Giles v Tarry & Anor

The trustees of Sir Thomas White’s Charity owned a farm at Preston Capes in Northamptonshire. In February 1975 they split it up.

By a Conveyance dated 24 February 1975 they sold the farmhouse and outbuildings to the Claimant’s (“Mr Giles’”) predecessor in title. Access to and from the farmhouse and buildings was principally over a driveway that passed between fields on either side. The driveway was included in the Conveyance, but the fields to the west and the east were not. In the western field immediately adjacent to the driveway and close to the farmhouse there was an open barn or hovel. On the plan to the Conveyance the driveway was coloured brown and the fields between which it passed were edged in red. In the Conveyance the trustees reserved a right of way

“.. For the benefit only of that part of the vendors’ neighbouring land edged red on the said plan… a right of way at all times and for all purposes over the land coloured brown on the said plan…”.

In the Conveyance the trustees also entered into a restrictive covenant for the benefit of the land thereby conveyed

“Not to use the hovel…otherwise than for normal agricultural purposes apart from the keeping of animals or poultry except on a temporary basis”.

On 25 February 1975 the fields edged red (on one of which the hovel stood) were conveyed to the Defendant (“Mr Tarry”). The Conveyance was expressed to be “subject to but together with the benefit of… the exceptions and reservations and covenants…contained in [the Conveyance dated 24 February 1975]”. Mr Tarry took the benefit of the right of way reserved over the driveway and was subject to the restrictive covenant as to the use of the hovel. The field edged red to the east of the driveway (“the Paddock”) adjoins another much larger field (“the Green Land”). This was also owned by the trustees at that time and is now rented by Mr Tarry. There was no physical division between the Paddock and the Green Land. In the Conveyance of 25 February 1975 Mr Tarry covenanted to erect a fence along this boundary: but he has not done so, and the Paddock and the Green Land still form a single agricultural unit.

There are two ways of getting in and out of the Paddock. One is from a gate onto the driveway: so to use this Mr Tarry has to exercise his right of way. The other is at the northern end of the Paddock, where a gate opens to an Old Forge Lane, which is a public highway. These two gateways can be used differently. If Mr Tarry uses the gate onto the driveway he can only do by exercising a private right of way and he must abide by the limits of the grant. Although the right of way may be exercised at all times and for all purposes the right exists “for the benefit only of [the land edged red]”; and the use of the driveway is so limited. But if Mr Tarry uses the gate which opens onto Old Forge Lane, that is a public highway upon which there are no restrictions: he can use that gate to gain access to any land which is physically served by that gateway. There is no gateway from the Green Land itself onto Old Forge Lane: so the most convenient way of getting to the Green Land is through the northern gateway on the Paddock.

In 1991 Mr Giles brought the farmhouse and outbuildings and driveway comprised in the Conveyance dated 24 February 1975. Since that purchase a state of virtual war has existed between Mr Giles and Mr Tarry. I make no suggestion as to who is responsible for that state of affairs. I simply record the fact. Court proceedings were started by Mr Giles in 1993. In those proceedings Mr Tarry brought his own Counterclaim. Those disputes were compromised in 1995. As part of the compromise Mr Tarry undertook

“Not to exercise the right of way over the land coloured brown for the purpose of gaining access to [the Green Land]”.

That compromise itself was back before the court in 1996 – twice. There were further differences which did not reach court in 2000, 2001, 2003, 2004 and 2008. But the proceedings were eventually revived again in a somewhat unorthodox way in 2010 by Mr Giles acting in person. Mr Tarry (who was then an aged man) also acted in person with the assistance of his family. All procedural deficiencies were overcome and HHJ Harris QC case-managed the dispute so as to identify what issues fell for decision. Amongst those issues were disputes over the use of the right of way and over the use of the hovel. But I would record that the trial Judge was called upon also to determine a range of other disputes.

Mr Giles and Mr Tarry’s family argued the case before the Judge without the benefit of legal representation. On the 2 December 2010 Judge Harris QC delivered an oral judgment to which, in the circumstances, I would pay particular tribute. It made admirably clear findings of fact, and contained a considered analysis of the relevant legal principles (which must have entailed much conscientious application on the part of the Judge). On this appeal we are called upon to consider those same principles in very different circumstances, having the benefit of written and the oral advocacy and the opportunity to test in argument the suggested application of the relevant principles.

