Sweet & Anor v Sommer & Anor

This is a dispute about rights of way between the claimants, the owners of a dwelling-house and land known as Forge Meadow, Osbaston, and their neighbours at the property known as the Old Forge, Osbaston.

The issues in the case can only properly be understood by reference to a plan. In order to aid the narrative in this judgment, I shall assume that the reader has access to the plan annexed to the Particulars of Claim, marked “Plan A” (A14 of the trial bundle) and to the plan drawn up by the single joint expert (Plan B) with agreed markings made on it by counsel for the purposes of their closing submissions. Plan A shows the relative locations of three buildings, namely the Old Forge (owned by the first defendant), Forge Meadow (owned by the claimants) and the property known as Meadowgate. To the front of Old Forge there is, first, an area of enclosed garden land, and beyond that an expanse of tarmac. That area of tarmac is itself divided by a line of edging stones set into its surface. The area to the west of that line belongs to the Old Forge. Although the term was not used in the course of the case, it is convenient to call it “the Old Forge Yard”. The tarmac area to the east of the line forms the driveway to Meadowgate (“the Meadowgate driveway”). At the point at which it reaches Forge Lane the Meadowgate driveway is about 3.5 metres wide (see A-B on Plan B). Where the Old Forge Yard abuts Forge Lane, the width of the Old Forge Yard is about 7.5 metres wide (see E-F and F-A on Plan B). Save where the context otherwise requires references in this judgment to the Old Forge can be taken to refer to the Old Forge together with the Old Forge Yard.

The only physical route by which vehicular or pedestrian access can be obtained from Old Forge Lane to Forge Meadow is by the use to some degree of the Old Forge Yard: as matters currently stand, access can, physically be obtained anywhere between the points marked E to B on Plan B, but whatever line is taken to Forge Meadow inevitably involves the use at some point of Old Forge Yard. The principal issue in the case is whether the claimants have any vehicular right of way over any part of Old Forge Yard. The formal position of the defendants is that there is no such right of way, although the first defendant in her evidence seemed to say that she would in practice have no objection to the claimants using Old Forge Yard for that purpose provided that the use was limited to the northern part. It is, however, clear that the claimants have no right to use the Meadowgate drive. It follows that, if the defendants are correct, they are in a position to prevent the claimants from enjoying any vehicular access to their property. The defendants accept that the claimants have pedestrian rights of way over the Old Forge Yard, but contend that this is only by virtue of the fact that there happens to be a public footpath which can serve this purpose.

The ability of the defendants to argue for these contentions arises out of a conveyancing mistake made in 1988 by solicitors acting for a Mr Lovering. By 1988 Mr Lovering had become the freehold owner of the following blocks of land at and around the Old Forge:

Mr and Mrs Lovering’s intention was to re-develop the Old Forge as a dwelling-house, hoping to be able to exploit the Forge Meadow land and the yellow land as building plots. In February 1988, Mr Lovering conveyed to Mr and Mrs Gunter (the owners of Meadowgate) the Meadowgate drive. This was in return for an agreement with Mr Gunter that the latter would tarmac the surface both of the Old Forge Yard and the Meadowgate drive, which was duly done.

The mistake (or the first part of the mistake) occurred on 15^th April 1988 when Mr Lovering transferred to himself and his wife the property which is identified by the blue edging on Plan A, i.e. the Old Forge, the Old Forge Yard and a strip of land leading up to the field to the north (“the northern field”). This was done, Mrs Lovering told me, at the insistence of the building society from which they wished to raise money on the security of the land so transferred. The effect of this transfer (which was a Rule 72 transfer on first registration) was to leave Mr Lovering as sole owner of the Forge Meadow land and the green land. That transfer, however, reserved no rights of way in favour of the Forge Meadow land over the land transferred.

The second aspect of the mistake occurred later in the same year when Mr Lovering came to sell the Forge Meadow land to Mr and Mrs Martin. Mr and Mrs Martin were purchasing the Forge Meadow land for the purpose of building a house on it. There seem to have been delays in obtaining the necessary planning permission. Mrs Lovering told me that the Martins’ agreement to purchase was conditional on the permission being obtained. It is probably for that reason that although the relevant transfer was dated 31^st October 1988, the Martins were not in fact registered as proprietors until 18^th October 1989 (see C216). The transfer (the Martins’ transfer”) granted the Martins certain rights over the Old Forge Yard. First, it granted them rights for water and electricity from points marked “A” and “B” on an attached plan (“the utility rights”); and, secondly, it granted them a vehicular and non-vehicular right of way for all purposes in connection with the land transferred “over the driveway shown coloured brown on the said plan”.

