REF/2008/1430

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
1.	CHRISTOPHER BRIAN WHITE
2.	BEVERLEY JANE BYRNE

 APPLICANTS

and

1.	CHRISTOPHER GORDON WALKER
2.	JANET GAY WALKER

RESPONDENTS

Property Address:  Moonacre Cottage & Greenfields Fordingbridge Road, Aldershot, Fordingbridge, SP6 3BB
Title Number:  DT72115 and DT64419

DECISION WITHOUT A HEARING
  
Easement “to enter upon the premises… and to draw water from the well situate thereon” held to give right of entry only in connection with the right to draw water from the well.  Right not abandoned simply because well was filled in once a mains water supply had been provided to both properties
 
1.	For the reasons given below, I shall direct the Chief Land Registrar to cancel the application of the Applicants dated 21 July 2008 but to note on the titles of both properties that the Adjudicator has determined that the right of entry on the land in question is limited to entry in connection with the right to draw water from the well.
 
2.	Notice was given to the parties of the Adjudicator’s intention to give a decision without a hearing, and neither objected to that course.  I am satisfied that there is no reason why I should not give a decision without a public hearing.

3.	The Applicants are the registered proprietors of Moonacre Cottage, title to which was first registered in 1980.  The title, DT72115, shows the property to include several buildings and grounds.  It would appear from the Respondents’ Statement of Case that at least one of these buildings, Swallows Rest, has been built relatively recently.  Approximately in the middle of the grounds is a spot marked “Well” on the title plan.  The Respondents are the registered proprietors of Greenfields, which was first registered in 1979.  The Charges Register states that “By a conveyance dated 24 June 1907 the land in the title was conveyed “Subject nevertheless to the right of the owner or owners and his and their tenants of the property situate on or towards the South east of the said hereditaments hereby conveyed to enter upon the same and to draw water from the well situate thereon and shewn on the said plan drawn on these presents.”

4.	The Respondents’ property, Greenfields is immediately to the south east of Moonacre Cottage.  It was first registered in 1987 and the title plan for Greenfields, which is registered under title no. DT64419, shows a well in the same position.  The property register states that by a different conveyance of the same date, 24 June 1907, by the same vendors to a different purchaser, Greenfields was conveyed with “the right … to enter upon the premises belonging to the Vendors situate to the Westward of the said hereditaments hereby conveyed and to draw water from the well situate thereon and marked as the same is shewn on the said plan drawn on these presents”.

5.	The Applicants have applied to remove the above entries from the titles to both properties on the ground that the well no longer exists and that the right of entry cannot therefore be exercised.  The result, they contend, is that the entries are superfluous.  They contend that the well has not been in existence since at least 1985 and probably earlier and that for many years it has not been apparent from a physical inspection of the land.  They say that until 2006 nobody from Greenfields had requested entry onto their land since at least 1985 and that Greenfields had had mains water since about 1950.  They rely upon two passages in Gale on Easements (15th ed.) p.343, where it is said that (1) a way of necessity is limited by the necessity that created it and when such a necessity ceases, the right of way is extinguished, and (2) an easement will be extinguished where the purpose for which it was created has come to an end.

6.	The Respondents first contend that the use of the word “and” meant that there was a right of way completely independently from a right to draw water.  I have no hesitation in rejecting this interpretation.  It is plain in the context that the right is to enter upon the premises for purposes connected with the right to draw water and not for any other purposes.  The alternative construction would presumably mean that the occupiers of Greenfields could, whenever they chose, enter upon any part of Moonacre Cottage, including the cottage itself and the outbuildings whenever they chose and for whatever purpose they chose, and presumably remain there for as long as they chose.  It is plain that this could never have been intended by the parties in 1907 and there is no basis for any sensible or rational limitation of the right except by treating it as ancillary to the right to draw water.  Indeed, although I do not need to decide the point, it would otherwise be so vague and extensive that I doubt that it would be a valid easement in law at all.

7.	Further, while the Respondents may have statutory or other rights to enter on the Applicants’ land to repair or maintain their boundary walls, those rights do not arise under this grant of a right of way, which I am satisfied is not general but is limited to access ancillary to the right to draw water.  It is also plain that for many years there has been no water to be drawn as the well was filled in.  The likely reason for this is that the well became surplus to requirements once mains water became available, it is said, around 1950.  There is no evidence to support any other reason for the well falling into disuse.

