Jersey Unreported Judgments

Right of way over private road aggravation of servitude

[2003]JRC026

Royal Court

(Samedi)

6 February 2003

Before     :

M.C. St. J. Birt, Esq., Deputy Bailiff, and Jurats

 

Right of way on a private road; aggravation of the servitude.

Advocate J. Martin for the Plaintiff

Advocate D.J.Benest for the Defendant

judgment

the bailiff:

1.        The plaintiff is the owner of a property called the Colesberg Hotel (previously No. 31-33 Rouge Bouillon) which forms the corner between Rouge Bouillon and Roussel Street.  The defendant is the owner of an adjacent property, No. 35 Rouge Bouillon, which was previously known as the Alton Hotel (to which we will refer as "the building site").  The Alton Hotel has been demolished and the defendant is in the course of constructing 24 flats and underground parking spaces for 24 cars on the site.  The building site is rectangular in shape, borders Rouge Bouillon on the east and adjoins in part on the south the plaintiff's property the Colesberg Hotel.  The defendant enjoys a right of way "toutes fois et quantes et à tous usages" along a private road nine feet in width belonging to the plaintiff  which runs along the western side of the plaintiff's property between the building site and Roussel Street.  It is intended by the defendant that the sole vehicular access to its flats and parking spaces will be from Roussel Street along the private road owned by the plaintiff.

2.        The right of way enjoyed by the defendant has two roots because the building site originally comprised two parts in separate ownership.   The eastern part adjoining Rouge Bouillon, then known as Alton House or 35 Rouge Bouillon, was sold by Felix Jean Sanson de Lavalesquerie and others (then the owners of what is now the Colesberg Hotel) to Pierre Philippe Guiton by deed dated 28th January 1899 ("the 1899 deed").  The 1899 deed conveyed a -

"droit de chemin et passage toutes fois et quantes et à tous usages par dans ledit chemin particular qui est situé entre les propriétés qui restent auxdits bailleurs et vendeurs et ..... etc".

This part of the building site, together with the benefit of the right of way, was acquired by the defendant by deed dated 29th November 1968.

3.        The western part of the building site was originally part of a plot of land extending to Roussel Street and bordering on the east the private road in question.  By deed dated 28th October 1871 the plot of land was sold by Jacques Gautier to Elie Rive.  By a separate deed dated the same day ("the 1871 deed") Jacques Gautier's wife, Elizabeth Roussel, then the owner of what is now the Colesberg Hotel, conveyed a right of way over the private road in these terms -

"Il a été convenu et stipulé entre lesdites parties ....... que ledit Monsr. Elie Rive Jnr et ses hoirs ou ayant droit auront droit de chemin et passage toutes fois et quantes et à tous usages par dans le chemin qui est établi à l'Est dudit mur qui sépare la propriété desdites parties, lequel chemin mesure en longueur 52 pieds 4 pouces et en laize 9 pieds, ledit Sieur Rive contribuant sa proportion des frais du maintien et entretien dudit chemin, ainsi que des grandes portes qui le sépare du chemin public".

The large gates which once opened upon Roussel Street have long since disappeared, but on its visit to the site the Court noticed the granite stop against which the gates originally closed.  A house, Melbourne Lodge, was later built on the plot of land at the Roussel Street end, and a walled garden created to the north.  Melbourne Lodge and the walled garden were acquired by the defendant by deed dated 18th January 1985.  The defendant later sold Melbourne Lodge, retaining however the walled garden which now forms the western part of the building site.

4.        Both parts of the building site thus appear to be entitled to a right of way "toutes fois et quantes et à tous usages" over the private road leading from the building site to Roussel Street.

5.        The 1899 deed contained other provisions which are now in dispute.  First, Pierre Philippe Guiton (the defendant's predecessor in title) was given a droit de jointure against the vendor's wall separating what are now the Colesberg Hotel and the building site.  The right was conveyed in these terms -

"Item droit de jointure contre le mur du Sud qui sépare la propriété présentement baillée et vendue d'avec celle qui reste auxdits Bailleurs et Vendeurs.."

Secondly it was agreed that the same wall along the garden (rather confusingly described here as "le mur du Nord") should not be increased in height more than ten feet above ground level without the mutual consent of the parties for a distance of forty feet.  The agreement was expressed in these terms -

"Etant de plus convenu et accordé que le mur du Nord du jardin en derrière de la maison numéro trente-trois Rouge Bouillon, lequel mur sépare ledit jardin d'avec celui en derrière de la maison présentement baillée et vendu, ne pourra être haussé au delà de dix pieds de roi en dessus de la surface du sol sans le consentement mutual des propriétaires desdits immeubles et ce sur une longueur de quarante pieds".