The brown line on that transfer is a single crayon width describing a crude arc from the natural entrance to Forge Meadow across the Old Forge Yard and debouching into Old Forge Lane. It is plainly intended to be indicative of a vehicular right of way over the Old Forge Yard onto Forge Lane, rather than an attempt to delineate the exact route to be taken by that right of way. The latter construction would be at odds physically with what was intended: the crayon line is too narrow to take a vehicle, and its route takes one through the (then already enclosed) Old Forge front garden.

The mistake, however, was that insofar as Mr Lovering was purporting to grant such a right of way (or indeed the utility rights) he had no obvious power to do so. On the face of things, the persons who could do so were himself and Mrs Lovering qua owners of the Old Forge Yard. This mistake was not, however, noticed by HM Land Registry who, on 18^th October 1989, registered the Forge Meadow as “having the benefits of the rights granted by… the Transfer dated 31^st October 1988”.

The Martins proceeded to build their house on the Forge Meadow land and in the course of doing so, and thereafter, used the rights purportedly granted to them by that transfer. There is, however, a complication to that simple statement. Mr and Mrs Lovering had installed gates and a stile between the Old Forge Yard/Meadowgate drive and Old Forge road. The gates were put there to deter commercial vehicles visiting a factory to the south from using the Old Forge Yard for parking; a phenomenon which decreased once the Old Forge had been re-developed and became more obviously a private space. Following his acquisition of the Meadowgate drive, Mr Gunter had, with the Loverings’ encouragement, taken down the stile and welded one of the pre-existing gates to the other, so that the two gates together would, when closed, provide (unless opened) a complete obstacle to direct entry from Old Forge lane onto the Old Forge Yard. Either then, or subsequently, a smaller wooden gate was placed at the entrance to the Meadowgate drive, but this was in practice never closed (and Mrs Lovering told me that the bolt hole in the tarmac did not in fact ever take the bolt). The welded gates were heavy. If they were closed (which would not be always) it was much easier for vehicles to get on to the Old Forge Yard (and thence to Forge Meadow) by entering via the entrance of the Meadowgate drive. More often than not this is how the Martins did in fact enter, and did so without objection from Mr Gunter or his successors in title.

The claimants purchased Forge Meadow from the Martins in July 1998 by a transfer dated 17^th July 1998. The first claimant did the conveyancing, and seems to have done so with care and attention to detail. The right of way was not a concern to him. It appeared on the registered title.

The first defendant purchased from the Loverings the Old Forge (together with the green and yellow land) in the following month. The rights purportedly granted by the Martins’ transfer did not appear on the register of the title to the Old Forge. Some attempt was made by the first defendant in her evidence to suggest that she was unaware of them prior to exchange of contracts. I am satisfied, however, that that is not the case. Although the answers given by the Loverings’ solicitors to preliminary inquiries were oddly unforthcoming on the point, the first defendant’s solicitors (Watkins & Gunn) pursued the point in correspondence with the Loverings’ solicitors (Hambly Smith) and were informed (by a letter dated 22^nd July 1998) that:

“Our clients gave the necessary rights of way over the front of their property to the Buyers of the land marked “X” on the plan attached to your letter when they sold it to Mr. And Mrs. Martin in about 1987/88 and we agree that it is strange that these rights are not set out in the Charges Register of title number WA480928. The owners have always exercised a right of way over our clients property, although the rights do not appear in the deeds your client should be aware that such rights have been exercised in practice.”

Further inquires produced a copy of the relevant transfer (with a defective plan so far as the utility rights were concerned) and yet further inquiries obtained an explanation of the location of the utility rights. I have no doubt that these matters were relayed to the first defendant by her solicitors prior to exchange of contracts. I also have no doubt that, despite her protestations under oath to me to the contrary, she had not placed any reliance at all on a suggestion, made in some heavily caveated estate agents’ particulars produced earlier in the year, that the Old Forge Yard formed a parking area for the Old Forge. My principal reason for disbelieving her evidence in these respects lies in a letter which she wrote dated 28^th June 1999 to Warwick and John Miles (who owned the northern field and the former of whom owned the block of land described as title no. WA964246 on Plan A, situated between the Old Forge and Forge Meadow and which I will call “the Miles’ plot”). She there wrote:

“As requested by yourselves we have compiled a précis of those matters, so far as they may affect you, which were discussed yesterday morning at Mr and Mrs Blacklock’s home. We understand you intend to discuss these points with your land agent before giving any considered comment or reply. We have broadly followed the discussion agenda as the structure of this letter.

