England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th April 2001

Mr Justice Etherton:

The Proceedings

1. These proceedings concern a lane in the hamlet of Thickwood, Colerne, Wiltshire. The Claimant is registered at H M Land Registry under Title No. WT 134929 as proprietor of the lane and other land known as Thickwood Farm. The Defendants own and occupy a property nearby called Thickwood House, which is registered at H M Land Registry under Title No. WT 99791. The Claimant seeks declaratory relief to the effect that the Defendants have no right to use the land in question, save for one specific limited purpose. The Defendants claim that the lane is a public highway or, alternatively, that they have the benefit of a general private right of way over it by vehicle or on foot.

The configuration of the relevant areas of land

2. The Defendants’ property Thickwood House is a large country house dating from at least the 17th century. Within the grounds are farm buildings. Some of these have been converted and are in use as a school for dyslexic children. Two of the outbuildings have also been converted to holiday cottages. The grounds include an area of land to the north-west of the house, which appears as No. 5980 on the Ordnance Survey map and which has been referred to as the meadow (“the Meadow”). The Claimant’s property consists of about 212 acres of farm land and a building now know as The Old Farmhouse. That building was formerly known as Thickwood Farmhouse. The building and land are now known as Thickwood Farm. Lying between Thickwood House and Thickwood Farm is a property known as Honeysuckle House. This is a Victorian property, which formerly comprised two individual cottages. It is surrounded by a garden and, to the north-east of the house, is a paddock. Honeysuckle House is owned by a Mr and Mrs Hunt, who are registered as proprietors at H M Land Registry under Title No WT 121168.
3. The lane, which I have mentioned above, has been referred to throughout these proceedings as the Blue Land (“the Blue Land”). It runs between Thickwood House and Honeysuckle House, at its western extremity, and Thickwood Lane, which is the main public highway to Colerne, at its eastern extremity. At the Thickwood Lane end, the Blue Land splits into two branches and surrounds a small triangular area of land adjacent to Thickwood Lane. In that triangular space, on a small green mound, is a public telephone box. As one passes from Thickwood Lane up the Blue Land towards its western end, there is a property on the left now called Stone Crop. This property was formerly called Belvedere and then Wayside. It was referred to as Wayside in the trial, and this is the name which I will use in this judgment. Beyond Wayside, proceeding westwards along the Blue Land, lies Thickwood House. Thickwood House abuts the end of the Blue Land. To the north-east of Thickwood House, and also abutting the end of the Blue Lane, is Honeysuckle House. Passing in an easterly direction along the Blue Land towards Thickwood Lane, The Old Farmhouse and Thickwood Farm are the next property adjoining the Blue Land. Thickwood House, Honeysuckle House and The Old Farmhouse thus form a cul de sac at the extreme western end of the Blue Land. To the east of The Old Farmhouse, and adjoining Thickwood Lane, lies Sarum House. The land on which Sarum House is built was formerly the garden of Wayside, even though they are on opposite sides of the Blue Lane.
4. In the wall of Wayside, fronting the triangular area adjoining Thickwood Lane, is a post box. This is the local post box for the hamlet of Thickwood.

Some key dates and historical background

5. An Index Map of the manor of Colerne of 1767 shows Thickwood House as “Madam Fishers Manor House”. It also shows The Old Farmhouse. The colouring on the map indicates that both those properties were then in separate ownership from what is now Honeysuckle House and the Meadow.
6. The division of the land surrounding the Blue Land between different owners appears also from a number of other historic documents: the Colerne Enclosure Award plan of 1787, a copy of New College’s Estate map for Colerne, said by the Defendants to have been made in about the middle of the 19th Century, and a plan and tithe apportionment schedule accompanying the 1875 Colerne Tithe Award. These 1875 documents record that the Blue Land was then in the occupation of Parish Officers.
7. A plan and record of valuations prepared between 1910 and 1920 pursuant to the Finance (1909-1910) Act 1910 show the Blue Land as an untaxed public road. By this date the various hereditatments abutting the Blue Land, while in the occupation of different persons, were all owned by John Walmesley of Lucknam. They formed part of the Lucknam Park Estate.
8. In 1919 John Walmesley conveyed the Lucknam Park Estate to Alfred Henry Read. In 1924 Alfred Read conveyed Thickwood House, Honeysuckle House and Thickwood Farm to George Brown Ewing.
9. The records held by Wiltshire County Council, dating back to 1924, for the purposes of replying to requests for local authority searches, do not record the Blue Land as a highway.
10. By the Local Government Act 1929 the County Council became the highway authority in place of the District Council as from 1st January 1930. Highways maintainable at the public expense vested in the County Council and became “County Roads”. The highways records of the District Council were transferred to the County Council which prepared a “Highway Record”. The Blue Land is not shown, and apparently has never been shown, on the Highway Record for Thickwood as a publicly maintained highway.
11. The National Parks and Access to the Countryside Act 1949 required County Councils to produce a Definitive Map showing all ways which were the subject of public rights. The Wiltshire County Council’s Definitive Map, which is now maintained under the Wildlife and Countryside Act 1981, has never shown the Blue Land as subject to public rights.
12. By a conveyance of 20th August 1952 Miss Georgina Daniels an Mrs Marian Worthy conveyed Thickwood Farm to George Stephens Gifford (“Mr Gifford senior”). That conveyance does not appear to have included the Blue Land.
13. By a written agreement dated 9th June 1958 Mr Gifford senior granted Major Walter Norman Culverwell of Wayside a right of way over the Blue Land between the garage at Wayside and Thickwood Lane for the yearly sum of £1, terminable on 12 months written notice.
14. By a conveyance dated 24th July 1959 Miss Daniels and Mrs Worthy conveyed Thickwood House to Mr Gifford senior. This conveyance did not include the Blue Land.
15. By a deed of gift dated 4th August 1967 Mr Gifford senior transferred Honeysuckle House and The Old Farmhouse to his son George Alexander Gifford (“Mr Gifford junior”). There was included in the conveyance a grant of a right of way over the Blue Land.
16. By a conveyance dated 11th April 1969 Mr Gifford senior conveyed Thickwood House to Mr Gifford junior. Thickwood House was subsequently transferred by Mr Gifford junior into the joint names of himself and his wife.
17. By a conveyance dated 23rd May 1979 Mr Gifford senior conveyed Thickwood Farm to Mr Gifford junior.
18. By a conveyance dated 10th October 1979 the Blue Land was purportedly conveyed by Mr Gifford senior to Mr Gifford junior; and a memorandum to that effect was indorsed on the 1952 conveyance of Thickwood Farm to Mr Gifford Senior.
19. By a written agreement dated 1st February 1980 Mr Gifford junior granted Mr and Mrs Baldwin, the then owners of Wayside, a right of way over the Blue Land between the garage at Wayside and Thickwood Lane for the yearly sum of £30, terminable on 6 months written notice.
20. By a deed of grant dated 26th November 1990 Mr Gifford junior granted to Mr and Mrs Swettenham, the then owners and occupiers of Wayside, for £6,000 a right of way over the Blue Land with or without vehicles “in fee simple or for such right title and interest as the grantor has in [the Blue Land]”.
21. In October 1990 Mr Gifford junior decided to sell his properties at Thickwood and move to Australia. The various properties were put on the market in three lots. As these sales progressed, the area comprised in each of the lots changed. The first area in respect of which a sale was negotiated and agreed was what is now known as Thickwood Farm, which comprised Lot 3 and part of Lot 1. The purchaser was the Claimant. For the purpose of that sale Mr Gifford junior made a statutory declaration dated 19th November 1990 in relation to the ownership of the Blue Land. In the contract of sale between Mr Gifford junior and the Claimant of the 26th November 1990 Mr Gifford junior agreed to sell “such right title and interest as the Seller has in respect of the Blue Land”. The covenants for title given by Mr Gifford junior in respect of the Blue Land were expressed to be such as would have been implied if the vendor had transferred and been expressed to transfer as “trustee”, and not as “beneficial owner”. The contract for sale was completed by a transfer dated 10th December 1990 (“the 1990 Transfer”) The following provisions of the 1990 Transfer are material to these proceedings:

“5. The Blue Land is transferred together with the benefit of the covenants on the part of and subject to the rights of the grantee contained in a Deed of Grant dated 26th November 1990 made between the Vendor (1) and David Charles William Swettenham and Sandra Mary Swettenham (2) (“the Deed of Grant”) except and reserving the rights set out in the Fourth Schedule.”

“7. The Vendor and Mrs Gifford to the intent and so as to benefit and protect the Red Land and the Blue Land and each and every part thereof hereby jointly and severally covenant with the Purchaser that the Vendor and Mrs Gifford will perform the stipulations and obligations set out in the Sixth Schedule.”

“The Fourth Schedule

(Rights Excepted and Reserved out of the Blue Land)

1. The right for the Vendor and his successors in title the owners and occupiers for the time being of that part of the Green Land which is hatched black only to pass and re-pass with or without vehicles over and along the Blue Land at all times and for all purposes connected with the use and occupation of the before-mentioned parts of the Green Land upon payment to the Purchaser of one half of all sums reasonably expended by the Purchaser in repairing and maintaining the surface of the Blue Land as a roadway.

2. The right for the Vendor and his successors in title the owners and occupiers for the time being of that part of the Green Land which is cross-hatched black only to pass and re-pass with or without vehicles over and along the Blue Land at all times and for the sole purpose of delivering and accepting delivery of supplies of oil to such property.

3.....”

“The Sixth Schedule

(Positive Covenants by the Vendor and Mrs Gifford)

1.....

2. By the 31st January 1991 to erect a dry stone wall between the points marked R and S on the plan to the reasonable satisfaction of the Purchaser to the effect that the right of way over the Blue Land from Thickwood Lane to Thickwood House shall be extinguished.”

22. Bt two transfers dated 9th January 1991 (one being by Mr Gifford junior alone, and the other being by Mr Gifford and his wife) Thickwood House and the rest of the land now included in Title No WT 99791 were transferred to Peter and Susan Leatherlands. There was included in the land transferred part of the land edged green and hatched black (“the Green land”) in respect of which rights had been reserved in favour of Mr Gifford junior by the 1990 Transfer. The part of the Green Land transferred to Mr and Mrs Leatherlands comprised the Meadow and a narrow strip within the garden of Thickwood House and adjacent to the boundary with Honeysuckle House, but not contiguous with the Blue Land. The transfers to Mr and Mrs Leatherlands were with the benefit of the exceptions and reservations contained in the 1990 Transfer and were subject thereto. Both transfers contained, in clause 3, covenants by the purchasers to perform the vendor’s covenants in the 1990 Transfer.
23. On 5th June 1991 the Claimant granted Mr and Mrs Leatherlands permission to install a gate in the wall which was to be erected on the boundary of the Blue Land with their land, and a personal licence, terminable by one week’s notice, to pass over the Blue Land on foot at a nominal fee.
24. On 8th April 1993 Mr Gifford junior transferred Honeysuckle House to Mr and Mrs Hunt.
25. In 1994 the Defendants became interested in acquiring Thickwood House. Their solicitors, W Bache & Sons, wrote to Wiltshire County Council on 5th August 1994 enquiring about the status of the Blue Land. On 23rd September 1994 the Council replied to the solicitors indicating that the Blue Land was highway.
26. On 11th November 1994 Mr and Mrs Leatherlands agreed to sell Thickwood House, land and farm buildings to the Defendant. That sale was completed on 19th December 1994.
27. In response to a request of the Defendants’ solicitors, H M Land Registry indicated on 7th April 1994 that the register would be rectified to include a note of rights over the Blue Land in favour of the Green Land.
28. On 24th May 1995 the Defendants wrote to the Claimant introducing themselves as neighbours, explaining that they understood there was right of access along the Blue Land and indicating that they were going to unlock and use the gate on the boundary of their land and the Blue Land. The Claimant’s solicitors replied on 1st June 1995 refuting the Defendants’ claims and terminating the personal licence granted by the Claimant to Mr and Mrs Leatherlands.
29. On 3rd March 2000 the Claimant commenced the present proceedings. By its Amended Particulars of Claim. The Claimant claims:

“1. A declaration that the easement or quasi-easement of way existing prior to 10th December 1990 over the land shown shaded blue on the plan annexed hereto in favour of the property known as Thickwood House has been abandoned and extinguished.

2.1. A declaration that the right of way over the land shaded blue on the plan annexed hereto, reserved by clause 5 and the first paragraph of Schedule 4 to the Transfer of 10th December 1990 made between George Alexander Gifford and the Claimant, in so far as it purports to benefit that portion of land within the Defendants’ title number WT99791 shown on the plan annexed hereto shaded brown: (a) has been abandoned and extinguished, alternatively (b) is exercisable only via the land shown edged green on the plan annexed hereto and is in abeyance and incapable of exercise until such time as the Defendants may acquire right or permission to pass over the said land edged green.

2.2 Alternatively, a declaration that the Defendants are not entitled to use the right of way referred to in paragraph 2.1 of the prayer herein otherwise than for the primary purpose of obtaining access to and egress from the land shown edged green and hatched black on the plan to the Transfer dated 10th December 1990.