8.	The Respondents rely on the case of CDC2020 Plc v Ferreira as showing that for there to be abandonment of a right of way there must be a clear intention on behalf of the owner that neither he nor his successors should ever exercise the right again.  In that case there had been a right of way to access three garages.  The garages had been demolished many years, and a ramp to an underground car park had been constructed over the land on which they had been built.  The Court of Appeal held that this did not mean that the right of way had been abandoned.  The dominant owner had constructed three new garages on the site of the old ones, and it was held that the right of way to access them had not been abandoned.

9.	In that case, Lloyd LJ, who delivered the leading judgment stated as follows:

23.	“Abandonment is a different question. The statement of the law relied on principally below, and by the judge, is that of Buckley LJ in Gotobed v Pridmore, decided by the Court of Appeal on 16th December 1970, which is available in a Court of Appeal transcript, and is also reported shortly at 115 Sol Jo 78. Having had the opportunity of comparing that report with the full judgment it is right for me to say that the essence of Buckley LJ's reasoning is fairly reflected in the short report. 
24.	As Buckley LJ puts it, the dominant owner must manifest an intention to abandon the right and, in order to do so, must make it clear that his intention is that neither he nor his successors in title should thereafter make any use of the right. He observes that abandonment is not to be lightly inferred because owners of property do not normally wish to divest themselves of property unless to do so is to their advantage, even if they have no present use for the property in question. 
25.	There are cases in which a physical change to the dominant tenant results in the right no longer being exercisable. One such case, which Mr Hamlin mentioned to us without citing it, is the striking one of National Guaranteed Manure Co v Donald (1859) 4 H&N 8, where the right was to the supply of water from given sources to a canal, but the canal was later filled up and turned into a railway. It was held that upon the canal ceasing to exist so the right ceased to exist. 
26.	The facts in Gotobed v Pridmore were very different. Mr Hamlin relies fairly on a comment by Buckley LJ that the court was impressed by the ease with which the physical state of affairs could have been altered so as to restore the right of way. 
27.	Buckley LJ also referred in the course of his judgment in Gotobed v Pridmore, in a passage not summarised or referred to in The Solicitors' Journal report, to an earlier case, Cook v Bath Corpn (1868) LR 6 Eq 177, where the plaintiff owned a house, the back door of which had been bricked up for about some 40 years, up to 1864, at which time he reopened it and restored it to use. The defendant then began works obstructing or threatening to obstruct a passageway to which the door gave access. Sir John Malins, Vice Chancellor, held that there had been no abandonment of the right of way from the back door over the passageway despite the 40 years during which it had been bricked up. 
28.	Mr Hamlin does not rely on the demolition of the garages by itself. That, on his argument, would have suspended the right to use the way but not necessarily extinguished it. Rather, he relies on the demolition followed by the construction of the ramps and the car parks to which they led. He submits that these works were (a) substantial and (b) incompatible with the use of the pink land for which the way could properly be used. 
29.	He also says that the reconstruction of garages would sterilise the use of the car parks so that the then owners' acts showed to the world an intention to use this site entirely inconsistently with garage use of the pink land. Not least, to put the garages back would require not only substantial work and expenditure on the pink land itself, but would, in effect, require a quite different use of the site of the two car parks. 
30.	It is the case, however, that that is what has now happened. Of course Mr Hamlin is correct in submitting that the question of abandonment or not has to be tested at the time of the acts relied on as showing abandonment without reference to later events. But it seems to me that Mr Banwell for the claimant is entitled to comment that what has happened is something that could have been foreseen as a possible future change in the use of the site. The use of the building has changed in a number of ways over the years and the planning history indicates that a number of other changes have been proposed from time to time, albeit either unsuccessfully in planning terms or not taken up in fact. 
31.	Mr Hamlin contends that the claimant's predecessor's intention after the demolition of the garages was not to use the way for access to the garages or even to the garage land, but to use it illegitimately for access to the new car parks, and that this was inconsistent with use in accordance with the terms of the grant. He submits that the dominant tenement was effectively destroyed beyond restoration, the garage site being converted from a terminus to a way, and that it cannot have been contemplated that the right would ever be required for use to and from garages on the garage land ever again. He also points to the fact that the actual use was not only unlawful as being for the benefit of different dominant land, but also that it was significantly greater in volume because of the greater capacity of the car parks as compared with the three garages. 
32.	So far as the unlawful and excessive use is concerned, Mr Banwell relies on the case in this court of Graham v Philcox [1984] QB 747, in the course of which May LJ said this: 
"However, I doubt whether any excessive user, at least of a discontinuous easement, in whatever respect the user may be excessive, will ever of itself bring to an end or indeed suspend such an easement."
33.	He then refers to the then current edition of Gale on Easements. He continued: 
"The owner of the servient tenement on which, ex hypothesi, the excessive burden is placed is entitled to have that excessive user restrained. The fact that a court may grant an appropriate injunction or make a declaration to this end does not in my judgment either extinguish or suspend the easement. Provided that the owner of the dominant tenement subsequently reverts to lawful use of the easement, his prior excessive use of it is then irrelevant."
The judge did not expressly refer to that case, but it had been cited to him and it must have been in his mind as the basis of paragraph 8 of his judgment in which he makes a very similar point.
34.	It is fair to say, as Mr Hamlin submits, that this was a very different case on the facts, without any element of significant structural alteration of the dominant tenement. The point as to excessive or unlawful use by itself is the same, but Mr Hamlin is entitled to submit that this does not help on the question whether, on the facts of this case, the works undertaken to the pink land, and to the rest of the claimant's predecessor's site, demonstrate an intention to abandon. 
35.	He is also entitled to submit that the judge refers, at paragraph 7 of his judgment as transcribed, to the question of "abandonment" as being based on the demolition alone, and that at paragraph 10 he perhaps brings into account later material which he ought properly not to have done in deciding what inference should be drawn as to the intention of the dominant owner at the time of the acts relied on to show abandonment. 
36.	Despite those points on which the judge misdirected himself, and even assuming that his construction of the grant was wrong in taking it as permitting access to the site of the former garages after demolition, one has to come back to the question whether the dominant owner's conduct was such as to make it clear that his firm intention at the relevant time was that neither he nor any successor in title should thereafter make use of the easement, an inference, as Buckley LJ says, not likely to be drawn. 
37.	In my judgment, substantial as the works were, and as reinstatement work would have been, and no doubt has been, they do not justify an inference that the then owner intended to abandon the right of way forever so that neither he nor his successors could ever resume its exercise. It is common ground that demolition of the garages, with or without failure to use the way, even for a long period, would not be enough. The fact that the way continued to be used unlawfully does not, as it seems to me, bear on the point either way. 
38.	Of course, it could have been the case that the original garage use of the pink land was never reinstated, in which case the question would not have arisen, or at least not in the form in which it has arisen. But in my judgment, on its facts, and accepting as Mr Hamlin submitted that it is ultimately a matter of impression, and that there may be cases in which second impressions are better than first impressions, my impression is that this is not a case in which the burden of showing an inference of abandonment was discharged by the first defendant. Accordingly, I agree with the judge's conclusion, though not with all of his reasoning, and I would dismiss the appeal.” 
10.	The Respondents also refer to another case, unidentified in their Statement of Case, in which a right of way which had not been used for 175 years was still held not to have been abandoned.  Without knowing the facts of that case and the principles applied, the case does not assist in my decision in the present case.
 
