Oliver & Anor v Symons & Anor

An express right of way is construed by its words, read with the surrounding circumstances and the parties’ objective intention. A reference to an access way or track ordinarily confines the easement to the physical width of that way. A wider corridor for agricultural machinery, or a general entitlement to use adjoining land for manoeuvring, requires cogent evidence that the narrower construction would defeat the grant’s intended purpose. There is no general right to swing space beyond the way. A limited extension into a verge may be justified where inevitable vehicle movements are proved at identified points and to an identifiable extent. The appellate court will respect a trial judge’s factual assessment and will not interfere with a broad costs discretion merely because each side succeeded on some issues.

The appellants, owners of farmland, and the respondents, owners of adjoining farmhouse land, disputed the extent and exercise of reciprocal rights of way created on a 1999 transfer. The High Court held that the right was confined by the physical width of the cart track, that gate B materially interfered with it, and that gates A and C did not individually constitute unreasonable interference. It found numerous trespasses by both parties, made no order as to costs, and declined to grant definitive relief concerning a proposed water-pipe connection because potentially affected landowners were absent.

Both sides appealed aspects of that decision. The central issues were whether the grant included space beyond the track for wide agricultural machinery or occasional verge use, whether a further easement argument could be raised on appeal, and whether the costs and water-pipe rulings should be disturbed.

1. Disposition. The appeal and cross-appeal were dismissed unanimously. The High Court’s findings on the extent and interference with the right of way therefore stood.
2. The construction of an express right of way begins with the words of the grant but requires consideration of the surrounding circumstances, including the physical characteristics of the land, in order to ascertain the parties’ intention. A purposive construction extending beyond the physical dimensions of a track is possible, but only where cogent evidence shows that the narrower construction would not achieve the intended objective. That evidence was absent here. The approach in Mills v Blackwell [1999] EWCA Civ.1852 was accepted and applied.
3. There is no general entitlement to swing space for wide agricultural vehicles or loads beyond the exact width of the way. The width could not be defined by gates installed after the grant or by changing machinery specifications. White v Richards (1993) 68 P&CR 105, VT Engineering v Richard Barland (1968) 19 P & C R 890 and Minor v Groves (2000) P & C R 136 supported that conclusion. The dominant owners had no right to use adjoining land or airspace merely because manoeuvring was difficult.
4. A limited verge entitlement might arise where it was proved that vehicles inevitably had to use the verge at particular points. The evidence would need to identify the locations and extent of the necessary use. No such evidence was produced. Genn v Mason did not assist because the proposed quasi-easement argument had not been advanced below and the evidential position differed. The court would not permit the amendment at the appeal hearing, particularly as the respondents were unrepresented. The principle in Wheeldon v Burrows 12 Ch. D 31 was therefore not applied.
5. The judge had a broad discretion on costs. Given the parties’ mixed success, the order that there be no order as to costs was within that discretion. Formal relief concerning the water-pipe connection was also properly withheld because absent landowners might be affected.

1. Court of Appeal (Civil Division) — The appeal and cross-appeal were dismissed: [2012] EWCA Civ 267.
2. High Court of Justice, Chancery Division — His Honour Judge Behrens, sitting as a High Court judge, determined the extent and interference issues, made no order as to costs, and declined to grant definitive relief on the water-pipe issue.