…

5.

There is a large area of our front garden that has been laid to tarmac by our predecessor. It serves no useful purpose to us. The only beneficiaries are the users, of whom we are not one. To our knowledge none of the users have ever contributed to the laying, upkeep or maintenance of this area. It is, and has been, a financial burden suffered solely by our predecessor and us. Clearly this is an untenable situation from our point of view. To compound the matter we find the prospect most unsightly and would prefer it to have more of the characteristics of a garden and less of those of a motorway. It is our current intention to improve our outlook whilst still providing access to those that have a right to it. However the costs of providing the passage way, its maintenance and upkeep, will have to be properly borne by those that use and enjoy those rights of way. We accordingly invite your comments as what ought to constitute your own proper contribution to the expenses: past, present and future.”

Against that background, it may be asked why the present dispute ever crystallised between the claimants and the defendants. The answer appears to lie in an altogether separate series of disagreements, partly involving the then owners of Meadowgate (Mr and Mrs Blacklock) and partly involving the destination of the Miles’ plot. It is unnecessary to examine these in detail. What they led to was a determined attempt by the first claimant to ensure that all the relevant titles were correctly registered with the relevant easements being properly noted. In the course of that process, the mistake over the grant of the right of way was exposed, and then exploited by the first defendant. She was successful in persuading the registrar not to rectify the Old Forge title so as to show the right of way.

Worse, from the claimants’ point of view, was to follow. Although the registered title of the Old Forge did not note the easement of way purportedly granted to the Martins, it did describe the Old Forge as subject to a right of way in favour of the owners of the northern field. While the dispute over the Forge Meadow right of way was beginning to reach crisis point, the claimants had the opportunity to purchase a part of the northern field immediately adjacent to Forge Meadow with the benefit of that right of way over the Old Forge Yard. No doubt believing that this might strengthen their hand in the emerging dispute, they took advantage of the opportunity and purchased the relevant part of the northern field with the benefit of the right of way. They were registered as proprietors of that land, together with the right of way, on 15^th November 2001. Unfortunately for them, there was discovered to be a fatal flaw in the earlier conveyancing in relation to this. The relevant right of way had purportedly been created by persons who undoubtedly had the power to create it, namely the executors of Arnold Miles, but all the acts necessary to its creation had taken place under assents which were under hand only and not under seal (namely an assent dated 23^rd December 1983 by which the Old Forge and Forge Meadow land was vested in Warwick Miles, expressly excepting and reserving to the executors a right of way over the Old Forge Yard/Meadowgate Drive in favour of the northern field, and an assent dated 17^th January 1984 by the executors of the northern field in favour of Warwick Miles and others together with a right of way over the same property).

Rightly or wrongly, the Registrar was persuaded that these assents did not, for want of seals, suffice to create or grant a legal right of way over the Old Forge Yard and the claimants’ title to that part of the northern field has subsequently been rectified so as to delete the reference to the right of way. Rightly or wrongly, it has been conceded on behalf of the claimants that, so far as the right of way was concerned, the effect of sections 36(1) and (4) of the Administration of Estates Act 1925 is that the assents operate only to create and/or grant the right of way in equity. I say “rightly or wrongly” because the matter was not argued before me and, while appreciating the technical arguments in favour of the position taken, I have formed no independent opinion as to their impregnability if attacked with sufficient subtlety.

There are, thus, two disputes. First, does Forge Meadow enjoy a right of way over the Old Forge Yard? Secondly, does the claimants’ portion of the northern field enjoy such a right of way? On the pleading there is, potentially, a third issue: if the claimants’ portion of the northern field does enjoy that right of way, can the claimants use that in connection with their use of Forge Meadow? It is, however, conceded on behalf of the claimants that the answer to this must be negative. I now turn to examine each of the live issues.

