LORD JUSTICE BUCKLEY: I have asked Lord Justice Brightman to deliver the first judgment in this appeal.
LORD JUSTICE BRIGHTMAN: This is an appeal by the first defendant from a decision of the Vice-Chancellor relating to a claim by the plaintiff to a right of way over the defendant's land. The plaintiff is the owner of a field at New Waltham in Lincolnshire. According to the pleadings the field is at present used by the plaintiff as a paddock. A ditch runs along the east side of the field; the ditch is spanned by a bridge at the north-east corner of the field. The bridge was constructed in or before the year 1908. It was first made of old railway sleepers and was 8 ft. wide. It was replaced by a more substantial structure in the early 1970's. The bridge gives on to a road known as Scouts Lane, which runs parallel to the ditch and to the side of the field. Scouts Lane belongs to the defendants. The lane goes northwards and joins the public highway, Humberston Avenue, at a distance of about 150 yards from the corner of the field; Humberston Avenue runs east and west. The learned Vice-Chancellor held that there was, appurtenant to the field, a right of way for all purposes over the bridge and along Scouts Lane.
I shall call the field "the pink land". The defendants do not, so far as this appeal is concerned, seek to challenge the existence of a right of way. They seek to limit it in two respects, by confining the width of any bridge to 8 ft. and by restricting user to a means of access to the pink land "for ordinary agricultural purposes and as a sports ground for the playing of amateur sports and games". The limitation sought to be imposed would, for example, preclude the use of Scouts Lane for the transport of building materials to the pink land or the use of Scouts Lane as an accommodation road to the pink land once it was built on.
None of the conveyancing documents contains any express grant of a right of way over Scouts Lane for the benefit of the pink land. The right of way, whatever may be its extent, must depend upon implication or prescription in some form.
The pink land and Scouts Lane originally formed part of the Carrington Settled Estates. At the beginning of this century an area to the north and south of Humberston Avenue began to be laid out in building plots. We are concerned only with the plots which lie to the south of Humberston Avenue. The western boundary of this part of the area was delineated as a proposed 36 ft. road running north and south, which later became Enfield Avenue. The plots numbered 7 to 28 fronted on Humberston Avenue, extending eastwards from the future Enfield Avenue. Immediately to the south of plots 7 to 28, in line with such plots so that they were back to back, were plots 4-5 to 66. Immediately to the south of plots 4-5 to 66 and forming the southern boundary thereof, there was delineated another 36 ft. road, which I shall call "the proposed East-West road". Fronting on the southern verge of the proposed E-W road and lying immediately beneath plots 4-5, 4-6 and 4-7, plots 77 and 78 were later laid out. Plot 77, which tapered to the southward, was directly in line with plots 4-5 and 46. Plot 78 was in line with plot 4-7. Between plots 14- and 52 on one side and plots 15 and 53 on the other side, there was delineated a third proposed 36 ft. road, which I shall call "the original proposed N-S road". This intersected the proposed E-W road. Between plot 78 and the proposed N-S road, in line with plots 4-8, 4-9, 50 and 51» was a field out of which the pink land was ultimately carved. There appears from the plan of the whole of the building estate to have been a total of seven proposed roads intersecting the estate.
I turn now to the conveyancing documents, the first of which was a conveyance of 20th September 1900. The owner of the Carrington Estates sold and conveyed to Mr. George Alward, plots 7 and 8, which lay in the corner between Humberston Avenue and the future Enfield Avenue, plots 45 and 46, which were to the south of, and in line with, plots 7 and 8, and plot 77, on the other side of the proposed E-W road, which was in the corner between that road and the future Enfield Avenue and in line with plots 45 and 46. This conveyance contained a grant of a right of way for all purposes "over and along the proposed streets or roads adjoining the premises thereby conveyed shown on the said plan". That is taken from an abstract which is marked as having been examined with the original in 1936. "The said plan" appears to have meant the plan to the particulars of sale which covered the whole area, and not the smaller plan which was drawn on the conveyance. In the result I apprehend that Mr. Alward clearly acquired a right of way for all purposes over the future Enfield Avenue and the proposed E-W road, or at any rate the adjoining parts thereof, in connection with his enjoyment of the five plots conveyed to him. I think it is arguable that the right of way extended to the original proposed N-S road, since the expression "all the proposed streets or roads" might be thought to apply to more proposed roads than two, in which case the word "adjoining" would have been used in the broader sense of proximity. I mention this point only to dismiss it, because it need not be pursued. The site of the future Scouts Lane, which is the road we are concerned with, did not at the end of the day coincide with the site of the original proposed N-S road; that is a point which will become clearer a little later.
