Dwyer v The City of Westminster

An easement or right of way is appurtenant to land, not granted to persons or classes of users. Long non-use does not itself establish abandonment. The question is objective: whether the surrounding circumstances show a firm intention, as perceived by a reasonable owner of the servient land, that neither the owner nor successors will ever use the easement again. Abandonment is not lightly inferred. Non-use explained by the absence of any present need generally points against permanent abandonment. A right of way cannot be partially abandoned merely by reference to different classes of users, although severance of its benefit from part of the dominant land may be conceivable.

Westminster owned land subject to a 1922 conveyance granting a right of way through a passageway between Edgware Road and the site. Mr Dwyer had used the passageway for storage from the late 1960s and obtained registered possessory title to it in 2007. Westminster later sought its reopening for redevelopment purposes. Mr Dwyer contended that the right of way had been abandoned.

The Central London Civil Justice Centre, before His Honour Judge Hand, held that there was no abandonment in favour of Westminster as freehold owner, but found partial abandonment in relation to a separate class of residential users. Westminster obtained an injunction requiring the passageway to be reopened. Both parties appealed or cross-appealed. The central issues were the construction of the grant, the possibility of partial abandonment, and whether the facts established total abandonment or no abandonment.

The appeal was dismissed and the cross-appeal allowed. Lord Justice Briggs gave the reasons, with the Master of the Rolls and Lord Justice Aikens agreeing.

1. Construction of the grant. The references in the 1922 conveyance to purchasers, assigns, lessees, tenants, owners, occupiers and authorised persons were old-fashioned drafting intended to ensure that the right benefited every part of the conveyed land. They did not create separate rights for different classes of users. The redevelopment and replacement of structures on the dominant land did not affect the express perpetual freehold easement.
2. Partial abandonment. A right of way is appurtenant to land and cannot exist in gross. It could not be partially abandoned merely by reference to different classes of potential users. The judge had therefore been wrong in principle to find partial abandonment on that basis. The court observed, without deciding the point as necessary to the result, that partial abandonment might be conceivable where the benefit of the easement was severed from part of the originally dominant land.
3. Abandonment generally. The principles summarised in Gale on Easements were correct. Intention is assessed objectively from the surrounding circumstances. Abandonment requires conduct making it clear that the dominant owner has a firm intention that neither it nor successors will use the easement again. Abandonment is not lightly inferred, and non-user is not conclusive. Non-user explained by the absence of any present need for the right of way strengthens the conclusion that it has not been abandoned for all time, as illustrated by Benn v Hardinge (1993) 66 P&CR 246.
4. Application. The passageway had been unused for about forty years because the residential development made it redundant. Neither Westminster nor authorised users of the dominant land had needed it. The obstructions were superficial and readily removable, and there had been no acquiescence in a permanent alteration of the servient land. Those facts amounted to mere non-use and could not establish abandonment for all time. There had been no abandonment at all, so Westminster was entitled to the injunction requiring reopening and cessation of the storage use.

1. Court of Appeal (Civil Division) — The appeal was dismissed and Westminster’s cross-appeal was allowed: [2014] EWCA Civ 153.
2. Central London Civil Justice Centre — His Honour Judge Hand held that the right of way had not been abandoned by the freehold owner, but found partial abandonment in relation to a separate class of users and granted an injunction requiring the passageway to be reopened. Case number 2CL10263.