Neil Gould v Nadine Morgan Gould & Anor

HHJ JARMAN KC: Introduction

1. The main issue in this claim is whether the claimants have an express vehicular right of way along a track from the main road onto parking spaces on the north west corner of their dwelling known as Cwm Tawe Villa, Caerbont, near Swansea. The villa is surrounded by Cwm Tawe Farm, now owed by the defendant. There are alternative ways of putting the claimed right of way and other issues raised by the parties, which I shall come to in due course. By far the most important issue between them is the extent of the right of way, as the defendant accepts there is a such a right, but says only as far as the point on the front boundary of the villa which is adjacent to the front door of the villa itself. I shall deal first with this issue.

2. There is little factual dispute as to the express grant. There was scant witness evidence as to events prior to the purchase by the parties of their respective properties in 2021, and I shall make findings on what little there is. The claimants have no direct knowledge of factual matters before their purchase. The defendant had some knowledge going back 15 years, and her daughter, Ellese Jones, who was also called to give evidence, recalls visiting the villa two or three times as a schoolgirl to see a friend, and also going to visit horses which were kept there. Accordingly the focus of the evidence has been on aerial photographs, deeds and title documents, OS and other plans. The express right of way

3. The express grant is said to be contained in a conveyance dated 7 June 1949, since lost. By the 1949 conveyance, the villa, which was previously contained in the same title as the farm, was conveyed to the claimants’ predecessor in title.

4. Reliance is placed upon reference to a right of way to the villa in a later conveyance dated 29 October 1964 of the farm to the defendant’s predecessor in title. Clause 1 of the 1964 conveyance sets out certain rights subject to which the farm is to be held. One of these is at sub clause (3) and set out as follows: “…to a right of way at all times and for all purposes for the owners and occupiers for the time being of the property known as Cwmtawe Villa Caerbont aforesaid or any part thereof and their respective servants and licensees (in common with the Purchaser and all other persons having the like right) with or without vehicles and animals to and from the said property or any part thereof and all or any buildings thereon over and along the road or way more particularly delineated for the purpose of identification only on the said plan Nod. 1 annexed hereto by broken parallel lines between the points marked “A” and “B” thereon subject to the payment of a fair proportion of the expense of maintain and keeping such road in repair.”

5. The most likely source of the right of way therein referred to, in my judgment, is the conveyance when the villa was conveyed out of common title with the farm, namely the 1949 conveyance.

6. There are two plans which are each certified and signed by the conveyancing solicitors to be a true copy of the plan attached to the 1964 conveyance. One is numbered 2 and the other is unnumbered. Mr Bromilow for the defendant realistically accepts that the unnumbered plan is likely to be the “plan Nod.1” referred to and I so find. I shall refer to this as plan 1.

7. Plan 1 shows point A in a circled capital letter in black near to the junction of the track with the main road. There is no point marked B. There are broken parallel lines elsewhere on the plan, including one running to the south eastern rear boundary of the villa, but not to the north western front of the villa. However it is not disputed that the track existed at the time of the 1949 conveyance. This is shown on several aerial photographs the first of which is dated 24 April 1951. It is also shown marked FP, or footpath, on OS maps. It was not in dispute that such maps show physical features and not private or public rights.

8. There is also a line on plan 1 from near point A which runs past the front of the villa, and which Mr Curry for the claimants relies upon as showing that the right goes passed the front door of the villa and allows the claimants to drive into and from the villa at a point at its north west corner. I accept however, as Mr Bromilow demonstrated from the result of local land searches made on the defendant’s purchase, that that line is likely to show a stream rather than the track. Those results also show that there are no relevant public rights of way.

9. The earliest of the aerial photographs is dated 25 April 1951 and appears to show a hedge boundary all the way around the villa, in which there is a small opening adjacent to the front door. At the southeast corner there is a small extension to the villa itself, which still exists. The aerial photographs do not clearly show whether the track does or does not go beyond the front door. This is because this area is mostly in the shadow of the villa itself, but where it is not, the light shading of this area generally is such that no great assistance can be derived from them on the extent of the track. Later photographs, from about 2015, show vehicles parked outside the front boundary of the villa in various positions, including beyond the front door and adjacent to or nearer to the northwest corner.

10. In submitting that point B is likely to refer to the point that leads to the front door of the villa, Mr Bromilow relies in particular on two later plans. The first is a plan dated 30 July 1964 based on the OS plan which formed part of the application for first registration of the defendant’s title. It is stated to be for identification only. There are annotations in red marked on that plan. The track is shown as a red line which leads to a red mark at the front boundary of the villa adjacent to the front door, which Mr Bromilow submits is marked point B. However, that mark is indistinct, and there appear to be similar marks within the boundary of the villa and just to the east, which are unexplained. Moreover, as Mr Curry submits, if indeed the westernmost mark is point B, it appears to extend beyond the front door towards the northwest corner of the villa. For all these reasons I do not find that plan of great assistance in determining where point B was intended to be by the parties to the 1949 conveyance.