The next conveyancing document is dated 18th April 1901. By that conveyance Mr. Alward acquired from the Carrington Estates plots 47 and 78, which were alongside plots 46 and 77» which he had previously acquired* This conveyance contained an identical grant of a right of way for all purposes over all the adjoining streets or roads, save that the examined abstract records the addition of the words "when and so soon as the same shall have been made". On the face of the conveyance that formulation purported to leave Mr. Alward as the owner of plots 4-7 and 78, without any means of access thereto, for an undefined period. Admittedly he could pass on to such plots from plots 46 and 77 respectively, but he could not properly use plots 46 and 47 as a means of access to Humberston Avenue via the easement granted by the 1900 conveyance in the absence of an express or implied grant to that effect, because no conveyance expressly made plots 47 and 78 dominant tenements quoad such easement: see Harris v. Flower, 74 Law Journal (Chancery), 127. Some implication needs to be made in the 1900 conveyance as a matter of business necessity in order to give a sensible meaning to the conveyance. Exactly what that implication should be does not arise for decision in this case. In fact, the grant by the 1901 conveyance of a contingent future easement of way was probably void for perpetuity, but that problem does not have any added significance.
Next comes the most important conveyance, which is dated 8th December 1906. Before I turn to its contents, it will be convenient to refer to the plan attached to it. This indicates the happening of two intermediate events: first, it seems that Mr. Alward had acquired plot No. 9» fronting on to Humberston Avenue; secondly it indicates that the original proposed N-S road had been moved one plot westwards so as to run between plots 13 and 51 on one side and plots 14- and 52 on the other side. The proposed N-S road in its new location came to be known as Scouts Lane, and it will be convenient to refer to it by that name hereafter. Scouts Lane did not become a properly made up road until 1963. In its early days it was a mere track; in the 1930's it was roughly surfaced with clinker.
By the 1906 conveyance Mr. Alward acquired the land lying between plot 78 to the west and Scouts Lane to the east, known as plot 78A. The proposed E-W road formed the northern boundary of the land and was not included in it. The southern boundary of the land was in line with the southern boundaries of plots 77 and 78. There was also conveyed to Mr. Alward a strip of land 4- ft. wide, going from the south-east corner of plot 78A to the south-west corner of that plot and then along the southern boundaries of plots 77 and 78, until it joined the future Enfield Avenue. The conveyance did not expressly grant any rights of way for the benefit of plot 78A. The narrow strip 4 ft. wide plays no part in this case and can be ignored; it did not form a practical access to plot 78A.
I said that the conveyance did not grant any express rights of way. In fact it did the reverse, because stipulation 7 in the first schedule to the conveyance (according to the oratio obliqua of the examined abstract) said, "The vendor did not undertake to make any of the proposed new roads shown on the said plan, nor did he give any rights of way over the same until the same should, if ever, be made". "The said plan" here is the plan to the conveyance. That is the stipulation which causes most of the trouble in this case. Obviously the Carrington Estates did not mean to sell and Mr. Alward did not mean to buy, a piece of land with no access to it. The question is: What right of way ought to be implied? Before attempting to answer that question I must complete the conveyancing history.
By a conveyance dated 22nd April 1922, the Carrington Estates conveyed to Mr. Alward the site of the future Enfield Avenue and also the proposed E-W road. It was expressed to be "subject to all rights of way affecting the same, whether public or private and whether expressly granted by the vendor or being rights of way of necessity"; I think nothing is going to turn on that.
The next conveyance is dated 11th February 1935. The executors of Mr. George Alward, who had died in 1933, conveyed to Mr. Philip Alward plot 78A, together with, first, the adjoining length of the proposed E-W road, and secondly a strip of land which I shall call the green land. The green land was expressed in the conveyance to be the site of a proposed 22 ft. road, leading from the west side of plot 78A to the future Enfield Avenue, and running directly to the south of the part of the proposed E-W road which bordered plots 4-5, 4-6 and 4-7.
In the result it seems clear that the position at this time was that the access available to plot 78A, ignoring the 4 foot strip, consisted of, or included, the green strip which was in the same ownership, plus a right of way by implication over the future Enfield Avenue.
By a conveyance dated 20th November 1936, Mr. Philip Alward conveyed plot 78A to Mr. Little, without the green strip or any right of way over the green strip, but including the site of the E-W road to the north of plot 78A which had in effect been thrown into it. The reason for this omission may have been that Mr. Little did not require the green strip or any right of way thereover in order to gain access to plot 78A. It appears from the assent, which is the next document that I shall mention, that Mr. Little was the owner of parts of plots 12 and 50, which gave access to plot 78A.
