Alford v Hannaford and another

Agricultural land – Right of way – Implied easement – Appellant obtaining by transfer express right of way over farm track along boundary with defendants’ land – Appellant wanting to drive livestock and farm vehicles along track – Whether transfer limiting right of way to pedestrian and vehicular use – Whether oral agreement prohibiting farming use of track – Whether grazing rights sufficient to create implied easement — Appeal dismissedIn 1991, the appellant purchased 40 acres of agricultural land from a neighbouring farmer (the defendants’ predecessor in title). By clause 2 of the transfer, the appellant was granted a limited right of way along a track running between her farm and that of her son “at all times and for all purposes without or without vehicles and animals to pass and repass over and along the track…”. The vendor reserved himself a right of way over the remainder of the track. The appellant was required to install a gate at a specified point. Disputes arose concerning the extent of the appellant’s the right of way, namely whether: (i) the grant included a right to drive animals along the track or was limited to pedestrian and vehicular use; and (ii) the appellant could access the right of way through the gate even though the track was overgrown and impassable. The county court judge found that the right of way excluded the right to drive animals along the track and that the appellant was not entitled to use the gate since the right of way was limited to the track identifiable in 1991. Further, by an oral agreement in 2003 between the appellant and the vendor’s daughter, the appellant had been allowed to erect cross-over gates at the northern end of the track that were not to be used for farm purposes by animals or vehicles. The appellant was estopped from asserting a right to use the track other than as a pedestrian. The appellant appealed, contending that the grant of a right of way included the right to drive animals along the track. There was also an implied grant of right of way through the gate, either as a matter of construction or under section 62 of the Law of Property Act 1925 as a result of the grant to her of a right to use the land for grazing. There was no evidence to support the judge’s findings concerning the 2003 agreement that were wrong as a matter of law.Held: The appeal was dismissed. (1) The use of background facts to assist in the construction of a contract could apply where it was obvious that something had gone wrong with the language. However, absent those special circumstances, the court had to give the language used by the parties its natural meaning consistent with the context in which the words were used. The language of clause 2 of the 1991 transfer was not unconventional or wrong since it employed familiar conveyancing language appropriate to the grant and reservation of a right of way. Although the contract of sale was no longer available, it was evident from the form of the transfer that the draftsman had given consideration to the scope of the rights granted and reserved by spelling out in the reservation in favour of the vendor a right of way “with or without vehicles and animals”. The judge had therefore been right to hold that clause 2 did not give the appellant a right to drive animals along the track: Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 followed.(2) The judge had been entitled to have regard to the situation on the ground and it was unlikely that the vendor’s intention was to grant the appellant a right of way over land that had been impassable for years and that had been replaced by a new track running to the north. Those facts formed part of the relevant background against which clause 2 of the transfer fell to be construed. Thus, the reference to “the track” had to be read as one to the only usable track that existed at the time. That was the only sensible meaning that the parties, given the relevant factual background, could reasonably have understood the grant to have.(3) The purpose of section 62 of the 1925 Act was to include in a conveyance of land the general words that previously had to be expressly included to confer the benefit of quasi-easements and similar privileges that had been previously exercised over the retained land for the benefit of the land sold. Although described as a species of implied grant, the court had to identify which privileges, easements, rights and advantages were appertaining to the land sold or enjoyed with it at the date of the sale. Subject to those rights being capable of taking effect as a legal easement, they were included in the conveyance. The operation of section 62 therefore depended on proof of the prior exercise of such rights. The most common cases of implied grant under the statute are where the dominant tenement had been let prior to the sale with the benefit of rights over the servient tenement that were then retained as incidents of the freehold of the dominant tenement when it was sold. The grant of a licence to use land for grazing did not amount to occupation of the land by the appellant sufficient to engage section 62(1) by creating identifiable rights over the retained land. In the instant case, the transfer had expressly required the presence of secured boundaries at all points, which was sufficient to exclude the grant of a right of way under section 62: Wheeldon v Burrows (1879) LR 12 Ch D 31; Gregg v Richards [1926] Ch 521; Sovmots Investments Ltd v Secretary of State for the Environment (1973) 243 EG 995; Shrewsbury v Adam [2005] EWCA Civ 1006; [2006] 1 P&CR 27 and Wall v Collins [2007] EWCA Civ 444; [2008] 1 P&CR 19 considered.(4) Ample material justified the judge’s finding that the appellant had agreed to desist from using the track for farming purposes in the areas in question. The judge had been entitled to make a declaration that the appellant and her successors in title were not entitled to bring an action for interference with the right of way to prevent future unnecessary disputes. Moreover an injunction prohibiting the appellant from using the track was within the judge’s discretion.Emily Windsor (instructed by Clarke Willmott LLP, of Taunton) appeared for the appellant; Myriam Stacey (instructed by CKFT) appeared for the respondents.Eileen O’Grady, barrister