So far as the right of way is concerned, the Judge recorded that Mr Tarry

“Wants to be able to graze his sheep on the green [land] from time to time as well as in the paddock. It can only be got to from the paddock.”

The Judge noted that for Mr Tarry to drive sheep from the right of way into the Paddock for the purposes of going thence onto the Green Land to graze was not permissible (and he commented on the undertaking which Mr Tarry had given). He then continued:

“Appreciating this, what is done by [Mr Tarry’s] daughter and granddaughter is to drive the sheep into the paddock and without going onto the green land, up to and through the gate onto the public highway at Forge Lane. There they pause more or less briefly, before driving them back into the paddock where they are left free to pass, if they want to, onto the green land. Thus the entry into the paddock immediately preceding the entry into the green land is not via the right of way. Is this practice sufficient to avoid the restriction on the right of way to the benefit of the paddock?...It is clearly a somewhat artificial device or expedient, but if it is efficacious in law [Mr Tarry] is entitled to make use of it. … [I] approach the question as one of principle and logic. The objective of the Defendant has been to graze his sheep both on the paddock and on the adjacent green land. To get to the paddock with his sheep he is perfectly entitled to utilise the right of way. It is quite legitimate then for him to take his sheep out of the paddock via the Forge Lane gate for whatever purpose…When the sheep are in Forge Lane they are not in the paddock and not on the green land. He is then entitled to put them back into the paddock and to allow or drive them onto the adjacent green land… because he is not then putting the sheep onto the green land via the right of way over Mr Giles’ land… Usage of a right of way must be analysed in terms of actual movement, not the ultimate intention of the user”.

The Judge therefore made an order declaring:-

“That the Defendant may make use of the right of way over the brown land to drive sheep into the paddock and that if the same sheep leave the paddock via the northern end gate and then re-enter and thereafter graze in the green field there is no impermissible use of the right of way”.

Against that order Mr Giles appeals. He submits that on the facts found by the Judge the conclusion must embody an error of law. The error is that the Judge has assumed for the purposes of his argument that the use of the driveway to get to the Paddock was lawful: but if (as the judge found) Mr Tarry wants to be able to graze his sheep on the Green Land as well as in the Paddock, and if what he does is clearly a somewhat artificial device or expedient to achieve that end, then he is not using the right of way for the benefit only of the Paddock.

In my judgment this submission is sound. In the course of argument the individual steps in the judge’s reasoning were examined, and the limits of the various propositions advanced were tested against differing hypothetical facts. I mean no disrespect to this approach by not doing the same in this judgment. But this is a difficult area of the law with sometimes fine distinctions being drawn. I think it better to ground my decision upon this appeal solely upon the facts of this case, and to decide only those questions that are necessary for the disposal of this appeal.

The classic statement of the applicable principle is that of Romer LJ in Harris v Flower (1904) 91 LT 816 at 819 col.1:-

“The law really not is in dispute. If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B”.

It is significant that the statement of the principle has regard to what “in substance” the person having the benefit of the grant is doing. This requirement reflects earlier statements of the law.

In Skull v Glenister (1864) 16 CB (NS) 81 a plot of land (“Wheeler’s”) had the benefit of the right of way to the highway. It was rented to Glenister. Glenister bought the adjoining plot (which did not have the benefit of the right of way). Glenister used the right of way to carry building materials to Wheeler’s where he deposited them, and then used them to build a house on his own plot. The question which the Judge left to the jury was “Whether the Defendants used the way as a way to Wheeler’s land, or was it a mere colourable use of it for the purpose of getting at their own land?” Erle CJ said (at p103) that “that was the correct way to leave the question”. Williams J added (at p106) having reviewed the cases:-

“These authorities appear to establish the principle that, if the Defendants here had directly used the road in question as a way over the grantor’s land through Wheeler’s close to Glenister’s, that would have been an excess of the right. The question was whether they had not substantially done so”.

The other judges agreed.

