Russell & Ors v Finn

An express right of way is construed by reading the conveyance together with relevant surrounding circumstances where its wording is not unambiguous. Prior use of the route is important objective background, particularly where it shows the access arrangement which the parties may have intended to preserve. A court should not infer a grant over a difficult, rarely used and partly unowned route unless compelled by express words or necessary implication. Reusing an earlier plan and repeating a road name does not, without more, create a fixed meaning overriding the physical layout and actual use. The court also considered, but did not decide, a possible alternative under the Law of Property Act 1925, section 62.

The claimants owned Brook House land, while the defendant owned the Coach House land and an adjoining northern field. A conveyance dated 11 October 1978 granted a right to pass and repass over Brook Avenue to the public highway. After landscaping works prevented vehicular access along the driveway beyond the gateposts, the claimants sought declarations and an injunction. The defendant claimed that the express right extended to the Coach House, alternatively relying on prescription and a lost modern grant.

After a four-day trial, His Honour Judge George held on 7 June 2002 that the express right ended at the gateposts and granted declaratory and injunctive relief, with damages for trespass. The central issue on appeal was the proper construction of the 1978 conveyance.

Appeal allowed. Lord Justice Dyson gave the principal judgment. Lady Justice Hale and the Vice-Chancellor agreed.

1. The correct approach to construction, stated in St Edmundsbury v Clark [1975] 1 WLR 468, requires the instrument and its surrounding circumstances to be considered together unless the words are so unambiguous that context cannot affect their meaning.
2. The judge had failed to take account of the most obvious relevant circumstance: the driveway had been used to access the Coach House before the 1978 conveyance. That use was plainly relevant to whether the parties intended to alter the existing access arrangement. The evidence did not justify treating it as impliedly rejected.
3. The reuse of the 1921 plan and the words Brook Avenue did not establish a fixed dictionary meaning. The 1978 plan did not colour Brook Avenue, showed the driveway beyond the gateposts, and might simply have been reused because it was sufficiently comprehensive. The other surrounding circumstances relied on by the judge did not support his conclusion.
4. The court would not impute an intention to grant a right of way over land which was difficult to traverse, rarely used for access and not owned by the grantee, absent express words or necessary implication. The 1978 conveyance contained neither.
5. The court noted that section 62(1) of the Law of Property Act 1925 could have conveyed the driveway use as a right or advantage appertaining, or reputed to appertain, to the Coach House land, and found no expressed contrary intention under section 62(4). It declined to decide the appeal on that basis because the point was raised only during argument and it would have been unfair to determine it without possible further evidence.
6. The order below was discharged. A declaration was made that the right of way extended over the driveway to the Coach House. Reinstatement was ordered within six weeks, and an injunction restrained further interference. The claimants were ordered to pay the defendant’s costs here and below, without apportionment, subject to detailed assessment, with an interim payment of £60,000. They were also ordered to repay £35,000 in costs and £6,000 in damages, each with 8 per cent interest.

1. Court of Appeal (Civil Division) allowed the appeal and discharged the order below. It declared that the right of way extended along the driveway to the Coach House, ordered reinstatement and granted an injunction against further interference.
2. High Court, Chancery Division His Honour Judge George held on 7 June 2002 that the right of way granted by the 11 October 1978 conveyance ended at the gateposts. He granted declaratory and injunctive relief and awarded damages for trespass.