Gilks & Anor v Hodgson & Anor

This is the Defendants’ appeal against the order of His Honour Judge Armitage QC dated 30 December 2013 in which he made declarations, to which I refer below, as to the boundary of the land known as Fiveacres owned by the Respondents and the land owned by the Second Defendant, and as to the Respondents’ entitlement to a vehicular right of way over a way conveniently referred to as Clay Lane in so far as it is in the ownership of the Second Defendant. The judge also made consequential orders, including an order for the payment by the Appellants of damages for trespass and/or nuisance.

This is a depressingly unfortunate dispute between neighbours. The costs so far approach half a million pounds, far more than the value of the rights involved. It is a dispute that could and should have been compromised on terms that both parties could live with. The trial took 10 days, and even then some issues, referred to by the judge at paragraph 2 of his judgment, were left undecided.

The judicial time of determining the issues following the trial was greatly increased by the regrettable lack of time for the judge to write his judgment until several months after the trial. It is well known that the longer the period between a hearing and the writing of a judgment the longer is the time required to produce the judgment. The judge was assisted by the transcripts, but obtaining them added to the costs of this case for the legal system.

The properties in question are shown on the attached plan.

Clay Lane runs from Moor Lane, a public highway, to the north. It was originally a public footpath, but is now a public bridleway. It is sufficiently wide to have been given its own Ordinance Survey parcel number, 307.

Fiveacres, owned by the Claimants, has access to the public highways to the north west of its boundary with Clay Lane. The principal question in this case is whether it also has a right of access to the public highway at the south east, via Clay Lane.

The issues for the judge were:

What is the eastern border of Fiveacres, owned by the Claimants?

Does Fiveacres have the benefit of a vehicular right of way for agricultural purposes from the gate in its eastern boundary (a) to the east over Clay Lane and/or (b) to the south down Clay Lane towards Edge View Farm?

As can be seen on the attached plan numbered 2, at the eastern edge of Fiveacres and

The 1950 conveyance describes the property conveyed as follows:

The plan annexed to the 1950 conveyance clearly shows the ditch running along Clay Lane until it departs from it, continuing to the north at the point where the Lane turns east running to the south of Ivy Cottage and The Yews, before it continues to the north. The eastern boundary shown by the red line on the annexed plan clearly does not include the ditch.

The expert witnesses called by both parties agreed that the acreages given on the 1909 OS survey plan and repeated in the 1950 conveyance were acreages produced by the OS by use of a planimeter on the survey plan, and, in accordance with standard OS practice, included the strip of land between the roots line of the hedge and the centreline of the ditch. Unless, therefore, the 1950 conveyance is to be interpreted as conveying additional land to the east of the centre line of the ditch, that line was and is the eastern boundary of Fiveacres.

The judge held that the eastern boundary of Fiveacres is the centre line of Clay Lane. He arrived at this conclusion by the application of the archaically termed presumption usque ad medium filum viae, the presumption that the owner of land bordering a right of way is the owner of the land subject to the right of way (public or private) to the mid-point of the way. Leaving aside the question (raised by Morgan J in his reliable summary of the presumption in Paton v Todd [2012] EWHC 1248 (Ch) at [35]) whether the presumption is applicable to a public footpath, which was the status of the way in 1950, its application depends on the land to which it is sought to apply the presumption abutting the way. In the present case, that question in turn depends on whether the western ditch along the way is part of the way. It would be if it were a socalled road or highway ditch, built to take surface water from the road or way. If the ditch is not part of the way, but at least the eastern half of it was retained by Mr Bloor when he executed the 1950 conveyance, the presumption cannot apply.

In my judgment, the ditch is not a part of the way. It runs along a line that, as mentioned above, departs from the line of the way to the north. The ditch drains land to the north. If it were constructed to drain the public right of way it would follow the line of Clay Lane to the north, but it does not. Indeed, there is evidence that the ditch is shown as the public boundary on the 1855 Indenture plan. Furthermore, the judge’s construction is inconsistent with what appears to have been the carefully drawn boundary marked on the plan annexed to the 1950 conveyance. It is true that the delineation was “for the purposes of identification only and not of limitation or enlargement”, but that qualification does not justify ignoring it. There is also some significance in the fact that the parcels conveyed were not described, as they might have been, as abutting the way. Furthermore, there was good reason for Mr Bloor to want to retain the way, which was wide enough to be used for pasturing his animals. The fact that it was given a separate parcel number, 307, is itself indicative of its being significant in area, as Mr Powell, the Appellants’ expert witness, stated in evidence, relying on Oliver on the History of Ordinance Survey Maps.