3. A declaration that the Defendants and their invitees have no right to pass and re-pass over the boundary between the lands within the title number WT99791 and T134929 between the points marked R and S of the plan annexed hereto.

4. An order that the Property Register of title number WT99791 be rectified insofar as may be necessary to reflect the declarations claimed as aforesaid.

5. ....”

Highway

30. At common law a highway may be created by dedication, express or presumed, by the owner of the land of a right of passage over it to the public at large and the acceptance of that right by the public. Long user by the public as of right is evidence of proof of dedication by the owner and acceptance by the public.
31. Apart from proof of dedication at common law, section 31 of the Highways Act 1980 provides that user for 20 years by the public as of right and without interruption, calculated retrospectively from the date when the right of the public to use the way was brought into question, will be sufficient to establish that the way was dedicated as a highway, unless there is sufficient evidence that there was no intention during that period to dedicate. Mr Hodge QC, leading counsel for the Claimant, pointed out that the Defendants have not expressly pleaded reliance on section 31 of the Highways Act 1980 in their Defence. The relevant facts upon which the Defendants rely are, however, pleaded. I see no reason why the Defendants should not be entitled to invoke section 31.
32. Miss Holland, counsel for the Defendants, submitted that the 20 year period under section 31 of the 1980 Act should be calculated retrospectively from the date the present proceedings were commenced. This was not challenged by Mr Hodge QC; and so, in effect, the point was conceded. I must confess, however, that, at least in relation to the part of the Blue Land lying to the west of the triangular section adjoining Thickwood Lane, I would have thought that the right of the public was brought into question much earlier. In the event, in view of my decision on dedication at common law, nothing turns on this point.
33. It is convenient to consider, in the first place, the position of the triangular section of the Blue Land at its eastern end. The evidence in relation to this area overwhelmingly supports the inference of dedication to and acceptance by the public as a highway.
34. Mr Peter Plank, who is 65 years of age and has lived at Thickwood for all his life, gave evidence that the telephone box at the eastern end of the Blue Land was installed in about 1950. Documentary evidence confirms that it has certainly been there since before 1958. It is served by a step from the Blue Land. Members of the public using the telephone box park either on Thickwood Lane or on the Blue Land in the triangular area.
35. Mr Plank also gave evidence that the post box in the wall of Wayside has been there since 1935. Again, documentary evidence confirms that a post box has been there since before 1958. The present post box bears an inscription indicating that it was placed there during the reign of the present Queen. Mr Plank thought that it might have been changed from a previous post box. This is the only post box in the hamlet of Thickwood.
36. The parish notice board is also on land adjoining this part of the Blue Land. Mr Plank remembers it always being there.
37. There is no evidence that the general public have at any stage been prevented from coming onto the triangular section at the eastern end of the Blue Land. Nor is there any evidence that at any time the Claimant or its predecessors in title have erected any notice advising the public that access to the telephone box, the post box, or the parish notice board by means of the Blue Land was by permission and not as of right. Accordingly, the evidence in favour of dedication of the triangular section of the Blue Land adjoining Thickwood Lane, whether at common law or under section 31 Highways Act 1980, is overwhelming. I find that the triangular section is public highway.
38. The direct evidence within living memory of the use of the balance of the Blue Land is more equivocal. Mr Conrad Brigden, the owner of Sarum House since 1970, and Mr Peter Lewis, the owner since 1970 of Well Close Cottage on Thickwood Lane, gave evidence that they have attended public functions at Thickwood House such as carol services, and believed and still believe they had and have the right to do. Mr Plank also gave evidence that he believed he was entitled to use and has used the Blue Land as a member of the public as of right. It is also clear that post is delivered to the properties abutting the Blue Land by a vehicle driven along the Blue Land.
39. This evidence as to the use of the Blue Land to the west of the triangular section within living memory has to be balanced against evidence of ownership and control by the Claimant and its predecessors in title. The agreements made from time to time in and after 1958 by Mr Gifford senior and then by his son, by which rights of way were granted for financial consideration in favour of Wayside over the Blue Land, described in some of the agreements as a “private accommodation road”, are, on the face of it, inconsistent with the Blue Land being a public highway. So also are the terms of the 1990 Transfer to the Claimant, the 1991 transfers to Mr and Mrs Leatherlands, and the personal licence granted to Mr and Leatherlands in 1991 to pass over the Blue Land. I do not accept Miss Holland’s submission that Mr Gifford junior was well aware in 1990 of possible public rights over the Blue Land. The documentary evidence, as well as the oral evidence of Nicholas Brent, the solicitor who acted for the Claimant in its purchase of Thickwood Farm in 1990, make clear that the various parties to the 1990 and 1991 conveyancing transactions were of the view that there were only private rights of way enjoyed over the Blue Land.
40. Mr Hodge QC also relied upon a way leave agreement made on 26th May 1951 between Miss Daniels and Mrs Worthy, the then owners of Thickwood Farm and Thickwood House and other adjoining properties, by which a way leave was granted to the Southern Electricity Board to erect and maintain electricity wires over the Blue Land. He submitted that this agreement showed that Miss Daniels and Mrs Worthy regarded the Blue Land at that date as private property, in respect of which there were no public rights of way. I do not consider, however, that this agreement is evidence or, at all events, clear evidence to that effect. I prefer the analysis of Miss Holland that, on the proper construction of the way leave agreement, the payment under that agreement was in respect of two electricity poles each of which were situated in private properties adjoining the Blue Land.
41. Bearing in mind these matters and also that the Blue Land is not shown as a road maintainable at the public expense in the records of the Council, and that it is not shown as subject to public rights of way in the Definitive Map maintained under the Wildlife and Countryside Act 1981, and that there is no evidence within living memory that the Blue Land has been maintained by the Council, I would not be satisfied that the Blue Land to the west of the triangular section adjoining Thickwood Lane is public highway on the basis of evidence of actual user within living memory.
42. The Defendants rely, however, on a variety of historical material dating back to the 18th Century which, they submit, shows that the Blue Land has been a public highway since at least that time.
43. The earliest document on which the Defendants rely is an Index map of the Manor of Colerne of 1767. This shows the Blue Land in the same colour as Thickwood Lane. An Enclosure Award plan for Colerne of 1787 also shows the Blue Land as the same colour as Thickwood Lane and the other principal roads in the area. Miss Holland submitted that the proper inference to be drawn from the colouring on those plans is that the Blue Land was then a highway. In my judgment, it is unsafe to draw any such inference from those plans. I agree with the submission of Mr Hodge QC that there is no reason to suppose that the cartographers were concerned to distinguish public from private roads on those plans.
44. A linen tithe map of 1875 for Colerne shows the Blue Land coloured the same as all the other principal roads in the area, including Thickwood Lane. The Blue Land and those other roads are shown numbered 1158 on the map. In the tithe apportionment schedule accompanying the 1875 Colerne Tithe Award, the roads designated no. 1158 are shown as being in the occupation of “Parish Officers”. This is important evidence. On the face of it, this is evidence that in 1875 the Blue Land was a public highway within the responsibility of the parish officers. This could only be on the basis that the Blue Land was dedicated and adopted following the Highways Act 1835 or, alternatively, had been the responsibility of the parish officers since before the coming into force of that Act. In the latter case, the parish officers would only have assumed responsibility if there had been evidence of dedication and acceptance of the road by the public.
