Peacock v Custins

A right of way appurtenant to identified land may be used only for the purposes of that dominant tenement. It cannot be extended to facilitate the cultivation or other beneficial use of adjoining non-dominant land merely because the two properties are used together.

The controlling question is the purpose and scope of the grant, not whether the additional use materially increases traffic or exceeds the intensity of use potentially permitted for the dominant land. Incidental activity on neighbouring land may be permissible where it is merely an adjunct to the honest use of the dominant tenement. An essential purpose of benefiting the neighbouring land falls outside the grant and constitutes trespass.

The claimants owned about 15 acres of dominant land benefiting from a right of way over the defendants’ strip of land. They also owned about 10 adjoining acres which did not benefit from the easement. The two areas were farmed together, and the tenant used the right of way to cultivate both.

The Cambridge County Court declined to declare that the claimants could not use the way to obtain access to the adjoining land. It reasoned that joint cultivation would produce no significant additional use. The defendants appealed. They also challenged declarations defining the location and width of the way.

The central questions were whether joint cultivation of dominant and non-dominant land exceeded the grant, and how the physical extent of the right of way should be determined from the conveyance, plans and admissible background.

1. Appeal allowed in part. Lord Justice Schiemann delivered the joint judgment, to which Lord Justice Mance and Mrs Justice Smith had each contributed. The court declared that the claimants were not entitled to use the servient strip to obtain access to the adjoining non-dominant land for its cultivation.
2. The scope of a right of way is determined by the terms and purposes of the grant and the identity of the dominant tenement. The grant authorised use for the dominant land only. It did not authorise use for any property so long as total traffic remained below a notional maximum which could lawfully have been generated by the dominant land.
3. In this context, an increased burden does not mean only more journeys or heavier vehicles. Every unauthorised use is legally a burden. The relevant inquiry is whether the grantor agreed that the way could be used for the particular purpose. The joint cultivation of the additional ten acres had independent commercial value and could not sensibly be described as ancillary to cultivation of the dominant land.
4. The authorities, particularly Harris v Flower (1905) 74 L J Ch 127, showed that the question was whether use benefiting neighbouring land was merely an adjunct to honest use of the dominant tenement or was itself a purpose of using the way. The few additional journeys found by the county court did not determine that issue.
5. As to the dimensions of the way, contemporaneous physical characteristics were potentially relevant background, but there was no established route or substantial gate structure limiting the grant. The detailed contractual plan showed a width of 21 feet at each end and was admissible when construing the conveyance intended to implement that contract.
6. The detailed plan also showed a kink which reduced the width in the middle. The county court had erred by omitting it. The plan attached to the order also incorrectly swivelled the defined area and required correction. A revised plan was to be prepared, and the declarations varied accordingly. Damages and injunctive relief were not determined because the defendants had sought only declaratory relief.

1. Court of Appeal: Allowed the defendants’ appeal in part. It granted a declaration preventing use of the right of way to access and cultivate the adjoining non-dominant land, and required correction of the plan and declarations defining the way. Permission to appeal to the House of Lords was refused.
2. Cambridge County Court: His Honour Judge Sheerin declined the defendants’ requested declaration. In judgments dated 18 December 1998 and 2 July 1999, he also determined the width and location of the right of way. Those determinations were varied.