The wall extends for some sixty feet from the gable end of the Colesberg Hotel to the private road and the parties were not in agreement as to the points from which the forty feet restriction should be measured.  For reasons that will appear we have not found it necessary to resolve this disagreement.

6.        The plaintiff advances two claims.  First it asserts that the right of way has been subject to aggravation by the development taking place on the building site and has accordingly been extinguished.  Secondly it asserts that the two provisions of the 1899 deed cited above must be read together and that part of the proposed development against the wall in question would contravene the height restriction to which it is said that the droit de jointure is subject.  The plaintiff accordingly seeks declarations to that effect.

7.        We will treat these two claims separately but first we should summarize the affidavit evidence which was not subjected to any cross-examination and is in the main not contested.  It seems clear that until 1985 the former walled garden which is now the western end of the building site  was used for domestic or market garden purposes.    Mr. Rafael Beddoe, whose family purchased the Colesberg Hotel in 1972, recollects playing as a child in the walled garden which was then a large lawn with a green house in the corner.  The only access to it from the private road was through a door in the wall.  It was a pedestrian and not a vehicular access.  His recollection is that when the defendant purchased the walled garden in 1985 the wall separating it from the Alton Hotel was knocked down, and it was used as a parking area for hotel guests.  His brother, Mr. Steven Beddoe, confirms that evidence as to the use after 1985, although his recollection is that while the garden was capable of accommodating a fair number of cars, few of the guests of the Alton Hotel actually used it.  The evidence of Mr. James Pemberton-Wright, who was the owner of the Alton Hotel between 1989 and 2001, is that the hotel could accommodate 72 guests in 36 rooms.  An additional seven rooms accommodated staff.  According to Mr. Pemberton-Wright the private road was the only access to the hotel and was used by suppliers for deliveries on a daily basis as well as by guests gaining access to the parking area for their cars.  It was used by lorries for the delivery of oil and by vans driven by musicians and entertainers performing in the hotel.  Mr. Pemberton-Wright asserted that there was constant traffic along the private road. 

8.        As we have stated none of this evidence was challenged, sensibly in our view, by either party.  Although there is room for different emphasis as to the intensity of use, it is clear that until 1985 the private road was not used for vehicular access to what was then the walled garden.  After 1985 it was used during the tourist season with some regularity for access on foot and by vehicle to both parts of what is now the building site.  It is accepted that no protest was made by the plaintiff until Mr. Pemberton-Wright conceived his plan for the development of the land into 24 flats and 24 parking spaces for private cars.

9.        We turn to the first claim, namely that the proposed development will lead to an aggravation of the servitude and hence to its extinction.  For reasons that are not entirely clear to us counsel for the plaintiff relied only upon the prospective intensification of user of the western part of the building site, that is the part in favour of which the right of way was created by the 1871 deed, although (as we understand it) some of the parking places are situated on land enjoying the benefit of the servitude under the 1899 deed.  We assume that the plaintiff's argument is directed toward an aggravation of the servitude by virtue of the prospective use of what was the walled garden.

10.      The issues for us revolve essentially upon the interpretation of the well-known conveyancng phrase un droit de chemin et passage toutes fois et quantes et à tous usages, and in particular the meaning of à tous usages.  Can such a servitude be subject to extinction by aggravation?

11.      We recall first of all that servitudes réelles are of three kinds, natural, legal and consensual.  The distinctions are succinctly described in The Jersey Law of Property by Matthews and Nicolle at p 51 -

"1.41     Servitudes may also be natural, legal or created by the parties.  A natural servitude is one which arises from the relative position of the properties in their natural state, e.g. the obligation imposed on a fonds inférieur to receive water flowing naturally from the fonds supérieur.  A legal servitude is that which arises from the operation of law.  Dalloz (loc cit, page 164, Chap. 3, section 1) divides it further into servitudes of public utility and servitudes of private utility.  The difference between them is that it is not possible to contract out of the former, whereas it is possible to contract out of the latter by express agreement between the parties.  Finally, a servitude may be created by the owners of the adjoining properties.  Since a servitude cannot be acquired by prescription, but must be created by the owners of the respective properties, the problems concerning creation of servitudes only apply in this area.".