There is also a question whether the whole of OS 307 was in 1950 subject to the right of way, given that it is far wider than necessary for a footpath: see Ford v Harrow UDC (1903) 88 LT 394. In view of my conclusions set out in the preceding paragraph, it is a question I need not answer.

The judge’s summary of the applicable law at paragraphs 120 and 121 of his judgment has in the main not been challenged. The challenge by the Appellants has been to his analysis of the evidence.

The judge heard the testimony of numerous witnesses. He found, and was entitled to find, that the toxic relationship between the parties led to much of the evidence being at best unreliable. He carefully summarised the witnesses’ evidence, and his findings as to who was and who was not a reliable witness were fully reasoned and cannot be, and are not, impugned. It follows that the question before this Court is whether the evidence accepted by the judge justified his finding of a prescriptive right.

In finding the claim of a prescriptive right of way proved, he stated that he relied on the evidence of fact of Mr Forrest, Mr Adshead, Miss Fawbert, Mr Sumner, Karl Eckert, Michael Eckert, Tregony Windsor, Mr Swan and Mr Anderton. It is also clear that he accepted the evidence of the Gilks, but that related to recent times only. The judge also referred to the evidence of aerial photographs dating from 1948 and 1963,

As mentioned above, the judge said that Mr Forrest’s evidence did not support access to Fiveacres by vehicle.

Mr Adshead had never seen vehicles accessing Fiveacres through Clay Lane. He recalled seeing cartwheel marks inside the Fiveacres gate around 1949-50. The judge concluded that his evidence was “good evidence of vehicle use in the late 1940s and early 1950s”. It seems to me that his evidence about cartwheel marks was evidence of a possibly isolated use of the gate by a vehicle. However, he also referred to Joe Eckert having an ex-army Bedford truck and a British Anzani tractor, which he used for the purposes of his working Fiveacres, and I read the judge as concluding that those vehicles were used in that period to and from the gate between Fiveacres and Clay Lane.

The judge summarised Ms Fawbert’s evidence as follows:

This evidence, of itself, could not justify the finding of a vehicular right of access.

Mr Sumner’s evidence was that he had seen Joe Eckert drive a tractor accessing Fiveacres from Clay Lane “quite a long time ago”, by which the judge said he meant 20 years. The judge stated that he found his direct evidence concerning the tractor convincing.

Karl Eckert’s evidence was that from about 1973, as had his father before him, took tractors from Clay Lane into Fiveacres to tend the land, which he still did. He spoke of the relationship between his father and Mr Fisher, of Ivy Cottage, as to which the judge said:

The judge summarised his conclusions in relation to Karl Eckert’s evidence as follows:

Karl Eckert was born in 1957, when his family lived in The Yews. He was called on behalf of the Respondents. In his written witness statement, he said:

I would often help my father tend to land at Fiveacres with his tractors and he would always access to land directly from Clay Lane. In fact I can recall from as young as 16 years old I was taking the tractors onto Fiveacres to tend to this land myself and always gained access directly from Clay Lane.

I still tend to land at Fiveacres and often make hay for the Claimants using the field on their property. I therefore continue to take my tractors onto the land at Fiveacres for this purpose and I always gained access directly from Clay Lane.”

In cross-examination, he confirmed that his father, Joe Eckert, who owned The Yews and was for a period the tenant of part of Fiveacres, and Mr Fisher, who lived in Ivy Cottage from 1952., were close friends. “Jack Fisher was our taxi. He would run us to places and things like that.” The closeness of their relationship may be inferred from the fact that in his 1988 will, Mr Fisher devised Ivy Cottage to Josef and Irene Eckert if they survived him. It was put to Karl Eckert: “… As far as Jack Fisher was concerned your father could go up and down as much as he liked between The Yews and Jack Fisher’s land and anywhere that your father happened to be working. That is right, is it not?” He answered, “Yes, it was, yes.” Later in his evidence he was asked why he had made a witness statement. He said:

The italics are of course mine. In fact, it had not been put to him that Mr Fisher had given express permission to him to go wherever he wanted to go. Ms Hutton did not pursue this evidence, presumably because she was concerned that Mr Eckert might go back on it. Mr Foster did not re-examine on it, doubtless out of concern that it might be fortified. The judge did not ask about it, and did not refer to it in his judgment. This evidence is I think inadequate to justify a finding of express permission, and I note that in her skeleton argument for this appeal Ms Hutton contended that “The facts fall within the definition of implied licence …” (my italics). If this unexpected statement (in support of an unpleaded allegation of express consent) was to be relied upon, the witness should have been asked about it specifically.

