Lomax & Anor v Wood

The scope of a right of way is determined by construing the grant in the context of the deed as a whole and the surrounding circumstances. The servient owner must not derogate from the grant, but the dominant owner must not make unreasonable demands. A grant along an occupation road may therefore authorise reasonable access from the dominant land to the road at a suitable point, even where that access did not exist when the grant was made. The right is not unlimited. The number and nature of gates or other access points remain subject to the proper construction of the grant and the factual circumstances. Speculative possibilities about future rights of way do not displace an obvious practical purpose of the grant.

The claimants owned Marl Flat Farm and the defendant owned adjoining land known as Middle Brown Edge. A conveyance dated 24 March 1884 separated the ownership and granted the claimants’ predecessor a right of way along an existing occupation road to the point where it reached the Patch, without crossing the Patch.

The county court recorder declared that the claimants could erect gates between their land and Middle Brown Edge for exercising the right. The defendant appealed, contending that the grant gave access only through the undisputed southern Farm Gate, or at most reflected existing access arrangements. The central issue was whether the grant permitted access to the occupation road at a point convenient to the dominant owner, subject to reasonable limits.

1. Appeal dismissed. Lord Justice Schiemann gave the reasons, with Lord Justice Mummery and Sir Murray Stuart-Smith agreeing. Costs were postponed.
2. The grant had to be construed in the context of the conveyance as a whole and the surrounding circumstances. The governing guidance was that the servient owner must not derogate from the grant, while the dominant owner must not make unreasonable demands. The scope of the right therefore depended first on construction of the grant and then on the factual circumstances.
3. The natural construction of the 1884 grant was that it gave the claimants an opportunity to make an exit from their land onto the occupation road at a suitable point. The right of way stopped at the Patch, and no right was granted over the Patch. However, the grant would have little practical utility unless it enabled access to the road. The suggested possibility of future grants by unidentified third parties was too speculative to displace that construction.
4. The right was not unlimited. It did not authorise the construction of an unreasonable number of exits. In Petty v Parsons [1914] 2 Ch 653 at 667, the question whether access could be created at any point of the frontage or was limited to existing access arrangements was treated as one of construction. The present court also applied the guidance that access should provide a reasonable opportunity for exercising the right.
5. Mills v Blackwell was relevant to the fact-sensitive nature of the inquiry. Its conclusion that substantial work involving the removal of part of a party wall could not be assumed to have been contemplated did not prevent the present grant from covering a suitable access point. The present case involved the practical access contemplated by the grant, rather than comparable major works. The guidance cited from National Trust v White [1987] 1 WLR 907 was likewise applied.

1. Court of Appeal (Civil Division). The appeal against part of the recorder’s judgment was dismissed. The court upheld the construction of the grant as permitting suitable access from the claimants’ land to the occupation road, subject to reasonable limits.
2. Stoke-on-Trent County Court. Mr Recorder Onions made declarations recognising the right of the claimants to erect one or more gates between specified fields for exercising the right of way.