11. The other plan forms part of the first registration of the villa and is signed by the seller. The property transferred is shown on what is said to be the attached plan. The track is shown as a thick line, and although it reaches the front boundary of the villa at a point at or near the front door, the thick line extends to the south. Again, in my judgment this plan is of limited assistance in determining what the parties to the 1949 conveyance intended.

12. Apart from those plans, the only reference in either of the registered titles to the right of way is in the charges register of the defendant’s title, which refers to the farm being subject to a right of way on “ways and paths from point A on the filed plan” to the villa. That does not take matters much further.

13. Mr Bromilow realistically accepts that it is logical to presume that the wording of the 1964 conveyance accurately reflects that of the 1949 conveyance. Given that the plans are stated to be “for identification only” (albeit after the words “more particularly delineated”), the wording of clause 1(3) is important. Mr Bromilow submits that the words “to and from” do more than state the obvious. He also submits that the words “ or any part of it” mean simply that the access is to all parts of the villa but does not assist on where or how access is to be gained.

14. On the other hand, Mr Curry relies in particular on the word “from” and submits that that is not apt to describe a situation where a vehicle can draw up adjacent to the front door but no further. It appears from other photographs that there may be room for a car to enter the boundary of the villa at its midpoint or a more southerly point and drive closely past the front door of the villa itself. But, as he submits, the right referred to in the 1964 conveyance is not restricted to cars but includes all vehicles. Moreover, even for a small car, such a route would entail driving very closely to the front door and then taking a sharp right-angle turn. Legal principles

15. The principles applicable to construing an express grant were not in dispute before me. Morritt LJ in Mills v Blackwell 1999 WL 477968 (1999), a case of reservation, said at pp 6-7: “It is not disputed that the reservation of a right of way in the conveyance must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances…Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties' intention was as expressed in the deed. The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances.”

16. At p 9 Morritt LJ referred to Charles v Beach [1993] EGCS 124, where the Court of Appeal held that the existence of a flowerbed was insufficiently permanent or substantial to qualify the express terms of the grant. He continued at p 11: “The case for the Blackwells is that they are entitled to vehicular access to and egress from the green land and are entitled to demolish the party wall insofar as it stands in their way. But the conveyance is silent as to the point or points of such access or egress. It would be absurd to conclude, and Mr Randall does not submit, that the Blackwells were entitled to demolish the whole of the party wall so that access and egress might be obtained from any point along the whole length of the strip. But why should they be entitled to choose an access point anywhere they may reasonably select, when it is absolutely plain from the physical layout at the time of the conveyance that the access point was at and through the gate 4 feet 6 inches wide. This is not a case like Charles v Beach where access could be obtained at any point, nor Cooke v Ingram [1893] Ch 671 where the grant expressly permitted access at any point along the common boundary. It seems to me that the specific point of access and egress must be ascertained from the physical circumstances prevailing at the time; and if reference is necessary to such circumstances to supply the point of access and egress, I do not see why it should not also supply its limitations. The restriction of the width of the gateway from the strip to the green land was and is of a permanent nature. It had been made eleven years before the conveyance of the strip. I do not accept that there is anything insubstantial or transient about a dry stone wall. There is nothing in the conveyance to suggest an intention on the part of the parties that the point or extent of the access or egress should be anywhere or to any extent greater than what was then capable of enjoyment.”

17. Further guidance may be taken from passages in Gale on Easements, 22 nd ed. At [9-23] this is stated: “It has been said that in the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against a grantor must be applied. But a question of construction is a question of law in respect of which no burden of proof lies on either side. In particular, in construing a grant the court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad quem; and (3) the purpose for which the way is to be used.”

18. At [9-103] this passage, approved in Lomax v Wood [2001] EWCA Civ 1099 , appears: “It has also been said that no hard and fast rule emerges from the cases but that the guidance that they do afford is that, whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would constitute an unreasonable demand depends on the proper construction of the grant and then on the factual circumstances.”

19. The Court should base its decision on what it known rather than speculation: Wilkinson v Farmer [2010] EWCA Civ 1148 .

20. As to the lost 1949 conveyance, that may be proved by secondary evidence where there is satisfactory evidence that it existed, that the loss or destruction has taken place, and that a reasonable explanation has been given, see Phipson on Evidence, 20 th ed. [41-29 onwards].

