England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		27th July 2009

His Honour Judge Hodge QC

1. This is my extemporary judgment in the matter of David Robert James Alexander (as applicant and prospective appellant) v Paul Challenger and his wife Pauline Mary Challenger (as respondents).
2. By an appellant's notice filed on 11^th June 2009 the prospective appellant, Mr Alexander, a practising barrister, seeks to challenge two decisions of a Deputy Adjudicator to Her Majesty's Land Registry, Ms Sara Hargreaves, dated 14^th May and 9^th June 2009. The first of those decisions is contained in a written decision handed down following a four day hearing at Teesside Combined Court Centre in Middlesbrough between 10^th and 13^th March 2009. The Deputy Adjudicator ordered that the applicant's application for alteration of the register of title number NYK301853, dated 12^th and 13^th September 2006, should be cancelled. By her later decision as to costs, dated 9^th June 2009, the Deputy Adjudicator ordered that the applicant should pay the respondents' costs of the reference on the standard basis, to be the subject of a detailed assessment; and she gave directions for the conduct of such assessment.
3. On appeal, the applicant seeks an order that the lane which is the land in dispute should be removed from the registered title of the existing title number registered in the names of the respondents and should be added to the registered title of the applicant's adjoining property, known as Calvercote. Alternatively, he seeks an order that it be determined that the boundary between Calvercote and the respondents' property to the east at West View runs down the eastern side of the land in dispute and accordingly belongs to the registered proprietor of Calvercote.
4. In any event, the applicant seeks an order that charge number 1 in the charges' register be amended, or an additional charge be placed thereon, providing, in addition to the existing wording of charge number 1, that the land is subject to the easements created by the will of John Coates, dated 22^nd September 1853.
5. No less than sixteen grounds of appeal were identified in the appellant's notice, although the final three relate exclusively to the order for costs. Prior to the hearing of the appeal, the applicant gave notice of a proposed ground 17, by way of an additional ground of appeal. During the course of the hearing, and after some prompting from the bench, the applicant sought permission to amend his seventh ground of appeal so as to seek to rely upon a further argument as to the construction of an 1853 will.
6. Ground number 7 of the existing grounds of appeal asserts that the Adjudicator was wrong to construe the devise by will of John Coates upon his death in 1854 as passing the disputed strip to the residuary devisee. It is said that there was insufficient to rebut the presumption that the disputed strip passed with the specific devise to William Coates. The proposed amendment to ground 7 would seek to contend, as an alternative, that the disputed strip passed with the specific devise to William Coates, as a matter of construction, by the use of the phrase "large garden".
7. Since such an amendment can cause no prejudice to the respondents, and indeed none was suggested, I accede to the application to amend paragraph 7 of the grounds of appeal in the sense I have indicated.
8. Permission to appeal the decision of the Deputy Adjudicator is required but has not yet been given.
9. When this matter came before Mr Justice Kitchin on paper on 28^th August 2009, he directed that the request for permission should be listed for hearing, to be followed immediately, if permission was given, by the appeal hearing itself. He noted in his reasons that the appellant's notice contained some sixteen grounds of appeal. Insofar as the applicant sought to challenge findings of primary fact, he was not persuaded that any appeal would have a real prospect of success. However, it seemed to him that, in many cases, the applicant was not seeking to challenge findings of primary fact, but rather the inferences that had been drawn from them, and the conclusions based upon them. Those were said to be matters not suitable for determination on paper, and would benefit from elaboration in oral submissions from both parties. Accordingly, he directed that the application be listed for hearing, to be followed immediately, if permission was given, by the appeal hearing itself.
10. In the event, I have heard argument extending over three days, beginning on Friday 23^rd July and continuing yesterday, Monday the 26^th, and this morning, Tuesday 27^th, July. On this application, Miss Josephine Hayes of counsel appears for the applicant; and Mr Bruce Walker of counsel appears for the respondents. Although the nominal applicant is Mr Alexander, in his capacity as the freehold holder of the land known as Calvercote and situated in the village of Gunnerside near Richmond in North Yorkshire, the application and proposed appeal have been conducted on his behalf by his mother, Mrs Frances Burton, who occupies Calvercote under the terms of a lease for a term of 35 years from 5^th January 2002.
11. The test for permission to appeal is that set out under CPR 52.3 (6):

"Permission to appeal may be given only where -

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

12. It was not suggested that there was any compelling reason why the appeal should be heard unless the court considered that the appeal would have a real prospect of success. Accordingly, submissions were directed to the first limb of the test. The test to be applied on any appeal is whether the decision, in this case of the Deputy Adjudicator, was wrong or was unjust because of a serious procedural or other irregularity in the proceedings before her. It is the first limb of this latter test which is engaged in the present case.
13. The background to the appeal can be taken from paragraphs 1 through to 5 of the Deputy Adjudicator's substantive decision. I quote^[1]:

