Benn v Hardinge (1992)

Benn v Hardinge (1992) 66 P & CR 246; [1992] NPC 129

EASEMENT, RIGHT OF WAY, PRIVATE CARRIAGEWAY, IMPLIED GRANT, ENCLOSURE AWARD, LAYING OUT OF PRIVATE CARRIAGEWAY, NON-USER, ABANDONMENT OF AN EASEMENT

Facts

The plaintiff had owned a farm and the adjoining land for 20 years. The defendants were the owners of a property located to the south of the plaintiff’s land. A track ran along the boundary of the plaintiff’s land. Part of the track ran between two entrances, A and B, to two of the plaintiff’s fields. In 1818, an enclosure award had affected the track and the defendants’ property in that they became private carriageways for various persons, including the proprietors and occupiers for the time being of the land adjacent to the track, including the owners of the plaintiff’s farm. Neither the plaintiff, nor his predecessors in title ever sought to use entrance B or the track leading to it from A for any purpose since they had alternative access. However, parts of the plaintiff’s land became waterlogged and he now wished to use entrance B and the track. The High Court dismissed his claim on grounds that there had been no grant of a right of access to the owners of the farm. The plaintiff appealed to the Court of Appeal.

Issues

(1) In what circumstances does the laying out of a private carriageway in accordance with an enclosure award create an implied grant of a private right of way over it?

(2) Did the non-user of the private carriageway due to the lack of occasion to use it create a presumption that it was abandoned?

Decision/Outcome

The appeal was allowed.

(1) The laying out of a private carriageway in accordance with an enclosure award almost inevitably creates an implied grant of a private right of way over it where there is no other purpose in laying out the way for the benefit of the owners of the adjacent property than they should have a right of way over it.

(2) The fact that the footpath was not used as no one had occasion to use it did not create a presumption that it was abandoned.