The claimants have sought to get over the problem caused by the mistakes recounted in paragraphs 6 and 7 in a variety of ways. They have not sought to argue that Mr Lovering as co-owner of the Old Forge Yard had power on his own to give such a right. Mr Sharples on behalf of the defendants put before me the authorities which, he submitted, rendered such a contention unarguable but, given the claimants’ approach, I do not need to refer to them. Rather, the claimants relied in the final analysis on two (on one analysis three) broad propositions. The primary contention was that the effect of the transfer dated 15^th April 1988 (Lovering to Mr and Mrs Lovering) had been to create an implied way of necessity over the Old Forge Yard. As a footnote to this, there was the proposition that the effect of the transfer of 31^st October 1998 had been to acknowledge and define the way of necessity (relying on the doctrine to which I advert below). Finally, it was submitted that, as between the Loverings and the Martins, the latter were entitled to assert the right of way by way of proprietary estoppel and that the first defendant was bound by that estoppel. I will take these arguments in turn.

As Dillon LJ observed in MRA Engineering Limited v. Trimster Co. Limited (1987) 56 P&CR 1 at 5 (“Trimster”):

“It is of course well established that a way of necessity may arise by implied reservation as well as by implied grant. The law as to ways of necessity is in some respects archaic, and it may be that it was time that it was given closer consideration as against modern circumstances. As matters stand, however, there is a considerable difference between a way of necessity and a way which is implied to give effect to the presumed intention of the parties – see for instance, so far as grant is concerned, the decision of Kay J. in Brown v. Allabastor [(1887) 37 Ch. D. 490].”

In the same case, Dillon LJ went on to advert to the dictum of Stirling LJ in Union Lighterage Co. v. London Graving Dock Co.[1902] Ch. D. 557 at 573 that:

“…an easement of necessity… means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property”,

and to a passage in the then current edition of Gale that :

“Speaking generally it does appear to be essential that the land is absolutely inaccessible or useless.”

The starting point of the claimants’ argument has to be that the effect of the 15^th April 1988 transfer was to leave Mr Lovering, qua owner of the then undeveloped Forge Meadow land, landlocked. Having established that that was the effect, the claimants must then establish not only (1) that Mr Lovering needed a right of way over the Old Forge Yard in order to prevent Forge Meadow from being “absolutely inaccessible or useless” but also (2) that the way which was needed for that purpose (and not merely for the reasonable enjoyment of the land retained) extended to a vehicular right of way. The defendants contested each of those propositions.

The defendants advanced two reasons for saying that the effect of the transfer had not been to render Forge Meadow landlocked. It is convenient to take first a point which arose late in the trial and which appeared to take Mr Littman on behalf of the claimants by surprise. This was that the claimants had not proved, and could not in fact prove, that Mr Lovering did not enjoy access from Forge Meadow to Forge Lane over land which was entirely within his own sole ownership, namely the green land (see paragraph 4(ii) above). This submission appeared at one point to wilt in the face of Mrs Lovering’s oral evidence that the northern edge of the green land had in fact become owned by the Loverings jointly prior to the relevant date. If that was right, Forge Meadow (Mr Lovering) could only access Forge Lane by this route by crossing land which was not in his sole ownership. It later had to be conceded by Mr Littman that Mrs Lovering had in fact been mistaken. The green land had been in Mr Lovering’s sole ownership at all material times.

As at 15^th April 1988 the physical boundaries between the Forge Meadow land on the one hand and the green land and the yellow land on the other were as follows. The northern boundary of the yellow land had originally been the southern face of a block of stables and outhouses situate on the green land. These had been pulled down by the Loverings and replaced by a fence. There was nothing to stop Mr Lovering if he so chose from making an opening in that fence. It is, however, clear from all the relevant plans that this would only give him access to yellow land in joint ownership. The only point at which the Forge Meadow land is immediately contiguous to the green land and which might, in theory, have enable Mr Lovering to access Forge Lane without passing over yellow land was itself at all material times obstructed by the extreme western end of the building which is described on the plan attached to the conveyance from Arnold Miles to Bevan dated 19^th October 1981 as a workshop (see C189). It can be seen from that plan, and also from the Sommer contract plan, but most clearly from the plan attached to the conveyance dated 20^th January 1984 between Warwick Miles and Terence Pardington whereby the yellow land was first conveyed as a separate parcel (see C192A-D, – see also to the same effect C195, 198, 201, 207 all showing the same configuration) that there is a nib of yellow land which extends to the western face of that workshop. [I am circulating with the draft version of this judgment a sketch plan indicating the position of this “nib” of yellow land – see Annex A]. In short, Mr Lovering could only access Forge Meadow from Forge Lane (and vice versa) otherwise than over the Old Forge Yard either (1) by crossing the yellow land at some point or (2) by demolishing a sufficient part of the workshop. The question then is whether either of these two possibilities negates an implied reservation of a way of necessity over the Old Forge Yard.