"1. This dispute concerns a small strip of land running between two properties in Gunnerside, a small village in the Yorkshire Dales, of which one witness memorably said that if you sneeze at one end they know about it at the other. The applicant in these proceedings made an application to the Land Registry by form AP1 on 12^th September 2006 for rectification of the registered title number NYK301853, which was registered as title absolute in favour of John Batty on 15^th November 2004, who then sold it to the respondents pursuant to a transfer dated 11^th March 2005 for £3,000. This title encompasses a strip of land falling between two properties and is the land in dispute between the respective owners' and occupiers' properties on the east and west of the strip, the respondents having bought the strip from its registered proprietor, John Batty, in 2005.

2. To the east of the strip there is a property called West View which was registered in the name of the respondents, Mr and Mrs Challenger, under title number NYK264347, on 24^th April 2002, which they bought from Mr Batty. It was built in about 1850. That registered title clearly excludes the strip. There was no access from West View to the strip until one was made by Mr and Mrs Challenger after they bought it. The house is (inaudible) below street level and its garden falls away to (inaudible) to the south, as I was fortunate enough to see on the site visit on the afternoon of Tuesday 10^th March 2009, which I attended together with the parties and their representatives.

3. To the west of the strip is a property called Calvercote. It has been in the same family for many years. The name is an amalgamation of Calvert's House which was built in 1649 with a later (inaudible) extension. It became known as Calvercote in the late 19^th century when or after the Calverts and the Coates families inter-married. The applicant bought it on 3^rd January 2001 from another member of his family and was registered as the proprietor with title absolute on 28^th January 2002, NYK282447. It was the first time the property was registered, though it had been in the same Coates family for many years. The filed plans clearly exclude the strip. The documents in support of the application for registration are not identified as such in the evidence, and much of the historical documentation relied on by the applicant and the respondents has been obtained since the application for rectification was made.

4. Calvercote's first floor is at street level, which it abuts. The ground floor of the house is at garden level and faces south. Access to the house from the street is (inaudible) through one door next to the hard standing in front of the garage at the east end of the house. Two other doorways to the street side have been blocked up, but probably not in living memory. There is no dates are given. Access to the garden on the west side of the house is through a doorway in another wall and on the east side of the house the doorway leading to the hard standing next to the garage, which opens onto steep steps down to the garden level and the remains of a conservatory which was built in the early 1960s. The western garden access is more or less level with the garden and slightly below street level. The garage was built firstly in the 1930s on top of existing outbuildings at street level, but above what became a study bedroom which was converted for Mrs Burton to use when she was a student in the vacation in the early 1960s. The access to the hard standing in front of it was created by demolishing the wall which ran east/west along the street, forming part of the northern wall of the property.

5. There are three features on the eastern wall of Calvercote, the western wall of the strip, which have to be considered in particular:

(i) a stile (inaudible) is disputed to the north of the garage.

(ii) an oil tank.

(iii) a doorway in the wall at the southern end near the field.

There are no similar features on the eastern side of the strip and the evidence is that the previous owners or occupiers of West View never sought to exercise any claim to ownership or easements over the strip."

14. The property may be seen on the filed plan for Calvercote's registered freehold title, which is in the appeal bundle at page 241.
15. Before the Deputy Adjudicator the applicant claimed:

(1) paper title to the strip;

alternatively:

(2) an easement in the nature of a right of way over the strip under the doctrine of implied grant and pursuant to the rule in Wheeldon v Burrows (1879) 12 Ch D 31.

16. The respondents disputed the applicant's paper title. Alternatively they asserted that they had extinguished any paper title previously enjoyed by the applicant's predecessors in title by acts of adverse possession. They also disputed the existence of any easement in the nature of a right of way for access over the disputed strip.
17. The Deputy Adjudicator upheld all aspects of the respondents' case. It is common ground that if the applicant fails to establish his paper title to the disputed strip, then his claim to challenge the registration of the respondents as owners of the disputed strip must fail, and the issue of adverse possession by acts on their part will become irrelevant. In that event, on the substantive appeal it would become necessary only to consider the applicant's alternative claim to a right of way over the disputed strip.
18. In order to understand the applicant's case on paper title, it is necessary to go back into the 19^th century. The applicant's claim to paper title to the strip is said to derive from the will of John Coates, who died on 20^th April 1854. By his last will dated 22^nd September 1853, John Coates gave and devised^[2]:

"To my son, William Coates, his heirs and assigns forever, (inaudible) my large garden situate at Gunnerside aforesaid and now in his own occupation."