Mr. Little died in 1944. On 30th April 1946 his executors assented to the vesting of parts of plots 12 and 50 and plot 78A (including the adjoining E-W proposed road) in his widow. On 12th November 1973 she conveyed most of plot 78A - that was to say, the eastern three-quarters - to a Mr. Marvin and he simultaneously conveyed it onwards to Mrs. Nickerson, the plaintiff. The three-quarters of plot 78A thereby conveyed is what I termed earlier the pink land. Such conveyances also granted, so far as the vendors had power to do so, a right of way for all purposes over Scouts Lane.
Most unfortunately, a dispute then arose between the plaintiff and Mr. Barraclough, who was thought to be the owner of Scouts Lane. The plaintiff claimed that she was entitled to a right of way for all purposes over the bridge in the north-east corner of the pink land and so on to Scouts Lane and to Humberston Avenue. Mr. Barraclough asserted that Scouts Lane was vested in the trustees of a settlement made by him, who were subsequently added as defendants. The defendants denied the existence of any right of way over Scouts Lane.
In argument in the court below the plaintiff's claim to a right of way over Scouts Lane was based on four foundations: Firstly, implied grant of an easement by the 1906 conveyance; secondly, prescription under the Act of 1832; thirdly, lost modern grant; fourthly, section 62 of the Law of Property Act 1925 read with the 1922 conveyance.
I shall deal first with the implied grant under the 1906 conveyance. As I have already said, it could not possibly have been the intention of the Carrington Estates to sell, or of Mr. George Alward to buy, plot 78A without an appropriate means of access thereto. It is absolutely clear from the contents of the conveyance that it was within the contemplation of the parties that Mr. Alward should be at liberty to build on plot 78A if he so wished, subject to certain restrictions with regard to density, building lines and so on. It therefore becomes necessary to decide what right, or rights, of way have to be read into the 1906 conveyance as a matter of necessary implication in order to give effect to the apparent purposes of the conveyance and the contemplated use to which the land might be put. That decision, what implication should be made, has to be taken in the light of the express stipulation, which I repeat because it is of prime importance, that the vendor did not give any rights of way over the proposed new roads shown on the plan to the conveyance "until the same should, if ever, be made". That stipulation, one would think, was inserted in order to reserve for the Carrington Estates the maximum freedom to move the route of a proposed road to a more convenient location, as had already been done on one occasion in relation to the future Scouts Lane, or to throw the site of a proposed road into the adjacent plots if the road could be dispensed with, as was later done in 1935 in reference to the eastern part of the E-W road, or perhaps to change altogether the layout of unsold lots.
There are five different possible implications which can usefully be considered. A choice needs to be made between them. I shall distinguish them as follows. Implication A, the broadest of all, is a right of way over all the strips designated on the 1906 conveyance plan as proposed new roads. This implication would have given a right of way over the designated routes of the future Enfield Avenue, the E-W road and Scouts Lane, right up to its junction with Humberston Avenue. Implication B: a right of way over the whole of Scouts Lane and over the parts of the proposed E-W road adjacent to plot 78A, so as to give access to the public highway by the shortest and most convenient route. Implication C: a right of way along the designated routes of such of the proposed roads as were then adjacent to plot 78A and the plots previously purchased by Mr. George Alward, so far as necessary to give access from plot 78A to Humberston Avenue; in other words, the owner or occupier of plot 78A could make use of the southern part of Scouts Lane but not the northern part, and could use the route of the proposed E-W road to get into the future Enfield Avenue and thence into Humberston Avenue. Implication D: a right of way at some convenient point across the route of the proposed E-W road, so as to give access from plot 78A to Humberston Avenue by proceeding over Mr. Alward's other land westwards and northwards; that is to say, from plot 78A to plot 78 and thence to plots 47 and 9 and so into Humberston Avenue, The only right of way needed would be a crossing point over the S-W road. Implication E: plot 78 was to become a dominant tenement for the purpose, of enabling the owner or occupier of plot 78A to make use of the existing right of way which was already appurtenant to plot 77 by virtue of the 1900 conveyance. The owner or occupier of plot 78A could then proceed from that plot over plot 78 and on to plot 77? then making use of the right of way originally appurtenant only to plots 777 4-5 and 77
Before considering these possibilities, I should mention that the plaintiff did not plead that plot 78A was land-locked at the time of the 1906 conveyance, and at the trial her counsel expressly disclaimed any reliance on the doctrine of a way of necessity. What the plaintiff's counsel did submit - and this was made perfectly clear in the course of the argument below -was that a right of way ought to be implied over the proposed E-W road and Scouts Lane as a matter of necessary implication in order to give effect to the purpose of the 1906 conveyance, namely the development of the plot by building houses thereon. The plaintiff relied, not on a way of necessity in the strict sense, but on the implication of a right of way as a matter of construction.