The possibility of an access over the yellow land need not be separately considered from Mr Sharples’ second main objection to the existence of the postulated way of necessity. This was that since Mr Lovering was a joint owner of the Old Forge Yard he had no need of a legal easement: as a co-owner he was free to pass onto and across that land. I do not accept that submission. It is true that as co-owner (both in law and in equity) he was as much entitled as Mrs Lovering to enjoy the Old Forge Yard as she was, and possibly true (although I do not regard the contrary as unarguable) that he could use it for independent purposes of his own. These rights were, however, to a degree precarious. Invocation by Mrs Lovering of her rights under section 30 of the Law of Property Act 1925, or matrimonial legislation, might rob him of those rights. The acid test of whether a person needs a way is whether he can compel an adjoining owner to grant him a legal right: see Barry v. Hasseldine [1952] Ch. 835. Mr Lovering’s rights as co-owner of the Old Forge Yard following the transfer to himself and his wife did not (absent an implied reservation) give him that right.

Accordingly, the effect of the transfer dated 15^th April 1988 was in my judgment to leave Mr Lovering landlocked except to the extent that it was theoretically possible for him physically to demolish the workshop on the green land. I do not consider that this possibility prevented him from being landlocked for the purposes of the doctrine of implied reservation of an easement of necessity. There is no direct authority on the point of which I am aware. That doctrine however, while it may not rest at all firmly on the presumed intentions of the parties, or on their actual intentions, must be sensitive to physical as well as legal facts existing at the date of the relevant grant. Where access to the property retained is only available either over the property granted or by destruction of a physical barrier the continued existence of which was obviously contemplated by the parties, it is consistent with the doctrine (and not contradicted by authority) to say that a way over the property granted is impliedly reserved as a matter of necessity.

Accordingly, in my judgment Mr Lovering as owner of Forge Meadow did need a right of way over the Old Forge Yard following the transfer of that to himself and his wife. Mr Sharples has two answers to this point. First, he submitted that the most that Mr Lovering needed was a pedestrian way. Secondly, he submitted that Mr Lovering did not even need that since he could access Forge Meadow on foot by virtue of the public footpath which crossed the Old Forge Yard and ran along the boundary of Forge Meadow on its way to the northern field. There was some debate before me as to whether the public footpath was in fact contiguous with Forge Meadow. I do not need to resolve that question, since the reality of the dispute between the parties relates to vehicular rather than pedestrian use. The claimants did not however satisfy me that the public footpath was not contiguous with Forge Meadow.

The real issue is as to whether the circumstances surrounding the April 1988 transfer were such as impliedly to reserve, as a matter of necessity, a vehicular right of way. Mr Sharples on behalf of the defendants advanced the following submissions in support of the contention that they did not:

I do not accept the first of those submissions. Although it is true that in Rigg, Jessel MR was concerned to emphasise that the way must be limited to “that which is necessary at the time of the grant”, the context was one where he was rejecting a contention that the way must be implied for any purposes to which the dominant tenement might subsequently be put. That a way of necessity may be implied for purposes contemplated at the date of the grant but not yet implemented seems to me to be clear from the decision of Pearson J. in Serff v. Acton Local Board(1886) 31 Ch. D. 679. It is true that that was a case of a grant, rather than a reservation, of a way of necessity but there is, in my judgment, no good reason to distinguish it on that ground. In both cases, the foundation of the right rests upon an implication as to the intention of the parties to be gathered from all the circumstances: see per Brightman LJ. In Nickerson v. Barraclough [1981] Ch. 426 at 440E-441A.