All the rest, residue and remainder of his messuages, farms, lands and real estate whatsoever, not previously or otherwise disposed of, he gave and devised unto and equally between and amongst his son Thomas Coates, his sons John Coates and William Coates and also Leonard Rowe, their respective tenants and assigns forever, as tenants in common.

19. Before the Deputy Adjudicator, the applicant advanced two arguments as to paper title. First he argued that, as matter of construction, the large garden devised by the will included the disputed strip. The Adjudicator found against this. Originally there was no appeal on this point; but by the amendment to the seventh ground of appeal the applicant now seeks to challenge this aspect of the Deputy Adjudicator's decision. Secondly, the applicant argued a case relying on a presumption of law along the following lines: First, it is said that the disputed strip was a green lane. Secondly, John Coates's large garden lay on the western side of the southern part of the strip, south of point A on the plan to an 1847 arbitration award. Thirdly, upon John devising that large garden by his 1853 will, it included half the width of the adjacent strip, based on a presumption that the soil of the lane usque ad medium filum viae belonged to the adjoining owner and passed on a conveyance of that adjoining land. Fourthly, it is said that the presumption, on its application to the facts of the present case, was more extensive. Since John Coates owned the whole width of the disputed strip, it was said that the presumption did not merely take half of that width, but the full width of the strip. Finally, it was said that, on the facts of the instant case, the presumption could operate on the northern part of the strip, which was not adjacent to the large garden devised. The only alternative would be that the northern section of the strip passed as part of the gift of residue; but that, it is said, would produce an absurd result, which could never have been intended by the testator, because it would result in the northern part of the strip passing to the residuary devisees, but with the southern part of the strip intervening between that section and the land to the south, which undoubtedly formed part of the residuary devise. In order to avoid that absurdity, the court should construe the specific devise as extending to the whole of the disputed strip.
20. The way in which the matter was put by Miss Hayes in opening was that the applicant maintained that the disputed land was a green lane which passed to William Coates by the specific devise by virtue of the legal presumption - which Miss Hayes submitted was a strong one - that a conveyance of land adjacent to a way, including a private way, conveys whatever title the conveying party has to the soil under the way. She also relies upon a recent decision of Mr Justice Neuberger in the case of Commission for New Towns v J J Gallagher Ltd [2002] EWHC 2668 (Ch) as authority for the proposition that when the conveying party owns the full width of the way, the whole of that width passes with the contiguous land.
21. The Deputy Adjudicator rejected both limbs of the applicant's argument. Her reasoning on those aspects of the case can be found at paragraphs 26 through to 55 of her substantive decision.
22. Although I have referred to the 1853 will, in order to understand the argument it is necessary to go back in time to the position even before the death of John Coates in 1854. The Deputy Adjudicator addressed this at paragraphs 38 and following of her substantive decision.
23. At paragraph 38, she explains that the 1833 will of Thomas Coates the elder, who died not long afterwards, left to his son John Coates certain houses forming most of the terrace which still exists to the west of Calvercote, various outbuildings, and what were described as the "small" and "large" gardens. The small and large gardens were, for present purposes, to be taken as the garden area of Calvercote, the large garden probably being the southern part of the garden as it now is, and the small garden being close to the house. Thomas Coates the elder left his other son, Thomas, the easternmost garden. It is common ground that this is the site of West View. He also received the various outbuildings, certain fields, and the house at the eastern end of the terrace to the west of Calvercote, which is now Croft View. Calvercote then belonged to the Calvert family and was called Calverts.
24. Between 1835 and 1847 John and Thomas entered into a dispute concerning their respective rights to plots on either side of the strip, and the strip itself. There was said by the Deputy Adjudicator to be a fundamental difference of approach between the applicant and the respondents as to the purpose of the arbitration award which settled their differences in 1847. The applicant maintained that the award dealt with the situation arising under the will. The respondents maintained that it came about in order to settle differences relating to factual occupation, which submission is based on entries in tithe schedules and maps. The Deputy Adjudicator was not sure that this mattered in the end, but the facts at about the time of the award seem to have been as follows:
25. The tithe schedule for 1843 showed Thomas to be in occupation, as owner, of plot number 189, which included the strip referred to as "road, yard, saw pit", and also as the owner of plot 190, what is now West View. John appeared as the owner of plot 210, which is Great Park, immediately to the south of the disputed strip, which was then occupied by a third party. He was also shown as the owner of the large garden, plot 186 on the tithe plan, which was then occupied by Thomas. As the Deputy Adjudicator remarks:

"So then, as now, the strip provided fertile ground for dispute."