1.42     The principle here is "nulle servitude sans titre".  Since a servitude affects héritage, it can only be created in one of the ways in which real property rights can be dealt with, and therefore embodied in a contract passed before the Court (see Le Geyt, Constitution Lois et Usages, Tome 1 at page 195).  Obviously the maxim does not apply to servitudes which are "légales" or "naturelles" (see Felard Investments v The Trustees of the Church of Our Lady Queen of the Universe (1979) JJ 19, 22."

12.      The servitude in question here is consensual, that is expressly created by the parties' predecessors in title and embodied in the 1871 (and 1899) deeds.  Counsel for the defendant submitted that the right of way existed "at all times and for all purposes".  Counsel for the plaintiff disagreed that "à tous usages" was to be construed in that way.  She submitted that the phrase did not relate to the purpose for which the right of way existed, but to the method or manner by which the right of way might be exercised.  Thus one sometimes saw in a conveyance a "droit de chemin et passage à piéton seulement" which indicated that the right could be exercised only on foot.  "A tous usages" indicated that it could be exercised in any manner, that is on foot, on horseback or with a vehicle of any kind, but not for any purpose. 

13.      We cannot accept that submission.  "Usage" has in our judgment no such restricted or special meaning.  It is to be translated in this context as "use" or "purpose".  The manner in which the right of way may be exercised is certainly embraced by the phrase "à tous usages" so that the beneficiary of the right may use it on foot or by vehicle as he sees fit.  But it means more than that; it means that he may use it for transporting persons, or materials or supplies or generally for any purpose reasonably incidental to the enjoyment of his land.

14.      This conclusion does not however imply that such a right of way cannot be subject to aggravation.  Counsel for the defendant submitted that the test was twofold:  first, had the right of way been exercised for an unauthorized purpose; secondly, if the answer to the first question was no, had there been an excessive use of an authorized user?  In that context counsel submitted that there must have been something incommodious or prejudicial about the excessive use.  Counsel cited in support of this submission a passage from Matthews and Nicolle's The Jersey Law of Property at paragraph 1.47 - 

"The limits of the use that may be made by the owner of the dominant tenement are set out in the case of Le Feuvre v Mathew, namely that, if the servitude is exercised beyond the limits of the need for which it was created, it is said to have suffered aggravation, but, for a remedy to lie, the aggravation must have prejudiced the owner of the servient tenement".

15.      Counsel for the plaintiff submitted that in this case the proposed development would constitute an aggravation of the servitude. She relied upon a passage from the judgment of Ereaut, Bailiff in Le Feuvre v Mathew (1974) JJ 49, at 61 -

"It is, of course, a well-established principle of the law of Jersey that a servitude cannot be exercised in such a way as to increase or alter the burden on the servient tenement.  Le Gros states at page 21 of the same work -

"La servitude ne peut être aggravée ..." Basnage (1778), Volume 2, refers at page 562 to "egouts" and "gouttieres" ("servitudes urbaines") and states -

"L'on ne peut apporter de changement à cette servitude, ni la rendre plus incommode et plus onereuse qu'elle n'a été stipule et promise".

Counsel for the defendant accepted that principle, but submitted that even where a right of way was granted for a limited purpose and there was a radical change in the purpose for which it was sought to exercise that right, that is to say, where the character of the dominant tenement had changed, if nevertheless the burden imposed on the servient tenement was not thereby increased, for example, in terms of additional numbers using the right of way, or additional noise or some other similar factor (as counsel claimed would be the case here), the right of way continued for the new purpose.  In support of that argument he cited Dalloz, "Nouveau Répertoire de Droit" (1950), Tome 4, page 145, Article 476, where, in a reference to the aggravation of servitudes, it is stated -

"Mais l'aggravation de charge, que prohibe la loi, est uniquement celle qui est certaine, actuelle et de nature à porter préjudice au fonds servant.  Tant que la charge n'est pas plus onéreuse, une servitude concédée pour l'usage d'un fonds peut être utilisée pour tous les besoins de ce fonds, meme transformé et affecté à une destination nouvelle".

We do not accept in the case before us that the use of the private road for the new purpose proposed would not increase the burden on the plaintiff.  We think that inevitably it would do so, and certainly there was such increase at the time the house was being built.  Putting that aspect aside, however, we reject the argument of counsel.