Mr Sharples’ second submission raises a point of greater difficulty for the claimants. In Trimster, the conveyancing had left a house in Dorking without any access to the public highway otherwise than by public footpaths to its side and rear. The question was whether a vehicular way over land which had been conveyed to the defendants had been impliedly reserved for the house. The County Court judge had concluded on the evidence that, while it might be very inconvenient not to be able to access the house by car, it would not be said that the absence of vehicular access rendered it unusable “in the ordinary sense of the word”. The Court of Appeal declined to interfere with that as a finding of fact.

In Manjang v. Drammeh, the owner of a strip of land alongside the River Gambia and which was “regularly and without inconvenience” accessed by his customers from the river failed in a contention that his land was “landlocked” so as to give him a way of necessity over adjoining land to the public highway.

What both those cases illustrate, in my judgment, is that the question whether a particular way is necessary is, in the final analysis, a question of fact to be determined by a consideration of all the surrounding circumstances. One cannot reason, from the fact that a county court judge held, of a house in a particular location in Dorking, that it was “usable in the ordinary sense of the word” without being accessible by vehicles, that the same must be true of all houses everywhere and at any time. There will be circumstances where it is so obvious from the nature of the particular house and the circumstances surrounding the grant that a vehicular way was treated as necessary that it will be open to the fact finding court to conclude that the house would not be useable in the ordinary sense of the word without it.

In my judgment this is such a case. There can be no doubt that both Mr and Mrs Lovering regarded vehicular access as necessary to the contemplated use of the building plot. Indeed in her witness statement in these proceedings she speaks of the rights purportedly granted by the Martin transfer as “the necessary rights of way over our ground to enable [the Martins] to build their house and to have access to the property” (emphasis supplied). That was in my view an ordinary unstrained use of the adjective in the circumstances. The plan attached to the 1984 Assent gives some idea of the relative distance of the property from the facilities (shops, public transport etc.) of Osbaston. The idea that a future owner of the house to be built on the property would not require vehicular access to it would have been dismissed (had it ever been raised) as absurd. The “need” for vehicular access was indeed acknowledged by the first defendant herself in various ways. Thus, at an interlocutory hearing on 8^th April 2003, she had adverted to her own need to park in connection with the Old Forge, asserting to the judge (misleadingly) that the only place available for her to do so was the Old Forge Yard. Further she was keen to emphasise that she was not disputing that the claimants had a vehicular way to Forge Meadow: simply that they could and should exercise it by keeping as far as possible to the line of the Meadowgate drive (over which of course they had no rights). It is no surprise that the house actually constructed on Forge Meadow was constructed with a garage, and I consider it permissible to infer that this was in contemplation at the date of the April 1988 transfer.

Accordingly, my conclusion is that the effect of the April 1988 transfer was to create, by implied reservation, a vehicular right of way over the Old Forge Yard in favour of Forge Meadow for the purposes of constructing, and thereafter using, a dwelling-house thereon. That is, for practical purposes, the same right as Mr Lovering subsequently sought to confer on the Martins by the Martins’ transfer (save that the latter was expressed to be for all purposes). The way so reserved will have been a legal easement, and the first defendant’s acquisition of the Old Forge and the Old Forge Yard will therefore have been subject to it.

Having reached that conclusion, it is unnecessary to consider the further or alternative submission of Mr Littman that the Martin transfer took effect as a selection by Mr Lovering of the route of the way of necessity. I cannot, in fact, see how that contention takes the matter any further. If I am wrong as to the creation of a vehicular way of necessity, the attempt in the Martin transfer either to define the route of a non-existent way of necessity was meaningless. If I am right, no definition of the way was in fact necessary: it had to run over the Old Forge Yard and thence on to the Old Forge Lane.

Mr Littman’s alternative submission was that the Martins had become entitled as against the Loverings to a right of way over the Old Forge Yard arising by proprietary estoppel, and that this had the effect of binding the first defendant as the successor in title of the Loverings.

The factual basis of the estoppel relied on rested on the following propositions:

The factual allegations were easily made out in the evidence. I heard oral evidence from Mrs Lovering, and had the benefit of witness statements from Mr Lovering and Mr Martin. It was perfectly clear that Mr Martin would never have spent money on purchasing Forge Meadow and building a house thereon had be not believed that he and his wife were entitled to the right of way apparently granted to him by the Martin transfer. It is equally clear that both Mr and Mrs Lovering knew of his belief, and stood by without objection while the Martins proceeded to build the house and thereafter make it their home. There is equally no doubt that both Mr and Mrs Lovering themselves believed that a right of way had indeed been granted to the Martins: Mrs Lovering was herself the author of the brown line on the Martin transfer plan, and, as indicated by the reply given by Hambly Smith in their letter dated 22^nd July 1998 to Watkins & Gunn (see paragraph 12 above) believed herself to have been a party to the grant.