26. That dispute was resolved by an arbitration award of April 1847, part of which included a comparatively clear plan in colour, a copy of which she attached to her decision. The disputed land included a (inaudible) coloured yellow, which is the strip, and two areas coloured green. Thomas was ordered to construct walls along red lines. In her substantive decision, the Deputy Adjudicator says that the walls were to be constructed between AB and CD, but it is clear that she intended to say that the walls were to be constructed between points AC and points BD. Those new walls were to extend to what was described as the "north wall" and were to be not less than ten feet apart. They were to be constructed within three months, that is to say before the end of July 1847. Thomas was also ordered to maintain and repair the walls thereafter, in perpetuity.
27. John Coates was awarded all the land between the walls to be built and the land between the gardens delineated on the plan and that part of the wall between points B and D. John was directed to maintain the north wall, together with any gate or door which is now placed or may be hereafter placed therein. The Deputy Adjudicator wrongly described any such gate or door as a "garden door". It is common ground that the phrase should be:

"Any gate or door which is now placed or may be hereafter placed therein."

28. Thomas was awarded the land coloured green. The award went on to direct that neither Thomas nor John should have any easements over the land of the other. The award ordered and directed, I quote^[3]:

"That the said Thomas Coates, his heirs and assigns shall forever hereafter cease to have any right of way or any other right or easement whatever into or over any portion of the ground hereinbefore awarded by me to the said John Coates. That the said John Coates (inaudible) shall cease to have any right of way or any other right or easement whatever in, through or over any portion of the land and premises hereinbefore awarded by me to the said Thomas Coates."

29. As the Deputy Adjudicator went on to explain, John Coates then became the owner of the strip, and also the Great Park, which she said was the field to which the strip gave access.
30. At paragraph 48 of her decision, the Deputy Adjudicator went on to relate the subsequent history. John had a son called William Coates. By the time John Coates died in April 1854, William had taken certain steps to consolidate his land-owning position (inaudible), which is now (inaudible) Calvercote. William had married Elizabeth Calvert, who had inherited her father's house, Calverts, in 1841, which included a stable and a garden as well as Calvercote, the house. William's uncle Thomas had died shortly after the 1847 award, and his widow, Isabella, had sold the green land to the west of the strip (which had been awarded to Thomas) on to William. Isabella retained what became West View, to the east of the strip. William's position was thereafter further consolidated by the fact that he then inherited the large garden under the 1853 will, and a one quarter share of the residue of John's real estate, with his two brothers and an apparently illegitimate half brother.
31. That sets out the factual background which gave rise to the submissions to the Deputy Adjudicator on the part of the applicant, which I have already summarised. As I have said, the applicant relies upon the gift of the large garden to William Coates. He submits that the large garden, as a matter of construction, included the disputed strip. Alternatively, if it did not, he submits that by virtue of the private roadways presumption of law, the entirety of the disputed strip had passed with the specific devise to William Coates of the large garden.
32. On the presumption applicable to highway and private roadway boundaries, I was taken to Halsbury's Laws, Volume 4 (1) (Title: Boundaries) at paragraph 920. I was also taken by Miss Hayes to the case of Smith v Howden (1863) 14 CB (NS) 398 as establishing that the presumption extends to a green lane; and also to the case of Commissioners for Land Tax for the City of London v Central London Railway Company [1913] AC 364, a decision of the House of Lords, for the strength of the highway presumption. In particular, I was taken to passages in the speeches of Lord Atkinson at pages 371 to 372, Lord Shaw of Dunfermline at pages 379 to 380, and Lord Moulton at pages 384 to 385. I was also taken to the case, to which I have already referred, of Commission for the New Towns v J J Gallagher Ltd at paragraphs 25 through to 29. At paragraph 25, Mr Justice Neuberger defines the highway presumption in the following terms:

"Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law is that the soil of the highway usque ad medium filum passes by the conveyance, even though reference is made to a plan annexed, the measurement and colouring of which would exclude it."

33. Mr Justice Neuberger went on in paragraph 28 to describe the law as essentially one of convenience, both in public terms and bearing in mind the interests of the parties. He said:

"It is undesirable, in terms of public interest, to have odd pieces of land, whose ownership is largely academic in practice (unless, for instance, the highway is diverted), vested in persons who have no interest in any adjoining land, and who may well not even be aware that they own part of the highway. It is in the interest of the parties to a conveyance that the purchaser takes the adjoining highway land, essentially for the same reason. On that basis [he said that] if the adjoining owner happens to own more than half the width of the adjoining road, even all the adjoining road, it would seem logical that the presumption should lead to his being deemed to convey away the whole of his interest in the adjoining road. To put the point more simply [Mr Justice Neuberger said that] if the rule is that, in the absence of good reason, a person should not retain the half of a highway adjoining land which he sells, it seems almost a fortiori that he should not retain the other half of the adjoining highway, if he happens to own that half as well. Further, there is no inherent reason why the soil of the whole of the highway should not be deemed to be conveyed away."