45. Tithe maps are admissible in evidence to prove the existence of a highway: Kent County Council v. Loughlin [1975] 234 EG 681. Roads generally, whether public or private, were not titheable, and so tithe maps are generally relevant only to proving the existence of a road at a particular time rather than its status. Mr Hodge Q.C. also sought to undermine the evidential value of the 1875 tithe map and schedule by pointing out that none of the properties surrounding the Blue Land were shown as titheable, so there would have been no need on the part of anyone to concentrate on the true status of the Blue Land. In my judgment, the fact that the Blue Land was not titheable and the further fact that the land surrounding the Blue Land was not titheable do not undermine the importance of the 1875 map and schedule to the issue I have to decide. The map and schedule clearly show the Blue Land was then in the occupation of the parish officers. It is that fact, rather than the issue of whether the Blue Land or the surrounding land were titheable, that is significant. In this connection, it must be borne in mind that tithe maps are public documents and that the Commissioners, under whose authority and control the tithe map was prepared, had power to examine witnesses on oath.
46. The next documents on which the Defendants rely are a map and schedule prepared pursuant to the Finance (1909 - 10) Act 1910. The 1910 Act provided for the levying of a duty on the incremental value of land, called increment value duty. The Board of Inland Revenue was to ascertain the site value of all land in the United Kingdom as at 30th April 1909. Commissioners were to undertake a provisional evaluation of the land, which they were to serve on the owner of the land. The 1910 Act provided for the owner to give notice of objection to the provisional valuation. Valuation offices were set up throughout the country, and a land valuation office was appointed to each income tax parish. Between 1910 and the repeal of the Act in 1920 the whole country was surveyed in this way. Mr Alan Harbour, the rights of way officer of Wiltshire County Council for the northern half of the County and who was formerly the Land Charges officer of the Council, gave evidence of the painstaking detail with which the land was valued pursuant to the 1910 Act. Although Mr. Harbour is not qualified as a lawyer or a surveyor, he has considerable practical expertise on issues relating to public rights of way and the proof of their existence. I found his evidence helpful. He emphasised that the effect of the arrangements made under the Act was that local people with local knowledge undertook the valuation and conducted the detailed consultation with the owner of the land. He described how the valuation involved the most comprehensive record of land ever undertaken and became known as “the Second Doomsday”. The 1910 Act contains specific provision for reducing the gross value of land to take account of any pubic rights of way or public rights of user, as well as easements. Importantly, the Act contained criminal sanctions for falsification of evidence. The 1910 Finance Act map and schedule shows the Blue Land, as also Thickwood Lane and other principal roads in the area, as untaxed public roads.
47. The 1910 Finance Act map and schedule are, in my judgment, most material evidence in relation to the status of the Blue Land at that time. It would have been in the interest of the owner of the Blue Land to acknowledge that the Blue Land was a public highway and so not taxable. On the other hand, it would have been the concern of those acting for the Commissioners to establish that the Blue Land was private land and not subject to public rights. The fact that the Blue Land was not shown as falling within the hereditament of any private individual, but is shown as part of the general road network, in a survey which would have been undertaken by local officers of the Commissioners, and following consultation with the owners of private hereditaments, is a most powerful indication that the Blue Land was at that time thought to be in public ownership and vested in and maintainable by the District Council, which was the highway authority. In the circumstances, whether or not the Commissioners consulted with officers of the Rural District Council about the status of the Blue Land, I see no reason to infer, as I was urged to do by Mr Hodge QC, that the designation of the Blue Land on the 1910 Finance Act plan and schedule was simply a mistake.
48. The Claimant seeks to rely upon a number of factors to counter the strong inference, to be drawn from the 1875 documents and the 1910 Finance Act documents, that the Blue Land was then a public highway maintainable at the public expense. The Claimant points to the fact that a roadway off Thickwood Lane and to the east of the Blue Land, which Mr Hodge QC called the “eastern branch”, was also shown as not subject to tithe in 1875 and as an untaxed public road in the 1910 Finance Act documents. That eastern branch was subsequently built upon and has disappeared. I do not consider that safe conclusions can be drawn from the history of the eastern branch, which has no obvious connection with the Blue Land whatsoever, and whose history has not been analysed before me to the same extent as the Blue Land.
49. The Claimant also relied upon the fact that, when the County Council became the highway authority, in place of the District Council, pursuant to the Local Government Act 1929, the records that were handed over the to the County Council apparently did not show the Blue Land as public maintained highway; and, accordingly, the County Council did not include the Blue Land in its list of publicly maintained highways in its Highway Record. Indeed, the evidence is that the Blue Land has not within living memory ever been maintained at the public expense. Such maintenance as has been carried out in recent years has been by Mr Gifford junior and other private persons. Mr. Harbour pointed out, however, that many inaccuracies were made at the time of the transfer to the Council Councils of responsibility for publicly maintainable highways. He emphasised that the process of verification was far less rigorous than for the purposes of the 1910 Act. There was, for example, no process of consultation or for public verification, nor were there criminal sanctions for false evidence. Mr. Harbour speculated that the reason that the Blue Land may have been overlooked when the Highway Record was prepared by the Council in 1930 was that the issue on which the Council then concentrated was whether any particular road had in fact been maintained at the public expense, and the Blue Land may have been so small and insignificant that it had not in fact been so maintained for some time.
50. The Claimant also relies upon the fact that the Blue Land has never been depicted as subject to public rights in the Definitive Map maintained by Wiltshire County Council initially under National Parks and Access to the Countryside Act 1949 and now under the Wildlife and Countryside Act 1981. The 1949 Act, and now the 1981, however, do not operate to exclude other methods of establishing whether a public right of way exists, nor do they provide that the absence of any path on the Definitive Map is to be conclusive evidence that such a path does not exist as a highway.
51. Finally, the Claimant relies upon the fact that records held by the Searches Section of Wiltshire County Council, which date back to 1924, do not record the Blue Land as a highway.
52. Notwithstanding the various matters upon which the Claimant relies to undermine the clear inference to be drawn from the 1875 Tithe Award plan and apportionment schedule and the plan and record of valuations prepared pursuant to the 1910 Finance Act, I see no reason why I should not take those documents at face value as very powerful evidence that the Blue Land was by 1875 a public highway maintainable at the public expense. Section 32 of the Highways Act 1980 specifically provides that a court, in determining whether a way has or has not been dedicated as a highway, should take into consideration any map, plan or history of the locality. It provides as follows:

“32. Evidence of dedication of way as highway

A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.”

