Wood & Anor v Waddington

A right of way is not granted by general words referring to liberties, privileges or advantages of a continuous nature where the instrument, read as a whole, makes detailed provision for access rights. A right of way may nevertheless arise under Law of Property Act 1925, section 62, despite common ownership before conveyance. The question is whether the advantage was enjoyed before conveyance and enjoyed with the land conveyed. An implied right under Wheeldon v Burrows requires continuous and apparent use, necessity for reasonable and convenient enjoyment, and consistency with the express conveyance. Subsequent use is generally unhelpful where circumstances have materially changed.

The claimants acquired land formerly owned by the Sharmans, who had acquired it from a common owner in 1998. The defendant acquired adjoining land from the same common owner. The claimants sought declarations that they had vehicular and equestrian rights of way at Points D, G and J, relying on express grant, section 62 of the Law of Property Act 1925, implied grant under Wheeldon v Burrows, and common intention.

The defendant counterclaimed that construction of an indoor riding arena substantially interfered with his express right of way because the boundary allegedly ran through part of the track. The issues were whether the claimed rights existed and whether the construction interfered with the defendant’s right.

1. Claim and counterclaim dismissed. The claimants had not established any claimed right of way. The defendant had not established substantial interference with his right of way.
2. The general words in the transfers referring to liberties, privileges and advantages of a continuous nature did not grant the claimed rights. The transfers dealt with access in detailed express provisions. The phrase had its established conveyancing meaning and did not describe a right of way. The limited pre-transfer use would in any event have been insufficient.
3. Section 62 operates by implying statutory general words into a conveyance, producing an express grant; it cannot itself reserve rights. In simultaneous dispositions, the implied-grant approach applies to both dispositions. There is no absolute rule preventing section 62 from operating where land was previously in common ownership and occupation. The decisive question is whether the advantage was enjoyed before conveyance and enjoyed with the land conveyed. On the facts, vehicular use was rare, equestrian use was unquantified or absent, and the use was attributable to common ownership rather than to the benefit of the conveyed land.
4. The rule in Wheeldon v Burrows was not satisfied. The claimed rights were not necessary for reasonable and convenient enjoyment of the land. The common-intention argument also failed because no definite and particular use requiring the rights was proved, and the later livery business was not shown to have been contemplated in 1998.
5. The boundary followed the edge of the concrete track as it existed in 1998. Sufficient width remained for the defendant’s right of way, so there was no substantial interference. Consequential matters were adjourned for agreement or further hearing.