34. He went on to pose the case of a vendor owning, and conveying, land on each side of the highway. At paragraph 29 he went on to state that although there was no case in which the issue had been considered in circumstances where the vendor owned the whole of the adjoining road, he derived significant support for his conclusion from an observation of Mr Justice Romer in the case of In re White's Charities, Charity Commissioners v Mayor of London [1898] 1 Ch 659 at 666, which he proceeded to reproduce at paragraph 29 of his judgment.
35. Mr Walker (for the respondents) does not dispute, on the authority of Gallagher, that if it can be proved that a seller owned the full width of a road, the presumption can operate to pass that full width to a purchaser. He acknowledges that the reported cases are all decisions on sales, but he accepts that in principle that presumption is capable of applying to the case of a testamentary devise.
36. In my judgment, that submission is well-founded. In the City of London case, Lord Moulton (at pages 384 to 385) said that the reasoning applied with equal force whatever be the nature of the document which had to be interpreted. In his opinion, the presumption as to the construction of documents relating to lands abutting on a highway might be stated as follows:

"Where a parcel is described or shown on a plan as bounded by a highway it is presumed that it is intended that the parcel should go up to the actual boundary on that side, i.e. (under ordinary circumstances), ad medium filum viae."

37. But Mr Walker emphasises that the presumption is just that. It is a presumption which can be rebutted. Moreover, Mr Walker submits that it is a prerequisite of the presumption arising that there have been third party rights over the route, whether on the basis that it is a highway in the sense of a public right of way, or that the road is abutted by third party property and the road has been used as a private way.
38. He submits that the presumption does not apply where the only user of the road has been by the land owner himself. Mr Walker placed considerable reliance upon observations of Chief Justice Cockburn in the case of Holmes v Bellingham (1859) 7 CB (NS) 329 at pages 336 to 337. In the course of his judgment, Chief Justice Cockburn had indicated that the direction of the lower court, of which complaint was made, was that the judge had told the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining property on either side. That proposition, subject to the qualification which Chief Justice Cockburn presently mentioned, and which he took it to be necessarily involved in what afterwards fell from the learned judge, was in the Chief Justice's opinion a correct one:

"The same principle which applies in the case of a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road. The presumption is allowed to prevail upon grounds of public convenience, and to prevent disputes as to the precise boundaries of property; and it is based upon this supposition - which may be more or less founded in fact, but which at all events has been adopted - that, when the road was originally formed, the proprietors on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable principle whether applied to a public or to a private road: but, in the latter case, it must of course be taken with this qualification, that the user of it has been quâ road and not in the exercise of a claim of ownership. If the learned judge had told the jury that the presumption was to prevail against evidence of acts of ownership, I should have said that his direction was not correct. But I do not understand that he so put it to them. He merely stated that the same presumption which arises in the case of a public way arose also in the case of a private way. But he went through the evidence as to the acts of ownership upon which the plaintiff relied as rebutting the presumption. I therefore think there is no ground for saying that there has been any substantial misdirection."

39. Mr Walker placed emphasis upon the qualification that the presumption of passing a moiety is an equally convenient and reasonable principle, whether applied to a public or to a private road; but, in the case of a private road, it must be taken with the qualification that the user of it has been quâ road, and not in the exercise of a claim of ownership.
40. In her reply, Miss Hayes took me to Holmes v Bellingham and submitted it was confined to cases where there was no evidence of paper title on the part of the owner of land adjoining the private roadway. She drew my attention to the judgment of Mr Justice Crowder at page 339; and she emphasised, by reference to that judgment, that in that case there had been no paper title documents for the court to construe. In the present case, by contrast, she submitted that the court was merely looking for the meaning of John Coates's will.
41. In my judgment, Miss Hayes is right in her submission that everything turns upon the true meaning and effect of the will of John Coates. I am satisfied, first, that the presumption is capable of applying to a private road or green lane; and, secondly, following Gallagher, that where the presumption applies, it may operate to pass the full width of a private road or lane if the evidence shows that the owner of the adjoining land owned the full width of the highway, and not merely the soil up to the median point.
42. However, the presumption is a presumption of law, and no more than that; and it is rebuttable. I have already referred to the observation of Chief Justice Cockburn in Holmes v Bellingham to the effect that the presumption is allowed to prevail upon the grounds of public convenience and to prevent disputes as to the precise boundaries of property. I already referred to the observation of Mr Justice Neuberger, at paragraph 28 of the Gallagher case, that the rule is essentially one of convenience, both in public terms and bearing in mind the interests of the parties. It is undesirable, in terms of public interest, to have odd pieces of land, whose ownership is largely academic in practice, vested in persons who have no interest in any adjoining land, and who may well not even be aware that they own part of the roadway. Lord Moulton in the City of London case (at page 384) added that personally he was of the opinion that the justification for the presumption was that it was extremely improbable that parties dealing with such lands would intend to differentiate in any way between the two pieces of land when conveying away land adjoining a highway or private roadway. Moreover, Lord Atkinson (at page 372) acknowledged in terms:

"No doubt this presumption may be rebutted, either by the provisions of a grant or conveyance or by the surrounding circumstances."