In the court below the plaintiff was successful in establishing a right to an easement of way for all purposes over the bridge at the north-east corner of the pink land and over Scouts Lane to its junction with Humberston Avenue as appurtenant to the pink land. This was described in the transcript of the second judgment (at page 8, G to H) as "a way implied from the common intention of the parties, based on a necessity apparent from the deeds". It is the implication lettered B in the different forms of implication which I indicated earlier for consideration.
A problem that has to be surmounted when selecting Scouts Lane as the easement to be implied under the 1906 conveyance is that the conveyance negatives the grant of any right of way over the proposed new roads until they should be made, the obvious intention being, as I have said, to preserve for the Carrington Estates the ability to alter or abandon proposed roads unless their existence had in effect been decided upon because they were made, or because houses had been built which were dependent upon them. The learned Vice-Chancellor felt able to minimise the prohibition imposed by the second part of stipulation 7 by taking into account considerations of public policy.
I must go through certain passages in the judgment; I shall indicate the starting points, but for brevity I shall leave out certain sentences which are not essential for present purposes. On page 15 of the first judgment, at G, the Vice-Chancellor said this:
"In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building materials and for the occupants of the houses when constructed: yet there was the express negativing of the grant of any way in the second limb of paragraph 7 of the first schedule, despite the need for some grant of a way that appeared from the surrounding circumstances as disclosed by the conveyance itself ... I find great difficulty in holding that there has been granted by implication something that the grant expressly negatives ... I find it almost impossible to imply a grant in the teeth of the express negation of any grant; and the grant of a way of necessity seems plainly to be one form of implied grant. There is, however, one consideration that is peculiar to ways of necessity that seems to be in point. During argument, I was referred to a sentence in Gale on Easements (14th. Edition 1972), page 177 on the subject of ways of necessity, which runs: 'The principle appears to be based on the idea that the neglect of agricultural land is contrary to public policy': and for this two old decisions are cited".
Then, a little lower down:
"This seems to me to raise a novel point of some difficulty and importance. Put shortly, it is whether on a grant of land in circumstances which otherwise would create a way of necessity or a way implied from the common intention of the parties based on a necessity apparent from the deeds it is open to the parties to negative the creation of such a way by some express term in the conveyance. I cannot think that the point is in any way confined to agricultural land: whatever the actual or prospective use of the land, the question arises whether in the absence of special circumstances public policy will permit the parties to a conveyance to make land inaccessible save by air transport and thus unusable. As applied to the present case, the question would be whether the Court should impose on the second limb of paragraph 7 of the first schedule a qualification which would exclude from its operation any way required for access for building purposes which would otherwise be implied. As the evidence stands, apart from paragraph 7 I would have no hesitation in holding that in the circumstances of the 1906 conveyance there was an implied grant of a way to plot 78a for building purposes; for the contemplated use of the plot was for those purposes, and so the extent of the way is to be measured by those purposes: see Gayford v. Moffatt (1868) 4 Ch. Appeals 133 at 136. As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation. ... However, in the absence of full argument on the point I do not think that I ought to decide it". That is the end of the quotation from the first judgment.
I turn now to the transcript of the second judgment which was given after further argument. It is reported in (1980) Chancery, page 325, but my references will be to the transcript. On page 2, at B, the Vice-Chancellor said:
". . . if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the creation of such a way from, being negatived by an express term in the grant?"
The Vice-Chancellor then discussed a number of reported cases and an article in the Law Quarterly Review. He continued at page 6, at E, and again I shall not read the entire narrative of the judgment. He said:
"If such a head of public policy exists, as I think it does, the question is what its bounds are. I do not think it can be said that, whatever the circumstances, a way of necessity will always be implied whenever a close of land is made land-locked. One can conceive of circumstances where there may be good reason why the land should be deprived of all access ... Accordingly, I would not go beyond saying that there is a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access. Alternatively, the point might be put as a matter of construction: any transaction which, without good reason, appears to deprive land of any suitable means of access should, if at all possible, be construed as not producing this result ... Now the wording of the clause in question, paragraph 7 of the First Schedule to the 1906 conveyance, as it appears in the examined abstract and with the contractions expanded, runs as follows: 'The Vendor did not undertake to make any of the proposed new roads shown on the said Plan nor did he give any rights of way over the same until the same should (if ever) be made' ... This clause of the schedule seems primarily concerned to relieve the vendor of any obligation to make any of the proposed new roads, in the sense of constructing roadways over the routes shown on the plan. If one disregards public policy and the doctrine of derogation from grant, I think the natural meaning of the second limb of the clause is that until roadways had been constructed on the routes shown on the plan, the purchaser was to have no right of way over the routes along which those roadways were to be constructed. I think, however, that it is also possible, though less natural, to read the second limb as in effect merely reinforcing the first limb. The first limb simply negatives any undertaking by the vendor to make up the new roads; the second limb goes on to prevent the conveyance giving any rights of way over the new roads which might enable the purchaser to claim that, having been granted a right of way over the new roads, he can, by virtue of that right, require the vendor to construct them. On that footing, the second limb does not negative any way of necessity over the unmade sites of the proposed new roads. All that is negatived is any rights of way over the proposed new roads until they are constructed ... Nothing, however, was done to negative any way of necessity ... I readily accept that this may be regarded as a somewhat strained interpretation of paragraph 7 of the First Schedule; but I do not think that it is so impossible that I must reject it. If, then, in construing this provision I give proper weight to the doctrine against derogation from grant and the rule of public policy, I think that I can construe paragraph 7 in. this particular way, and that I ought in fact to do so. If I am wrong in this, then I would hold, though with some hesitation, that public policy requires that paragraph 7 should not take effect so as to negative the implied grant of a way of necessity. As I have already held, I think that there has been a tacit allocation by user of a way over what is now Scouts Lane, and that this way is a way for building purposes". Then the learned Vice-Chancellor explained exactly what he meant by a "way of necessity" in that passage: "a way implied from the common intention of the parties, based on a necessity apparent from the deeds".