In Williams v James (1867) LR 2 CP 577 the farmer, having the right of way to a field, used the right of way to carry hay that had been stacked on the field: but the hay stack had been composed in part of hay grown on the field and in part of hay grown on another field. In the Court of Common Pleas Bovill CJ held (at p580):-

“It is… clear… that where a person has a right of way over one piece of land to another piece of land, he can only use such right in order to reach the latter place. He cannot use it for the purpose of going elsewhere. In most cases of this sort the question has been whether there was a bona fide or mere colourable use of the right of way”.

In his judgment Willes J held (at p.582) that :-

“To be legitimate user of the right of way it must be used for the enjoyment of the Nine Acre field, and not colourably for other closes”.

Those two cases were relied upon by Vaughan Williams LJ in his judgment in Harris v Flower (supra) at p.818 col.1 to formulate as the question for decision in that case:-

“We have to consider here what was in substance and intention the user claimed by the defendants in the present case”.

He immediately went on to deal with how an appellate court should deal with such a question, saying:-

“The question of user is a question of fact; but if we come to a conclusion different from that at which [the trial judge] arrived, it will not be on a question of fact such as those questions of fact on which the Court of Appeal very unwillingly and reluctantly comes to a different conclusion from that taken in the Court below, because here the question of fact does not depend on any conflict of evidence, but is a question of the proper inference to be drawn from the facts which are not in dispute. Under these circumstances we are bound to deal with the matter according to our own view of the proper inference to be drawn from the facts”.

Harris v Flower (supra) was considered in detail by this court in Peacock v Custins [2002] 1WLR 1815. A field (“the red land”) had the benefit of a right of way (“the yellow strip”). The farmer farmed that field as one unit with an adjacent field (“the blue land”), using the yellow strip to reach both fields. After reviewing the cases the judgment of the Court said (at paragraph 22 on page 1823):-

“The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However, in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made”.

The Court held on the facts found that such user was not within the scope of the grant, holding (at paragraph 27 on p1824):-

“It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This cannot sensibly be described as ancillary to the cultivation of the red land. We therefore allow the appeal and declare that the Claimants are not entitled to use the yellow strip for the purpose of obtaining access to the blue land in order to cultivate it”.

Harris v Flower (supra) was again considered by this court in Das v Linden Mews Ltd [2002] EWCA Civ 590. The owner of a house had a right to pass over a carriageway from the highway to his property, and the right to halt a vehicle immediately adjacent to his property for the purpose of loading and unloading that vehicle. Instead of returning down the carriageway to the highway he drove off the end of the carriage way and on to a parking space, separate from his house and not part of that dominant land. At the trial HHJ Cook had approached the matter in this way (see paragraph 26 of the judgment of Buxton LJ):-

“[Counsel for the owner says] that he merely intends to pass through the adjacent land and eventually to arrive at number 5… But that is not the reality of this case. What they want to do is to park on the gardens. This is the primary purpose, and that being so it is an attempt to use the way to accommodate [No.] 4 and 5. On the authorities that cannot be done”.

When reviewing that passage of the judgment Buxton LJ held (at paragraph 27):-

“…the overall finding of the Judge is entirely clear, that the asserted use of the way is to access and to serve a separate use on a tenement that is not of the dominant tenement. He found the parking on the garden ground was the primary purpose of this use of the way. That of course poses a formidable difficulty for the owner’s case. But it was not necessary for the judge to go that far. Once he found that the use was to access an activity on land that was not the dominant tenement, and which could not be regarded simply as a minor, or indeed any, extension to the access already obtained to No. 4, then that use, whether a primary purpose or not, fatally extends the dominant tenement”.

The language in which the relevant question to be asked is expressed varies from case to case: use “in substance”, “colourable use”, “bona fide use”, the “essential purpose” of the use, the “reality of the case” amongst others. It would not assist this area of the law to analyse the words as if they were in statute or put a gloss upon them. I regard the formulation in the classic statement of the rule in Harris v Flower to be entirely sufficient: what was in substance and intention the user claimed by the defendant?

