Mr and Mrs Wilkins own Morghew Park and claimed an injunction and damages for trespass against Mr Lewis who owned an adjoining property, the Morghew Park Estate. Mr Lewis, his employees and visitors used a road running through Morghew Park.

Mr Lewis’ use of the roadway was granted under a right of way by Morghew Park’s previous owner for:

“full and free right of way … with or without vehicles or animals … in connection with the use of Morghew Park Estate as an agricultural and forestry estate and for the purpose of obtaining access to and egress from such dwelling houses as and are now erected including the two unoccupied dwellings or former dwellings at Old Heronden and also including not more than two new dwellings that may be erected for agricultural and forestry workers on Morghew Park Estate”.

The extent of the Morghew Park Estate had changed since the right of way was granted with approximately a further 700 acres of adjoining land being acquired. Although it was possible to gain access to the public highway without using the roadway, it was much less convenient.

Whether Mr Lewis’ use of the roadway was permitted under the terms of the right of way granted to the previous owner of Morghew Park Estate.

Reference

The grant of the right of way was only in respect of the identified titles of land named in the grant and did not encompass the additional estate that had been purchased since the grant of the right of way.

Mr Lewis argued that his right of way was granted “in connection with the use of Morghew Park Estate as an agricultural and forestry estate” allows the use of the roadway for the purposes connected with the running of an agricultural estate from the core estate, however great the extent of the land comprised in that estate. This was rejected by the judge.

*Full case details
High Court of Justice, Chancery Division, Mr Michael Furness QC [2005] EWHC 1710 (Ch)

Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk

Postscript

The basic rule is that a right of way cannot be used for the purpose of gaining access to other land. It was found that the right of way was not extended to neighbouring lands that were not expressly named on the grant. It is, therefore, important that the prospective way to access a building site is clearly set out before a building contract is entered into to avoid future difficulties.