In this court we have heard a great deal of argument about ways of necessity - what is their basis, how they can be acquired and whether they can be lost. With the utmost respect to the learned Vice-Chancellor, I have come to the conclusion that the doctrine of way of necessity is not founded upon public policy at all but upon an implication from the circumstances. I accept that there are reported cases, and textbooks, in which public policy is suggested as a possible foundation of the doctrine, but such a suggestion is not, in my opinion, correct. It is well established that a way of necessity is never found to exist except in association with a grant of land: see Proctor v. Hodson, 10 Exchequer Cases, 824-, where it was held that land acquired by escheat got no way of necessity; and Wilkes v. Greenway, 6 TLR 449, where land acquired by prescription got no way of necessity. If a way of necessity were based upon public policy, I see no reason why land acquired by escheat or by prescription should be excluded. Furthermore, there would seem to be no particular reason to father the doctrine of way of necessity upon public policy when implication is such an obvious and convenient candidate for paternity. There is an Australian case, Forth Sydney Printing Pty Ltd, v. Sabemo Investment Corporation Pty. Ltd, and Others, (1971) 2 New South Wales Law Reports, 150, where that conclusion was reached. Furthermore, I cannot accept that public policy can play any part at all in the construction of an instrument; in construing a document the court is endeavouring to ascertain the expressed intention of the parties. Public policy may require the court to frustrate that intention where the contract is against public policy, but in my view public policy cannot help the court to ascertain what that intention was. So I reach the view that a way of necessity is not founded upon public policy; that considerations of public policy cannot influence the construction of the 1906 conveyance; and that this action is not concerned with a way of necessity strictly so called; nor, I think, did the learned Vice-Chancellor intend to suggest otherwise.
I return to the real problem which, at the end of the day, strikes me as being a relatively short question of construction. On the basis of the terms of the 1906 conveyance and the previous history, and bearing in mind the indisputable fact that some implication has to be made into the conveyance, what implication ought to be made in order to resolve the question of access?
As I have indicated earlier, there are at least five methods of solving the question of access. No one so far has suggested that there are any other than those. The problem is to decide which of the five will best answer the circumstances; what is the court to infer that the parties intended? That question must be answered by examining the conveyance against past history and then deciding which implication will best meet the circumstances of the situation. Some things point to a broad implication in favour of the purchaser of plot 78A. There is the recital in the 1906 conveyance that the Humberston Building Estate had been put up for sale by auction in building plots. There is a reference to the printed Particulars and Conditions of Sale used at the auction. We have a copy of those Particulars and Conditions. They refer to a plan, and we have a copy of that plan. It shows a compact building estate of 66 plots grouped round a mansion house known as Humberston Grange, laid out in four lines consisting of two double lines of back-to-back plots. Between each double line is Humberston Avenue and there is shown a proposed new road along the north side of one of the double lines of plots and along the south side of the other double line, the whole being intersected by proposed roads Binning north and south. Plot 78A, as I have indicated earlier, is outside this compact area, but is in contact with it to the south-west. The plan to the 1906 conveyance amounts to an extension of the auction plan.
