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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Peacock & Anor v Custins & Anor [2000] EWCA Civ 1958 (14 November 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/1958.html Cite as: [2000] EWCA Civ 1958, [2002] 1 WLR 1815, [2001] 2 All ER 827, [2002] WLR 1815

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
(His Honour Judge Sheerin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th November 2000

LORD JUSTICE SCHIEMANN:

This is the judgment of the court to which each member of the court has contributed.

1. This is an appeal from the late Judge Sheerin which raises one point of general significance in relation to the law of easements and a number of other points which are specific to the facts of the present case. The point of general significance is this: where the owner of a dominant tenement possesses a right of way for all purposes over a servient tenement, may he make any and if so what use of that right of way to access and cultivate (in conjunction with the dominant tenement) other property of his which lies adjacent to the dominant tenement? The defendants, by their counterclaim, contend that this involves a trespass, on the basis that the purpose of accessing and cultivating the other property is outside the scope of the right of way granted. The claimants contend that there is no trespass in such a case unless either the use of the servient tenement is for the primary purpose of accessing the adjacent land or the use of servient tenement for eventual access to the adjacent land increases the practical burden on the servient tenement.
2. For the purposes of the principal question the facts can be stated shortly. The defendants own a house number 33 The Row and a strip of land to the east, which we shall refer to as the yellow strip, which is the servient tenement. They acquired title by deed on 25.1.1977. The property is described in the conveyance parcels as "All that piece or parcel of freehold land having a frontage to The Row, Sutton..... of 77 feet or thereabouts......... together with the dwelling house erected thereon and known as 33 The Row Sutton aforesaid all which said property is shown edged green and yellow on the plan annexed hereto..... subject to a right of way at all times and for all purposes in favour of the owner or occupier for the time being of the property adjoining the rear of the property herein described all which said right of way is for the purpose of identification only edged yellow on the said plan annexed hereto". The plan annexed to that conveyance the Judge referred to as plan 1 and again we shall do the same. The dominant tenement, namely "the property adjoining the rear of the property" is in the ownership of the claimants and we shall refer to it as the red land.
3. The claimants had acquired title to the red land and to the easement by a conveyance dated 21.4.1976. The vendors conveyed "All those pieces or parcels of land situate in The Row Sutton in the county of Cambridgeshire containing 14.915 acres (more or less) all which said pieces or parcels of land are for the purpose of identification only delineated and edged red on the plan annexed hereto..... TOGETHER WITH the benefit of the right of way at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed...... over the roadway coloured yellow on the said plan......." The plan clearly identifies three rectangular plots adjacent to one another running north south and having a total area of 14.915 acres. To the north of the most northern of those three plots is shown a rectangular strip coloured yellow running northwards until it meets The Row which runs East West. To the west of the yellow strip is number 33 The Row. The plan attached to this conveyance dated 21.4.1976 was referred to throughout the trial as plan number 2 and we shall do the same.
4. The claimants used to own a property, consisting of a house with land behind, known as number 39 The Row which lies further west than No 33. It consisted of a relatively small frontage to The Row and a long strip behind it which widened out. Once one moves away from The Row, where number 39 was separated from number 33 (by presumably numbers 35 and 37) one finds that the land behind the house standing on number 39 marches along the western edge of the red land. On plan 2 the whole of number 39 is shown edged blue. All of the land edged blue used to be accessed from the Row through number 39. In February 1997 the claimant sold part of No. 39 :- the house and the 4 acres immediately behind it. He however failed to reserve any right of access by that route to the remainder of the land to which he retained title. We shall refer to the land over which he retained title as the blue land.
5. Thus it came about that the claimants owned the blue land and the red land. They are entitled to access the red land by means of the yellow strip. But are they ever entitled to use the yellow strip to gain access to the red land and thence to the blue land and, if so, in what circumstances? Those are the main points which fall for decision. In the action the defendants by counterclaim sought a declaration that the plaintiffs were not entitled to use the right of way over the yellow strip for the purpose of gaining access to the blue land. That declaration the Judge refused to make and the defendants appeal that refusal. No other relief was sought by the counterclaim.
6. The Judge found that the red land and the blue land were farmed as one unit. The red land was about 15 acres and the blue land 10 acres more or less. The two fields were interconnected. The land was let to tenant farmer Mr Veale. He used the access for the purpose of farming both the red and the blue land. He did not claim to use the yellow roadway for the purpose of accessing the red land and then, as an incidental activity, picnic or stroll on the blue land. The defendants, rightly, do not contend that incidental activity of this nature would involve any excess of grant. But Mr Veale was using the access for the joint purpose of cultivating both properties, the red and the blue. His evidence was unchallenged that he might have to make one or two more visits with his tractor to farm the blue and red land than he would to farm merely the red land. The defendant accepted that so far Mr. Veale had only used the access way on a couple of occasions and would appear to have need to use it on only about half a dozen times a year. The Judge held that the actual use both at the present time and contemplated by Mr. Veale was not excessive in quantitative terms. He stated that he was satisfied that access over the yellow roadway was never likely to be greatly increased by making access to the blue land as well as the red land. He concluded his judgment as follows:

"I accept and respectfully adopt the proposition of Romer L.J. in Harris v Flower 74 L.J. Chancery Reports 127:

"If a right of way be granted for the enjoyment of Close A, the grantee because he owns or requires Close B cannot use the way in substance for passing over the Close A to Close B".

So in certain particular circumstances, which I am satisfied have not arisen here, the plaintiffs, or those authorised by them, would not be entitled to claim a right of way to the blue land over the yellow roadway. However, if the access over the right of way is exercised for the purpose of farming the red land and at the same time the opportunity is taken to enter the blue land from the red land as part of that farming activity and there is no significant additional user of the right of way, such a use of the right of way would not bring about exceptional user, nor would it be in excess of the grant. The plaintiff would be wise to ensure that the blue and the red land are cropped in an identical way each year. I decline to make the declaration sought".

7. The declaration sought by the Defendants was a declaration that the claimants are not entitled to use the right of way over the yellow strip for the purpose of gaining access to the blue land.
8. The defendants, while not pressing their entitlement to a declaration in the absolute terms sought, submit that to use the yellow strip for the purpose of accessing the blue land in order to cultivate the blue land, as well as the permitted red land, is to trespass on the yellow land and that they are entitled to a declaration that the claimants are not entitled to use the yellow land for that purpose. They submit that the identity of the dominant tenement for the benefit of which the easement was granted appears clearly from the grant and that it is not permissible to use the servient land for the purpose of benefiting the blue land which was never land for the benefit of which the easement was granted. They submit that if indeed the use of the yellow strip for the purpose of gaining access to the blue land is not permitted by virtue of the easement then they would be entitled to damages not only on the basis of damage to the yellow land or to No 33 but also on a user basis. We recall that Nicholls L.J. explained in Stoke-on-Trent City Council v W. & J. Wass Ltd [1988] 1 W.L.R.1406 C.A. at page 1416, in a passage in effect approved by the Privy Council in Inverugie Investments Ltd v Hacket [1995] 1 W.L.R.713,

"It is an established principle concerning the assessment of damages that a person who has wrongfully used another's property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of that other's property."

9. The defendants submit that in those circumstances the making of a declaration is in principle desirable and was wrongly refused by the judge.

The Law

10. The present state of the law appears from an examination of the following cases.

Harris v Flower (1905) 74 L. J. Ch.127 C.A. was a case where the defendant had been granted a right of way over the claimant's land. That grant was to enable him to access what was referred to as the pink land. At the time of the grant of the right of way the Defendant's predecessor in title was already the owner of property adjoining the pink land which adjoining property was referred to as the white land. The white land consisted of a public house with its own access and some land to the rear of the public house. The land at the rear of the public house adjoined the rear portion of the pink land. Years after the grant a factory was erected partly on the white land and partly on the pink and the licensed premises were completely severed from the land at the rear. The question arose whether the right of way could be used in order to access that factory including that portion of it which stood on the white land. Swinfen Eady J held that the defendant was entitled so to use it since he was using the access way bona fide for the purpose of accessing the pink land none the less so because a portion of the building on the pink land extended to the white land. This decision was reversed by this court.

