How can a right of way be simultaneously continuous and non-continuous?

In Wood v Waddington [2015] EWCA Civ 538, at first instance, Morgan J. found the Claimants had not established they had rights of way over the Defendant’s land. Lewison L.J. (with whom Richards and McCombe L.J.J. agreed) thought otherwise. The case raises some nice points in respect of easements.

Briefly, Mr. Crook owned a substantial piece of farmland in Wiltshire. He sold neighbouring plots to Mr. Waddington, and Mr. and Mrs. Wood’s predecessors in title. The Woods claimed two rights of way over Mr. Waddington’s land.

The Court of Appeal considered whether the rights arose by express grant or
by virtue of s. 62 of the Law of Property Act 1925.

The clause in the transfer relied upon as an express grant stated:

“… the Property is sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property…”

There were other particularized grants in the transfer, but the Woods claimed this clause was broad enough to cover the rights of way they were claiming, which were not otherwise mentioned.

Lewison L.J. noted the concepts of “continuous” and “apparent” easements, were originally borrowed from the French Code Civil. Continuous easements being those which are enjoyed without any human activity: rights to light, rights of support etc. A right of way, therefore, cannot be a continuous easement, regardless of how often or regularly it is used. However, he continued, since Wheeldon v Burrows (1879) 12 Ch. D. 31, the English law has developed a broader notion of the “continuous and apparent” easement, in which the emphasis is on “apparent”, and is capable of being a right of way.

The transfer clause relied upon only referring to privileges and advantages of “a continuous nature”, agreeing with the Judge, Lewison L.J. concluded the clause should be interpreted to accord with the narrow, traditional categorisation of continuous easements, and was not, therefore, referring to rights of way. 

S. 62 conveys with land all rights, advantages etc. enjoyed with the land at the time of the conveyance. Lewison L.J. considered, where there has been no diversity of occupation before the conveyance, all that is necessary is to show the exercise of the right claimed was “continuous and apparent” at the time of the conveyance, in the sense developed since Wheeldon v Burrows.

Reversing the Judge’s decision, Lewison L.J. considered the broader notion of
“continuous and apparent” to have been made out, on the Judge’s findings of fact. Demonstrating an easement may be simultaneously continuous and
non-continuous.

The case highlights other important issues to keep in mind when considering
rights of way.

•    Unlike in boundary disputes, conduct post-dating the transfer is not
admissible to construe a clause of a transfer relating to easements.
•    For s. 62 to bite, there need not be diversity of occupation prior to the
relevant transfer.
•    In determining a claim under s. 62, it is necessary to consider both the
features on the ground and the use of the rights claimed at the time of,
including a reasonable period before, the conveyance.
•    “Continuous and apparent” use, in the broader sense, is a matter of fact.
Use of a track once a month was sufficient on the facts of this case.
•    Although s. 62(4) provides the operation of s. 62 may be excluded by the
expression of contrary intention in the conveyance, the inclusion of other express rights, alone, is not a sufficient expression of intention to exclude
the operation of s. 62.
•    The more onerous right of way includes the less onerous. The Woods
having established a right of way with motor vehicles were also entitled to
a right of way on horse and by foot, even though there was no evidence
of the right having been so exercised.
•    A right of way having only been enjoyed for leisure does not prevent the
right of way being used for commercial purposes. The test is whether the
dominant land has undergone a radical change in character which
results in a substantial increase or alteration in the burden on the servient
land.