It is legitimate to look at the auction plan to construe the 1906 conveyance, because the parties show in the conveyance that they have the auction Particulars and Conditions in mind, and the auction plan is an integral part of the auction Particulars. If a conveyance of a building plot is silent about any easement of
way, it is easy to imply the grant of an easement over all the strips which are shown on the plan as proposed new roads. The obvious inference is that the purchaser of a plot is to have access to the proposed road on to which his house fronts and is to be allowed to proceed along any of the proposed roads until he reaches a highway over which all have a right of way. Except for the stipulation in the 1906 conveyance, I would not have felt any difficulty at all in implying a right of way over Scouts Lane for the benefit of plot 78A to enable access to be had to the public highway. But we are faced with stipulation ?• This states in clear terms that the vendor is not obliged to make -not make up, but make - any of the proposed new roads shown on the plan to the conveyance. Scouts Lane is one of such roads, so the vendor is not obliged to make it a road servicing the estate. Also, the vendor did not give any rights of way, until some indefinite future date, over any of the proposed new roads shown on the plan, of which Scouts Lane is one. So the stipulation is in terms a distinct and direct negation of any right of way over, inter alia, Scouts Lane. There is, on the face of the conveyance, a head-on collision between two opposing conceptions. Some immediate access has to exist; the conveyance says that no immediate easement is to exist over any proposed road, but, if an Immediate access is to exist, there must at some point be an incursion on to a proposed road.
So I ask myself: What is the reconciliation? There are, as it seems to me, only two ways of resolving the impasse. One method is to strike out altogether the second limb of stipulation 7, which would let in implication A, as I called it earlier in my judgment. The other method is to make that implication which involves the least incursion on to any of the proposed new roads.
As regards the first approach, the deletion of the second limb of stipulation 7 would in my judgment do unjustifiable violence to the language of the conveyance. So I feel driven to the other method of reconciliation; that is to say, to consider which of implications B to E involves the least incursion on to any of the proposed new roads. Implication B, giving a right of way over Scouts Lane, is not in my view the answer to the question which I have posed. It would be a major incursion on to a proposed new road. That proposed new road had not been made; we know of no earlier easements which had been granted over it; and there is no evidence that the line of the northern part of the proposed road had become fixed because of building operations. The 1920 auction Particulars merely stated that Scouts Lane and other proposed roadways were subject to rights of way if and when they should ever be made.
In my opinion the least incursion would be made if the implication in the 1906 conveyance were that Mr. Alward should have the right to use his existing easement of way for the purposes of his new purchase; or, to put the matter in more precise legal language, if it were implied that plot 78A was to become an additional dominant tenement in relation to the existing easement of way owned by Mr. Alward as the purchaser of plot 77 under the 1900 conveyance - a solution which would be equally applicable to the needs of plot 78. However, I quite see the merits of implications C and D. It is not strictly necessary for us to decide between C, D and E, since none of them will yield a right of way over Scouts Lane.
I have therefore reached the conclusion that there ought not to be implied into the 1906 conveyance any right of way over Scouts Lane in face of the express terms of stipulation 7•
That is the end of the appeal, except for a short point arising under the respondent's notice. Before I come to that, I should, for clarity, mention that the Vice-Chance11or also found that the plaintiff was entitled to a right of way over Scouts Lane and the bridge, in order to make use of the pink land for agricultural purposes, and as a sports ground for amateur sports. This finding was based on section 62 of the Law of Property Act and equally, as I understand it, on prescription and on lost modern grant. Nothing turns on it on this appeal, because the existence of that limited right of way is not challenged by the appellant.
The respondent's notice arises under the 1922 conveyance, read with section 62 of the Law of Property Act 1925- Paragraph 3 of the amended statement of claim pleaded that at the time of the 1922 conveyance there was appertaining to, or reputed to appertain to, or enjoyed with, or reputed to or known as part or parcel of or appurtenant to the pink land, a right of way for all purposes across the bridge and over Scouts Lane to Humberston Avenue, and it was pleaded that by virtue of the 1922 conveyance and section 62, the right to use the way became vested in the plaintiff as if the same had been expressly conveyed. The learned Vice-Chancellor found as a fact that Scouts Lane was used as a means of access to the pink land from at least 1921 and until the interruptions of 1972 or 1973 to which he referred, but that there was no appreciable user except for the purposes of agriculture and amateur sports. He held that the conveyance of the proposed E-W road in 1922 carried with it, by virtue of section 62, a right of access to Scouts Lane, and that as the E-W road was itself used as an access to the pink land, the effect of the 1922 conveyance was to grant to the purchaser of the E-W road a right of way to Scouts Lane, not only for the purposes of the E-W road, but also for the purposes of plot 78A.
At page 9 of the transcript of the second judgment, he said this; again I omit certain passages:
"In my previous judgment I set out the view that I provisionally took, the point not having been argued then. That view was that although the general rule was that the grant of a right of way to reach plot A cannot be used as a means of access to plot B, which lies beyond, this rule would not apply if, at the time of the grant, plot A forms a means of access to plot B . . . Let me take as an example a case where plot A consists of a footpath some three feet wide and a hundred yards long, running from land near a public highway up to plot B. If there is an express grant of a right of way to plot A over land which lies between plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means of access to plot A for the purposes for which plot A is used, namely, as a means of access to plot B. In the result, the way can be used as a means of access to plot B via plot A, notwithstanding Harris v. Flower. If plot A is not used as an actual means of access to plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply".