53. Mr Hodge QC submitted that the absence of a public terminus at each end of the Blue Land does not support its status as a public highway. It is no doubt true that, generally speaking, it may be more difficult, especially in the countryside, to establish public rights of way in relation to a cul de sac as distinct from a stretch of roadway which leads to and from some other public roadway or public place: Eyre v New Forest Highway Board (1892) 56 JP 517, 518, 519; Attorney General v Chandos Land and Building Society (1910) 74 J P 401, 402; Attorney General v Antrobus [1905] 2 Ch 188; and Sauvain on Highway Law (2nd Ed) paras 1-17, 2-75. It is clear, however, that public rights may be established over a cul de sac by actual use as of right by members of the public.
54. Mr Hodge QC also submitted that the evidence, taken as whole, is consistent with use of the Blue Land pursuant to private rights of access and egress attaching to the surrounding properties and granted by the owner of the Blue Land from time to time, or alternatively to such owner’s “good nature and toleration” (per Lord Dunedin in Folkestone Corporation v Brockman [1914] AC 338, 376). He also pointed to the fact that the surrounding properties were in the same ownership, as part of the Lucknam Park Estate, by the beginning of the 20th century. On the other hand, Mr Harbour pertinently observed that in 1875 about half the inhabitants of the hamlet of Thickwood were living in the properties adjoining the Blue Land. It is clear that, at that date, as in earlier times, the properties were in different ownerships. Those facts seem to me to be a compelling reason why the Blue Land may indeed have been a public highway at that time.
55. Finally, Miss Holland submitted that it is relevant that the Claimant cannot point to a clear root and history of paper title to establish that the Blue Land has been in private ownership since before 1875. Although the point is not of great weight, I agree that this is of some significance.
56. I conclude, taking the facts as a whole, that the entire stretch of the Blue Land from its western to its eastern extremities was dedicated to and accepted by the public as public highway. The fact that the Claimant and its predecessors in title may, from time to time since the 1950s, have treated the Blue Land as private property which was not subject to public rights, cannot have removed the legal status of the Blue Land as public highway. The Blue Land has not been stopped up or diverted pursuant to any statute. The rule is “once a highway always a highway”: Dawes Hawkins (1860) 29 LJ CP 343, 347; Eyre v New Forest Highway Board [1892] 56 JP 517. Accordingly, I find that the Blue Land was and is a public highway maintainable at the public expense.
57. Mr Hodge QC submitted that even if the Blue Land is public highway, there are two grounds effectively precluding the Defendants from exercising their rights over the Blue Land as members of the public. The first ground is that the effect of clause 7 of, and paragraph 2 of the Sixth Schedule to, the 1990 Transfer was to extinguish any right of access between Thickwood House and the Blue Land. The second ground is that the defendants are estopped by convention from asserting that the Blue Land is public highway.
58. Mr Hodge QC submits that the substance and effect of the 1990 Transfer was that the Claimant concluded a binding agreement with Mr Gifford junior, by which Mr Gifford junior abandoned for all time rights of access between Thickwood House and the Blue Land. In my judgment, this submission faces obvious and insuperable difficulties. At that time neither the Claimant nor Mr Gifford was aware that the Blue Land was a public highway. Indeed, that lack of knowledge and belief is the very cornerstone of Mr Hodge QC’s argument on estoppel, which I shall consider in due course. In this connection, I reject Miss Holland’s submission that I should not conclude that the Claimant was unaware that the Blue Land was or might be a public highway in view of the statutory declaration made by Mr. Gifford junior in 1990 concerning the Blue Land and the fact that Mr. Brent did not inspect the Blue Land prior to the 1990 sale to the Claimant. The statutory declaration was concerned with ownership of the Blue Land and not its status as a highway or private road. The fact that Mr. Brent did not visit the Blue Land seems to me to give greater credence rather than less to the fact that neither he nor the Claimant had any inkling or suspicion that the Blue Land might be highway, particularly in the light of the local authority’s search replies which did not disclose the Blue Land as public highway. I see no reason, in the circumstances, why the court should construe the 1990 Transfer or imply into it any term that Mr Gifford junior and his successors in title would not exercise their ordinary rights over the Blue Land as members of the public and, for that purpose, obtain access between Thickwood House and the Blue Land.
59. Furthermore, in order that any agreement not to gain access between Thickwood House and the Blue Land might be binding upon Mr Gifford’s successors in title, Mr Hodge QC agreed that the restriction of access would have to subsist as a restrictive covenant. No such restrictive covenant has been pleaded by the Claimant. Furthermore, it would be necessary to construe the positive covenant to erect a wall upon the boundary as imposing a restrictive covenant binding upon the land itself. It seems to me that the court should be very slow indeed to construe the 1990 Transfer in this way. Bearing in mind that the 1990 Transfer clearly distinguishes between positive covenants, including the covenant to erect the wall, which are set out in the Sixth Schedule, and restrictive covenants, which are set out in the Seventh Schedule, it would not be right to attribute to the parties any intention that the positive covenant to build the wall should be interpreted and have effect as a restrictive covenant binding upon successive owners of Thickwood House.
60. Mr Hodge QC submitted, in the alternative, that Mr and Mrs Gifford having agreed expressly to abandon the pre-existing right of way over the Blue Land in favour of Thickwood House, and having covenanted to erect a permanent obstruction upon the boundary, it would have been unconscionable for them subsequently to assert a public right of access over the Blue Land and the private right of the owner of land adjoining the highway to gain access thereto from the adjoining land. He submitted that an estoppel by convention thereby arose between Mr and Mrs Gifford and the Claimant, and that the Defendants, as privies in title to Mr and Mrs Gifford, are bound by the same estoppel. As I have already indicated, I find that both the Claimant and Mr and Mrs Gifford acted on a common mistaken assumption that the Blue Land was not subject to public rights of way. Accordingly, one of the essential ingredients of estoppel by convention, namely a common but mistaken assumption of fact, does exist.
61. It was accepted by Mr Hodge QC that the onus is on the Claimant to satisfy another requirement of estoppel by convention, namely that it would now be unjust or unconscionable for the true facts to asserted and relied upon. As to this element of unconscionability, the matters relied upon by the Claimant are set out in Further Particulars of paragraph 4A of the Amended Reply, as follows:

“1. Having expressly provided in the Transfer for the Vendor to contribute to the cost of repair and maintenance to the Blue Land and to create a wall between the points R and S on the plan it would be unconscionable to allow the Vendor and the Defendants as successors in title to deny the truth of the common assumption.

