Davies & Anor v Bramwell & Ors

An easement may be implied on a conveyance where the parties had a common intention that the land granted or retained would be used in a definite and particular manner, and the easement is necessary to give effect to that intention. Necessity is not confined to absolute impossibility for every vehicle. It may exist where safe and functional use for the intended purpose requires direct access for larger vehicles, although smaller vehicles could use a more difficult route. An existing express right of way does not necessarily exclude an additional implied right. Express deed terms, including a covenant requiring a boundary to be marked by a white line, must be considered in context and may be consistent with a boundary that is marked but passable.

Mrs Davies appealed from a decision of His Honour Judge Graham Jones in the Cardiff County Court. The judge held that the defendants were entitled to an implied right of way over land retained by Mrs Davies, known as the blue land, to obtain vehicular access between Rhigos Road and their garage premises.

The conveyance included an express right of way over adjoining green land and required a boundary to be marked by white lines. The central issue was whether those provisions excluded an implied grant, and whether access over the blue land was necessary for the reasonable use of the garage’s loading bay and vehicle ramp.

Appeal dismissed unanimously, with costs.

1. The governing principle was the common-intention category of implied grant identified by Lord Parker in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634. The court had to ask whether the parties intended the land conveyed or retained to be used in a definite and particular manner and, if so, whether the easement was necessary to give effect to that intention.
2. The intended use of the conveyed premises included motor-vehicle servicing and repair using the hydraulic ramp. The evidence justified the inference that larger vehicles had to approach the ramp directly and safely. The fact that smaller vehicles could sometimes enter or leave without crossing the blue land did not reduce the requirement to mere convenience. The judge was therefore entitled to find both a relevant common intention and necessity.
3. The express reference to the existing right of way over the green land did not establish that it was intended to be the defendants’ sole access. That right already existed and its inclusion in the conveyance was consistent with proper conveyancing technique. The covenant requiring the boundary to be marked by a white line, rather than by a wall, was consistent with a boundary intended to be marked but passable in practice.
4. The judge’s alternative reasoning under Wheeldon v Burrows (1879) 12 Ch D 31 and section 62 of the Law of Property Act 1925 was not challenged. The Court of Appeal therefore upheld the decision on the common-intention basis and did not consider the alternative ground under the Prescription Act 1832.
5. The court declined to qualify the order by limiting the right of way to a geometrically precise line, since vehicles might not travel precisely straight and could overhang. The observation that an obstruction is not necessarily actionable unless it substantially obstructs the easement was not necessary to the decision.

1. Court of Appeal (Civil Division): On 17 July 2007, [2007] EWCA Civ 821, the court unanimously dismissed the appeal with costs.
2. Cardiff County Court: His Honour Judge Graham Jones held that the defendants were entitled to an implied right of way over the blue land for the reasonable use of the garage’s front bay and vehicle ramp.