One must look first at the wording of section 62. Omitting words which are not of immediate significance for present purposes, I can read it as follows:
"(1) A conveyance of land shall ... by virtue of this Act operate to convey, with the land, all ... advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, ... enjoyed with ... the land or any part thereof". Then subsection (6): "This section applies to conveyances made after the thirty-first day of December, eighteen hundred and eighty-one".
It is common ground that the words in the full text of the subsection, "ways, easements and rights", have no application here, and that the respondent can only rely on the word "advantages". I should also add that immediately before the 1922 conveyance Mr. Alward was- not only the owner of plot 78A, but also the tenant of the proposed E-W road, so that such proposed road and Scouts Lane were not at the time in the same occupation.
In effect section 62 states that a conveyance of a piece of land operates to convey with that land all advantages appertaining to, or, at the time of the conveyance, enjoyed with, the land, so as to convert such advantages into legally enforceable rights. If, therefore, the advantage is a roadway or pathway, or access from the land granted by the conveyance over land retained by the grantor and so to a public highway, that roadway or pathway or access gives rise to a legal easement by way of a deemed grant, in relation to which easement the land conveyed is the dominant tenement and the land retained is the servient tenement. What section 62 does not, I think, do is to make a piece of land which is not the subject matter of the grant the dominant tenement in relation to an easement deemed to have been granted by the conveyance. At the same time we do know from the findings of the learned judge that the bridge and Scouts Lane were being used for certain limited purposes of plot 78A, namely, agriculture and amateur sports. So I think the true analysis of the situation is this: (1) The 1922 conveyance was deemed to grant to Mr. Alward, as the purchaser of the site of the proposed E-W road, a right of way over Scouts Lane for the purposes of that site; and (2) After the 1922 conveyance Mr. Alward, as the owner and occupier of plot 78A, continued to have the same right to use Scouts Lane for the purposes of plot 78A as he enjoyed before the 1922 conveyance; but (3) the 1922 conveyance did not have the effect of making land which was not comprised in that conveyance the dominant tenement in respect of a servitude over land retained by the vendor.
Mr. Baker, for the respondent, sought to argue that one of the purposes of the proposed E-W road in and after 1900 had been the servicing of a building estate, and plot 78A was part of that building estate; that there was no evidence that Mr. Alward had abandoned that purpose in relation to plot 78A; that therefore the exploitation of plot 78A as a building site was one of the purposes of the proposed E-W road; and that therefore Scouts Lane, when it became available for the purposes of the proposed E-W road, became available for building on plot 78A as one of such purposes.
In my opinion, section 62 is not concerned with the future purposes of the grantor; it is only concerned with an advantage that can properly be regarded as appertaining, or reputed to appertain, to the land granted or, at the time of the conveyance, enjoyed with it. In 1922 the proposed E-W road had not been laid out as a road to any buildings on plot 78A, nor had it been used for the transport of any building materials to the plot, or as an accommodation road for any houses on the plot, for none had been built. So I do not think the facts will support the respondent's argument.
Furthermore, I have some difficulty in seeing how land which is not included in the grant can become the dominant tenement in relation to an easement deemed to be created by the grant.
I would therefore allow the appeal, subject to one minor point. The order below declared the existence of a right of way over the bridge, without limitation of width. The notice of appeal seeks to confine the width of any bridge to 8 ft. There is a finding of fact that the bridge consisted originally of sleepers and that it was 8 ft. wide. We have not heard much argument on this point. Unless counsel take the view that this is not a live issue, or that it is a live issue but has not yet been fully argued, I would be disposed to accept that the limitation to 8 ft. sought by the notice of appeal is correct.
I desire to conclude by saying that I have much sympathy for the plaintiff in this action. She clearly bought the land in reliance on a statutory declaration by a previous occupier, which seemed to make it clear that a right of way existed for all purposes along Scouts Lane. But nevertheless, as I have said, I feel constrained to take the view that the appeal should be allowed.
LORD JUSTICE EYELEIGH: Paragraph 7 of the first schedule to the 1906 conveyance makes it clear that there will not be a right to go over all the proposed roads, at least until they are made up and thus finally determined. But the building of houses is contemplated along the E-W road and round the corner on the N-S road. Against the background of the sale of a large number of individual plots, and contemplating therefore a large number of different owners, I think that access in order to build on them would normally be implied. Moreover, it would be access to each plot individually, because not only could one plot be sold to a single purchaser, but where a purchaser himself buys a large number of plots, it would generally be in order to sell the individual plots as and when houses were built, or indeed as vacant building land. The fact that Mr. Alward possessed a right of access to another plot does not in my opinion require a different conclusion in relation to his purchase of plot 78A. He had bought a building plot; he may decide not to build, but that is his choice. His right is to build and to sell individual sites or houses.