11. In his judgment Vaughan Williams LJ cited with approval two earlier cases: Skull v. Glenister (1864) 36 LJCP 256, which shows that "a mere colourable use" of a way for the purpose of entering the dominant land (when the real purpose was some other) will fall outside the grant; and Williams v James (1867) LR 2 CP 577.
12. Williams v James concerned a right of way over the plaintiff's land for the benefit of "Nine acre field" in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining "Parrott's land" had been mowed and stored on Nine acre field in the summer of 1866, and in September 1866 its whole bulk was sold to the defendant who carted it away over the plaintiff's land to the highway. The jury held that the original storage on Nine acre field had been done honestly and not in order to gain the advantage of the right of way. The stacking and subsequent dealing with the hay must have been regarded by the jury as being in the ordinary and reasonable use of Nine acre filed (see all three judgments at pages 581, 582 and 583). The test identified in all three judgments was whether Nine acre field was being used for purposes others than those included in its ordinary and reasonable use, although Bovill C.J. added that "If no additional burthen was cast upon the servient tenement the jury might well find that there had been only the ordinary and reasonable use of the right of way". This test is also reflected in the following passages quoted by Vaughan Williams L.J. to explain the decision:

"The circumstances under which the hay was stacked, and the purpose and object of the defendant in carrying it away, are questions for the jury. As I read the finding of the jury, the stacking and the subsequent dealing with the hay were in the harvest and reasonable use of Nine acre field".

13. In view of the jury's findings the plaintiff's claim therefore failed.
14. Having cited those cases, Vaughan Williams L.J. continued at page 132

"I cannot help thinking that there not only may be, but there must be, many things to be done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land. To begin with, the first thing he was doing before the completion of the building was to use the right of way for the purpose of carrying materials onto the white land so as to erect that part of the building, and I cannot doubt that as time goes on he will probably use this right of way for the purpose of doing repairs on the white land; and under these circumstances it seems to me that, notwithstanding the fact that the buildings on the white and on the pink land are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the user of the way is for the purpose of giving access to land to which the right of way is not appurtenant.

The reason of it is, that a right of way of this sort restricts the owner of the dominant tenement to the legitimate user of his right; and the Court will not allow that which is in its nature a burthen on the owner of the servient tenement to be increased without his consent and beyond the terms of the grant..... The burthen imposed on the servient tenement must not be increased by allowing the owner of the dominant tenement to make a use of the way in excess of the grant. There can be no doubt in the present case that, if this building is used as factory, a heavy and frequent traffic will arise which has not arisen before. This particular burthen could not have arisen without the user of the white land as well as of the pink. It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole object of this scheme is to include the profitably user of the white land as well as of the pink, and I think the access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink, and I think we ought under these circumstances to restrain this user."

15. Romer L.J. said on the same page:-

"I think that it is impossible to say that this large building is to be regarded as if wholly erected on the land coloured pink, nor can it be said that every user of the way for the purposes of the land coloured white is one for the proper enjoyment of the land coloured pink. I will take one instance. The defendant has used, and claims a right to use, this right of way for the purpose of carrying building materials for the part of his buildings on the land coloured white. That, to my mind, is a user of the right of way for passage over the land coloured pink for the enjoyment of this land coloured white. It is impossible to say that by reason of one building being on both lands the defendant has made the right of way which was granted for the enjoyment of the one a right of way for the enjoyment of both, and that is what the defendant is really doing. That would substantially enlarge the grant of the right of way. The servient tenement is not obliged to submit to the carrying of building materials for the purpose I have indicated; and other incidences might easily be given which would result in using the right of way for purposes of the land coloured white, and not for the true and proper enjoyment of the land to which the way was appurtenant."

16. Cozens-Hardy L.J. stated at page 133:

"It is a right of way for all purposes - that is, for all purposes with reference to the dominant tenement. The question is, whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement. The land coloured white is entirely land-locked by the acts of the defendant. The only access is by the passage over the land coloured pink; and it is, in my judgment, impossible to use the right of way so as to enlarge the dominant tenement in that manner".

17. In Jobson v Record [1998] 09 EG 148 C.A. a right of way was granted for all purposes connected with the use and enjoyment of the dominant tenement as agricultural land. The dominant tenement was used for the purpose of storing timber felled on neighbouring land and the question was whether the right of way could be used for the purpose of removing that timber. Harris v Flower was followed and the question was answered in the negative. Morritt L.J. saying at page 114:

"If the storage was a separate operation it was not an agricultural use of (the dominant tenement). If it was not an operation separate from the felling of the timber, then the use of the right of way for the removal of the timber felled at (the neighbouring tenement) was in substance for the accommodation of (the neighbouring tenement). Either way, the use of the right of way was not authorised by the terms of the grant."

