Kennerley v Beech & Anor

A boundary shown on a small, hand-drawn conveyancing plan may be identified by a physical feature rather than by an inconsistent measurement. Where the plan refers to an existing hedge, that description may be the determining boundary feature, and a measurement cannot override it.

A right of way must accommodate the dominant tenement by enhancing its ownership or occupation. A purported right reserved over a defined path, granted only to confer a personal benefit on a tenant and leading nowhere beyond the path, is contractual rather than an easement. The absence of a terminus ad quem is not itself the issue where the grant’s limits are sufficiently defined; the question is whether the right benefits the dominant land.

The parties owned neighbouring properties formerly comprising parts of Old Westwick. The dispute concerned the southern boundary of Mr Kennerley’s land, transferred in May 1954, and a pedestrian right of way reserved over the wiggly path in a November 1954 transfer of adjoining land.

At trial, His Honour Judge Reid QC held that the boundary followed a hedge at the top of the embankment. He also held that the right of way had ceased when the kitchen garden for which it had been used was abandoned, and alternatively expressed the view that it had been abandoned through non-use and physical alteration of the path.

Mr Kennerley appealed. The Court of Appeal considered whether the conveyancing plans established a boundary at the path or at the hedge, and whether the reserved right was a valid easement benefiting the retained land.

1. Boundary. The appeal against the boundary finding was dismissed. The May 1954 transfer was the governing instrument. Its reference to the existing hedge identified the boundary feature. The 171-foot measurement was inconclusive and could not override the hedge description. The November 1954 plan was of limited utility because it identified land transferred later, although it confirmed the centre of a hedge as the boundary. The judge’s factual finding that the hedge stood at the top of the embankment was unchallenged and was not inconsistent with his use of the 47-foot 6-inch measurement to locate the separate western boundary. It was unnecessary to decide the alternative adverse-possession claim.
2. Right of way. The grant was expressly a right of way on foot over and along a defined path. It was not a jus spatiandi and did not confer a general right to walk around the neighbouring garden. The requirement that a right of way have termini concerns sufficient definition of its limits and direction. The relevant issue was whether the grant accommodated the retained land.
3. Applying Re Ellenborough Park [1956] 1 Ch 131, an easement must benefit the dominant tenement by enhancing the owner’s use and occupation of the land, rather than confer only a personal benefit. A right between the retained house and retained garden land could have met that requirement. This grant led only to the end of the path and was found to have been reserved solely to assist Mr Hopegood, a tenant, in reaching a kitchen garden. That benefit depended on a personal licence and did not enhance Old Westwick.
4. The reservation therefore created no easement. It was contractual only and was not enforceable against successors in title. It was unnecessary to decide whether the right later terminated through cessation of use or abandonment, and the court declined to add obiter dicta on Huckvale v Aegean Hotels Ltd (1989) 58 P & CR 163.

Lord Justice Patten gave the leading judgment. Lord Justice Briggs and Lady Justice Arden agreed. The appeal was dismissed.

• Court of Appeal (Civil Division): [2012] EWCA Civ 158. Appeal dismissed; the boundary finding was affirmed and the reserved right of way was held contractual rather than an enforceable easement.
• Guildford County Court: His Honour Judge Reid QC determined that the southern boundary followed the hedge at the top of the embankment and that the right of way had ceased, alternatively by abandonment.