Firstly, we think that Article 476 which he cited means no more than that where a servitude is created for the general benefit of the dominant tenement the fact that the character or nature of the dominant tenement changes is immaterial, provided that the burden on the servient tenement is not thereby aggravated.  We agree with that principle.  However, Dalloz is not in that Article speaking of servitudes created for a particular purpose.  He refers to that class of servitudes in Article 473 on the same page, where it is stated -

"Le bénéficiaire d'une servitude ne peut en user que dans la limite des besoins pour lesquels elle a été établie, sans pouvoir la rendre,  par ses agissements, plus onéreux pour le propriétaire du fonds servant".

That Article expresses the same principle as in the passage earlier cited from Le Gros, and it is that principle which we have found to apply in this case.

Secondly, every servitude is a burden on the servient tenement.  That burden may be aggravated if it becomes an additional burden or a different burden.  Where a right of way is created for one particular purpose and is used for another quite different purpose by reason of a radical change in the character of the dominant tenement, there is imposed on the servient tenement a different burden.  In terms of numbers and noise it may be no worse, but the burden suffered becomes one which the servient tenement is not obliged to suffer at all."

16.      That passage is authority for the proposition that a servitude that is created or that comes into existence for a particular purpose cannot be used in such a manner as to increase or alter the burden upon the servient tenement.  In Le Feuvre v Mathew the Court had found at an earlier hearing that there was a right of way on foot to a former walled garden for the purpose of using it as a market garden.  The right of way had arisen by operation of law under the application of the principle of "destination de père de famille" where land formerly in one ownership had been divided in two by testate or intestate succession.  The former walled garden had been developed and a house had been built in it.  The Court held in that case that from the moment the walled garden had changed its character from land used for agricultural or horticultural purposes to a building site, the particular purpose for which the right of way had been impliedly granted ceased to exist, and therefore ceased to be exercisable.

17.      We do not differ in any way from the conclusion reached by the Court in Le Feuvre v Mathew but in our judgment it has no application to the facts of this case.  The implied right of way that was found to have arisen in Le Feuvre v Mathew was for a limited purpose, viz.to gain access on foot to a walled garden for agricultural and horticultural purposes.  The right of way in question here did not arise by operation of law but by express stipulation.  It is to the deed (or deeds) that one must look in order to ascertain the ambit of the servitude.

18.      It is undoubtedly correct that where a servitude has been created for a particular purpose it may only be exercised for that purpose.  As Le Gros states in his Traité du Droit Coutumier de l'Ile de Jersey (1943) at page 21 -

"Elle (la servitude) ne peut être exercée que dans la limite des besoins pour lesquels elle a été constituée".

If the servitude is used for a different purpose, it is said to have been aggravated, and that different purpose can be suppressed.

19.      It is also true that there is a presumption against the "fonds dominant." As Basnage explains in his chapter "De Servitudes" (Rouen, 1778 edition) page 559 -

"Si par le titre de la constitution de la servitude l'on n'a point déclaré de quelle manière l'on pourra passer, ni désigné le lieu par lequel l'on doit souffrir le passage, ni sa largeur, ni si c'est pour y passer à pied, à cheval, ou avec chevaux & charrettes, comment fera-t-il permis d'en user?"

......

"Que s'il n'est point fait mention de la largeur du passage, ni de la manière que l'on s'en pourra servir, l'on doit examiner quelle a été l'intention vraisemblable des contractans, & la fin pour laquelle le chemin a été stipule & promis;  que si ces circonstances ne donnent point assez de lumière, il faut en cette obscurité favoriser le fonds servant, quod minimum sequendum, est, & ne donner q'un simple chemin à pied".

20.      What does the titre, or title in the relevant deed, provide in this case?  It creates a right of way along a specific private road, accurately measured, "toutefois et quantes et à tous usages". In conveyancing practice there is no more general nor wider terminology that can be employed.  One may include words of limitation.  Counsel cited a number of examples:  pour les besoins agricoles seulement,  or à pieton seulement.  It is possible to stipulate that a right of way may be used for the benefit only of a certain number of houses to be constructed on the land in question.  Other limitations upon the servitude may be expressed more generally, or arise by necessary implication. None of these phrases of limitation exists here.  If it had been the intention of the parties in 1871 that Elie Rive would build two dozen workmen's cottages on the land, what terminology would the conveyancers have employed?  The answer is that they would have created a right of way "toutefois et quantes et à tous usages".