Michael Eckert said of the gate in question, as summarised by the judge, that when he was 15 (in about 1974) and before he started caring for the horses at Fiveacres, his father had replaced a broken down gate near the stile, not put in a new access point. At that time he recalled Karl (who he did not rate highly as a tractor driver) driving a

Mrs Windsor’s evidence was taken as “reliable evidence of the existence and use of the gate and crossing between Fiveacres and Clay Lane”. The use referred to, however, was horse riding.

David Swan gave evidence, accepted by the judge, that from about 1976 and after he had seen agricultural vehicles using the gateway in question on 3 or 4 occasions. The judge said: “I am convinced that he was reliable as a snapshot of the condition and use of the gate (and by inference at least) the existence of a means of crossing any ditch which elsewhere might have been open.”

Mr Anderton has been the owner of Edge View Farm, to the south of the Second Appellant’s and the Respondents’ land, since 1995. The judge regarded his evidence as establishing that historically the owners of Edge View Farm had unchallenged physical access to Clay Lane with animals and vehicles, as necessary.

The judge concluded:

There was agricultural vehicular access between 352 (and 351) and Clay Lane… From before 1948. It seems likely that the amount of actual usage was dictated by the type of agricultural use of 351 and 352, year by year and season by season.

That such use was not permissive. There was no reason to infer that Mr Fisher other than tolerated use by or on behalf of Mr Harris or by on behalf of Mr Braka. In the latter case there is direct acceptable evidence that Mr Fisher had stood by while the access was used by women with horses, who had no knowledge of the need for or fact of any permission or the existence of neighbourly relations. In the case of Joe Eckert the evidence is that he did as he pleased. What he did at Fiveacres was of direct benefit to the owners of that land. Although he was friendly with Mr Fisher there is nothing to suggest that he used the access with Mr Fisher’s permission.

The evidence supporting this conclusion, in so far as it related to that part of Clay Lane to the east of the gate into Fiveacres was, as the above summary demonstrates, light. I am nonetheless just persuaded that it does justify his conclusion.

The evidence of Carol Cash was inconsistent with the judge’s conclusion. The judge rejected her evidence, for the reasons given in paragraphs 261 to 269 of his judgment. Ms Hutton submitted that the judge’s reasons were insufficient to justify the wholesale rejection of Mrs Cash’s evidence, but the reasons he gave were in my judgment adequate and not such as to entitle this Court to interfere.

In the result, therefore, I would dismiss the appeal against the judge’s finding that on the basis of prescription the Respondents have a vehicular right of way, for agricultural use, to the east of the gate into Fiveacres over the Appellants’ land, as shown on the second plan annexed hereto coloured brown.

My conclusion on prescription renders it unnecessary to determine the appeal against the judge’s finding of an implied easement under the rule in Wheeldon v Burrows in relation to that part of Clay Lane to the east of the gate into Fiveacres, and I do not propose to do so.

The position in relation to the right of way claimed to the south is very different. There was no evidence of vehicular use of the way to the south in 1950, and no such evidence of such use even approaching 20 years before the dispute between the parties arose. Moreover, the way to the south, as distinct from that to the north, could not be seen as necessary for the reasonable enjoyment of Fiveacres. For these reasons, I would allow the appeal in relation to that right of way.

For the reasons I have given, I would allow the appeal on the boundary issue, but dismiss it on the right of way issue.

If my Lords agree with my conclusions, I would ask counsel to agree an order reflecting them. The order should provide for costs to be determined by the Court on the basis of the parties’ written submissions.

For the reasons given by Sir Stanley Burnton, with which I agree, I too would allow the appeal on the boundary issue and against the finding of a vehicular right of way from Fiveacres along Clay Lane to the south but dismiss the appeal against the judge’s finding that the Respondents had acquired a vehicular right of way by prescription from Fiveacres along Clay Lane to the east and then north..

I only add how dismayed I have been by this Dickensian litigation. The disputed strip of land and right of way do not constitute the sole means of access to anyone’s home. The award of damages to Mr & Mrs Gilks was £3,500. Yet, at a time when the courts are under great pressure, the battle between these two couples took up ten days of court time – more than some murder trials – before Judge Armitage and a further