Neil Gould v Nadine Morgan Gould & Anor

An express right of way must be construed from the language of the grant, read in the context of the deed, the physical circumstances existing when it was made, the nature of the terminus and the purpose of the right. Physical features will limit wide wording only where the parties’ intention, properly construed, requires that result. The court should avoid speculation and an interpretation producing impracticability or absurdity. A lost conveyance may be proved by secondary evidence where its existence and loss are satisfactorily established. Proprietary estoppel requires both reliance and unconscionability. A claim based on long user requires sufficient evidence of qualifying use for the statutory period.

The claimants owned Cwm Tawe Villa, which had formerly been held with the surrounding farm, now owned by the defendant. They sought declarations concerning an express vehicular right of way, including whether it extended from the track to parking space at the north-west corner of the villa. They also advanced alternative claims based on section 62 of the Law of Property Act 1925, proprietary estoppel and prescription.

The defendant counterclaimed in relation to a water pipe installed near the track, alleged obstruction and trespass. The central issue was the proper construction and extent of the right of way said to derive from a lost 1949 conveyance, reflected in a 1964 conveyance.

1. Express grant. The lost 1949 conveyance was proved by satisfactory secondary evidence, and the 1964 conveyance accurately reflected its right-of-way wording. The grant had to be construed in the context of the deed as it existed in 1949, including the nature of the track, the villa and the purpose of the grant.
2. The relevant considerations included the locus in quo, the terminus and the purpose for which the way was to be used. The physical features at the date of the grant could qualify the wording, but only where they established the parties’ intention. The court had to decide on known evidence rather than speculation.
3. The hedge and pedestrian opening near the front door did not restrict the express vehicular grant. The words permitting passage to and from the villa, or any part of it, were inconsistent with stopping vehicles at the front door. The defendant’s construction would create practical difficulty, since vehicles could reach neither the parking area nor the villa itself. A declaration was therefore granted that the right extended to the hardstanding at the north-west corner.
4. Section 62 of the Law of Property Act 1925 did not extend the express grant on the defendant’s proposed construction. Proprietary estoppel failed because neither reliance nor unconscionability was established. The evidence also failed to prove 20 years’ qualifying user of the route from the track to the north side.
5. There was no meeting of minds amounting to permission for the water-pipe works. Nevertheless, damages rather than an injunction were appropriate because the pipe replaced an old pipe, caused no proved special damage or diminution in value, and was unlikely to have a significant impact on the farm.
6. The parties’ transient obstructions justified nominal damages of £100 each. The claimants’ undertaking not to park on the track, except where incidental to the right, was continued for 12 months. All other claims and counterclaims were dismissed, subject to consequential matters being dealt with by agreed order or written submissions.