21.      The fact that the right of way appears for a long time to have been exercised only by pedestrians is not relevant.  Nor is it relevant that for 16 years or so the right of way may well have been exercised with an intensity greater than now in prospect for a residential development with 24 parking spaces available.  These factors are not relevant because, in relation to a consensual servitude, it is necessary to look at the title, and the intention of the parties is to be drawn from the terms of the deed.

22.      In his Nouveau Répertoire de Droit (1950 edition) Tome 4, page 146, Dalloz lists at paragraph 477 a number of circumstances in which an aggravation of a servitude may be said to have resulted.  None of these appears to us to be relevant to the facts of this case.  Dalloz continues however at paragraph 478 to state -

"La Cour de cassation paraît cependant admettre que si la servitude avait été concédée en termes si généraux qu'elle ne paraît pas comporter de limites, son extension ne serait pas considérée comme une aggravation (Civ. 30 avr. 1929, D.H. 1929. 316)."

We would translate that passage freely as follows -

"The Court of Appeal (cassation) appears however to acknowledge that if the servitude has been created in such general terms that it appears to have no limits, an expansion in its use will not be regarded as an aggravation".

We believe that passage to be an accurate statement of the law of the Island.

23.      Counsel for the defendant referred us to a number of English authorities and in particular to a judgment of the English Court of Appeal in Jelbert v Davis [1968] 1 All ER 1182. That was a case involving an easement entitling the plaintiff to use a right of way over a driveway owned by a third party at all times and for all purposes.  We draw some comfort from the fact that the process of reasoning in the English jurisdiction appears to be very similar to that in Jersey.  We do not however rely upon that authority because an easement is a different concept from that of a servitude, and we think that a reference to English authorities in this context is more likely to engender confusion than enlightenment.

24.      In our judgment there will be no aggravation of the servitude or servitudes as a result of the development of 24 flats with associated parking spaces on the building site.  This use by the owner of the dominant land falls within the broad terms of the servitudes that were created in 1871 and 1899.

25.      We would add only one cautionary note, and one consequential note.  The cautionary note is that the right of way is a right, like all servitudes, which must be exercised civiliter, that is in a way which minimizes inconvenience to the servient land.  The consequential note arises from a submission of counsel for the plaintiff that her client's position would be adversely affected by the increased cost of maintaining the private road.  In fact it seems to us that there should be no such adverse effect.  The 1871 deed provides that the defendant should contribute "sa proportion des frais du maintien et entretien dudit chemin......".  No specific proportion is stipulated and it seems to us that this is tantamount to a stipulation that the defendant should contribute "sa juste part des frais ....  etc.". Without determining the point, because we have heard no argument on it, it seems to us on the face of it that the plaintiff's obligation will in future be to contribute a one-twenty-fifth part and the defendant's obligation will be to contribute twenty-four twenty-fifths of the expenses of maintaining the private road.

26.      We turn to the second claim, namely that the 1899 deed prevents part of the proposed development in so far as it is intended to build against the north wall of the plaintiff's property to a height greater than ten feet contrary to the provisions of the deed.  We remind ourselves that the relevant provisions of the deed are -

""Item droit de jointure contre le mur du Sud qui sépare la propriété présentement baillée et vendue d'avec celle qui reste auxdits Bailleurs et Vendeurs.."

and

"Etant de plus convenu et accordé que le mur du Nord du jardin en derrière de la maison numéro trente-trois Rouge Bouillon, lequel mur sépare ledit jardin d'avec celui en derrière de la maison présentement baillée et vendu, ne pourra être haussé au delà de dix pieds de roi en dessus de la surface du sol sans le consentement mutual des propriétaires desdits immeubles et ce sur une longueur de quarante pieds".

27.      As we have stated at paragraph 5 above, the parties are in disagreement as to the point from which forty feet should be measured, but we do not find it necessary to resolve this disagreement.  The plaintiff's case can be shortly put.  The plaintiff claims that the restriction on increasing the height of the wall separating the respective properties of the parties is to be read and construed together with the right conferred upon the defendant (the "droit de jointure") to build up against the wall.  The plaintiff expressed the claim in its Order of Justice at paragraph 8 in this way -

"It follows from the aforesaid clause that although the Defendant has a "droit de jointure" against the wall of the wall of the north of the plaintiff's property along its whole length, the wall which originally separated the rear gardens of Numbers 33 and 35 Rouge Bouillon is not, save with the agreement of both proprietors, to exceed 10 feet in height for 40 feet of its length, and the "droit de jointure" is thus limited to a maximum height of 10 feet for a distance of 40 feet of what was originally the garden wall.   Notwithstanding the restriction, the approved plans in respect of the defendant's redevelopment indicate that the new buildings will join against the wall of the north of the plaintiff's property and, even where the height of the wall is limited to a maximum of 10 feet, that the new buildings will extend above the height of part of the wall belonging to the plaintiff.  The plaintiff avers that the right of the defendant to join against the wall of the north of the plaintiff's property is limited as to height by the actual height of the said wall, to the extent that if the defendant wishes to build higher than the height of the plaintiff's wall against which it has the right to join, then such building must by Jersey customary law be not less than 2 feet 9 inches from the north face of the plaintiff's wall".