HHJ Harris QC did not have the advantage of being taken to the authorities cited to us, or the benefit of reading and hearing the arguments of Counsel and of testing the propositions they advanced. The relevant question was not identified for him. In consequence he did not ask himself that question, but instead focussed on “actual movement, not the ultimate intention of the user”. In my judgment that was an error of law. Once he had identified that the objective of Mr Tarry was to graze his sheep both on the Paddock and on the adjacent Green Land; and once he had identified what Mr Tarry’s family actually did (by which conduct that objective was manifest); and once he had correctly characterised those pointless and self-cancelling manoeuvres as a “somewhat artificial device or expedient” then he was bound to conclude that Mr Tarry was in substance and intention using the driveway for the purpose of gaining access to the Paddock and the Green Land as a single agricultural unit. I would therefore allow the appeal on this point.

The argument what might or might not be legitimate use of the way was tested against various sets of hypothetical facts. I have deliberately avoided expressing any view upon those. Mr Giles and Mr Tarry are neighbours: the law contemplates that the rights they have over each other’s lands will be reasonably exercised and reasonably allowed. It is not for this court to create a detailed regulatory regime by reference to what either of them might or might not do.

For the same reason I have addressed only the argument which, for me, disposes of the appeal. We heard other interesting arguments (in particular whether the use of a gate onto the highway might itself constitute a use ancillary to the use of the Paddock; and how the principle in Harris v Flower (supra) might apply if the right of way to close A is exercised for the purpose of passing over close A in order to gain access to a highway). Ruling upon these arguments it is unnecessary for the decision in this case.

This brings me to the second point of the appeal, namely the use of the hovel. The judge noted that the words of the relevant covenant were far from clear, but that the parties agreed that some animal usage was permissible, but only if it was “temporary”. As to the meaning of that word the Judge held:-

“The Shorter Oxford English Dictionary defines the word “temporary” as: “lasting for a limited time… transient, or made to supply a passing need”. A strong element or constituent of the meaning of “temporary” is that it is not permanent. Something which is not permanent can, in many instances, properly be described as temporary. A state of affairs can be regular, but is still temporary”.

As to the factual situation to which the word “temporary” (properly understood) fell to be applied, the judge held:-

“What the Defendant, by Moira and Rosie Goodwin, does with the hovel is to use it for the lambing of some 43 ewes out of their total flock of some 120. They lamb late… between the end of April and July, for some 3 months or perhaps a little more. This seems a surprisingly long span of time for 43 ewes, some of whose births would doubtless coincide. I find that on not more than 43 days spread out over about 3 months ewes can give birth in the hovel and no doubt remain in it with their lambs for a few days depending on weather conditions. Between July and October its only ovine use has been for treatments, such as injections and worming or attention to feet or tails. From October to the end of March it is used daily, though only for an hour or two for feeding.”

The conclusion of the judge was:-

“Ultimately, it seems to me the question is not one of law, but one of fact and degree. While the matter is not wholly straightforward, I have concluded that the use made of this hovel does not infringe the terms of the conveyance. For most of the hours in a year the hovel was not occupied by sheep and when it was occupied it was for limited periods for temporary or short-term purposes, such as giving birth, sporadic physical treatment, or the provision of winter feed. It follows that the Claimant is not entitled to prevent the existing pattern of usage”.

The Judge accordingly declared that:-

“[Mr Tarry] is entitled to make use of the hovel for not more than 45 sheep to the extent and in the way that he presently does, that is for lambing, treatments, winter feeding or emergency purposes”.

Mr Giles appeals against that order. On his behalf Counsel argued that the judge’s self-direction as to the meaning of the word temporary placed insufficient emphasis on the nuance that “temporary” use is casual (as opposed to a part of a regular pattern of events), in part because the word forms part of a qualification to an exception to a general ban on keeping animals in the hovel. He further submitted that whilst the judge did recognize the nuance of “transience” or “the fulfilling of a passing need”, he failed to appreciate that the actual use made by Mr Tarry could not properly be described in either way, since it was rather part of a planned cycle of husbandry.