21. The defendant does not advance a positive case against its proof but submits that there are doubts about it in the present case. The documentary evidence shows that on the claimants’ purchase of the villa (initially the first claimant), the sellers’ mortgagee told the sellers’ solicitors that the title deeds including the 1949 conveyance would be forwarded, but there is no record of those solicitors receiving them.

22. Kevin Lee, a solicitor in the firm presently instructed by the claimants, made a witness statement and was called to give evidence. Mr Lee says that he has made enquiries with the Land Registry, who referred to the registered title of another parcel of land to the north of the villa, which has no relevance. He contacted Mrs Evans, who was the first registered proprietor of the villa and who sold to the claimants. He asked her to provide authorisation to her conveyancing solicitors to search for any old deeds. She emailed in reply to say that she had been in contact with those solicitors, who told her that the original conveyance pack was destroyed, as they were only kept for 12 years. She also said that she did not have any copies of any of the requested documents and that she did not want to get involved in this case. He also asked for the conveyancing file of the solicitors who acted for the claimants in the purchase, but that contained no pre-registration deeds. Application of the principles

23. I am satisfied that the 1949 conveyance did exist and remains lost or destroyed despite reasonable searches. As indicated above, I am also satisfied that clause 1(3) of the 1964 conveyance accurately reflects that of the 1949 conveyance.

24. The question remains as to the proper interpretation of the words of grant contained in the 1949 conveyance. It was not in dispute before me, applying the principles set out above, that it must be construed in the context of that deed as a whole as it existed at the time, including the then nature of the track, the nature of the villa and the purpose for which the right was granted.

25. I have already described the general position on the ground at the time. The best evidence is the aerial photograph dated 1951, which although taken nearly two years after the 1949 conveyance, shows a fairly mature hedge around the boundary with a small opening leading to the front door. There is unlikely to have been significant change in the relevant features in the meantime.

26. It is important in my judgment that the context of the 1949 conveyance was that the villa for the first time was being sold out of common ownership with the farm, together with vehicular access to and from the villa for the new title holders, even though there appeared at the time to be only pedestrian access through the hedge at the front. This scenario differs from that in Mills, where there was at the time of the conveyance in question a gate allowing vehicular access. It is not surprising that in those circumstances the right was held not to include the right to demolish a wall so as to provide for vehicular access elsewhere.

27. The present case, in my judgment, is more akin to the facts in Charles, in that the hedge at the front of the villa was not likely to be so substantial or permanent to qualify the grant. It my judgement it was unlikely that the parties intended the vehicular access granted to stop at a point adjacent to the pedestrian opening to the front door of the villa, rather than to the obvious open space to the north side of the villa itself. Whilst in some instances the words “to and from the [villa] or any part of thereof” might add nothing to the grant, in the context of the 1949 conveyance they are not apt to describe the situation which Mr Bromilow contends for. Had that been the intention, point B could easily have been described as such, or carefully annotated on plan 1. It was not.

28. The defendant’s interpretation has the potential to lead to impracticability, if not absurdity. It would mean that those entitled to use the right of way could drive a vehicle up to a point adjacent to the front door of the villa, but no further and not onto the villa. They could not park on the track for any length of time, or on the farm land. The right is expressly to be used in common with the farm owner and others have the like right. Assuming a right so interpreted would allow them to turn the vehicle around rather than reverse down the track, they would then have to drive off and find somewhere else to park. The obvious answer to that impracticability is the claimants’ interpretation.

29. In my judgment the claimants are entitled to a declaration that their vehicular right of way extends to the space at the north side of the villa, where they presently park their vehicles. Alternative bases

30. That finding makes it unnecessary to determine the alternative ways on which the right of way is put, but for the sake of completeness I shall deal with them, albeit briefly, making necessary findings of fact. The first alternative is section 62 of the Law of Property 1925 Act which implies into a conveyance general words which have the effect of conveying or creating an easement ‘appertaining or reputed to appertain” to the villa. However, I understood Mr Curry to accept, properly, that if the true interpretation of the deed was as contended for by Mr Bromilow, section 62 would not operate to extend the effect of the express grant.

31. The next alternative was a right of way to access the north side of the villa with vehicles on the basis of proprietary estoppel. This was on the basis that the defendant in the summer of 2021 helped the claimants lay a membrane to the north side in order to create a hardstanding for their cars, after a digger had graded the area, and before concrete was applied. The defendant accepts that she was present when the membrane was laid but says all she did was to suggest putting stones on it to stop it flapping in the wind.

32. In my judgment it matters not which recollection is the more accurate, because even on the defendant’s case she encouraged the claimants to continue with work to create the hardstanding, when it must have been obvious that this was to park cars, despite her denial in cross-examination that she knew it was. She also denied the claimants’ evidence that she orally said they should park on the own land and not hers. However, in a text message in July 2023 to the claimants complaining about their parking on her land she continued “You have access to get to the side of your property. Tell Neil to move his car now.” This is likely to be indicative of her frame of mind before these proceedings were commenced. It also serves as an illustration of the obvious answer to avoid such a situation referred to in paragraph 28 above.