2. Given the common assumption of the parties to the Transfer that the Blue Land was not part of the highway, the second paragraph of the sixth schedule clearly reflects the intention of the parties that the owners of Thickwood House should have no right to pass over the Blue Land and across the boundary between that land and Thickwood House. It would be against conscience for the covenantors to negate that assumption by the assertion of a private right of access to the highway.

3. If the Blue Land were part of the public highway, the right of the Defendants as owners of Thickwood House to pass therefrom onto the highway and vice versa would be a private right appurtenant to Thickwood House, acquired by the Defendants as successors in title to the covenantors. As such the Defendants are privies in title of the covenantors and bound by the estoppel which bound them.”

62. In view of my finding that the Blue Land is a public highway maintainable at public expense, the fact that Mr and Mrs Gifford junior covenanted to contribute towards the costs of repair and maintenance of the Blue Land cannot be a legitimate basis for claiming that it would be unconscionable for the Defendants to rely upon their rights as members of the public to use the Blue Land. Furthermore, the Defendants made clear, both in their evidence, and by Miss Holland’s submissions that if, for any reason, the Blue Land is not maintainable at public expense, they would be willing to make an appropriate contribution towards the cost of its repair and maintenance.
63. The second matter relied upon in support of the requirement of unconscionability is that the 1990 Transfer reflects the intention of the parties that the owners of Thickwood House should have no right to pass over the Blue Land and across the boundary between that land and Thickwood House. This, however, merely restates the first requirement for an estoppel by convention, namely that the parties acted under a common mistake. It does not meet the need to show unconscionability in permitting the Defendants to assert the true facts. Furthermore, as I have already said, it does not seem to me appropriate to infer that any of the parties to the 1990 Transfer contemplated that Mr Gifford junior was giving up any rights of public access that he might be entitled to enjoy over the Blue Land as a member of the public. They simply did not think about the point.
64. The third aspect of unconscionability on which the Claimant relies in its Further Particulars does not in truth relate to the question of unconscionability. It relates to the legal principle of privity, by which a third party may become bound by an estoppel between other persons.
65. In the course of his submissions, Mr Hodge QC relied upon two further matters in support of the allegation that it would be unconscionable for the Defendants now to assert and rely upon their rights to pass along the Blue Land as members of the public. He submitted that it is inconceivable that the Claimant would have been willing to pay £10,000 for the Blue Land which was stated as the consideration for the Blue Land in paragraph 2.2 of the 1990 Transfer. No evidence, however, to that effect was given before me. Indeed, on the contrary, the evidence of Mr Brent, who acted for the Claimant on the purchase of the Blue Land from Mr Gifford junior, was that if there was some specific reason for a split in the purchase price between the Blue Land and the rest of the land it would have been to accommodate the wishes of the vendor rather than the Claimant, as purchaser.
66. Mr Hodge QC also submitted that, if it had been appreciated that the Blue Land was a public highway, then either the 1990 transaction would not have proceeded at all or it would have proceeded on terms that ensured, by means of a restrictive covenant or otherwise, that all rights of access to and from Thickwood House over the Blue Land, save for the right to deliver oil which was specially permitted under the Transfer, was given up. Neither Mr Robinson, the principal behind the Claimant, nor any other employee of the claimant gave evidence before me. Nor did Mr Gifford junior give evidence.

Continued existence of pre 1990 right of way

67. Access to and from Thickwood House was obtained over the Blue Land prior to and at the date of the 1990 Transfer. The Defendants submit that after the 1990 Transfer a right of way to use Blue Land for such access continued to subsist notwithstanding the express terms of paragraph 2 of the Sixth Schedule to that Transfer by which Mr Gifford junior and Mrs Gifford covenanted by the 31 January 1991 to erect a wall between the points marked R and S on the plan “to the effect that the right of way over the Blue Land from Thickwood Lane to Thickwood House shall be extinguished”.
68. Miss Holland advanced a number of reasons in support of that submission. Firstly, she submitted that the covenant by Mr Gifford junior and Mrs Gifford to build the wall was a positive covenant, and hence the burden of the covenant would not run at common law or in equity. Secondly, it was submitted that it is difficult to construe the covenant in itself as intended immediately to extinguish the easement as a legal interest. Thirdly, it was submitted that the wording of the covenant indicates a clear intention that the right of way be extinguished at a future date when the wall was actually erected, and the covenant did not purport to effect an immediate extinction by deed. In fact, the wall was not erected by 31st January1991, and was never erected pursuant to the covenant. A wall and gate were eventually erected between points R and S by Mr and Mrs Leatherlands pursuant to the agreement with Mr Gifford Junior dated 5th June 1991. It is said that, accordingly, there was never any later extinguishment, as contemplated by the covenant. Fourthly, it is said that the right of way was not extinguished or abandoned when Mr and Mrs Leatherlands erected the wall and gate between the points R and S. In support of that conclusion, it is said that Mr and Mrs Leatherlands were in ignorance of the true position in relation to the Blue Land, and cannot be taken to have intended to abandon the right of way. It is said that Mr and Mrs Leatherlands would have been under the mistaken impression that the root of title to the Blue Land was contained in the 1952 Conveyance to Mr Gifford senior, which was not, in fact, the case. It was also submitted, in support of the conclusion that the right of way was not extinguished or abandoned when the wall and gate were constructed by Mr and Mrs Leatherlands, that an agreement to pay for the use of an easement on a temporary basis does not necessarily amount to abandonment of an easement.
69. The arguments advanced by the Defendants on this aspect of the case are technical ones which, in my judgment, run counter to the plain intention of the parties to the 1990 Transfer. It is perfectly clear from paragraph 2 of the Sixth Schedule to the 1990 Transfer, that it was the intention of the parties to that Transfer that the Blue Land should no longer be used to obtain access to and from Thickwood House between points R and S on the plan to the Transfer. In so far as any such access constituted a quasi-easement before the 1990 Transfer, the terms of the Transfer negatived the existence of any corresponding legal easement after the date of the Transfer. In so far as such access was enjoyed before the 1990 Transfer as a legal easement, the provisions of the 1990 Transfer, in my judgment, either amounted to an immediate release by deed of that pre-existing right of way or they constituted an agreement to release it. If the latter, then on and after 31st January 1991 that release was effective in equity, and is binding upon Mr and Mrs Gifford’s successors in title. In the further alternative, Mr and Mrs Leatherlands abandoned any existing right of way when, with knowledge actual or imputed of the relevant provisions of the 1990 Transfer, they obtained permission in June 1991 to install a gate in the wall to be erected on the boundary of the Blue Land with Thickwood House and took a personal licence, terminable by one week’s notice, to pass over the Blue Land on foot, and at a nominal fee. In this connection, it is to be noted that Mr and Mrs Leatherlands covenanted jointly and severally with Mr and Mrs Gifford in clause 3 of the 1991 Transfers of Thickwood House to observe and to perform the covenants and conditions contained in the 1990 Transfer.

