Campbell and another v William T Banks and others

Right of way — Bridleway — Horses – Appellants operating stables– Appellants claiming right to ride horses over neighbouring land owned by respondents – Whether appellants producing sufficient evidence to establish rights claimed — Appeal dismissedIn 1986, the appellants purchased a property from which they operated stables. Horses were ridden along two lanes that crossed neighbouring farmland belonging to the respondents. Both properties had formed part of an estate that had been in common ownership before being subdivided in 1953. The appellants’ use of the lanes continued uninterrupted and without complaint until 1998, when the two tacks were registered as permissive footpaths. In around 1999, the respondents erected a gate at the end of the lanes that remained locked, preventing access to riders. A dispute arose as to the appellants’ right of access. In 2003, the appellants removed the gate posts; the respondents re-erected the gate in the same position in 2008. The appellants then commenced proceedings in the High Court, which rejected their claim to an express public or private right of way along the lanes on foot or with vehicles or horses: see [2009] EHWC 1147 (Ch).The judge found that the evidence before the court failed to establish the existence of the rights claimed. The appellants were granted permission to appeal limited to the possible application of section 62 of the Law of Property Act 1925, which had not been mentioned in the judgment below. They argued that they did not have to establish an express right of way or one acquired by use. On the true construction of section 62, all the rights enjoyed over the lanes by the common owner of the estate before its subdivision had become annexed to the appellants’ land as easements.Held: The appeal was dismissed. Justice required the Court of Appeal should decide the section 62 point because it arose from parties’ titles and turned on the facts that the judge had found without the need for further evidence. Moreover, the respondents would not be prejudiced if the court proceeded to hear the appeal on that point and decide it without inflicting on the parties the further delay and expense of an adjournment in order to obtain a transcript of the trial. The devolution of title to the parties’ respective land showed that this was the type of situation in which section 62 could create, in favour of the appellants, legal easements over the two lanes on the respondents’ land belonging. The appellants’ difficulty was the lack of relevant evidence to show that either lane had been used as a bridleway for the benefit of their land. Having raised the point, it was for them to produce proof to that effect. The judge’s findings of fact showed that they had not done so. The appellants had had the opportunity to produce relevant evidence at the trial, but they were unable to demonstrate that the lanes had been used as a bridleway before they acquired their property. Furthermore, the appellants’ claim to a public right of way for horses over the lanes failed for lack of proof of intention to dedicate since 1953. For instance, no such public rights were recorded in the definitive map and the judge had found that the events relating to the preparation of the definitive map and statement suggested that there were no public rights of way for horses. The lanes were put forward only as footpaths, not as bridleways.Lawrence McDonald (instructed by Hodge Halsall LLP, of Southport) appeared for the appellants; Nicholas Jackson (instructed by Cockshott Peck Lewis, of Southport) appeared for the respondents.Eileen O’Grady, barrister