43. It seems to me that the juridical basis of the highways or private roadways presumption is similar to that which led equity lawyers to fashion the concept of a resulting trust. It is to fill a vacuum. It is to fill what would otherwise be a vacuum in the beneficial ownership of land. That consideration has less relevance to a case such as the present, where a specific devise by will is followed by a gift of residue, since in such a case there is no potential vacuum. As Mr Walker expressed it in his submissions, the mischief to which the presumption is directed simply does not apply in such a case. That does not mean that the presumption does not apply at all because, as I have indicated, Lord Moulton in the City of London case acknowledged that the reasoning applies with equal force whatever the nature of the document which falls to be interpreted. But the fact that one is construing a specific devise followed by a gift of residue may be relevant when considering whether the presumption is rebutted. As I have indicated, Lord Atkinson expressly acknowledged that the presumption might be rebutted either by the provisions of the grant or by the surrounding circumstances.
44. Here I am satisfied that the private roadways presumption is rebutted by the express terms of the 1853 will, and by the surrounding circumstances. Under the will, John Coates gave what he described as his large garden situate at Gunnerside and then in the occupation of William, to his son William Coates. All the remainder of his estate passed by way of residuary devise and gift to that son and to his other two lawful sons, and to a fourth individual. The will bears all the appearance of having been professionally drafted. It has to be construed against the background that only six years before the testator had been involved in a dispute with his own brother over the ownership or use of land in the immediate vicinity of the large garden, which formed the subject matter of the specific devise.
45. That dispute was only resolved by the 1847 arbitration award. I have no doubt, in those circumstances, that the testator would have been anxious to avoid any similar dispute developing between his own sons as to the ownership of the property devised by his will.
46. There is no evidence that by the time of the 1853 will, the disputed strip had been incorporated within, and had become part of, the large garden. On the contrary, the plan which forms part of the arbitration award suggests that the strip was intended to afford access to the Great Park to the south of the strip, and not the large garden.
47. The plan shows the disputed strip coloured yellow extending into the Great Park, without any dividing feature, whereas both the garden of John Coates and the garden of Thomas Coates appear to be bounded by some physical feature. In addition, the arbitrator directed walls to be erected between points A and C and B and D on the plan. He also extinguished any easement in favour of Thomas over the disputed strip.
48. I acknowledge that one cannot construe an instrument by reference to evidence of subsequent conduct. Nevertheless, the impression clearly created by the form of the plan - that the disputed strip was intended to accommodate Great Park, rather than the large garden - is confirmed by such evidence as exists of subsequent user. Certainly, none of the later evidence serves to contradict the impression created by the plan and by the surrounding circumstances.
49. The effect of the application of the presumption would be to deprive the four residuary devisees of their ability to use the strip. I also note that the northern third of the strip is not even contiguous with the large garden.
50. In the course of her reply this morning, Miss Hayes produced manorial admission records for 1855 relating to and evidencing the admission, as copyholders, of both William Coates (in relation to the large garden) and the four residuary devisees (in relation to the remainder of the land). I derive no real assistance from those records which seem to me, for present purposes, to be neutral, because both admissions refer to the land "and appurtenances", without identifying, in either case, what those appurtenances were.
