Summary

A common intention to reserve a right of some kind which was unspecific as to the precise nature and extent of that right could not found a case for the implication of the reservation.

Facts

Defendant's appeal from the order of HH Judge Maddocks made on 18 July 1997 dismissing the defendant's counterclaim by which he had claimed a right for himself and his successors in title as owners of Lostock Hall Farm, Cheshire, to enter on the plaintiff's property (known as The Paddock) for the purpose of constructing a road with a right of way over the road. The Paddock was the most southerly house in Lostock Hall Road ('the road'), all houses in which were once part of Lostock Hall Farm. In 1989 the defendant started to build a road from Lostock Hall Farm northwards towards the end of the road but it ended at a point to the south of The Paddock. By his counterclaim, the defendant claimed to be entitled to enter on The Paddock for the purposes of constructing an extension to the road. Two conveyances dated 1928 and 1930 were relevant. It was not in dispute that neither conveyance contained any express reservation of the rights claimed but it was asserted that those rights were to be implied into the conveyances. The judge reviewed the authorities starting with Wheeldon v Burrows (1878) 12 Ch.D 31 and then referred to Jones v Pritchard (1908) 1 Ch 630 and Pwllbach Colliery v Woodman (1915) AC 644 holding that those cases established that an easement might arise by implied reservation where the common intention to reserve plainly appeared from the terms of the deed. He then went on to consider In re Webb's Lease (1951) Ch 808 and Liverpool City Council v Irwin (1977) AC 239 concluding that in order for a reservation of the rights claimed to be implied the case had to be brought within one of the exceptions to Thesiger LJ's second proposition in Wheeldon (supra). The judge held that it was plain from the plan to the 1928 conveyance that an extension to the road had been contemplated but concluded that any implied reservation was, at best, only exercisable within a reasonable time from the date of grant and that a reasonable time had long since elapsed. The defendant appealed.

Held

(1) The decision in In re Webb's Lease (supra) established that the onus was on the defendant to bring the case within one of the exceptions to the general rule stated by Thesiger LJ in Wheeldon (supra). It was recognised in In re Webb's Lease that the two specific exceptions did not exhaust the list and that where the necessary circumstances were clearly established the court would imply the "appropriate reservation". (2) The "appropriate reservation" referred to had to be that which the parties intended to be reserved. A common intention to reserve a right of some kind, but which was unspecific as to the precise nature and extent of that right, could not found a case for the implication of a reservation (see Philips v British Sky Broadcasting (1994) Independent, October 31, 1994, Trollope & Colls Ltd v NW Metropolitan Regional Hospital Board (1973) 1 WLR 601 and Peckham v Ellison (1998) Times, December 04, 1998). (3) Although, as the judge had found, it was plain from the conveyances that an extension to the road had been contemplated that did not lead to the conclusion that there had been a common intention that the vendor should have the right for himself and his successors to enter on the plaintiff's land at any time in the future for the purpose of constructing the extension. Very clear evidence would be required to establish a common intention to reserve a right of that kind, exercisable in perpetuity, and the indicators of intention in the present case fell far short of that. Accordingly the judge had been right to hold that there was no basis for implying a reservation of a right to construct an extension exercisable after the expiry of a reasonable time. (4) Indeed, no reservation of any kind was to be implied in the conveyances as (i) it was not possible to deduce with any degree of certainty the precise nature and extent of the right which the parties intended the vendor to have and (ii) both conveyances contained express reservations of rights in favour of the vendor indicating that the parties had turned their minds to the question of what rights should be reserved.

Appeal dismissed.