Mills & Anor v Blackwell & Anor

An express reservation of a right of way must be construed by reading the deed and the surrounding circumstances at the date of its execution together. Very wide words concerning future uses and vehicles do not confer rights beyond the physical limits which the parties must be taken to have contemplated.

A permanent wall and an established narrow gateway may identify both the point and width of access. Where the same conveyance declares the boundary wall to be a party wall, a right to demolish part of it in order to widen access requires clear words. It will not be implied from a general right of way.

The Blackwells acquired the benefit of an express reservation of a right of way over the Millses’ access strip to a garage and adjacent green land. At the date of the 1981 conveyance, access from the strip to the green land was through a permanent dry-stone wall containing a gate about 4 feet 6 inches wide.

In 1997 the Blackwells caused part of the wall to be removed to widen the entrance to about 12 feet. His Honour Judge Morton Jack held that the reservation did not authorise the works, ordered reinstatement and dismissed the counterclaim. The Blackwells appealed, contending that the wide wording of the reservation entitled them to vehicular access for every future use of the green land.

The central issue was whether the express reservation entitled the dominant owners to enlarge the existing gateway by demolishing part of the party wall.

1. Appeal dismissed. Lord Justice Morritt, with whom Mr Justice Wilson agreed, upheld the order requiring reinstatement of the wall and dismissing the counterclaim.
2. The reservation had to be construed in the context of the deed as a whole and the surrounding circumstances when it was made. The court applied the approach stated in St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468: construction is completed only after the wording and the relevant circumstances have been considered together.
3. The words allowing passage for all purposes connected with present and future use, with vehicles of every description, were wide but not unlimited. They were necessarily qualified by the physical capacity of the access strip. The same contextual qualification applied to the means of obtaining access to the green land.
4. The physical layout identified the sole intended point of entry as the existing 4 feet 6 inches gate. The dry-stone wall was permanent, had contained that narrow opening for about 11 years before the conveyance, and was declared by the same deed to be a party wall. It would be inconsistent with that provision to infer a reserved right for the vendor to demolish part of the wall without the purchaser’s consent. Such a right required clear language.
5. The authorities concerning broader grants or transient obstructions did not alter that construction. Unlike those cases, the reservation did not specify access at every point of the common boundary, and there was no basis for allowing the Blackwells to choose a new point or greater width of entry. The right of way ended at the boundary wall and did not authorise its demolition or the widening of the gateway.

• Court of Appeal (Civil Division): dismissed the Blackwells’ appeal and refused permission to appeal to the House of Lords.
• Banbury County Court: His Honour Judge Morton Jack, sitting in Oxford County Court, held that the reserved right of way did not permit demolition of the party wall to widen the gateway; he ordered reinstatement and dismissed the counterclaim.