51. This morning, Miss Hayes also produced a further plan, which she submitted showed that there was access to the Great Park otherwise than down the disputed strip. That is acknowledged by Mr Walker. He does not seek to suggest that the disputed strip formed the only access to the Great Park. Nevertheless, it does seem to me that, given that by the time of the 1853 Will, William Coates, the specific devisee of the large garden, was also the owner/occupier of the land between the large garden and the public roadway, one should not take the specific devise of the large garden as being intended to convey, in addition, the disputed strip, which had been the subject of the 1847 arbitration award. I am sure that had that been the intention of John Coates, he would have made it clear in the 1853 will, so as to avoid any future potential dispute between his children. There is no evidence of any gate into the large garden from the disputed strip at the relevant time. But even if there had been such a gate at the time, it does not follow that the disputed strip was intended to accommodate only the large garden. It clearly also accommodated the Great Park. As one of the four tenants in common of the Great Park, William Coates would in any event have been entitled to pass over and along the disputed strip, even for the purpose of accessing the large garden, if there were such a door.
52. So, for all those reasons, I hold, first, that the disputed strip did not form part of the large garden; and, secondly, that the private lane or private roadway presumption was rebutted by the express terms of the 1853 will, and by the surrounding circumstances. I therefore reject the applicant's case that the strip passed to William Coates and from him, ultimately, to the applicant under the terms of the 1853 will. It follows that I reject the applicant's case on the paper title. That is sufficient to dispose of this appeal, insofar as it relates to the claim to ownership of the disputed strip. It is therefore unnecessary for me to consider the issue of adverse possession.
53. I should make it clear that I have proceeded thus far on the footing that the private roadway presumption is capable of applying to the disputed strip. I am not sure that that assumption is well founded. I am not sure that that hypothesis is justified on the evidence. In 1843 the tithe map described the land which includes the disputed strip (plot 189) as comprising "road, yard, saw pit". I reject the respondents' contention that the word "road" in that phrase was essentially an adjectival noun, merely indicating that the location of the yard was adjacent to the public highway which passed in front of plot 189. In my judgment, there is no warrant for applying such a restrictive interpretation to the phrase "road, yard, saw pit". I accept that in 1847 the strip was referred to as being a road, in the sense of being a private road. It was certainly not a public highway. At paragraph 14 of her decision, the Deputy Adjudicator expressly acknowledged that there was no evidence before her to support an earlier suggestion of Mrs Burton's that the strip had been a public highway. However, it seems to me that the position probably changed as a result of the 1847 arbitration award, when the arbitrator extinguished Thomas Coates's rights of way over the disputed strip. I am by no means satisfied, in the light of Holmes v Bellingham, that the presumption has any application at all to the case of a private road where the only established rights of way being exercised over it are referable to the paper owner's title to the land itself. That seems to me to have been the position in the present case. However, notwithstanding those reservations, I am content to decide this aspect of the case on the footing that, if the presumption does apply, then it has been rebutted.
54. That leaves only the issue over the right of way claimed by the applicant over the disputed strip. That is the subject matter of the thirteenth ground of appeal. There it is said that the Adjudicator was wrong to conclude (in paragraph 100) that the applicant's predecessors in title acquired no easements of way or access over the disputed strip under the will of John Coates in 1854. As the 1847 arbitration award evidenced that there probably was a door at the northern end of the disputed strip from 1847 onwards, and it was common ground between the parties that there was probably a gate in existence from the applicant's garden into the strip at the relevant time, it is said that the Deputy Adjudicator ought to have held that the applicant's predecessor in title acquired such easements over the disputed strip by implied grant.
55. On this aspect of the case, I was taken by Miss Hayes to the case of Borman v Griffith [1930] 1 Ch 493, per Maugham J at 498-499. At page 499, Mr Justice Maugham stated the applicable law as follows:

