Allen v George & Anor

An express right of way must be construed as the parties would have understood it when created, in the context of the land and surrounding circumstances. Where a deed grants passage over identified “passageways” with or without vehicles, the passageway must first be identified. The vehicle right extends only to vehicles capable of using that passageway. It does not create a wider vehicular route merely because a broader route might provide more convenient access. The physical character and established use of the way are central to construction.

The claimant owned No 2 The Wray, while the respondents owned No 1. A 1971 Deed of Partition granted a right of way, with or without vehicles and animals, over passageways within the respondents’ land shown brown on an annexed plan.

The county court held that the claimant had a vehicular right of way across the front of No 1, limited to 6 feet 6 inches. The claimant appealed, seeking a wider route suitable for modern cars. The respondents cross-appealed, contending that the right was confined to the existing slate path. The central issue was the proper construction and extent of the granted right.

1. Disposition. The appeal was dismissed and the cross-appeal allowed. The county court’s order was set aside, and a declaration was made that the claimant’s right of way across the front of No 1 was confined to the flagged path running parallel to the front wall.

2. The proper approach was to construe the Deed of Partition as it would have been read when made, in the context of the land and all the surrounding circumstances. The word “passageways” was used in the deed in a broad sense and was properly read as referring to ways. The relevant question was therefore what physical way the deed identified.

3. The deed first identified the passageways within the brown edging and then granted a right to use them with or without vehicles and animals. The construction was passageway first and vehicular use second. The grant permitted vehicles only where they could fit on the identified way; it did not begin with, or create, a separate right to use a wider strip as a small road.

4. The only existing way that could properly be identified at the front of the house was the slate path. The availability of a carport, the inconvenience of walking from it to No 2, and the separate reference elsewhere in the deed to a non-vehicular pathway did not widen the grant. The latter pathway could not accommodate a vehicle, so the omission of express vehicular words there provided no useful comparison.

5. The alleged grass strip and arguments based on scaling the plan did not alter the result. The court treated the grass issue as immaterial and confirmed that the path, rather than a scaled measurement from the plan, defined the extent of the right. The respondents were awarded their costs, summarily assessed at £6,500.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 396, the appeal was dismissed and the cross-appeal allowed. The county court order was set aside and the right of way was declared confined to the flagged path.
• Preston County Court — His Honour Judge Maddocks decided the matter on 3 October 2003, declaring a vehicular right of way limited to 6 feet 6 inches.