and after reviewing the course of the trial, the judge  concluded, correctly in  my view, that the issues for decision by the court were those pleaded by the Appellants and argued by them at trial, and they included  claims to both private and public equine rights of way over Headbolt Lane and Carr Lane, which the Appellants had not abandoned prior to judgment. 
18.	This court refused permission to appeal both on the papers and at the oral hearing on various factual and procedural grounds proposed by the Appellants in their grounds in the Appeal Notice and skeleton argument, but permission was granted confined to the possible application of s.62 of the Law of Property Act 1925 which did not feature in the judgment.
19.	It was made clear to the Appellants that the grant of limited permission did not mean that the appeal would succeed and that there was a risk of a further bill for substantial costs to be paid by the losing party. The possibility of pro bono advice and representation was mentioned in the judgment of the court, as was an opportunity to settle the appeal through the Court of Appeal’s own mediation scheme. The opportunity to mediate was not taken up.
  A. The s.62 point
20.	 This point arose during the oral hearing of the permission application by  Etherton LJ and myself. While expressing no views on the prospects of success we considered that the full court should hear argument on it from both sides. As Chancery LJJs with considerable combined practical experience of rights of way disputes we were concerned that the court should have a response on the point from the Respondents’ legal representatives before a final decision was reached on the appeal. We granted permission to appeal on the issue of the grant of a right of way by virtue of s.62, while refusing permission on other issues raised by the Appellants. We gave permission to the Respondents to apply and adjourned the Appellants’ application to rely on fresh evidence on the public right of way issue.       
Objections to s62 ground of appeal   
21.	 Mr Jackson, who appears for the Respondents, assisted the court by bringing  to our attention an application by the Appellants before trial for permission to re-amend the particulars of claim. That was granted by Mr Recorder Elleray QC on 20 October 2008. In that connection s.62(1) was expressly mentioned by Mr Campbell in paragraph 15 of a witness statement made by him on 28 July 2008 with reference to the sale of Lot 116 by the Scarisbrick Trustees at an auction in 1953. The Appellants requested that it be added to his claim for an injunction.  Section 62 was also mentioned in one of the preliminary reports that the Appellants had commissioned and was before the trial judge. 
22.	Mr Jackson raised various objections to this ground being pursued pointing out that the judgment under appeal made no reference to s.62. 
23.	First, Mr Jackson submitted that the Appellants never formally amended their pleadings following the grant of permission to re-amend. So, he submitted, the point was not on the trial pleadings.
24.	Secondly, he complained that the Appellants had not properly formulated any ground of appeal based on s.62.
25.	Thirdly, his recollection was that the Appellants did not address or actively pursue the s.62 point at trial and that they voluntarily withdrew their claim to an equine right of way founded upon s.62 “in the early course of the trial” because they did not believe that they had sufficient evidence to make it out. He added that, if that withdrawal is contested by the Appellants (and it is), an adjournment of this appeal would be necessary so that a trial transcript could be obtained to resolve that issue.
26.	I am unable to accept any of Mr Jackson’s objections to the s.62 point being raised as a ground of appeal. In my judgment, the appeal on the s.62 point should be heard and decided. The Respondents’ advisers had notice of the s.62 point at trial, following the grant of permission to re-amend. Mr Jackson accepted that s.62 “was in the arena at the date of the trial.” As for the grounds of appeal, the Respondents had notice of the s.62 point following the service of the order made by this court granting limited permission to appeal. Since then the Respondents’ advisers have had sufficient time to obtain a transcript of the part of the trial relating to the abandonment or conceding of the s.62 point by the Appellants. 
27.	The Appellants’ instructions to their counsel are that they did not abandon or concede the point. It appears from the transcript of the first day of the trial, 26 January 2009, at page 13D-F that, far from conceding any issues, the Appellants were claiming legal rights over the lanes by succession from the original vendor without exclusion of the rights, though it is true that s.62 is not specifically mentioned as such.  
28.	On the materials at present available the court cannot decide what in fact happened to the s.62 point at the trial. I make no criticism of the judge or of the parties on this point. The Appellants had no legal representation at that stage. This was a disadvantage to them. It was also a disadvantage to the Respondents in meeting the case against them and to the judge in having to decide disputes of fact and points of law without the benefit of legal representation on both sides. In that situation it is perfectly possible, without fault on any part, for a point to be eclipsed and for sight of it to be lost as a separate issue, especially when, to some extent, it is the kind of point that overlaps other points that were canvassed in detail on express grant and lost modern grant.