I would dismiss the appeal against this part of the order. The meaning to be given to the word “temporary” is the meaning that the word has in the context of the Conveyance. It plainly does not have a single legal meaning in all legal contexts: each party on the appeal recognized that the other’s reading of the word was one which the word could bear. I consider that the judge correctly recognised that the word was an ordinary English word containing within it a variety of nuances (some of which would be more prominent than others when the word came to be applied to different sets of facts). I consider that he correctly held that whether a particular use (or combination of uses) was “temporary” was a question of fact and degree: and I would not disturb the application by an experienced County Court Judge of the working document he construed to the facts he found.

But I would allow the appeal in relation to the right of way. I would rescind the declaration made in paragraph 3 of the judge’s order and substitute (using the language of the original order) a declaration that it is unlawful for the Defendant to make use of the right of way over the brown land by driving sheep into the paddock and then out of the paddock via the northern end gate and then to re-enter through that gate and thereafter graze the paddock and the green field.

In Elements of Land Law (5^th edition § 5.1.73) Gray and Gray write:

“In an era of increasingly intense land use and housing development, it is predictable that awkward questions should arise over the extent to which an easement created or acquired for the benefit of one tenement, Greenacre, may also be used for the benefit of an adjoining tenement, Redacre.”

We have to answer that awkward question, albeit in a rural context. Norris J has set out the facts, and I gratefully borrow his description. I particularly wish to associate myself with his tribute to the careful and conscientious way in which Judge Harris QC dealt with the factual and legal questions that arose. The fact that the parties were self-represented before him cannot have made his task easier.

The judge described the use made of the right of way as follows:

“… what is done by [Mr Tarry’s] daughter and granddaughter is to drive the sheep into the paddock and without going onto the green land, up to and through the gate onto the public highway at Forge Lane. There they pause more or less briefly, before driving them back into the paddock where they are left free to pass, if they want to, onto the green land. Thus the entry into the paddock immediately preceding the entry into the green land is not via the right of way. Is this practice sufficient to avoid the restriction on the right of way to the benefit of the paddock?”

It is particularly to be noted that the sheep re-enter the paddock through precisely the same gate as that through which they left. Although the judge described this practice as “a somewhat artificial device or expedient” he decided that it came within the terms of the granted easement. He reasoned as follows:

“The objective of [Mr Tarry] has been to graze his sheep both on the paddock and on the adjacent green land. To get to the paddock with his sheep he is perfectly entitled to utilise the right of way. It is quite legitimate then for him to take his sheep out of the paddock via the Forge Lane gate for whatever purpose… When the sheep are in Forge Lane they are not in the paddock and not on the green land. He is then entitled to put them back in the paddock and to allow or drive them onto the … green land… because he is not then putting the sheep onto the green land via the right of way over Mr Giles’ land.”

He noted that if sheep were loaded onto a lorry in the yard and then driven round to Forge Lane it could not be (and was not) suggested that that was a misuse of the right of way. He said that usage of a right of way “must be analysed in terms of actual movement, not the ultimate intention of the user”. He added that:

“In any case … the paddock is not simply a bridge, it is itself grazing land which the sheep are expected to make use of. They are put there for that purpose as for the purpose of allowing them to move and graze into the green land. A journey over the right of way is just as necessary to utilise the paddock as it is to utilise the green land and the sheep would make the same journey, even if confined simply to the paddock, though possibly … less often.”

By way of preliminary point, Mr Lindsay Johnson, appearing for Mr Tarry, said in his written argument (although he did not develop the point orally) that the judge should not have entertained the action at all. The previous litigation had raised the question of Mr Tarry’s use of the right of way; and that action had been compromised on terms including the undertaking Norris J has quoted. In those circumstances Mr Giles should have applied to enforce the undertaking rather than starting another action. I do not consider that we should summarily dismiss the appeal on this ground. First, it is not a point that was taken below, no doubt because neither party was legally represented. Second, there is no cross-appeal against the judge’s decision; and no respondent’s notice. Third, there was no application to set aside the grant of permission to appeal by Kitchin LJ. In my judgment we should decide the appeal on its merits.

The argument about the right of way takes as its starting point the so-called rule in Harris v Flower (1904) 74 LJ Ch 127, 132. The basic principle is not in doubt:

“If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.”