The right of way attached to the Green Land

70. The 1990 Transfer excepted and reserved out of the Blue Land in favour of Mr Gifford junior and his successors in title to the Green Land a right of way with or without vehicles along the Blue Land. I have set out the text of paragraph 1 of the Fourth Schedule to the 1990 Transfer earlier in this judgment. The Defendants submit that, when Thickwood House was transferred to Mr and Mrs Leatherlands in 1991, there arose in favour of Mr and Mrs Leatherlands and their successors in title a right of way from the Blue Land across Honeysuckle House to that part of the Green Land forming part of Thickwood House: i.e. the Meadow and a small part of the garden of Thickwood House adjacent to the boundary with Honeysuckle House but not abutting the Blue Land. Accordingly, it was submitted, the Defendants, as successors in title to Mr and Mrs Leatherlands, can continue to use the Blue Land in exercise of the rights of way created by paragraph 1 of the Fourth Schedule to the 1990 Transfer for the benefit of the Green Land.
71. It is said that the right of way from the Blue Land to that part of the Green Land transferred as part of Thickwood House in 1991 arose pursuant to section 62 of the Law of Property Act 1925 or, alternatively, under the rule in Wheeldon v. Burrows [1879] 12 Ch. 31. Sub-section 62(2) and (4) of the Law of Property Act 1925 are as follows:

“(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, 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, houses, other buildings conveyed, or any of them, or any part thereof.

(3) ...

(4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.”

72. The essence of the rule in Wheeldon v. Burrows appears from the following passages in the judgment of Thesiger LJ in that case at pp. 49 and 58-9 of that case:

“We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant....

....

These cases in no way support the proposition for which the Appellant in this case contends; but, on the contrary, support the propositions that in the case of a grant you may imply a grant of such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed, and have in fact been enjoyed during the unity of ownership....”

The rule is essentially a branch of the general rule against derogation from grant: Gale on Easements (16th ed.) paras. 3-31 and 3-39. As Lord Wilberforce said in Somvots Ltd v. Secretary of State for the Environment [1979] AC 144, at p. 168H:

“The rule is a rule of intention, based on the proposition that a man may not derogate from his grant. He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment.”

