Smith & Anor v Muller & Ors, Court of Appeal - Civil Division, December 17, 2008, [2008] EWCA Civ 1425

Resolution Date:December 17, 2008
Issuing Organization:Civil Division
Actores:Smith & Anor v Muller & Ors

Neutral Citation Number: [2008] EWCA Civ 1425Case No: A3/2008/0415IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE CHANCERY DIVISIONLEEDS DISTRICT REGISTRYHis Honour Judge Langan QC7LS71074 Royal Courts of JusticeStrand, London, WC2A 2LLDate: 17/12/2008Before :LORD JUSTICE TUCKEYLORD JUSTICE WALLandLORD JUSTICE RIMER - - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -Mr George Laurence QC (instructed by Denison Till) for the AppellantsMr Stephen Howd (instructed by Chattertons) for the RespondentsHearing dates: 14 and 15 October 2008- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Rimer : Introduction1. This is an appeal by Walter and Agnes Smith, the defendants, against an order made by His Honour Judge Langan QC on 1 February 2008 in the Chancery Division, Leeds District Registry. The claimants, respondents to the appeal, are Ubbo Muller, Eric Fowler, Joan Fowler, Edward Fowler and Ambrose Fowler. 2. Mr Muller is the registered freehold proprietor of Chancel Farm, Messingham, Lincolnshire. Eric and Joan Fowler are the parents of Edward and Ambrose Fowler. Eric was formerly the agricultural tenant of Chancel Farm, but his tenancy is now vested in Edward. The Fowlers farm Chancel Farm in partnership. The dispute is as to the claimants' claim to a right of way appurtenant to Chancel Farm, Messingham, Lincolnshire over a track running across an adjoining property, Priest Howes Farm, of which Mr and Mrs Smith are the registered freehold proprietors. The part of Priest Howes Farm relevant to the claim comprises an approximately rectangular area of land abutting the southern (east/west) boundary of Chancel Farm and lying between that boundary and Butterwick Road to the south, an area the judge called ``the blue land''. 3. The right of way claimed by the claimants is over a track (``the track'') running north from Butterwick Road along the eastern edge (but within) the blue land to the boundary between that land and Chancel Farm. The judge upheld their claim. By his order he declared Mr Muller entitled to a right by prescription for the benefit of the whole of Chancel Farm to pass and repass with or without vehicles of any description over the track, his declaration including that the right is exercisable over a defined splay at the Butterwick Road end. He also declared that Mr Muller is entitled to a right of way over the track as recorded in entry No. 2 of the Property Register of his registered title (I shall come to what that refers to). He declared that the claimants are not obliged to maintain a hedge or fence along that part of the southern boundary of Chancel Farm adjoining the track: any such obligation would effectively negative the declared right, and I will explain the circumstances in which the judge made that declaration. He made consequential orders against the defendants preventing obstruction of the track, for damages and for costs. He refused them permission to appeal, but Arden LJ granted permission on 9 April 2008. Mr George Laurence QC represented them before us, but did not do so below. Mr Stephen Howd represented the respondents both before us and the judge.4. The central issue before the judge was whether the claimed right of way was one whose purported creation was prevented by an Inclosure Award made in December 1804 under the Messingham Inclosure Act 1798. The appellants' essential point was that the Award required the east/west boundary between Chancel Farm and the blue land (including at the point where the track meets the boundary) to be permanently fenced. It followed, they said, that no right of way over the track could be created by grant because no lawful grant could be made if its enjoyment depended on a breach of a statutory fencing obligation such as that imposed by the Award. It followed further, said the defendants, that the claim to a prescriptive right of way under the Prescription Act 1832 or the doctrine of lost modern grant could not succeed because the establishment of such a claim is based on the fiction of there having once been a lawful grant of the right. The judge disagreed with the argument and held that the fencing obligation imposed by the Award posed no obstacle to the claimed right. He held in the alternative that that obligation would anyway be satisfied by the inclusion of a gate where the track meets the boundary. 