11.	The question is whether the easement to draw water from the well has been abandoned.  The well has long since been filled in, and there is no visible evidence as to exactly where it was.  On the other hand, I am not satisfied that, if there was an emergency which made it desirable to re-open it, its location could not be found, and I consider it likely that if it was seriously sought it could be rediscovered.  There is also nothing that the Applicants or their predecessors have done over the years which would seriously impede its re-opening.

12.	With the advent of mains water, it may appear unlikely at the present time that anybody would want to re-open it, but there is no guarantee that mains water will continue to be available indefinitely, or that there will never come a time when water from the well may not reasonably be required.  Even in the past 30-40 years there have been occasions in parts of the country where there have been threats to the mains water supply because of drought, and on occasions in parts of the country the supply has been turned off and standpipes provided for local use.  As the Respondents point out, with global warming such events may become more common.  Mains pipes could also wear out and there could be a lack of resources to restore them.

13.	In the absence of any further evidence, I am not willing to infer that the right to draw water has been abandoned.  Accordingly, the right remains and the Applicants’ application must be cancelled.  

14.	In view of the apparent considerable bad feelings that there appear to be between the parties, I would also point out, however, that that does not mean that the Respondents can now go onto the Applicants’ land to dig it up to re-open the well.  They can only do so if and when they reasonably require water from the well.  So long as they have a reliable mains supply, there is no reason why they should need water from the well, and to try to re-open the well for any other purpose, such as to cause annoyance to the Applicants, or to prevent the Applicants from using the land as they would wish, would in my view be a trespass.  Further, no particular route to the well was stipulated in 1907, and all that is required of the Applicants or their successors is that if and when access is reasonably required, it will be provided by a reasonable route, bearing in mind that it is for the benefit of the Respondents’ land.
  
Dated this 27th day of July 2009

By Order of The Adjudicator to HM Land Registry