Right of way – Track – Extent of right – Appellants claiming that gates erected by respondents interfering with right of way over track – Gateposts not encroaching on track itself – Whether right of way extending to swing space or verge space on either side of physical track – Right construed as being confined to physical extent of track – Appeal dismissed
In 1999, the appellants and their mother purchased a farm, which was divided between them so that the mother owned the farmhouse and some adjoining paddocks and the appellants owned the rest of the farmland. By the relevant conveyance, the appellants and their mother were each given a right of way over the other’s land. This was expressed to be a right of way with or without motor vehicles and agricultural machinery “over and along the access way over the property shown coloured yellow on the said plan”. The way marked on the plan represented the route of a track running across the relevant land. The mother subsequently sold her property on and the respondents acquired it in 2001.
Disputes arose between the parties over the use of the right of way and the placing of gates at various points on the track. The appellants contended that several sets of gates erected by the respondent blocked their right of way since certain farm machinery would not fit through some of the gates and others could be negotiated only with difficulty. Although the gateposts were placed wider than the track itself, the appellants contended that their right of way was not limited to the width of the track. They argued that they were entitled to “swing space”, allowing some tolerance for wide loads on vehicles provided the wheels remained within the track, and “verge space” at either side of the track to allow vehicles to veer onto the grass verge where necessary, for example when manoeuvring around a bend.
In the court below, the judge found that the right of way was confined to the width of the track. He concluded that the gates did not constitute an unreasonable interference with the appellants’ right of way. The appellants appealed, contending that a proper construction of the right of way had to take into account its commercial purpose, which was to enable agricultural machinery to get to the appellants’ fields.
Held: The appeal was dismissed.
(1) The right of way could not be construed as extending to “swing space”. If swing space were included, and the right of way extended to wide agricultural vehicles, that would create a corridor of space, extending significantly beyond the boundaries of the track at either side, on which the respondents would be unable to build any fence; that land would effectively be sterilised. Difficulties would arise in determining how wide the space should be. If the right were determined by reference to the width of agricultural machinery, provided that the wheel base remained within the track, then that would mean that the right would vary depending on changes in the specifications of the relevant machinery. It was not possible to define the extent of the right by reference to the machinery that had habitually used the track before the 1999 conveyance, in the absence of any evidence on that subject. The judge had been entitled to hold that, giving the words of the 1999 conveyance their natural meaning, and having regard to the physical features on the ground, the right extended only over the track itself and that the appellants were not entitled to go over the grass verge when exercising it: Minor v Groves (1997) 80 P&CR 136; [1997] PLSCS 294, White v Richards (1993) 68 P&CR 105 and VT Engineering v Richard Barland & Co Ltd (1868) 207 EG 247; 19 P&CR 890 applied.
Before the court could find that a purposive interpretation of an express grant justified a construction extending the width of a track beyond its physical dimensions, there would need to be cogent evidence that a narrower construction, concentrating on the physical features of the land, would not achieve the objective that the parties had intended. In the instant case, some agricultural machinery could use the track without difficulty; there was no evidence that confining the right to the track itself rendered it any less efficacious than when it was originally granted or meant that vehicles that had habitually used the track at the time of the grant could no longer do so. Evidence of that kind was a minimum requirement before a claim to swing space could succeed.
(2) A right to verge space would permit the occasional use of the grass verge where that was reasonably necessary to ensure that certain vehicles could negotiate the right of way. Such a right could be established if it was inevitable, and had been so at the time of grant, that in some situations the wheels of a vehicle would have to swing onto the verge. If that were so, there would be a powerful case for saying that the parties must have intended the right to include the track made by the wheels at the points where the swing was inevitable. Evidence on the issue would be required, showing that there was a practical problem, identifying precisely the points on the track where the problem arose and how much verge would be required to remedy it. Such evidence might justify a widening of the right of way at those points. However, there was no such evidence in the instant case and the appellants could establish no right to verge space.
James Thom QC and Richard Selwyn Sharpe (instructed by Hodgson & Angus, of Bishop Aukland, and Edwin Coe LLP) appeared for the appellants; Bruce Walker (instructed by Close Thornton Solicitors, of Darlington) appeared for the respondent.