29.	In my judgment, it is in the interests of justice that this court should decide the s.62 point. It arises from the title to the parties’ properties and it  turns on the facts found by the judge without the need for any further evidence. I am also satisfied that the Respondents will not be prejudiced if the court now proceeds with the hearing of the appeal on the s.62 point and decides it without inflicting on the parties the further delay and expense of an adjournment to obtain a transcript of the trial.                         
Appellants’ submissions
30.	Mr McDonald, who only very recently has been instructed on this appeal and was not present at the trial, assisted the court by concise legal submissions on the s.62 point.
31.	His argument is that, as described in the judgment, the freehold title to the Appellants’ putative dominant tenement and the Respondents’ putative servient tenement were at one time part of the much larger Scarisbrick Estate, until sub-division on sale in 1953. At the time of sub-division on sale in 1953 the Appellants’ relevant land and the Respondents’ land was in unitary ownership. Headbolt Lane and Carr Lane were in existence, were apparent and would have been used by the unitary owners or their tenants for the enjoyment of their  property. The relevant part of the Appellants’ land was sold by the Scarisbrick Trustees to Mrs Hillier by a conveyance dated 31 July 1953. Quite apart from the express right of way granted over the northern end of Headbolt Lane to New Cut Lane, all the rights enjoyed by the unitary owners over both lanes became annexed to the Appellants’ land as easements. That alone is sufficient to create rights of way over the lanes for the benefit of the Appellants’ land without having to rely on express grant or lost modern grant based on evidence of long use of the lanes as bridleways, as well as on foot, and without having to show that the rights were necessary for the enjoyment of the property as would be the case with implied easements. The well recognised transforming and upgrading effect of s.62 is that a quasi-easement, which was convenient for the use of the property, became a legal easement that passed, as part and parcel of the property, on later conveyances of it. So it was not necessary for the Appellants to establish an express right of way or one acquired by use. 
32.	Mr McDonald cited Borman v. Griffith [1930] 1 Ch 493 at 499 for the proposition that where two properties belong to a single owner and are about to be granted (in this case the Scarisbrick Trustees down to the freehold sales in 1953) and are separated by a common road, or where a plainly visible road exists over one for the apparent use of the other, the right to use the road will pass with the quasi-dominant tenement, unless that right is excluded by the terms of the contract. In that passage Maugham J referred to a common road being necessary for the reasonable enjoyment of the property, but the requirement of necessity only applied to the case of an implied easement under the rule in Wheeldon v. Burrows also discussed by Maugham J in that case. Necessity is not required in a case to which s.62 applies. On the facts of that case s62 did not apply, as the relevant document was an agreement for a lease for a term of 3 years and did not fall with the definition of a “conveyance” to which the section applies.  
33.	The cases of Sovmots Investments Ltd v. Secretary of State for the Environment [1979] AC 144 at 168D and 169 A-D per Lord Wilberforce and P & S Platt Ltd v Crouch [2004] 1 P& CR 18 at para 42 per Peter Gibson LJ were also cited for statements of principle on the importance of some actual user and enjoyment of the right claimed. (In this case I note that it is unnecessary to enter into the question of the extent to which s62 operates to create an easement where there has been no prior diversity of ownership or occupation of the dominant and servient tenements, as there was diversity of occupation in this case: see Cheshire & Burn’s Modern Law of Real Property (17th ed-2006) at page 606).                         
Respondents’ submissions
34.	Mr Jackson’s main point was that, on the particular facts found by the judge in this case, the Appellants cannot invoke s.62 as the basis for their right of way claims. He referred to three passages in the judgment:
“35. …despite Mr Campbell’s suggestions to the contrary, there is no reliable evidence that Mrs Hillier or any other occupiers before the Campbells used anything but the northern section of Headbolt Lane.”
“45. … There was no suggestion of use by Mrs Hillier of Carr Lane.”
“51. …Furthermore, there is no evidence of use before 1986 to establish a right of way in favour of the owners of 98 New Cut Lane, beyond the express right of way in the conveyance dated 31 July 1953.”   
35.	Although concentration at the trial was primarily on the period of 20 years down to interruption of use (down to 1999 in the case of Carr Lane and down to October 2002 in the case of Headbolt Lane) the evidence given went back further than that as a result of the Appellants’ claims of a long history of use of the lanes. Accordingly the judge was able to make findings in respect of earlier periods. Mr Jackson submitted that the judge, when considering the Appellants’ submissions on the express grant in the 1953 conveyance which referred to “all such rights of way as have been hitherto been enjoyed by the owner and occupier of Lot 116”, had carefully considered the evidence as to such use as was made of Headbolt Lane and Carr Lane  in and prior to 1953.
