Easement: Right of way

Conveyance containing express grant of right of way - claimants claiming right to construct gates between their land and defendant's land - judge finding claimants entitled to right of way - judge making declaration that claimants have right to erect gates for purpose of exercising right of way - defendant appealing - whether judge erred - appeal dismissedLomax and another v Wood: Court of Appeal: Lords Justice Schiemann and, Mummery, and Sir Murray Stuart-Smith: 11 June 2001The parties owned neighbouring land.

A road, known as the occupation road, ran from the north to the south of the parties' land, joining onto a public highway at the southern end.

The defendant's land lay to the west of, and included, the occupation road.

The claimants' property lay to the east, but did not extend far enough to allow them direct access to the highway.

The claimants claimed a right to construct gates between their land and the occupation road.

They relied upon an express grant of an easement contained in a conveyance dated March 1884.

The defendant disputed the claim and submitted that even if a right of way existed, it did not, at any point, give the claimants access to the occupation road.

The judge found that a right of way had been granted, by the defendant's predecessor in title, to the claimants' predecessor in title, that extended along the occupation road and then stopped.The judge took the view that there was nothing that the claimants could gain from the grant of the easement, unless they could have access onto the occupation road at at least one point of their choosing.

He therefore made a declaration that the claimants had the right to erect one or more gates between their land and the defendant's land, for the purpose of exercising the right of way declared in the conveyance.

The defendant conveyance.

The defendant appealed.Held: The appeal was dismissed.

The grant had to be construed in the context of the conveyance as a whole, and in the light of surrounding circumstances.

The most natural way of construing the conveyance was that it entitled the claimants to make an exit from their land onto the occupation road.

It was not a wholly unlimited right to construct numerous exits and the claimants accepted that there was a limiting factor, but, it must have been in the minds of both parties that there would have to be an access onto the occupation road at some point.

The judge was correct to conclude as he did.

Mills v Blackwell (unreported) 15 July 1999 considered.Richard Oughton (instructed by Blunts, of Macclesfield) for the claimants.

Soofi Din (instructed by Roythorne & Co, of Nottingham) for the defendant.