Continuous and non-continuous rights of way

In Wood v Waddington
[2015] EWCA Civ 538, at first instance, Mr Justice Morgan found the claimants had not established they had rights of way over the defendant’s land. Lord Justice Lewison (with whom Lord Justices Richards and McCombe agreed) thought otherwise. The case raises some interesting points in respect of easements.

Briefly, Mr Crook owned
a substantial piece of farmland
in Wiltshire. He sold the neighbouring plots to Mr Waddington and to Mr and
Mrs Wood’s predecessors in title.
The Woods claimed two rights
of way over Waddington’s land.

The Court of Appeal considered whether the rights arose by express grant or by virtue of section 62 of the Law
of Property Act 1925.

The clause in the transfer relied upon as an express grant stated:‘The property is sold subject to and with the benefit of all liberties, privileges and advantages of a continuous nature now used or enjoyed by or over the property.’

There were other particularised grants in the transfer, but the Woods claimed this clause was broad enough to cover the rights of way they were claiming, which were not otherwise mentioned.

Broader interpretation

Lewison LJ noted that the concepts of ‘continuous’ and ‘apparent’ easements were originally borrowed from the French Code Civil, continuous easements being those which are enjoyed without any human activity (rights to light, rights
of support, etc.). A right of
way cannot, therefore, be a continuous easement, regardless of how often or regularly it is used. However, he continued, since Wheeldon v Burrows (1879) 12 Ch. D. 31, English law has developed a broader notion of the ‘continuous and apparent’ easement, in which the emphasis is on ‘apparent’,
and this is capable of being
a right of way.

The transfer clause relied upon only referred to privileges and advantages of ‘a continuous nature’. Agreeing with the judge at first instance, Lewison LJ concluded the clause should be interpreted to accord with the narrow, traditional categorisation of continuous easements and was not, therefore, referring to rights
of way.

Section 62 conveys with
land all rights and advantages enjoyed with the land at the time of the conveyance. Lewison LJ considered that where there has been no diversity of occupation before the conveyance, all that is necessary is to show the exercise of the right claimed was ‘continuous and apparent’
at the time of the conveyance,
in the sense developed since Wheeldon v Burrows.

Reversing the judge’s decision, Lewison LJ considered the broader notion of ‘continuous and apparent’ to have been made out on the judge’s
findings of fact, demonstrating that an easement may be simultaneously continuous
and non-continuous.

Other issues

The case highlights other important issues to keep in mind when considering rights of way:

• Unlike in boundary disputes, conduct post-dating the transfer is not admissible
  to construe a clause of a transfer relating to easements;

• For section 62 to bite, there need not be diversity of occupation prior to the relevant transfer;

• In determining a claim under section 62, it is necessary to consider both the features on the ground and the use of the rights claimed at the time of the conveyance (including a reasonable period before).

• ‘Continuous and apparent’ use, in the broader sense, is a matter of fact. Use of a track once a month was sufficient on the facts of this case;

• Although section 62(4) provides that the operation of section 62 may be excluded by the expression of contrary intention in the conveyance, the inclusion of other express rights alone is not a sufficient expression of intention to exclude the operation of section 62;

• The more onerous right
  of way includes the less onerous. The Woods, having established a right of way with motor vehicles, were also entitled to a right of way on horse and by foot, even though there was no evidence of the right having been so exercised; and

• A right of way having only been enjoyed for leisure does not prevent the right of way being used for commercial purposes.
  The test is whether the dominant land has undergone a radical change in character which results
  in a substantial increase
  or alteration in the burden
  on the servient land. SJ

Peter Petts is a barrister at Hardwicke

@hardwickelaw