Wilkinson & The Estate of Brian Wilkinson v Farmer

The extent of an expressly reserved right of way is determined from the conveyance's language read with the objective circumstances existing when the right was created. Where the deed gives no measurements, reliable contemporary physical features may establish its width.

An appellate court should accord weighed deference to the reasoned findings of an expert fact-finding tribunal. It must not retry the case or overturn a conclusion that was reasonably available on sufficient evidence merely because it would assess parts of the evidence differently.

The registered proprietors of a servient property applied to HM Land Registry to correct plans which, they contended, showed an expressly reserved right of way as nearly twice its proper width. The reservation appeared in an 1898 conveyance and limited the right to the road as previously used.

A Deputy Adjudicator granted the application after hearing evidence and viewing the site. HHJ David Cooke, sitting as a High Court judge, allowed the dominant owner's appeal, holding that the Deputy Adjudicator's conclusion lacked sufficient evidential support.

The servient owner sought permission under CPR 52.13 for a second appeal. The central issues were the proper construction of the reservation, the evidential significance of surrounding circumstances and later conveyances, and whether the High Court had been entitled to interfere with the expert fact-finder's decision.

1. Permission for a second appeal was granted and the appeal was allowed. Mummery LJ gave the judgment, with which Aikens and Gross LJJ agreed. The High Court judge had been plainly wrong to overturn the Deputy Adjudicator's decision.

2. The reservation had to be construed from its language together with the relevant objective circumstances at the date of the 1898 conveyance. It concerned an existing road between identified termini and was limited to use as previously enjoyed. After more than a century, the safe course was to rely on firm recorded or known facts and avoid speculation based on slender later material.

3. The reliable facts showed that the road began between two buildings separated by 11 feet 8 inches. No cart or carriage wider than that could enter or leave the road. It was therefore more probable than not that this measurement represented the accepted width of the existing road throughout its route. Those facts outweighed the unexplained markings on the conveyance plan and inferences drawn from later conveyances about possible use by livestock and pedestrians.

4. The Deputy Adjudicator was the specialist fact-finding tribunal. His findings followed two days of evidence, argument and a site view, and were entitled to a measure of weighed deference. Although there were grounds for differing from aspects of his treatment of evidence about trees and vegetation, the High Court was hearing an appeal rather than retrying the case.

5. The Deputy Adjudicator had sufficient evidence to conclude that the Land Registry plans mistakenly extended the right of way across the full tinted area. There had been no misdirection or error of law. The High Court therefore had no valid ground for setting aside his order directing correction of the register.

1. Court of Appeal (Civil Division): Permission for a second appeal was granted under CPR 52.13. The appeal was allowed and the order of HHJ David Cooke was set aside, restoring the Deputy Adjudicator's decision.

2. High Court, Chancery Division: HHJ David Cooke, sitting as a High Court judge, allowed the dominant owner's first appeal on 13 May 2009 and set aside the Deputy Adjudicator's order.

3. Adjudicator to HM Land Registry: A Deputy Adjudicator granted the servient owners' application on 17 September 2008. He found a mistake in the registered plans and directed the Chief Land Registrar to exclude the identified eastern area from the land shown as subject to the right of way.