18. Sir Brian Neil and Simon Brown L.J. agreed. The court may have taken a more limited view of use "as agricultural land" than that adopted by the jury in Williams v. James, but that is neither here nor there.
19. Alvis v Harrison (1990) 62 P & CR 10 H.L is a Scottish case but it is common ground that in this respect the law of Scotland is the same as that of England. The facts were unusual. The dominant tenement lay on either side of the servient tenement which was a driveway running North South leading to the A73 highway. On the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new drive to run eastwards from the driveway and thence to join the highway further east than the place where the servient tenement joined it. The owner of the servient tenement sought to stop him from doing so. It was held that he could not. Lord Jauncey of Tullychettle delivering the only substantive speech said this:

"Before turning to the facts of this case it may be convenient to state certain general principles applicable to servitude rights of access and their use:

Where a right of access is granted in general terms the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purpose to which it may be put thereafter....The right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement.......

For the better enjoyment of his right the dominant owner may improve the ground over which the right extends provided that he does not substantially alter the nature of the road nor otherwise prejudice the servient tenement.....

A servitude right of access inures to the benefit of the dominant tenement and no other. Thus is cannot communicated for the benefit of other tenements contiguous thereto........ What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects....."

20. Later in his judgment after dealing with facts Lord Jauncey said at page 16....

"It is quite wrong to treat the A 73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A 73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic."

21. We were also referred to Miller v Tipling (1918) 43 DLR 649 (Ontario Court of Appeal) where at page 475 per Mulock, C.J. Ex. said this

"The law is well established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where the way has been used in accordance with the term of the grant for the benefit of the land to which it is appurtenant, the party having thus used it must retrace his steps. Having lawfully reached the dominant tenement, he may proceed therefrom to adjoining premises to which the way is not appurtenant; but if his object is merely to pass over the dominant tenement in order to reach other premises that would be an unlawful user of the way".

22. The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made.

The present case

23. Mr Dumont for the claimants submits that the question to be asked is whether the use of the yellow strip for the purpose of accessing both the red and the blue land involves a trespass on the yellow strip. He submits that it does not because it does not impose a significantly heavier practical burden on the owner of the servient tenement (the defendants) than they had willingly assumed. On one view, when the judge in the present case referred to the burden of use being "not, or not significantly, increased", he was purporting to conclude that any additional use resulting from the accessing and cultivation of the blue land with the red land was minimal. If that were the test, we would have to disagree with the judge's conclusion. Mr Veale's evidence that his likely use was about six times a year, and that this would involve one or two more visits than if he was farming the red land alone would seem to us to disclose more than a minimal increase. But the broader submission made by Mr Morshead for the appellants is that actual use or increase of user is unimportant. What matters is potential user. The claimants as owners of the dominant tenement would be entitled to use the strip far more often than the few times a year than Mr Veale, their tenant, did use it and with heavier vehicles.
24. We do not consider that this submission approaches the matter correctly either. The right to use a right of way is determined by the terms of the grant, specifying the dominant tenement for the purposes of which the right is created. Trespass is whatever is not permitted by the grant. The right is not to use the way for the purposes of benefiting any property, provided that the total user does not exceed some notional maximum user which the beneficiary might have been entitled to make for the purposes of the dominant tenement. If that were the test, the beneficiary might in some circumstances use the way entirely for purposes other than those of the dominant tenement. The right is to use the way for the purposes of the dominant tenement only. The grant, when made, had a notional value which would be identified by reference to those purposes and their likely impact. Use for other purposes would be likely to carry its own notional commercial value. The claimants are claiming to use a way granted for the limited purposes of the 15 acres of red land for the extended or additional purpose of accessing and cultivating at the same time the further 10 acres of the blue land. That extended or additional use is of self-evident commercial value to the claimants, but any value attaching to it cannot have been embraced in the notional value attached to the actual right of way for the benefit of the red land.
25. Considering the position as a matter of principle, we would consider that the defendants are entitled to the declaration that they seek. In our judgment the authorities to which we have referred, and in particular Harris v Flower, also confirm that, where a court is being asked to declare whether the right to use a way comprises a right to use it to facilitate the cultivation of land other than the dominant tenement, the court is not concerned with any comparison between the amount of use made or to be made of the servient tenement and the amount of use made or that might lawfully be made within the scope of the grant. It is concerned with declaring the scope of the grant, having regard to its purposes and the identity of the dominant tenement. The authorities indicate that the burden on the owner of the servient tenement is not to be increased without his consent. But burden in this context does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden and one must ask whether the grantor agreed to the grantee making use of the way for that purpose. Although in Harris v. Flower Vaughan-Williams LJ mentioned the "heavy and frequent traffic" arising from the factory which "could not have arisen without the use of the white land as well as of the pink", the view we take of the reasoning in all three judgments in that case, as appears by the passages set out above, is that all three judges were addressing not the question of additional user, but the different question: whether the white land was being used for purposes which were not merely adjuncts to the honest use of the pink land (the dominant tenement); or, re-phrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement.
26. Where there is a use in excess of that granted questions can arise as to whether an injunction should be granted or damages should be awarded. But such questions are not before us because neither relief was sought by the defendants. They wished to know what the legal position was.
27. It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This can not sensibly be described as ancillary to the cultivation of the red land. We therefore allow the appeal and declare that the claimants are not entitled to use the yellow strip for the purpose of obtaining access to the blue land in order to cultivate it.