5. Mr Laurence repeated and developed before us a like argument that no such right as the judge found established could have been acquired by prescription or under the doctrine of lost modern grant. He also sought permission to raise a new challenge to the claimants' case, one not argued below. To show how the arguments arise, I must explain the background.Conveyancing history6. Dealing first with Chancel Farm, it comprises some 237 acres. Title to the farm derives under two routes. Part of the farm, comprising just under 32 acres (``the pink land''), was conveyed by Hannah Glew to Richard Watson by a conveyance dated 6 July 1922. The pink land abuts the blue land forming part of Priest Howes Farm and the northern end of the track meets the pink land at the boundary. That conveyance, made upon a sale to Mrs Glew's tenant, purportedly included the benefit of a right of way over the track appurtenant to the pink land, the right being described thus:``Together with a right of way as now used and enjoyed for the Purchaser his heirs and assigns the owners and occupiers of the hereditaments intended to be hereby conveyed to pass and repass with or without horses carts carriages and other vehicles laden or unladen along over and upon the roadway coloured green on the said plan leading to and from that portion of the hereditaments hereby conveyed known as Hallifield Close from and to the Butterwick Road.''7. The parties are agreed that Hallifield Close comprised the whole of the pink land. Mr Laurence suggested, probably correctly, that the explanation for the inclusion of the benefit of that right was that Mrs Glew treated her tenant's use of the track over the previous 20 years or more as being for her benefit as the freehold owner of the pink land and as giving her the benefit of a right of way by prescription over the track, so enabling her to include that right in the conveyance as appurtenant to the pink land. Even if the conveyance had not included an express reference to the right, any such right would have passed to Mr Watson by virtue of section 6(1) of the Conveyancing Act 1881, the forerunner of section 62(1) of the Law of Property Act 1925. On Mr Watson's death the pink land passed to David Watson. 8. The remaining, larger, part of Chancel Farm (lying beyond the pink land) was conveyed by a conveyance on sale dated 10 October 1928 to John Eminson. David Watson died in 1961 and on 9 April 1962 his personal representatives conveyed the pink land to Mr Eminson, who thus became the owner of the entirety of Chancel Farm as it now is. That conveyance expressly included the benefit of the right over the track referred to in the 1922 conveyance. 9. Eric Fowler, the second claimant, entered the story in 1969 and began to farm Chancel Farm in partnership with Mr Eminson. Mr Eminson died in December 1970, after which Mr Fowler continued to farm in partnership with his personal representatives. In 1973 Mr Fowler purchased Chancel Farm from them and it was conveyed to him on 8 October 1973. That conveyance also included, as appurtenant to the pink land, the benefit of the same right of way.10. Chancel Farm has at all times since 1973 been farmed by members of the Fowler family. In the meantime, there have been several dealings with the freehold title. It has been owned successively by at least two pension funds and two individuals, subject in all cases to agricultural tenancies granted to the Fowler family, the current tenancy being held by Edward Fowler, the fourth claimant. Mr Muller, the first claimant, is the present owner, having been registered as proprietor at HM Land Registry on 30 March 2007. The right of way appurtenant to the pink land is the subject of entry No. 2 in the Property Register. That entry had been included in the title since it was first registered on 14 August 1995 and it is that easement that was the subject of the judge's second declaration that I said I would explain. That easement would not, however, enable the track to be used for the purpose of accessing that part of Chancel Farm lying beyond the pink land (see Harris v. Flower (1905) 74 L.J. Ch 127; and Bracewell v. Appleby [1975] Ch 408). It was for that reason that it was important to the claimants to establish a prescriptive right of way over the track appurtenant to the whole of Chancel Farm. That case depended on the use of track for at least 20 years prior to action brought.11. Turning now to Priest Howes Farm, which comprises just over 23 acres, the part with which the claim is concerned is the blue land, which includes the track. It is unfortunately necessary to complicate the picture just a little more by dividing the track into two sections. I will refer to the northern (approximately) third of the track as ``the northern section'' and to the southern two thirds of it as ``the southern section''. If the track as a whole is regarded as a flagpole, the part of the blue land of central relevance is the ``flag'' attached to the northern section and flying in a stiff breeze to the west. That is a rectangular area of about one acre in size forming roughly the northern half of the blue land and abutting the pink land. At least by the first decade of the nineteenth century, that piece of land and also the northern section...

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