Mr Sharples submitted, however, that these facts were insufficient to bind Mrs Lovering’s conscience. He relied on a passage in Megarry & Wade’s The Law of Real Property, 6^th Edition at paragraph 13-009 which reads:

“It is unlikely that O’s conduct will be regarded as unconscionable unless he was aware of (i) his proprietary rights (ii) C’s expenditure or other detrimental acts and (iii) C’s mistaken belief that he had or would acquired an interest in or over O’s land.”

In the present case, submitted Mr Sharples, it could not be shown that Mrs Lovering was aware either of her own proprietary rights or of the Martin’s mistaken belief as to the extent of their rights.

The only sense in which Mrs Lovering was ignorant of her own proprietary rights was that she herself believed (mistakenly) that she was a party to or otherwise bound by the purported grant of the right of way in the Martin transfer. In all other respects she was perfectly aware of her proprietary rights. Her belief that she was bound by her own act to acknowledge the existence of the right of way can in no way prevent it from being unconscionable for her subsequently to turn round and take advantage of the mistake when she discovered it. On the contrary, it is part of the congeries of facts which would have rendered it unconscionable for her to have behaved in that way.

I would also reject the submission that there was no evidence that Mrs Lovering knew of the Martins’ belief as to the extent of their rights. She herself believed that the rights were necessary for the Martins’ purposes (see paragraph 31 above), knew that the Martins had purportedly been granted them, and must have supposed (had she thought about it) that the Martins believed that they had acquired the right.

In those circumstances not only would it have been unconscionable for Mrs Lovering to have later taken the point (which of course she did not) that the right did not bind her, it would have been outrageous.

Mr Sharples next submitted that the expectation created by the representation in the Martins’ transfer can have been no more than to receive the grant which they in fact received, namely a grant by Mr Lovering alone. He relied on the fact that there was no overt representation by Mrs Lovering to the Martins as to the validity of that grant. In my judgment that is nothing to the point. The fact is that by not objecting to (and in fact being wholly co-operative with) the grant and the subsequent expenditure by the Martins she inevitably encouraged that belief that they were acquiring/had acquired the right. That is sufficient.

Finally, Mr Sharples submitted that there was insufficient evidence to judge the extent of any equity in the Martins’ favour: there was no evidence that the amount spent by them on the acquisition of the plot and the building of the plot exceeded the value of the finished product on the assumption of a pedestrian way only. However, Mr Martin’s clear evidence was that they would not have spent the money they did (£90,000) if there had been any doubt about the way which they believed they had (see paragraph 8 of his witness statement). In paragraph 3 of his witness statement he says “if there had not been a right of way I would not have bought the building plot”. It is clear in the context (particularly in the light of the independent existence of the public footpath) that this is equivalent to saying “if there had only been a pedestrian way, I would not have bought”. It is obvious, in my judgment, that the value of the Forge Meadow house without the vehicular right of way would have been very significantly less than its value with that right of way. I do not think the claimants are to be criticised for not having tendered expert evidence of that fact.

I am left in no doubt that had the matter arisen as an issue between the Martins and the Loverings, the Martins would have had no difficulty in asserting, whether by sword of claim or shield of defence, that as against the Loverings they were entitled to claim a vehicular right of way for the purposes of Forge Meadow over the Old Forge Yard on to Forge Lane. The conferring of such a right of way was plainly the appropriate way in which to satisfy the equity.

The question whether that equity, enjoyed by the Martins as against the Loverings, binds the first defendant presents difficulties of a theoretical nature. The equity only takes effect as an equitable easement by virtue of the court’s declaration that that is the appropriate way in which it should be so satisfied. In unregistered conveyancing the same theoretical difficulty exists, but the decision of the Court of Appeal in ER. Ives Investment Limited v. High [1967] 2 QB 379 is clear authority that a purchaser taking with actual notice of the equity will be bound by it. In the registered conveyancing regime with which I am concerned (which is agreed to be the pre-Land Registration Act 2002 regime) the Martins’ equity will only be binding against a purchaser for value if either it satisfied the characteristics of an overriding interest or the purchaser’s conscience was independently affected by the equity.