The principle is not without its critics. It was criticised by Ewan Paton and Gwen Seabourne in Can’t get there from here? Permissible use of easements after Das [2003] Conv 127; and again by the Law Commission in their Consultation Paper Easements Covenants and Profits à Prendre (Consultation Paper No 186 § 5.70). Short of legislation or the Supreme Court we must accept the principle for what it is; but I do not consider that we should be keen to extend it.

Mr Hill-Smith argues that the terms of the right of way do not permit Mr Tarry to drive his sheep across the paddock and exit onto Forge Lane; and that Forge Lane is “Close B” for the purposes of the principle in Harris v Flower.

The extent of a right of way granted by deed is a question of interpretation of the grant. In interpreting a grant, even where the grant is the grant of an easement which will in due course be registered at HM Land Registry, the court can and should take into account the physical features of the land in question at the date of the grant. In many of the cases in which the rule in Harris v Flower has been considered the question was whether the right of way could be used to access land which was not in the grantee’s ownership at the date of the grant. Cases like that raise different questions. Moreover, in our case it is not a question of Mr Tarry using the driveway to gain direct access from the paddock into the green land. He is using the driveway to gain access to the paddock and thence onto the highway. In Finch v Great Western Railway (1879-80) LR 5 Ex D 254 an inclosure award set out a road as a carriage road and drift way from a highway to some of the inclosed lands. A railway company acquired some of the land, and built a cattle pen adjoining their railway. They used the road for the passage to and from the highway of cattle that were to be or had been conveyed on their railway. The Divisional Court held that that was a lawful use of the road. Stephen J (giving the judgment of the Court) said:

“To use a private road into one close merely in order to pass over it into an adjacent close is not quite the same thing as to use a private road into a close in order there to make use of a public highway carried through the close subsequently to the grant.”

He added:

“…it appears to us that it would be impossible to maintain that, if people were to have free access by a private way to new houses built on an allotment, they should be bound as often as they used that way to return by it, instead of using any other road which might happen to be open to them.”

In our case at the date of the grant (and indeed today) the paddock had two means of access. One was via the driveway and the other was from Forge Lane. Unless there is clear contrary wording, a right of way is exercisable in both directions. In other words Mr Tarry was entitled to use the driveway to drive his sheep from Charwelton Road, up the driveway and into the paddock. He was also entitled to drive his sheep from the paddock, down the driveway and into Charwelton Road. Bearing in mind that the parties knew or must be taken to have known that the paddock could be accessed from Forge Lane, it must have been contemplated that sheep could enter the paddock from Forge Lane, graze in the paddock, and exit down the driveway into Charwelton Road. To hold otherwise would be absurd. If sheep can be driven in that direction, I can see no reason why they cannot be driven in the other direction: that is to say up the driveway, into the paddock where they graze and then into Forge Lane. Does it make any difference if the sheep do not graze in the paddock before they exit into Forge Lane? In my judgment it does not. In Alvis v Harrison (1991) 62 P & CR 10 the House of Lords considered the scope of a Scottish servitude. Mr Harrison owned land on both sides of a driveway. On the west side was his house, and on the east side were his woodlands. The driveway began at the A73 ran alongside the woodlands and ultimately turned west to the house. Mr Harrison constructed a bellmouth on the east side of the drive so as to enable him “to traverse the woodland so as to obtain access to the A73.” Although the House confirmed the principle in Harris v Flower (by reference to the law of Scotland), they held that the Inner House were wrong to treat the A73 as being “Close B” for the purposes of the principle. Mr Harrison was thus entitled to construct the new bellmouth. Lord Jauncey said:

“… it is quite wrong to treat the A73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic.”

In this case Mr Tarry has a right of access to Forge Lane by virtue of his ownership of the paddock and his rights of ownership as frontager. Whether his sheep graze in the field or not does not affect that right. I therefore reject Mr Hill-Smith’s contention that it is impermissible for Mr Tarry to drive his sheep across the paddock exiting by Forge Lane.