"Where, as in the present case, two properties belonging to a single owner and about to be granted are separated by a common road, or where a plainly visible road exists over the one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement, unless by the terms of the contract that right is excluded."

He later went on to say:

"It is true that the easement, or, rather, quasi-easement, is not continuous. But the authorities are sufficient to show that a grantor of property, in circumstances where an obvious, i.e. visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it."

56. Miss Hayes also took me to the case of Hansford v Jago [1921] 1 Ch 322, a decision of Mr Justice Russell.
57. Mr Walker took me to a passage at paragraph 28-016 of Megarry & Wade: The Law of Real Property, 7^th Edition. In the text to footnote 101 and following, it is said that a right of way over a made road, or one which betrays its presence by some indication, such as a worn track, or its obvious use in connection with the land granted, would pass under the rule in Wheeldon v Burrows, and that a court would turn a blind eye to the obstacle that a right of way is not "continuous". Mr Walker accepted that; but he submitted that here there was no evidence of an obvious enjoyment of any right of way.
58. I am satisfied of the requirement that a right of way should betray its presence. I am satisfied that for the principle in Wheeldon v Burrows to apply, a right of way must betray its presence, either by some indication of its existence or by its obvious use in connection with the land I am satisfied that if there were evidence that, in 1854, there was a doorway into the street through the wall to the north of the disputed strip, and if there was also a door into the large garden from the strip, then that would be sufficient to betray the presence of a right of way over the strip capable of being exercised in favour of the large garden.
59. But the question is, is there sufficient evidence of such presence? The matter was addressed by the Deputy Adjudicator at paragraph 100 of her substantive decision. She referred to Miss Hayes's claim that an easement over the strip was necessary for reasonable enjoyment of the large garden, because otherwise William would have had to access it through land he already owned or occupied, which was not as convenient as the strip or lane in the context of her submissions; and that there was no reason to construe the gift to William as so ungenerous as not to ripen it into an easement. The Deputy Adjudicator acknowledged that the applicant relied on there being a gate in existence from the Calvercote garden onto the strip at the relevant time. She said that there was no evidence that that was the case, although the respondents' counsel had accepted that it was probable. Mr Walker, who did not appear before the Deputy Adjudicator, indicated that his understanding was that that concession was not made. Miss Hayes affirmed that it was. Since Mr Walker was not present at the hearing before the deputy Adjudicator, I am not prepared to differ from Miss Hayes's recollection. Mr Walker sought to resile from that concession at this hearing. Since the Deputy Adjudicator does not appear to have acted on the concession, it seems to me that he is entitled to withdraw it.
60. The Deputy Adjudicator went on to say that counsel for the respondents before her had also pointed out that the only evidenced use of that gate was the use by Elizabeth Coates to go milking in Gunnerside Bottoms, and not to go up the strip to the street. Though the Deputy Adjudicator was not sure that anyone had given a useful date for that, especially one relating to the 1853 will, I take that to be a reference to evidence of a family tradition related by Mrs Burton at paragraph 6 of her witness statement of 13^th September 2007.
61. The way in which the Deputy Adjudicator dealt with it was to say that since the applicant was relying on the principles in Wheeldon v Burrows, it was incumbent upon him to be able to deduce more than speculation in support of the application of that principle; and she agreed with the respondents' counsel's submission that there was insufficient evidence to provide the necessary evidence to support the application of those principles. She therefore rejected the claim based on the grant of easements by implication under the 1853 will, the date of death being only a year later in 1854.
62. She then went on to make the point, which seems to me to be irrelevant in the present context, that so far as the green land owned and occupied by William Coates was concerned, the arbitration award had specifically barred the owner from having rights over the strip.
63. That was the Deputy Adjudicator's reasoning.
64. As I have indicated, Mr Justice Kitchin expressed the view that, since the applicant was not seeking to challenge findings of primary fact, but rather inferences that had been drawn from them and the conclusions based upon them, the matter was suitable for an oral hearing. At the hearing I was taken to the decision of the Court of Appeal in the case of SS Global Ltd v Sava [2008] EWCA Civ 1308 and, in particular, to paragraph 31, where Lord Justice Rimer, speaking with the agreement of Lord Justice Moore-Bick, accepted the correctness of the approach of Mr Peter Leaver QC, in the lower court, in considering findings of fact made by a Deputy Adjudicator of the Land Registry. Lord Justice Rimer said that Mr Leaver QC had directed himself correctly when he said:

"My approach to the decision, therefore, is to give great weight to the Deputy Adjudicator's findings of fact, both those which are expressly stated and those which can be implied. That weight will be decisive unless I conclude from my consideration of the transcript of the evidence and from the submissions of counsel that any particular finding was so clearly wrong that it fell outside the generous ambit in which an appellate court might simply disagree with it. In making that assessment I bear in mind the limitations of judging the evidence of a witness merely from the transcript, and the advantage enjoyed by the Deputy Adjudicator in seeing and hearing the witnesses give their evidence."

65. In my judgment, those observations have little real application or content in a case where one is considering the correctness of findings of fact made by the Deputy Adjudicator as to a state of affairs as far back as 1854 or 1853, when no witness, inevitably, was able to give direct evidence of the physical state of the land in question. It seems to me that the task of the appeal court is simply to evaluate the evidence and to decide whether the Deputy Adjudicator was wrong in the conclusion at which she arrived.
66. Although the respondents' counsel is recorded - and I accept correctly - as having conceded that it was probable that there was a gate in existence from the Calvercote garden onto the strip at the relevant time, I must confess that I can see no evidential basis for that other than the fact that it is clear that there is a gate through the wall at the present time, although it was not used for many years after 1982. There is no evidence as to when the gate was inserted into the wall. There is no evidence in any of the documents of the existence of a gate in 1847, or in 1853 or 1854. It therefore seems to me that the Deputy Adjudicator cannot be said to have fallen into error when she concluded that there was no sufficient evidence before her of the existence of such a gate, and therefore nothing more than mere speculation had been advanced in support of the application of the Wheeldon v Burrows principle. I therefore conclude that there is no basis for allowing the appeal against that part of the Deputy Adjudicator's decision by which she refused to imply the grant of any right of way over the disputed strip in favour of the large garden. For all of those reasons, I therefore conclude that the appeal against the substantive order of 14^th May 2009 falls to be dismissed.
67. It does, however, seem to me that it cannot be said that the appeal was one which stood no real prospect of success; and, therefore, whilst dismissing the appeal, I will give permission to appeal from the Deputy Adjudicator's decision. The only practical effect of that is that it will, in principle, be open to the applicant to seek permission for a second appeal from the Court of Appeal.
68. My order is that:

(1) I give permission to amend paragraph 7 of the grounds of appeal.

(2) I give permission to appeal.

(3) I dismiss the appeal from the Deputy Adjudicator's order of 14^th May 2009.

END OF JUDGMENT

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