Campbell & Anor v Banks & Ors

Section 62 of the Law of Property Act 1925 can, on severance of land formerly in common ownership, convert a facility or quasi-easement enjoyed with conveyed land into a legal easement, subject to contrary intention. The claimant must provide evidence that the facility was actually enjoyed or reputedly appertained to the land before the relevant conveyance. The section does not create rights in a factual vacuum. On appeal, a new point may be decided where it was sufficiently in issue below, can be resolved on the facts found, and causes no prejudice. Fresh evidence requires proof of reasonable unavailability at trial and probable effect on the result.

The appellants owned land from which they operated stables. The respondents owned neighbouring farms containing Headbolt Lane and Carr Lane. The appellants claimed equine rights of way over the disputed sections, relying on express grant, long use, lost modern grant and public dedication.

After a five-day trial, David Richards J dismissed the claims. The Court of Appeal granted limited permission to appeal on the possible operation of s.62 of the Law of Property Act 1925 and on an application to adduce historical material concerning public rights of way. The central issues were whether s.62 created private bridleway easements on the 1953 severance of title and whether the fresh evidence should be admitted.

Lord Justice Mummery gave the reasons for judgment. Longmore and Richards LJJ agreed. The appeal was dismissed.

1. Raising the s.62 point. Although the judgment below did not address s.62, the point had been sufficiently in play before trial and the respondents had notice of it. The issue could be decided on the facts found without further evidence, and proceeding caused no prejudice. It was therefore in the interests of justice to determine it.
2. Operation of s.62. The title history showed a situation in which s.62 could create legal easements when land formerly in unitary ownership was severed. Its operation depended on evidence of a facility or quasi-easement used for the benefit of the conveyed land before the relevant conveyance. The appellants bore the burden of proving pre-1953 bridleway use of the southern part of Headbolt Lane and Carr Lane. The judge’s findings showed no such use. The s.62 ground therefore failed.
3. Public rights and fresh evidence. The public bridleway claim had failed for lack of proof of dedication since 1953. The Definitive Map recorded no public horse rights, and the lanes had been put forward only as footpaths. The Carr Lane claim also could not bind Mr Swift, who owned part of the route but was not joined.
4. The historical material was refused as fresh evidence. The appellants did not show that it was previously unobtainable by reasonable efforts for use at trial or that it would probably have altered the judge’s decision.

1. Court of Appeal (Civil Division) — In [2011] EWCA Civ 61, the appeal was dismissed and the application to adduce fresh evidence was refused.
2. High Court of Justice, Chancery Division, Liverpool District Registry — David Richards J dismissed the appellants’ claims by order dated 22 May 2009 after a five-day trial.