36.	In the light of the judge’s findings Mr Jackson submitted that the s.62 point could not succeed factually, as there was no evidence of relevant actual use or any evidence from which such use could be inferred, or of reputation of the use of Headbolt Lane to the south, or of Carr Lane as a bridleway by the owner of occupier of the Appellants’ property leading up to the 1953 conveyance.  
37.	 As for the applicable law, Mr Jackson contended that s.62 does not operate in a vacuum: that there must be evidence of actual enjoyment appertaining to, or reputed to appertain to, the alleged dominant tenement at the date of the 1953 conveyance. As Roch LJ said in Payne v. Inwood (1996) 74 P & CR 42 at 47 
“Section 62 of the 1925 Act cannot create new rights where there has been no actual enjoyment of a facility, call it a liberty, privilege, advantage, easement or quasi-easement, by the owner or occupier of the dominant tenement over the servient tenement. If there is a quasi-easement, in that there is evidence of user or a physical state of affairs which indicates the existence of a quasi-easement, then section 62 can operate to convert that into an easement.”  
38.	That statement of the law was derived from the earlier authority of Nickerson v. Barroughclough [1981] 1 Ch 246 at pages 445A and 446E. In Payne v. Inwood the claim under s62 failed, as there had not been regular use of the path in question with the putative dominant tenement to gain access to it.           
Discussion and conclusion on s62 point 
39.	Success on this single point would be sufficient for the Appellants to win their appeal. For reasons given above the Appellants are entitled to raise the s.62 point as a ground of appeal. It was sufficiently in play before and at the trial to be issue. The devolution of title to the land now owned by the parties shows that this is the kind of situation in which, depending on the evidence, s62 could operate to create, in favour of the Appellants, legal easements over the two lanes on the land belonging to the Respondents.
40.	As pointed out by Mr Jackson, the Appellants’ difficulty is the lack of relevant evidence showing that either Headbolt Lane lying to the south of their land or Carr Lane with which it connects were ever used as bridleways for the benefit of the Appellants’ land. Having raised the point it was for the Appellants to produce evidence showing that, prior to the 1953 sales by the Scarisbrick Trustees, there was bridleway use of the lanes for the benefit of that part of their land sold by those trustees to their predecessor on title, Mrs Hillier. They did not do that, as appears from the judge’s findings of fact at paragraphs 35, 45 and 51 quoted in paragraph 34 above. The Appellants had their chance to bring forward relevant evidence at the trial, but, on the judge’s findings, they were unable to show any bridleway use of the lanes before their acquisition. 
41.	I would dismiss this ground of appeal.                       
B. Public right of way claim: fresh evidence application  
42.	The claim to a public right of way for horses over Carr Lane and Headbolt Lane failed for lack of proof of intention to dedicate since 1953. No public rights over them were, for instance, recorded in the Definitive Map. The judge found that the events relating to the preparation of the Definitive Map and Statement suggested strongly that there are no public rights of way for horses. The lanes were only ever put forward as footpaths, not as bridleways.     
43.	In the case of Carr Lane the claim also failed because not all parties were before the court: part of Carr Lane near Heathfield Road is owned by a Mr Swift, who was not joined as a party and in his absence no decision could be made that would be binding on him (see paragraph 60 of the judgment).
44.	There is before the court an application for permission to adduce in evidence  historical material dating back to the 18th century. It allegedly shows that no other route was available to access Halsall than Carr Lane and Headbolt Lane, that New Cut Lane came later and that the two lanes have in the past been recognised as ancient public highways. The maxim “once a highway always a highway” is invoked.
45.	It is submitted that it is just that the evidence be admitted in the appeal. I am unable to agree. The Appellants used a historical research consultant in 2002 in connection with the area of Birkdale Common and Halsall; references were made to the Halsall Tithe Map dated 1843, an Apportionment Survey dated 1844, the minutes of Halsall Parish Council 1928 to 1944 and documentation relating to the preparation of the Definitive Map of public rights of way as at 1 January 1953. At the trial Mr Campbell took the opportunity to cross examine the Respondents’ witness, Mr Simon Mair FRICS, on the report produced by him. His evidence did not support the Appellants’ case.
46.	In my view, it would not be just to allow the Appellants to adduce fresh evidence on the appeal. They have not satisfied me that the material on which they seek to rely was previously unobtainable by reasonable efforts for use at trial, or that its use at trial would probably have altered the decision of the judge that the Appellants are not entitled to the bridleways claimed by them.            
Result
47.	I would dismiss the appeal.      
Lord Justice Longmore:
48.	I agree.
Lord Justice Richards:
49.	I also agree.