THE SIZE AND LOCATION OF THE RIGHT OF WAY

28. We turn to the issues relating to the size and location of the right of way. In his first judgment dated 18th December 1998, the judge concluded that the width of the right of way at its two extremities was 21 foot, and that in between it was limited by the physical existence of permanent obstruction and had a maximum width of 21 foot. In his second judgment dated 2nd July 1999, he held that it would not reflect the intention of his first judgment to include a kink in the western side of this right of way, since the suggested kink reflected no more than the presence in 1976-77 of outbuildings, which had since been removed; they were not part of the original house at No. 33 and "plainly were not permanent".
29. The defendants submit that the judge erred, first of all, in treating the whole area coloured yellow as intended (subject to permanent obstructions) to be comprised in the right of way. In their submission the judgment should have had regard to the existing "roadway" and, in that connection, to the presence and width of the gates and fences at each extremity. The result, they submit, should be to limit the northern entrance from the road to 15 foot (the width of the 3 foot and 12 foot gates... and the southern entrance to the field to 10 foot, the width of the dilapidated gate which there existed.
30. Mr. Morshead points out that the 1976 conveyance gave the claimants no more than "a similar right of way over the roadway coloured yellow" on plan 2. The case was therefore, in his submission, in the same class as White v Richards 68 P & C.R. 105, where the right granted was to pass and repass over and along the track coloured brown; and it was in a different category to Keefe v Amor [1965] 1 QB 334, where the right of way was simply "over the land shown and coloured brown". Accordingly, the first step in his submission was to identify the existing roadway, and the right of way must be treated as limited to this. We of course accept, and White v Richards shows, that the physical characteristics of the area at the time of the grant constitute potentially relevant background to any construction of the grant. But there was no evidence of any established roadway or use involving any particular route through or between the gates. The general impression from photographs taken in 1998 is one of very flimsy structures at each end, and indeed we were told that the evidence was that any gate and fence which existed at the southern end in 1976-77 was even more insubstantial or derelict.
31. Plan 2 which was actually attached to the conveyance was small-scale and imprecise. It also carried the statement that "This Plan is for identification purposes Only and although believed to be correct its accuracy is in no way guaranteed". It seems to me legitimate to look at other background for assistance as to what precisely was intended to be conveyed. The judge looked at the contract for sale (as well as a statement made by the auctioneer, which cannot in our view have been admissible). Both counsel were initially prepared to accept that this was admissible background to the construction of the conveyance, although Mr. Morshead later resiled from this after being referred to Youell v Bland Welch [1992] 2 LI.R 127. We were referred to Ladborke Group plc v Bristol C.C. [1988] 1 EGLR 126, 129, where this court, when construing a lease, had regard to the terms of the building agreement pursuant to which, expressly, a lease was executed. In the present case, the recital in the conveyance is less clear: it merely records that "The Vendors have agreed with the Purchasers for the sale to them of the property hereinafter described". But this statement confirms that the conveyance was designed to give effect to a specific agreement for sale of "the property hereinafter described". Indeed, the effect of the agreement had already been to transfer the equitable interest in that property including its ancillary benefits such as the right of way. What is presently in issue is simply the precise scope of "the right of way over the roadway coloured yellow", which was agreed to be sold and intended to be conveyed. We consider it permissible to look in these circumstances at the agreement which the conveyance was intended to implement. In condition 19 of the agreement the right of way is identified as a right "over the roadway as edged yellow on plan number one annexed hereto".
32. Plan 1, in the judge's words, is "meticulous and precise in its detail and leaves no doubt in the mind of anyone". At the north and south ends of the yellow area, the dimensions are shown as 21 foot. There is no suggestion of any restriction or limitation by reference to any gate or gates at either end or any route between the two ends.
33. In these circumstances, the position seems to us clear. The background does not support any limitation of the right of way to any particular route between its two extremities or to any gate or part of its two extremities. The right of way extends to the full width of the yellow land shown on plans 1 and 2, subject only (on the judge's judgment) to permanent obstructions. But, the claimants could not object to the presence of such restrictions as were imposed by the gates and fences, unless and until these substantially interfered with such use of the right of way as was reasonable from time to time: see Keefe v Amor, at page 347 C-E.
34. We turn to the question of the kink, shown on the large-scale and detailed plan 1, but not on the small-scale and imprecise plan 2. Plan 1 specifies this kink as starting 35 foot 2 inches south of the road and running south at a slight easterly angle for 20 foot 10 inches, before the western edge of the yellow coloured land resumes a southerly direction for its remaining 100 feet. The judge, in his original judgment, said that the right of way was precisely ascertainable from the location of the flank wall of No. 33, the auctioneer's statement, plans 1 and 2 and the auction particulars. We have already indicated our view that the auctioneer's statement was not admissible. But plan 1, which shows no kink, is. Of plan 1, the judge said this:

"The only deficiency in the plan is that the obtuse angle kink on the south western limit of width is not identified, nor are measurements given at that point".

35. In his second judgment, however, he declared that the right of way was 21 foot wide at its ends and along its width, save where there were permanent obstructions and dismissed the outbuildings as impermanent. As to this, it does not follow from their subsequent demolition that the outbuildings would have been regarded as impermanent at the time, or that their owners would have been prepared to have them demolished or to forego their reconstruction. The kink appeared, because of them, in the very document which the judge accepted as "meticulous and precise in its detail" and as "leav[ing] no doubt in the mind of anyone". Further, this is a document which is admissible, as we consider in common with the judge, on the issue whether the right of way was intended to extend to the whole of the yellow coloured area, or to be limited to some route or gates on that area. The judge's second judgment appears to us to ignore the clear effect of the very document which he elsewhere, rightly, found so helpful. We can see no basis for treating the right of way as having a 21 foot width along its whole length, regardless of the kink. Plan 1 shows that it was understood to have 21 foot width at each end,. and to have kink in the middle, which must clearly reduce its width in the middle,. To what width it there reduces must depend on a precise calculation based on an original and not a photocopy of plan 1.
36. The judge referred to permanent obstructions, and the plan annexed to his final order, which Mr. Dumont defends, shows a telegraph pole on the east edge of the yellow area, near the road. It is 18 foot 6 inches from the east flank wall of the defendants' house at No. 33. We reject Mr. Morshead's submission that this means that the judge has ordered a right of way impinging by 2 foot 6 inches on the house at No. 33. On the judge's judgment, the pole represents a permanent obstruction, and a necessary limitation on the right of way. Mr. Dumont did not contend that the judge was wrong to qualify his judgment by reference to permanent obstructions to be found on or in the ground at the time of the sale in 1976-77.
37. On the ground, the boundaries clearly intended to mark the yellow area appear to have been swivelled slightly on a central fulcrum, going eastwards at the south. The swivelling is reflected on the plan attached to the judge's order. The effect is that some 2 foot 9 inches of the existing gate at the south-west end of the yellow area is shown as falling outside the yellow area and, so outside any right of way. That is consistent neither with common sense nor with either party's case. In that respect also it seems to us that the plan attached to the order requires revision.
38. For these reasons, on the second issue, we vary the judge's order to require the kink to be shown and also to reverse the swivelling of the yellow area. A revised plan will thus require to be drawn up and attached to the order of this court. A declaration along the lines of the first declaration made by the judge will be appropriate in relation to that revised plan. The second declaration made by the judge will require amendment in view of the kink. Paragraph 3 of the order under appeal still appears appropriate. Instead of paragraph 4 of the order under appeal we shall declare that the claimants are not entitled to use the yellow strip for the purpose of obtaining access to the blue land in order to cultivate it.

Order: Appeal allowed in part; order to be varied; counsel to submit draft minute of order within two weeks; Judge's costs order below to be set aside; no order as to costs either below or at the KINK hearing or in the Court of Appeal; application for permission to appeal to House of Lords refused.

(Order does not form part of approved judgment)