Joseph W Horsford (as Administrator of the Estate of William Horsford, deceased) v Geoffrey Croft (Antigua and Barbuda)

An easement of necessity may be implied from the circumstances of a disposition, as a matter of construction, where common ownership, necessary access over the retained land, and disposition without an express grant or reservation are established. The relevant time is the last common ownership. The claimed route must provide actual access to the public highway and be owned throughout by the common owner, or be supported by another legal basis for granting access. Where an alternative route is relied on to defeat the claim, the party asserting it must prove those conditions. A statutory bar concerning registered-boundary disputes does not apply where no boundary dispute exists.

The Respondent, as administrator and later personal owner of adjoining land, sought declarations, an injunction and damages for the Appellant’s use of a private road. The Appellant counterclaimed a pedestrian and vehicular easement of necessity over the upper eastern road.

At first instance, Cottle J held that the Appellant was landlocked and entitled to an easement. The Court of Appeal reversed that decision, holding that access was available by a lower western route and awarding damages for encroachment. The appeal concerned whether there was an express or necessary right of way, who bore the burden of proving the alternative route, and whether section 17(4) of the Registered Land Act 1975 barred the encroachment claim.

Lord Richards, giving the judgment of the Board, advised that the appeal be allowed on the right-of-way issue and dismissed as to the encroachment damages.

1. Express right of way. Clause 7 of the sale contract required the lower road to be cleared and made usable by vehicles. It did not expressly grant a right of way. The clause also did not establish that the Respondent owned the whole route, and his statement that the lower road was private and required his permission was inconsistent with the suggested express grant.
2. Easement of necessity. The Board applied the principles stated in Manjang v Drammeh [1991] 61 P & CR 194. The essentials were common ownership of legal estates in two plots, access between one plot and the public highway only over the other, and disposition without a specific grant or reservation of access. Consistently with Nickerson v Barraclough [1981] Ch 426, the implication arose from the circumstances and inaccessibility of the land, rather than public policy.
3. Application and burden of proof. The critical time was the 1992 transfer of parcel 171, when it and the relevant roads were last in common ownership. Both routes provided factual access. The upper eastern road satisfied the legal condition because the Personal Representative owned its full length to the public road. There was no evidence that the Personal Representative owned the further 550 metres of the western track or had another legal basis to grant access over it. Since the Respondent relied on the western route to defeat the claim, he bore the burden of proving its factual and legal conditions. He failed to do so.
4. Encroachment. Section 17(4) of the Registered Land Act 1975 did not prevent the claim. There was no dispute about the boundary: the Appellant did not assert a different boundary and did not challenge the survey evidence. The appeal against the order for assessment of damages was therefore dismissed.

The Appellant was declared entitled to a pedestrian and vehicular easement of necessity over parcel 281, the upper eastern road.

1. Privy Council. Appeal allowed concerning the right of way, with a declaration that the Appellant had pedestrian and vehicular rights over parcel 281; appeal dismissed against the order for assessment of encroachment damages.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda). Reversed the first-instance decision on the easement, holding that the western route supplied access, and upheld the encroachment claim with damages to be assessed.
3. High Court of Antigua and Barbuda. Cottle J held that the Appellant was landlocked and entitled to an easement of necessity over the upper eastern road. He accepted a defence to the encroachment claim based on the absence of a boundary determination.