Alexander v Challenger & Anor

A rebuttable presumption that land adjoining a highway or private roadway passes with the adjoining land may apply to a testamentary devise and, where the testator owned the whole roadway, may extend to its full width. The presumption is controlled by the true construction of the instrument and may be rebutted by its express terms and the surrounding circumstances. A right of way under the rule in Wheeldon v Burrows requires evidence that the way betrays its presence by an indication of existence or obvious use. On an appeal from a Land Registry adjudication concerning events in the nineteenth century, the appellate court evaluates the evidence and decides whether the adjudicator was wrong.

The applicant appealed decisions of a Deputy Adjudicator to HM Land Registry which cancelled his application to alter the register of a disputed strip of land and ordered him to pay the respondents’ costs. He claimed paper title under John Coates’s 1853 will, alternatively an implied right of way under the rule in Wheeldon v Burrows. The Deputy Adjudicator rejected both claims. The issues were whether the strip passed with a devise of the testator’s large garden, whether the private-roadway presumption applied and was rebutted, and whether an easement arose by implied grant.

1. The court allowed amendment of ground 7 and granted permission to appeal, but dismissed the substantive appeal from the Deputy Adjudicator’s decision.
2. The presumption applicable to land adjoining a highway or private roadway can apply to a private road or green lane. Following Commission for New Towns v J J Gallagher Ltd, it may pass the full width of the roadway where the adjoining owner owned the whole width. The principle can apply to a testamentary devise as well as to a conveyance.
3. The presumption is rebuttable. Its rationale is convenience and the avoidance of gaps or disputes in ownership. Here it was rebutted by the professionally drafted 1853 will and the surrounding circumstances. The will divided the estate between a specific devise and a residuary gift. The arbitration plan and the absence of evidence that the strip had become part of the large garden showed that the strip was intended to serve the Great Park. The northern part was not contiguous with the large garden.
4. The court also expressed reservations whether the presumption applied at all, because the evidence suggested that any use of the strip was referable to the paper owner’s title rather than use as a private road. It nevertheless decided the issue on the basis that the presumption applied and was rebutted.
5. For an easement to arise under Wheeldon v Burrows, the right of way must betray its presence by some indication of its existence or by obvious use connected with the conveyed land. The evidence did not establish a doorway or gate into the strip in 1853 or 1854. The claim therefore rested on speculation and the Deputy Adjudicator was entitled to reject it.
6. The deferential approach to findings of fact described in SS Global Ltd v Sava had little application where the alleged facts concerned events in 1853 and 1854 and no witness could give direct evidence. The appellate task was to evaluate the evidence and determine whether the Deputy Adjudicator’s conclusion was wrong.

• High Court (Chancery Division): dismissed the appeal from the Deputy Adjudicator’s substantive decision of 14 May 2009, while granting permission to appeal.
• Deputy Adjudicator to HM Land Registry: cancelled the application to alter the register and later ordered the applicant to pay the respondents’ costs.