73. The factual basis for claiming an easement from the Blue Land across Honeysuckle House to the Green Land comprised within Thickwood House is that at the date of the 1991 transfers to Mr and Mrs Leatherland there was a gap in the boundary between the Meadow and the paddock behind Honeysuckle House (“the Paddock”), and that gap was used for animals and tractors to pass between the two. It is said that the existence of that gap satisfied the requirement of a “continuous and apparent” way from Honeysuckle House to the Meadow. Miss Holland submitted that the existence of two end points of the way, one being at the place where access is obtained to Honeysuckle House from the Blue Land, and the other being the gap in the boundary between the Meadow and the Paddock, was sufficient, and it is immaterial to establishing the right of way that its precise route between those end points was not apparent on the ground and has not been established in fact. She pointed out that, as it happens, a convenient route would lie along the made-up driveway on the east side of Honeysuckle House and then across the Paddock to the gap in the boundary between the Paddock and the Meadow. She submitted that it is clear that this way was and is reasonably necessary for the enjoyment of the Green Land within Thickwood House, since the gaps between the buildings in Thickwood House as well as difficulties associated with the access to Thickwood House directly off Thickwood Lane would make it difficult to access the Meadow with farm and other vehicles through the grounds of Thickwood House itself. There is certainly authority that the fact that a way is not itself made up or identifiable on the ground may not be fatal to the establishment of an easement under the rule in Wheeldon v. Burrows or section 62 of the 1925 Act, if the ends of the way are apparent and it is clear that it was the intention of the parties to the conveyance that there was to be a way between the two ends: Hansford v. Jago [1921] 1 Ch. 322, 337-338, 339, 340, 342. The absence of a made-up way or clearly defined route may, however, bring into question whether the parties believed and intended that a right of way was reasonably necessary for the enjoyment of, and was intended to endure for the benefit of, the transferred land.
74. Mr Hodge QC relied upon a number of matters as indicating that it was the plain intention of the parties to the 1991 transfers that no right of access should continue to be obtained from the Blue Land across Honeysuckle House to that part of the Green Land sold with Thickwood House. Firstly, no express right of way was in fact granted in 1991 to Mr and Mrs Leatherlands and their successors in title to pass across Honeysuckle House to the Blue Land. On the contrary, Mr and Mrs Leatherlands covenanted to remove the gate at point F on the plan attached to maintain the boundary between Thickwood House and Honeysuckle House in a good and stockproof condition: see clause 2 of that transfer. Secondly, if the parties had intended a right of way to subsist across Honeysuckle House to the Green Land with Thickwood House, they would have defined the precise route to be taken across Honeysuckle House. This would have been particularly in the mind of Mr Gifford junior, since it was his intention to sell Honeysuckle House prior or his departure for Australia. Thirdly, if it had been the intention of the parties to grant a right of way across Honeysuckle House to the Green Land within Thickwood House, the parties would have provided for an apportionment of the obligation to contribute to the cost of maintaining and repairing the surface of the Blue Land which had been imposed on Mr Gifford junior and his successors in title by paragraph 1 of the Fourth Schedule to the 1990 Transfer. Fourthly, there was no “continuous and apparent” route for any right of way across Honeysuckle House to the Green Land within Thickwood House. No route was apparent on the ground between the gate to Honeysuckle House from the Blue Land and the gap in the boundary between the Paddock and the Meadow. Nor was any evidence given that vehicles were driven directly from the Blue Land to the gap in the boundary. Fifthly, access from the Blue Land across Honeysuckle House to the Meadow, through the gap, was not reasonably necessary for enjoyment of the Green Land comprised within Thickwood House. Mr Hodge QC relied upon the fact that access could be obtained from the entrance drive to Thickwood House from Thickwood Lane, and the fact that the Defendants have themselves sealed up the gap in the boundary between the Paddock and the Meadow. Sixthly, replies of behalf of Mr Gifford junior in 1990 to Additional Enquiries which accompanied standard form requisitions on title show that it was the intention of Mr Gifford junior that the right of way across the Blue Land to the Green Land was intended to be for the benefit of Honeysuckle House only. Seventh, so far as concerns section 62 Law of Property Act 1925, Mr Hodge QC submitted that is established law, binding upon me, that no easement can arise from a pre-existing quasi-easement if there was no diversity of occupation or ownership at the time of the quasi-easement: Payne v Inwood [1996] 74 P&CR 42 (CA).
75. The objections of Mr Hodge QC to the alleged easement to and from the Blue Land across Honeysuckle House to the Meadow pursuant to section 62 of the Law of Property Act 1925 or the rule Wheeldon v Burrows are, in my judgment, well founded. The parties to the 1991 transfers of Thickwood House clearly did not contemplate or intend that any such way would exist. They, and their legal advisors, would have been well aware of the rights granted in favour of the Green Land by the 1990 Transfer. If they had contemplated or intended that the benefit of access along and from the Blue Land should continue to subsist in favour of that part of the Green Land sold with Thickwood House in 1991, they would have provided for the route which the owners of Thickwood House could take across Honeysuckle House, which was retained by Mr Gifford junior.
76. Miss Holland argued attractively that the fact that the gate was expressly covenanted by Mr and Mrs Leatherlands to be blocked up at point F pursuant to clause 2(a) of the 1991 transfer from Mr Gifford junior, but by contrast there was no obligation to block up the gap between the Paddock and the Meadow, indicates that the parties intended a gap to remain. In my judgment, in the light of all the evidence, including the evidence of Mr Plank that there was no sturdy, permanent and attached gate at the gap, the better inference is that the parties did not intend the gap to remain as an access point, but intended that it would be closed as part of the process of maintaining in a good and stockproof condition the boundary between Thickwood House and Honeysuckle House pursuant to clause 2(b) of the 1991 transfer from Mr Gifford junior. Against the factual context in which Thickwood House was sold and Honeysuckle House retained by Mr Gifford junior, and in the light of the absence of any defined route from and to the Blue Land across Honeysuckle House in favour of the Meadow, and in the absence of any express reference to maintaining an access through the gap, and of any express apportionment of the financial obligation to contribute to the repair and maintenance of the Blue Land which was attached to the easement in favour of the Green Land conferred by the 1990 Transfer, clause 2(b) of the 1991 Transfer by Mr Gifford junior, properly construed, required Mr and Mrs Leatherlands to close up the gap between the Paddock and the Meadow.
77. Furthermore, as a matter of law, it is not possible for a right of way to have arisen under the 1991 transfer from Mr Gifford junior in favour of the Green Land sold as part of Thickwood House since there is no evidence of diversity of occupation of the Paddock at Honeysuckle House and the Meadow immediately prior to that transfer: Payne v Inwood [1996] 74 P & CR 42.
78. Further, at the time of the 1991 transfers there was not, in my judgment, for the purposes of the rule in Wheeldon v Burrows, a “continuous and apparent” way from the Blue Land to the Green Land sold with Thickwood House. There was no evidence of any visible track or route between the gate at the entrance to Honeysuckle House, where it abuts the Blue Land, and the gap in the boundary between the Paddock and the Meadow. Nor was there evidence of any person passing directly from the Blue Land into and through that gap.
79. Finally, for the purposes of the rule in Wheeldon v Burrows a right of way was not, in my judgment, reasonably necessary for the enjoyment of the Green Land within Thickwood House, after that land was sold in 1991. Access could be obtained from other routes within the grounds of Thickwood House. There is no evidence that the parties to the 1991 transfers had in mind any particular use of the Green Land within Thickwood House which would make a continued right of way across Honeysuckle House a reasonable necessity for the proper enjoyment of that Green Land. Indeed, as I have already said, it seems quite clear that the parties contemplated and intended that no such way would continue to exist. The fact that the Defendants have themselves closed up the gap in the boundary between the Paddock and the Meadow supports this conclusion on the issue of “reasonable necessity”.
80. For these reasons, I conclude that the Defendants have no right to gain access to the Green Land within Thickwood House from the Blue Land across Honeysuckle House. The right of way conferred in favour of that Green Land by the 1990 Transfer was extinguished when Thickwood House and its surrounding land were sold by Mr Gifford junior in 1991.

Right of way along and from the Blue Land across Thickwood House to the Green Land

81. The Defendants maintain that they are at liberty to pass along the Blue Land to and from the Green Land within Thickwood House across the rest of their own intervening land at Thickwood House. In support of this contention, Miss Holland relied upon the principle that a right of way may exist in favour of land which is separated from the way itself by intervening land: Todrick v Western National Omnibus Company Ltd [1934] 1 CH 561. The legal principle, which is uncontentious, is that a valid easement may subsist whether or not the dominant and servient tenements are continuous, provided that the servient tenement is in fact accommodated by the use of the right.
82. The 1990 Transfer makes clear that there was to be no future vehicular or pedestrian access from the Blue Land to any of the land then retained by Mr Gifford junior save though Honeysuckle House for Thickwood House benefit of the Green Land. In particular, the provisions of the 1990 Transfer were designed to ensure that no vehicular or pedestrian access would continue to be enjoyed from the Blue Land to Thickwood House where it abuts the Blue Land. The right of way granted by paragraph 1 of the Fourth Schedule to the 1990 Transfer is to be construed as limited to an easement solely through the gate to Honeysuckle House where it abuts the Blue Land. Miss Holland sought to argue against that conclusion on the ground that part of the Green Land was included in the garden of Thickwood House when it was sold to Mr and Mrs Leatherlands in 1991. She submitted that it could not have been the intention that access to that part of the Green Land should only be obtained through Honeysuckle House. I reject that argument. As I have already said, it is quite plain that the parties to the 1990 Transfer intended that no further access should be obtained to Thickwood House by means of the Blue Land. Apart from the terms of the 1990 Transfer itself, this is also apparent from the answer to Additional Enquiry 12 which was given on behalf of Mr Gifford junior as part of the 1990 conveyancing arrangements.
83. Furthermore, in the course of closing submissions, Miss Holland stated that the right to gain access to the Green Land from the Blue Land across intervening land at Thickwood House arose in 1991. Miss Holland was unable to point me to any reported authority in which a right of way has been held, in effect, to have sprung into existence automatically in this way when, as I have found, a former easement or quasi-easement along the same route had been deliberately extinguished by the parties’ predecessors in title and the new route was required for the continued enjoyment of a easement which had been expressly granted along a different specified route.

Conclusions

84. For the reasons contained in this judgment, I hold that the Defendants are entitled to use the Blue Land as a public highway in their capacity as members of the public and to use the Blue Land for access to and from Thickwood House. Accordingly, I dismiss the claim.