28.      Counsel for the plaintiff referred to Pothier's rules for the construction of contracts, to be found in Volume 1 of the 1821 edition of his works at page 142.  Counsel relied on the following rules in particular -

Rule 1 -

"On doit, dans les conventions, rechercher quelle a été la commune intention des parties contractantes, plus que le sens grammatical des termes".

Rule 6 -

"on doit interpreter une clause par les autres clauses continues dans l'acte, soit qu'elles precedent ou qu'elles suivent".

Rule 7 -

"Dans le doute, une clause doit s'interpréter contre celui qui a stipulé quelque chose, et à la décharge de celui qui a contracté l'obligation".

29.      As the Court of Appeal observed, however, in Haas v Duquemin (2002) JLR 27, care must be taken with these rules, because Pothier was writing of the law of obligations and not of the law of property.  In the law of property it is the deed to which one looks in order to ascertain the rights of the parties.  Nothing in the relevant provisions of this deed suggests that they should be read and interpreted together.  In our judgment, they create two distinct obligations.  First they oblige the plaintiff to allow the defendant to build up against the dividing wall.  Secondly they prevent the plaintiff from increasing the height of the dividing wall beyond ten feet over a length of forty feet without the mutual consent of both parties.  If the right to build up against the dividing wall had been intended to be subject to the height restriction over a part of its length, the droit de jointure would have been expressed to be subject to the later clause.  No such saving provision is to be found in the deed.

30.      Generally speaking, the ownership of the wall implies a relief of eighteen Jersey inches. The relief is a right vested in the owner of the wall which prevents the adjoining owner from building on or occupying the strip of land of that width which abuts on the wall.  The measurement is taken from the outer face of the wall.   That relief is however removed if the adjoining owner enjoys a droit de jointure.  As Le Gros expresses it in Le Droit coutumier de l'Ile de Jersey at page 261 -

"Le droit de jointure anéantit le relief s'il n'y a titre du contraire".

We are unable to construe the later provision in the deed creating a height restriction over part of the dividing wall as constituting a "titre au contraire",   Once the relief has been removed, there is nothing in law to prevent the adjoining owner from building up to the boundary line.

31.      It follows that the defendant's development plans do not infringe the plaintiff's rights. The plaintiff's claims are accordingly dismissed.

Authorities

Nicolle: "The Origin and Development of Jersey Law - An Outline Guide": paragraphs 12.4.1 - 12.4.7 inclusive and paragraphs 15.26 - 15.27 inclusive. 

Romeril -v- Davis (1977) JJ 135.

Kwanza Hotels Limited -v- Sogeo Company Limited (1981) JJ 59.

Snell -v- Beadle (18^th January 1999) Jersey Unreported; [1999/8].

Matthews and Nicolle:  "The Jersey Law of Property": pages 10-17 inclusive.

Le Gros "Traité du Droit Coutumier de l'ile de Jersey - de la Servitude", pages 17-22 inclusive.

Le Feuvre -v- Mathew (1973) JJ 2461.

Le Feuvre -v- Mathew (1974) JJ 49.

Baudains -v- Simon (1971) JJ 1949.

Dalloz "Nouveau Répertoire de Droit" (1950 Ed'n) - "Servitudes": paras 475-7: p. 146-7.

Basnage: "Oeuvres de Basnage" (4^th Ed'n: 1778): Tome 2: de Servitudes.

Howard: Dictionnaire de Droit Norman (1782): Tome 4: p.196: Servitudes.

Felard Investments Limited -v- Church of Our Lady, Queen of the Universe (Trustees), (1979) JJ 19.

Pothier: Oeuvres (Nouvelle Ed'n: 1821): Traité des Obligations.

Jelbert v. Davies and Another (1968) 1 All ER 1182.

Haas v. Duquemin and Duquemin (2002) JLR 27.