Mr Hill-Smith’s next submission was that on the facts found by the judge Mr Tarry’s real purpose in driving his sheep across the paddock to Forge Lane was not to exploit the paddock’s access to the highway, but to enable him to graze both the paddock and the green land together. He accepted that if the sheep arrived at the gate from Forge Lane into the paddock from the highway itself (rather than from their previous crossing of the paddock) without use of the right of way to get them there, then Mr Giles could have no objection to the sheep being allowed to graze both the paddock and the green land together. He also accepted that if the sheep were driven up the driveway onto the paddock in order to graze on the paddock and, having grazed on the paddock, then spread to the green land, Mr Giles could have no objection. So Mr Giles is not entitled to object to the paddock and the green land being grazed together, either in parallel or in sequence; depending on how the sheep get onto the paddock in the first place. This shows, to my mind, how narrow and to some extent artificial the dispute between the parties is.

However, Mr Hill-Smith submitted that once the judge had found, as he did, that:

In Skull v Glenister (1864) 16 CBNS 81 a right of way was appurtenant to a piece of land (“Wheeler’s land”). Glenister acquired an adjoining piece of land on which he wished to build a house. He carted building materials along the way and deposited them on Wheeler’s land. The materials were used to build the house on his own land. The question posed to the jury and their answer were:

“Did the defendants really use the way with carts and waggons as a way to Wheelers' land, or did they really use it as a way to the houses they were building? And was the going first to Wheelers' a mere colourable use. Answer. It was a mere colourable use.”

On appeal the judge’s direction was upheld. Erle CJ said:

“The question which the learned judge left was, whether the defendants used the way as a way to Wheelers' land, or was it a mere colourable use of it for the purpose of getting at their own land. That seems to me to be in substance what the summing-up amounts to. Did the defendants use the way merely for the purpose of carrying the building-materials through Wheelers' close to their own land? I think that was the correct way to leave the question…”

Williams J referred to authority and said:

“These authorities appear to establish the principle that, if the defendants here had directly used the road in question as a way over the grantor's land through Wheelers' close to Glenister's, that would have been an excess of the right. The question was whether they had not substantially done so. The jury must be taken to have found that they had.”

In Williams v James (1866-67) LR 2 CP 577 Mr Jenkins was the occupier of a field called Nine Acres Field. He was entitled to a prescriptive right of way to that field. He also occupied an adjoining field called Parrott’s Land. Mr Jenkins created a hay stack on Nine Acres Field, but the hay had been grown partly on Nine Acres Field and partly on Parrott’s Land. He then carted away the hay along the right of way. It was held that he was entitled to do so. Bovill CJ said:

“In most cases of this sort the question has been whether there was a bonâ fide or a mere colourable use of the right of way.”

He added:

“The question, therefore, of what was the ordinary and reasonable use of the land, was practically left to the jury. They found that Jenkins acted honestly, and that is equivalent to finding that what had been done was done in the ordinary and reasonable use of the land to which the right of way was claimed, and in the ordinary and reasonable use of the right of way itself. It was for the plaintiff to shew that there had been some excess of user on the part of the defendant, as by shewing that the user of the right of way was only colourable, or that the Nine acre field was used for purposes other than those included in the ordinary and reasonable use of the land. The finding of the jury excludes both these questions.”

Willes J said:

“Honest user of the Nine acre field must have been understood by the jury in the large sense of bonâ fide and reasonable, not a use in order to get an advantage to which the defendant was not entitled. The finding of the jury was, that the land was used honestly, and not in order to get a right of way further on. This is equivalent to finding that the stacking of the hay on the Nine acre field was in the reasonable and ordinary use of it as a field; also that the carting was from the Nine acre field and not from Parrott's land.”

Montagu Smith J said:

“It is an admitted fact that some of the hay carried from the Nine acre field was grown on Parrott's land, and the carrying away of this hay is the excess in the user of the right of way which is complained of. This alone, however, does not determine the question for the plaintiff. The question is for the jury, whether the stacking of the hay in question and the carrying of it away was in the ordinary and reasonable use of the Nine acre field.”

The principles established by these cases were applied by the Court of Appeal in Harris v Flower itself. Having referred to these cases Vaughan Williams LJ said:

“… we have to consider here what was in substance and intention the user claimed by the defendants in the present case. … The question of user is a question of fact … [H]ere the question of fact does not depend on any conflict of evidence but is a question of the proper inference to be drawn from the facts which are not in dispute.”

