Key points

  • The grant of a right of way may be found to be limited in scope beyond the natural meaning of the words used where there is a clear contrast with the wording used in a contemporaneous reservation
  • Even where the scope of a right is defined by reference to a plan, the court may find that what the parties have actually agreed differs from that shown on the plan
  • It will be difficult (but not impossible) to imply a right where the subject-matter is covered by an express right

Background

Although essentially a neighbour dispute between two farmers, Alford v Hannaford does illustrate a number of useful points in relation to the interpretation of rights of way, and indeed other legal documents.

By a transfer in 1991, part of a farm was transferred to a neighbouring farmer. The transfer granted and reserved easements over a track which passed through the farm. A dispute arose between the buyer and the seller's successor in title (the defendant) over the use of the track.

Use of the track

The transfer granted to the buyer:

"a right of way... at all times and for all purposes with or without vehicles to pass and repass over and along the track shown coloured brown on the plan annexed hereto".

The buyer claimed that the above right included a right to drive cattle down the track. The defendant disagreed. Critically, the right of way which was reserved to the seller over the part of the track which had been transferred to the buyer read as follows:

"a right of way... at all times and for all purposes with or without vehicles and animals to pass and repass over and along the track shown coloured blue on the plan annexed hereto" (emphasis added).

The Court of Appeal noted that there was nothing obviously wrong with the language of the clause. The transfer had been professionally prepared. The court thought that it was evident that the draftsman gave consideration to the scope of the rights granted and reserved by spelling out in the reservation a right "with or without vehicles and animals".

The absence of the reference to animals in the grant in favour of the buyer should therefore be read, in the context of the transfer as a whole, as limiting the grant to pedestrian and vehicular use. The contrast between the wording of the grant and that of the reservation was striking, and there was nothing to suggest that it was an error on the part of the draftsman.

Location of the track

The second issue related to the location and extent of the track over which the right of way was granted in favour of the buyer. The trial judge had found that the parties had used an out-of-date plan in the transfer. Part of the land coloured brown had become an overgrown ditch, and had not been used as a path or track for several decades. It was also blocked by a large tree. It was therefore impossible to use. Instead, there was a track which ran for the most part parallel to the brown land which had been used by the seller and was shown on maps from 1964 and 1982.

The court ruled that it was entitled to have regard to the situation on the ground when considering what rights the seller had intended to grant. It thought that it was most unlikely that the seller intended to grant a right of way over land which had been totally impassable for some years and which had been replaced by another track. The court noted that the grant was not simply "a right of way over the area coloured brown on the plan", but "a right of way over and along the track shown coloured brown on the plan" (emphasis added).

This was reinforced by the fact that the transfer contained a covenant by the buyer to erect fences, and in particular to install a gate between the points marked A-B on the plan. The only track leading to point A-B was the current one. The court therefore decided that the reference to "the track" must be read as one to the only usable track which existed at the time on the ground, regardless of inaccuracies in the plan.

Point of access to the track

A final part of the dispute centred on the point of access to the track from the buyer's land. As noted above, the transfer contemplated a point of access at A-B. The buyer argued however that she was entitled to access the track from a different point on her land; point X.

This presented an additional hurdle for the buyer because the court had found that the right of way was not over the brown land, but the current track, and although point X abutted the brown land it did not abut the current track. Nonetheless the buyer mounted an argument based on section 62 of the Law of Property Act 1925 to attempt to establish a right to get from point X to the current track.

The court had to decide whether the grant of an additional right of way via gate X was inconsistent with the express grant of the right of way along the track to point A-B. Section 62 only applies if and as far as a contrary indication is not expressed in the conveyance. The court ruled that the clear implication from the transfer was that there were to be secured boundaries between the two properties at all points. Although there was an existing gate at point X, it was clear from the transfer that the intention was that this was to be retained as part of a fence, with the only opening onto the land sold being the new gate at point A-B. No additional right had therefore been granted.

Things to consider

This case illustrates how the process of interpretation of a legal document is not limited to reviewing the precise words which are in dispute. The document must be viewed as a whole, and the circumstances which existed at the time of the grant and which would have been known to both parties may also have a bearing on what a clause is ultimately determined to mean.

The result of this approach in this case was that a right of way "for all purposes" was held to exclude passage with animals, and a right of way over land coloured brown on a plan was held to be a right over a different area of land altogether.

It is very important, when part of a piece of land is sold off, that all the rights the parties are likely to require are set out expressly (and clearly!). Relying on implied rights at a later stage may be difficult, especially where the document has made express provision for similar rights. For an illustration of this in the context of rights to park, see the case of Waterman v Boyle.