Rule 258 of the Land Registration Rules 1925 provides:

“Rights, privileges, and appurtenances appertaining or reputed to appertain to land or demised, occupied, or enjoyed therewith or reputed or known as part and parcel of an appurtenant thereto, which adversely affect registered land, are overriding interests within section 70 of the Act, and shall not be derived incumbrances for the purposes of the Act.”

In Celsteel Ltd. V. Alton House Ltd. [1985] 1 WLR 204 at 220-221 Scott J, as he then was, held that those words extended to any right, privilege or appurtenance which is “openly exercised and enjoyed” with the land. There is in my judgment no doubt that the way over the Old Forge Yard was being openly exercised by the Martins. The fact that they usually did so by entering and exiting through the Meadowgate drive access (a purely permissive user) does not detract from the fact that when they used the Old Forge Yard entrance they were doing so openly and on the basis of an entitlement to do so. Since that right to do so was (as I have held) capable of legal vindication there seems to me to be no difficulty in fitting it within the wording of Rule 258.

If that is right then I need not decide whether there are independent reasons for holding the first defendant’s conscience to be affected. However, the fact that she purchased with knowledge of the Loverings belief that they had successfully granted the right of way and of the Martins’ exercise of the rights (see the letter dated 22^nd July 1998 quoted in paragraph 12 above), would obviously be highly relevant to that question.

As already noted, the claimants concede that the effect of the 1984 assent was that any right of way purportedly granted to assentees of the northern field could take effect in equity only: see paragraph 15 above. The defendants have disputed whether the executors of Arnold Miles had any title to make such a grant, but I did not understand that point to be pursued with any vigour. It is difficult to see that there could be anything in it given the effect (if only in equity) of the exception and reservation in the assent dated 23^rd December 1983.

Accordingly, the only real question in relation to this right of way is whether it was an overriding interest within Rule 258. Mr Sharples submitted that there were two reasons why it could not be. First, he submitted that there was little if any evidence of actual use by the owners of the northern field of the way at the time of the first defendant’s purchase. That is indeed the case. However, there had been use in the past, albeit only rarely. More importantly, however, all relevant dispositions of the Old Forge Yard had been made expressly subject to the right of way purportedly reserved by the 1983 assent. As between the parties to that assent, Mr Warwick Miles could not have asserted that he took free from the right. It seems to me that on any view, the right was, regardless of the extent to which it was in practice ever used, known or reputed as appertaining to the northern field and, therefore, potentially an overriding interest within Rule 258.

Alternatively, Mr Sharples submitted that the right could not be an overriding interest because it had, at the date of the first defendant’s purchase, been entered on the register. Section 3(xvi) of the 1925 Act defines “ordinary interest” as meaning:

“all the incumbrances, interests, rights and powers not entered on the register but subject to which registered dispositions are by this Act to take effect…”

That definition applies “unless the context otherwise requires”. The context here is the enumeration of overriding interests set out in section 70(1)(a) as extended by the provisions of Rule 258, and the provisions of section 20(1) of the Act which makes dispositions of the legal estate in registered land subject to the entries on the register and to any overriding interests. In the latter context, it seems to me absurd to say that an interest which has wrongly been entered on the register but which in all other respects answers the description of an overriding interest is disqualified as an overriding interest by reason of its (mistaken) appearance on the register.

The claimants complain of various acts of obstruction to their rights of way, as follows:

For the reasons I have given, the claimants are entitled to declarations in appropriate terms as to their rights to use the Old Forge Yard for the purposes of Forge Meadow and the northern field respectively and to the injunctive relief sought by paragraph (4) of the prayer for relief. Subject to any submissions which may be made when this judgment is formally handed down, it seems to me proper to order that the titles numbered WA508839, WA480928 and CYM48705 should be amended to reflect the effect of the declarations I propose to make. They are also entitled in principle to an inquiry as to damages.

I am releasing this judgment in draft well in advance of the date fixed for formal handing down in order to give the parties an opportunity to agree the terms of the order which I have indicated I propose to make. If they are unable to agree, each should provide my clerk with a draft of the order as proposed not less than 48 hours before the date fixed for handing down.