33. It is not in dispute that the grading work had already been completed before the membrane was laid, and that the overall cost was in the order of £600. In my judgment neither reliance or unconscionability is made out.

34. The final alternative is based on 20 years user as of right next before action, without permission or stealth or force. In my judgment the evidence does not justify a finding of such user from the track onto the north side of the villa. It is not in dispute that prior to 2010 the track was rarely used by vehicles. Other matters

35. There was some discussion before me whether there is a pedestrian right of way by prescription to the rear southern boundary of the villa. This did not clearly emerge from the pleadings. The plans and photographs show that the track from the main road splits and goes round to that boundary, but it does not appear to connect with the boundary. The defendant’s daughter accepted at one point in cross-examination that there was a gate in this boundary through which the horses kept on the villa would sometimes be taken. But this gate was stopped up by the Evanses sometime during their ownership between 2010 to 2021. Even on the basis of that acceptance, in my judgment, the factual basis for a prescriptive claim is not made out.

36. The next substantial issue is whether the defendant gave permission in 2023 for the claimants to renew the water main pipe from the mains supply to the villa along a route adjacent to the track. The claimants say she did. She says that she told them that she was willing to speak to her solicitors about a way leave agreement, but they went ahead and installed it anyway. In my judgment the parties appeared convinced that their recollection was accurate. It is unlikely that the defendant, when relations had deteriorated, would simply agree without further ado. However, it is unlikely that the claimants would carry out such work in this context unless they believed they had permission. In my judgment the most likely explanation is that there was no meeting of minds, so there was no permission.

37. Mr Bromilow sought an injunction for the removal of the pipe. The work took four days, and the defendant in cross-examination accepted she did not object, saying that she didn’t know what they were doing and that she took the matter up with the statutory undertaker. There was no evidence of any special damage or diminution in value of the farm as a result. Given that the new pipe replaced an old one, albeit on a different route, the impact on the farm is unlikely to be significant.

38. In my judgment for all those reasons, damages instead of an injunction are appropriate (see Redland Bricks v Morris [1970] AC 652 ). I would hope that the parties can agree the amount, but if they cannot, that issue can be determined by a district judge.

39. There were various other allegations and counter allegations of blocking the track. The claimants admit that on occasion they have parked on the track. Some of this is for loading and offloading, for example of scaffolding for building work, which in my judgment is a reasonable use of the right. However they also admit occasions of parking when not loading, and that aggregate and pallets were put on the farm land for some days during the building work. In the course of these proceedings, the claimants gave undertakings to the court on application not to park or cause to be parked vehicles on the track, insofar as not incidental to the right, until judgment. Mr Bromilow initially pressed for a permanent injunction to this effect, but on enquiry the claimants through Mr Curry indicated their willingness to extend their undertakings for a further 12 months, and it seems to me that is sufficient time for the dust to settle after this judgment.

40. The defendant in turn admits erecting a gate and fence, and on another occasion putting boulders to prevent vehicular access to the north side of the villa which I have found is the claimants right, but she took that down again after about 2 weeks. This was during the works being carried out to the villa when the claimants were not staying there.

41. I am satisfied that there were occasional acts of trespass by blocking the track by both parties as they admit, but on the whole these were relatively transient, and I would award nominal damages to each side. Mr Curry did not pursue the pleaded claim for special, exemplary or aggravated damages, properly conceding that there was insufficient justification for such an award.

42. There were other allegations and counter allegations in the written and oral evidence of the parties of other blockages on the track, and of the parties shouting and harassing one another. Such incidents were relied upon by the claimants’ pleaded case only as justifying aggravated or exemplary damages, but those remedies are not pursued. The defendant did not plead these matters as part of her case. Quite properly, they did not feature large in cross-examination. Conclusions

43. Accordingly the outcome is as follows: i) A declaration will be granted to the claimants that their express right of way includes taking vehicles onto the villa at the northwest corner where they have their hardstanding. ii) The claimants’ indication that they will continue their undertakings for a further 12 months not to park on the track will be accepted. iii) The defendant is awarded general damages in respect of the installation of the water pipe, to be determined by a district judge in default of agreement. iv) Both sides are awarded nominal damages of £100 in respect of blocking of the track. v) All other claims and counterclaims are dismissed.

44. I am grateful to counsel for their focussed assistance. They helpfully indicated that any consequential matters which cannot be agreed can be determined on the basis of written submissions. A draft order, agreed as far as possible, should be filed within 14 days of hand down of this judgment, together with any such submissions.