Smith & Anor v Muller & Ors

An inclosure award allotting land for public purposes does not permanently prevent its later use for a private easement. The relevant question is whether the later use is incompatible with the original statutory purpose. Land allotted for a sandpit may support access once the sandpit has fallen into disuse. A fencing obligation requiring allotments to be sufficiently enclosed and fenced does not ordinarily require an unbroken barrier. A gate may satisfy the obligation and permit an easement to be enjoyed. The statutory origin of the obligation does not, without more, make its benefit inalienable. On appeal, a new point requiring findings of mixed fact and law, which was available but not raised at trial, will generally be refused.

The appellants appealed from an order of His Honour Judge Langan QC in the Chancery Division, Leeds District Registry. The respondents claimed vehicular rights of way over a track crossing the appellants’ farm, relying on an express or registered easement appurtenant to part of the farm and on long use under the Prescription Act 1832 or the doctrine of lost modern grant.

The judge upheld the respondents’ claim. The appellants argued that a fencing obligation imposed by the Messingham Inclosure Act 1798 and the resulting 1804 Award made the claimed easements legally impossible. They also sought to raise a new ultra vires challenge based on later local-government legislation. The central issues were whether the new point should be permitted and whether the Act and Award barred the claimed rights of way.

Rimer LJ delivered the judgment, with Wall and Tuckey LJJ agreeing. The appeal was dismissed.

1. New point on appeal. The proposed ultra vires challenge had not been pleaded or argued below. Although the respondents accepted that additional evidence was unlikely, answering the point would have required investigation of the uncertain historical ownership of the track and findings of mixed fact and law. Applying the approach in Jones v MBA International Bank [2000] EWCA Civ 514, an appellate court should expect parties to advance their whole case at trial and should be slow to permit a new point which might have affected the evidence or required an evaluation of facts. It was not the function of the Court of Appeal to act as a primary fact finder.
2. Fencing obligation. The Award required allotments to be sufficiently enclosed and fenced. On its proper interpretation, that did not require an unbroken continuous barrier. The Award contemplated gates between allotments. A gate at the point where the track met Chancel Farm could therefore provide access without defeating the fencing obligation.
3. Public purpose and easement. The surveyors held the sandpit for public purposes, but that did not make the land permanently inalienable. It was foreseeable that the sandpit would become exhausted or fall into disuse. The principles in R v Leake (1833) 5 B. & Ad. 469 and British Transport Commission v Westmorland County Council [1958] AC 126 supported the conclusion that later use was permissible where it was not incompatible with the original statutory purpose. The surveyors were therefore competent to grant rights over the disused sandpit. If necessary, the fencing benefit could also have been waived pro tanto. The Act and Award did not bar the prescriptive or lost-modern-grant easement appurtenant to the whole farm.
4. Registered easement. The separate registered easement appurtenant to the pink land did not require decision. Rimer LJ added, obiter, that any challenge to the registered entry would have required rectification and that, even assuming an original mistake, he could not see how it would be unjust not to rectify the register against Mr Muller under Schedule 4 to the Land Registration Act 2002.

1. Court of Appeal (Civil Division) — [2008] EWCA Civ 1425: dismissed the appeal.
2. Chancery Division, Leeds District Registry — Order of His Honour Judge Langan QC dated 1 February 2008: upheld the respondents’ claim to rights of way, made declarations concerning the easements, and granted consequential relief.