Nickerson v Barraclough

A way of necessity rests on an implication from a grant and its surrounding circumstances, rather than on public policy. Public policy does not ordinarily assist in construing the parties’ expressed intention.

Where a conveyance expressly postpones rights over proposed roads, an implied means of access must be reconciled with that restriction. It does not justify implying a right over a particular proposed road without a sufficient constructional basis.

Under section 62 of the Law of Property Act 1925, a conveyance passes advantages appertaining to or actually enjoyed with the land conveyed. It cannot make other land the dominant tenement or enlarge a limited existing use into a right for all purposes.

The plaintiff owned part of a former building plot and claimed a right of way for all purposes over a bridge and Scouts Lane, which led to the public highway. The first defendant appealed from the Vice-Chancellor in the Chancery Division.

The Vice-Chancellor had held that a broad right of way was implied from the common intention underlying a 1906 conveyance. He also found a limited right for agricultural and amateur-sporting purposes, and held that the 1922 conveyance operated through section 62 of the Law of Property Act 1925 to support a wider right. The second judgment was reported at (1980) Chancery 325.

The appeal concerned whether the 1906 conveyance implied a right over Scouts Lane despite an express stipulation, and whether section 62 created a right for all purposes benefiting land not conveyed in 1922.

1. Appeal allowed unanimously. Brightman LJ delivered the leading judgment. Buckley LJ agreed with it, and Eyleigh LJ also concluded that no right over Scouts Lane for building purposes had been established. The declaration was made in the terms of the Second Schedule to the notice of appeal.
2. A way of necessity is founded on an implication drawn from the circumstances of a grant. It is not founded on public policy. The present claim was not one for a strict way of necessity: land-locking had not been pleaded and the plaintiff had disclaimed reliance on that doctrine below.
3. Public policy could not be used to ascertain the parties’ intention when construing the 1906 conveyance. The express stipulation that no rights of way were given over proposed roads until they were made directly negatived an immediate easement over Scouts Lane. Although the conveyance required some implied solution for access, implying a way over Scouts Lane would give insufficient effect to that stipulation. Brightman LJ considered that access could instead be accommodated by less intrusive implications, without deciding between all of them.
4. Eyleigh LJ agreed that some access was implied, but considered that the grantor was to choose its route. Agricultural and sporting user did not amount to an allocation of Scouts Lane for building operations. Buckley LJ agreed that ordinary construction and admissible surrounding circumstances, rather than public policy, governed the implication.
5. Section 62 of the Law of Property Act 1925 could deem a right over Scouts Lane to be granted for the benefit of the land actually conveyed in 1922. It could not make plot 78A, which was not conveyed, a dominant tenement. Nor could the limited agricultural and sporting use actually enjoyed become a right for all purposes or for future building development.

• Court of Appeal (Civil Division). Allowed the first defendant’s appeal and substituted a declaration in the terms of the Second Schedule to the notice of appeal.
• High Court of Justice, Chancery Division (Vice-Chancellor). Held that an all-purpose way over Scouts Lane was implied, and addressed section 62 of the Law of Property Act 1925; the second judgment was reported at (1980) Chancery 325.