In my view it would be quite unreasonable to expect him to build, using plot 77 as access. The work would have to be planned so that a completed house did not obstruct access to another site not yet completed, and he could not sell a site which had to be crossed in order to reach another site unless that other site had already been completed.
I think, therefore, that there is an implied provision for access, but that it is for the grantor to choose the actual route. The Vice-Chancellor said, at page 14: "As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation". The user to which he then referred, and as proved in evidence, was user for sporting and agricultural purposes. As there never were building operations, I do not see how any user of the way can be said to indicate a route designated or allocated by the grantor for such operations. The user was for a quite different purpose. Therefore, whilst I agree that paragraph 7 does not deny the purchaser any right of way at all to the plot, Scouts Lane is not shown, in my judgment, to be a right of way granted in pursuance of the conveyance.
As to section 62, Mr. Millett said that he would be prepared to argue that no right of way of any kind was conveyed by virtue of section 62 of the Law of Property Act 1925; but as the Vice-Chancellor had found a way by virtue of prescription he, Mr. Millett, saw no point in arguing that, unless driven to it in support of his further argument.
On behalf of the respondent, it was argued that if a right of way was exercised over Scouts Lane through the strip to 78A, a right of way is deemed to be included in the conveyance and passes under section 62; and it is said, by a step which I find difficult to follow, that as a right of way passes, reference to a right of way must be to a right of way for all purposes. It is that step that I find difficult.
Section 62 is a conveyancing section; it passes only that which actually exists already, be it, for example, a right of easement, or be it an advantage actually enjoyed. In some cases that which is enjoyed is enjoyed by the exercise of the general right of ownership, and may become a particular legal right of some kind in the purchaser. None the less, the section envisages something which exists and is seen to be enjoyed either as a specific right in itself, or as an advantage in fact.
Section 62 says: "A conveyance of land shall be deemed to include" a number of things, all of which are clearly shown to be in actual existence either, as I say, as a right or as a factual advantage. It conveys that which is there to be conveyed, and from this it follows that that which is conveyed can be described, and by section 62 is deemed to be conveyed and consequently described. That means that it is described accurately.
The way proved in this case was for a limited object, sporting and agricultural, and a conveyance intended to include it would so describe it. It could not accurately be described as a right of way for all purposes, for that it never was.
For those reasons, and for those given by my Lord, I would reject the argument that the wider right of way passes by virtue of section 62.
On the question of public policy, I agree with what my Lord has said. I would add, however, that I could see possibly a case where public policy could aid in the construction of an agreement. It would be a rare case, but where the scales are equally balanced between two different meanings, I would think it right to attribute to the intention of the parties that which offends least against public policy.
I agree that this appeal should be allowed, to the extent indicated by my Lord.
LORD JUSTICE BUCKLEY: I entirely agree with the judgment which has been delivered by my Lord, Lord Justice Brightman. In particular, in my judgment the law relating to ways of necessity rests, not upon a basis of public policy but upon the implication to be drawn from the fact that unless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intended that some way giving access to the land should have been granted.
I agree, also for the reasons given by my Lord, that public policy can play no part in the process of ascertaining the intention of the parties as a matter of construction of a written document, in particular in this case the conveyance of 8th December 1906. Public policy may inhibit the parties from carrying their intention into effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must be ascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence of surrounding circumstances.
In the present case the pleadings contain no allegation of fact that plot 78A became land-locked on the occasion of the conveyance of 8th December 1906, and in the absence of such an allegation it seems to me impossible to say that a case has been pleaded of circumstances which would give rise to the implication of a way as a way of necessity. Moreover, before the Vice-Chancellor counsel abjured any intention of relying upon a factual situation that plot 78A became physically land-locked as the result of the 1906 conveyance. Accordingly this is not, in my judgment, a case in which the law of ways of necessity is applicable.
It is not in my view a case which depends upon any allocation by the grantor under the conveyance of 1906 of any particular way. In my view it is a case which depends upon the proper interpretation, and the proper implications, to be attached to the conveyance of 8th December 1906.
I agree with the reasons which Lord Justice Brightman has given for reaching the conclusion which he has reached, and I agree with those other reasons, dealing with other aspects of the case, which he has given in the course of his judgment. For these reasons I also would allow this appeal.
(Order; Appeal allowed; declaration in terms of Second Schedule to Notice of Appeal; leave to appeal to House of Lords refused)
