Emmett v Sisson

Factual and Procedural Background

This appeal concerns a dispute over a right of way along a private driveway running between two adjoining properties in The City. The parties are the owners of these properties, each owned by a husband and wife. The appellants wish to erect a high brick wall along the boundary between the properties, which the respondents oppose on the basis that it would interfere with their right of way.

The dispute centers on two issues: (1) whether the respondents have a right of way along the entire length of the driveway boundary or only at specific points; and (2) if the right of way extends along the entire boundary, whether the erection of a brick wall with a single vehicular access point would amount to actionable interference with that right.

The land originally formed a single parcel owned by a third party, who conveyed two properties to the appellants and respondents respectively, reserving a right of way to the respondents over a driveway land between the properties. The driveway land was subsequently tarmacadamed and a low stone wall with a pedestrian gate was constructed by the respondents along their boundary.

Relations between the parties deteriorated after 2000, culminating in the appellants digging a trench along the driveway boundary in 2009 to lay foundations for a brick wall. The respondents objected and threatened injunction proceedings, which they ultimately commenced in the County Court seeking to prevent the building of the wall.

The trial judge held that the respondents' right of way extended along the entire boundary and that the proposed wall would constitute an actionable interference. The appellants appealed against these declarations.

Legal Issues Presented

1. Whether the respondents' right of way extends along the entire boundary of the driveway land coterminous with their property boundary, or is limited to specific access points.
2. If the right of way extends along the entire boundary, whether the appellants' proposed erection of a brick wall with a single vehicular access point constitutes actionable interference with the respondents' right of way.

Arguments of the Parties

Appellants' Arguments

• The appellants accept the judge’s conclusion that the right of way extends to the boundary but dispute that it grants linear access along the entire boundary. They contend the right of way is limited to one or more defined access points, which can be reasonably changed with notice.
• They argue that the judge applied the wrong test for actionable interference by focusing on whether the appellants' proposed wall was unreasonable, rather than whether the respondents' insistence on linear access was reasonable.
• Relying on Pettey v Parsons and Well Barn Shoot Ltd v Shackleton, they submit that a single gated access through the wall would not amount to actionable interference.

Respondents' Arguments

• The respondents submit that the right of way must be construed in light of the conveyance and surrounding circumstances, granting access along the entire boundary rather than limited points.
• They accept the judge erred in framing the test for interference as one of reasonableness of the appellants’ actions, but maintain that the proposed wall would nonetheless constitute an actionable interference as it obstructs their right of access along the whole boundary.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by construing the express grant of the right of way in the conveyance, applying established principles that the language of the deed must be interpreted in the context of the circumstances surrounding its execution. The grant provided a right of way "over and along the access way" with no express limitation to specific points, and the court found that the intention was to grant maximum flexibility of access along the entire boundary.

The court rejected the appellants' reliance on the Well Barn Shoot case, distinguishing it as concerning implied rights of way, whereas the present case involved an express grant.

Analysis of Pettey v Parsons revealed that it primarily addressed the issue of actionable interference rather than the construction of the right of way. The court noted that in Pettey, the right of way was limited by reasonableness and practical exercise rather than absolute linear access.

On the question of actionable interference, the court applied the principles from West v Sharp and related authorities, which require substantial interference with the reasonable enjoyment of the right of way for it to be actionable. The test is whether the grantee's insistence on full use is reasonable and whether the obstruction substantially impairs convenient exercise of the right.

Although the trial judge framed the test in terms of the reasonableness of the appellants' proposed wall, the court found that the conclusion was correct: the proposed 2-metre brick wall, even with a single vehicular access point, would unreasonably restrict the respondents' right to pedestrian and vehicular access along the entire boundary, which they are entitled to enjoy as a "relative luxury" under the conveyance.

The court also noted the absence of any alternative legal access for the respondents due to the appellants' ownership of a ransom strip, reinforcing the importance of maintaining the full extent of the right of way.

Holding and Implications

The court DISMISSED THE APPEAL, upholding the trial judge's declarations that:

• The respondents' right of way extends coterminously with the boundary of their property along the driveway land.
• The respondents are entitled to access their property from any point along this right of way.
• The appellants' proposed erection of a brick wall with a single vehicular access point constitutes an actionable interference with the respondents' right of way.

The direct effect is that the appellants are restrained from building the proposed wall in a manner that restricts the respondents' right of access along the entire boundary. No new precedent was established; rather, the decision applies established principles on the construction of express easements and actionable interference to the facts of this case.