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Right of Way - Emmett v Sisson

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Right of Way - Emmett v Sisson

Postby henners » Fri Apr 01, 2016 12:01 pm

Could I have some advice please.
The attached document is the plan attached to the register entry for my property. It clearly describes a mode of user to the forecourt of my property and to the garage site of my property.

Since moving into my home some 30 years ago, I always assumed that the access to my property was constrained to the route of the way as shown within the dotted lines. I suspect this the plan submitted on first registration donkeys years ago.

I am wondering now whether the ruling under Emmett v Sisson might offer me the opportunity to open up other accesses to the land burdened with the right of way.

The entry in the property section of my deeds is very general "a full and free right...etc, etc...over and along the strip of land to the south of the land conveyed. The entry aligns with usage as depicted by the dotted lines, but offers something more general without the dotted lines.

The entry in the charges section of my neighbours deeds is very general too "the land is burdened with such rights of way as might exist for the property to the north.

Given Emmett v Sisson, I'm wondering whether I've a right far more general than I'd assummed.
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Re: Right of Way - Emmett v Sisson

Postby theycantdothat » Sat Apr 02, 2016 11:29 am

Emmett v Sisson only helps where what is at issue is not the extent of the land over which the right of way was actually granted, but whether the grantee is entitled to insist on using the full extent and where the points of access are. In your case it is more a question of establishing the extent of the grant. That is a question of construction to be answered by referring to the instrument creating the right and, if necessary, to the physical layout.

Assuming that as to description the terms of the grant say no more than it is exercisable "over and along the strip of land to the south of the land conveyed" and that there is nothing else in the instrument which may help to identify the strip of land (apart from the plan), there is no guidance from the words as to where the strip of land is other than that it is to the south. "Strip of land" is not terribly helpful as a description compared with, say, "drive". However, "strip" implies something which is significantly longer than it is wider. The purpose of the right of way has to be to get from the property to the public highway and there have to be at least two termini, one on your property and one on the public highway.

Looking at the plan, we can see where the terminus is with the public highway. GIven the layout and that the right is granted over a "strip of land" another terminus has to be immediately to the south of the garage gates. The dotted lines on the plan appear to show a reasonable route between these two termini, without us being able to conclude that the dotted lines actually indicate the route, or indeed anything at all. What I do think we can conclude is that the intended route cannot deviate too far from the apparent route shown by the dotted lines. If the dotted lines correspond with the boundaries of an area which is clearly demarcated then there can be little doubt that that area is the strip of land. Even if the plan is inaccurate, given that the text of the instrument does not refer to the plan, the strip is going to be the demarcated land.

If the land is not demarcated, the strip has to be somewhere and cannot simply float to suit the convenience of either landlowner. If the same route has been used for 30 years then that route has been accepted as the land over which the right is exercisable.
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Re: Right of Way - Emmett v Sisson

Postby henners » Sat Apr 02, 2016 6:11 pm

Many thanks.
I appreciate your very thorough analysis.

In point of fact, the terms of the grant and the plan that identifies the termini and the nominal route, have been in place since at least 1945 when mentioned in a conveyance of that date. What was probably apparent in 1945 is as clearly apparent today.

Your point about what has been accepted is clearly very relevant.

I guess I'll just have to settle for what I've currently got.

A further small questIon, what is the revelance of the date of a conveyance when transferring an easement with the land.

Many thanks.
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Re: Right of Way - Emmett v Sisson

Postby atticus » Sat Apr 02, 2016 6:28 pm

An easement is a right of which the dominant land has the benefit. That right attaches to the land, and is transferred with it.
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Re: Right of Way - Emmett v Sisson

Postby henners » Sat Apr 02, 2016 7:12 pm

atticus wrote:An easement is a right of which the dominant land has the benefit. That right attaches to the land, and is transferred with it.

The point of my question was why say the original easement reading : by a conveyance dated 1945 between A and B, a full and free...etc.

When there's been at least four subsequent transfers the last being 1985, does the easement entry in the property register refer to the 1945 transfer?

Thanks
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Re: Right of Way - Emmett v Sisson

Postby theycantdothat » Sat Apr 02, 2016 7:46 pm

henners wrote:When there's been at least four subsequent transfers the last being 1985, does the easement entry in the property register refer to the 1945 transfer?


Because that is the instrument which granted the right.
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Re: Right of Way - Emmett v Sisson

Postby dls » Sun Apr 03, 2016 11:51 am

As usual, I stand on TCDT's shoulders.

Emmett v Sisson really only establishes the need to construe each particular deed on its own trems.
If the land is not demarcated, the strip has to be somewhere and cannot simply float to suit the convenience of either landlowner.


This is subject to a qualification that there is a risk that if not demarcated at all, it may be struck down. A right of way can only exist in a particular designated strip.
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