Romer LJ agreed, saying that:

“… what they are really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the blue, and using the land coloured pink as a mere continuation of the right of passage from the pink to the blue.”

Cozens Hardy LJ also agreed.

In Peacock v Custin [2002] 1 WLR 1815 Schiemann LJ put the question thus:

“However, in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made.”

This court answered that crucial question in the negative. I agree with Norris J that although the language in which the critical question is posed varies from case to case, the underlying thrust of the question is the same: what in substance and intention is the dominant owner’s use? Since “intention” or “essential purpose” is one of the components of the question, I agree with Norris J that the judge fell into error in excluding Mr Tarry’s “ultimate intention” from consideration.

We cannot go behind the judge’s findings that Mr Tarry’s “objective” was to graze the paddock and the green land together, and that he was using the highway as an “artificial device” to attain that objective. Mr Johnson submitted that we should break down the movement of sheep into its constituent elements. If (as I think) Mr Tarry was entitled to use the right of way in order to access Forge Lane from the paddock, then Mr Johnson submitted that what happened to them thereafter was irrelevant to the question whether the use of the right of way was lawful. I regret that I cannot accept that submission. In my judgment we are dealing with one continuous operation, the object of which as the judge found, is to enable the sheep to graze the green land via the right of way. The use of the highway as a transient stopover is itself a “colourable” use of the highway. The whole sequence is, as the judge found, an artificial device. It therefore falls foul of the principle in Harris v Flower.

There are of course other ways by which Mr Tarry can achieve his objective. One is to transport the sheep by road up to the gate into the paddock from Forge Lane. Another is to ensure that the sheep are turned onto the paddock to graze it first before proceeding on to the green land. That might necessitate the erection of some gated barrier between the paddock and the green land (which Mr Tarry was obliged to do by the terms of the conveyance to him of the paddock). But the fact that there may exist legitimate ways in which Mr Tarry can achieve his objective does not make an illegitimate one lawful. With regret, therefore, because the dispute between the parties is so narrow, I agree that the appeal on the right of way point must be allowed.

That leaves the question of the covenant. This turns solely on the question whether the facts found by the judge can properly be described as “temporary” use. Whereas the judge contrasted “temporary” with “permanent”, Mr Hill-Smith invited us to contract “temporary” with “regular”. Mr Hill-Smith referred us to judicial observations about the meaning of “temporary” in different contexts which, he said, justified the contrast that he urged. But the context in this case is a covenant restrictive of the use of an owner’s right to do what he pleases with his own land. Where a seller of land wishes to impose fetters on his buyer’s right to use the land being sold, he must, in my judgment, do so clearly; and in case of ambiguity or uncertainty the court should lean in favour of greater rather than lesser freedom on the part of the buyer.

Moreover, the word “temporary” is an ordinary English word. The judge directed himself in accordance with one of the ordinary meanings of the word as found in the dictionary. In Brutus v Cozens [1973] AC. 854 an appeal concerned the meaning of the word “insulting” as applied to the phrase “insulting behaviour” in the Public Order Act 1936. Lord Reid said:

“It is not clear to me what precisely is the point of law which we have to decide. The question in the case stated for the opinion of the court is 'Whether, on the above statement of facts, we came to a correct decision in point of law.' This seems to assume that the meaning of the word 'insulting' in s.5 is a matter of law. And the Divisional Court appear to have proceeded on that footing. Inmy judgment that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine when that unusual sense is. But here there is in my opinion no question of the word 'insulting' being used in any unusual sense.”

The same principle applies to the interpretation of a written contract. There are many examples, but I will refer to only one. In Fitzroy House Epworth Street (No 1) v The Financial Times Ltd [2006] EWCA Civ 329 [2006] 1 WLR 2207 the question was whether a tenant had “materially” complied with its covenants so as to be able to exercise a break clause in a lease. Sir Andrew Morritt C referred to Brutus v Cozens saying that:

“The application of an ordinary English word to a set of primary facts is itself a question of fact.”

Viewed as a question of fact, I have not been persuaded that the judge’s factual conclusion was wrong.

I too would dismiss the appeal on the covenant point.