right of way

pilman
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Re: right of way

Post by pilman » Fri Oct 18, 2019 6:15 pm

It may be sensible to take photos of the right of way that is currently a grassed surface, before you inform the owner that this is not an adequate surface for motor vehicles because of the slippage caused when it is wet. That is why you will create a safer surface using gravel in order that all types of motor vehicles can continue to use the track to access all parts of the dominant property that was shown on the plan used when the grant was made.

You can also confirm that this will be done at your own cost.

missmakepeace
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Re: right of way

Post by missmakepeace » Fri Oct 18, 2019 7:32 pm

Thank You. Much appreciated.

pilman
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Re: right of way

Post by pilman » Sat Oct 19, 2019 5:20 pm

The following text was copied from a number of court cases where the repairs of private rights of way were dealt with. It may assist you in understanding what rights you have as the owner of the dominant land that was granted a right of way with vehicles for all purposes connected with the use of the property.
Carter v. Cole (2006) - Court of Appeal

The Law apart from clause 3.2 of the Transfer
Unsurprisingly the law about construction and repair of rights of way granted as easements has been settled for some centuries. The following propositions (all of which, in principle, are subject to any contrary agreement) were not controversial:-
(1) A grantor of a right of way ("the servient owner") is under no obligation to construct the way;

(2) The grantee may enter the grantor's land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him ("the dominant owner"); see Newcomen v Coulson (1887) 5 ChD 133, 143 per Jessel MR;

(3) Once the way exists, the servient owner is under no obligation to maintain or repair it, see Pomfret v Ricroft (1669) 1 Wms. Saunders (1871 ed) 557 per Twysden J, Taylor v Whitehead (1781) 2 Doug KB 745 and Jones v Pritchard [1908] 1 Ch 630, 637, per Parker J;

(4) Similarly, the dominant owner has no obligation to maintain or repair the way, see Duncan v Louch (1845) 6 QB 904;

(5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;

(6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost: Taylor v Whitehead (1781) 2 Doug KB, per Lord Mansfield.
He has a right to enter the servient owner's land for the purpose but only to do necessary work in a reasonable manner, see Liford's Case (1614) 11 Co Rep 46b, 52a (citing a case in the reign of Edward IV) and Jones v Pritchard [1908] 1 Ch 630, 638 per Parker J.

NATIONWIDE BUILDING SOCIETY Respondent
v.
JAMES BEAUCHAMP (A FIRM) Appellant
[2001] EWCA Civ 275 Case No: CHANF/2000/2291/A3

Paragraph 7
• The judge then considered an argument on behalf of the Defendant that the Borrowers, as grantees of a right of way over the road, had the right at common law to enter upon the servient tenement and construct the estate road for themselves. The judge referred to Halsbury's Laws 4th ed. (1975) Vol 14 para. 162 where it is stated:
"The grantee of a right of way has a right to enter upon the grantor's land over which the way extends for the purpose of making the grant effective. Thus, if a right of way for carriages is granted over a field to the grantee's house, the grantee may enter the field and make over it a formed roadway suitable for supporting the ordinary traffic of a carriageway, but the grantee may only construct such a way as is suitable to the right granted him."
He also referred to Newcomen v Coulson (1877) 5 Ch. D. 133, on which the statement in Halsbury was based. The judge said:
"In my judgment there is a clear distinction between the common law right of a grantee of a right of way to enter land and construct a way suitable to its ordinary usage and a right arising from an indemnity arising from a contractual obligation. The distinction is crucial in two aspects. First, when a grantee constructs a way so that he may exercise his right of way, he does so at his own expense. There is no right at common law for him to recover the cost against the grantor.
Second, whereas a contract may and usually will specify the standard to which the carriageway must be built, the right of the grantee at common law is to make a carriage-way "such that it can be used for the purpose for which it is granted." It is a right to make an effective carriage way and no more.
Mr. Smith [counsel then appearing for the Defendant] seeks to persuade the Court that the common law "effective carriage-way" is to be equated with the contractual undertaking given by Willen Homesmiths. That is to create estate roads to adoption standard. In my judgment there is no basis for such a submission. What is 'an effective carriage-way' would be a matter [of] expert evidence but on the face of it, what was actually done, that is to sub-base level, would appear to provide 'effective carriage-way'.

• For my part I do not think that it assists to refer to a common law right as though the common law recognised some independent right regardless of the particular circumstances of the grant of a right of way. As I understand the authorities, the grant of a right of way is to be taken to carry with it such ancillary and incidental rights as are necessary to make the grant fully effective. This is so whether the right of way is obtained by prescription or by express grant. The law presumes this to have been the intention of the parties.

• In Newcomen v Coulson by an award under an Inclosure Act allottees were given a right of way on foot and on horseback and with their carts and carriages and with horses, oxen and cattle, doing as little damage to the soil or the corn, grass or herbage as may be. The award expressly contemplated that the allottees might "street out" the way, and in such event a particular width was specified. Pursuant to the award, a road of the specified width was made. The Defendants, who owned part of an allotment, commenced forming a solid granite road in place of the previous cart road. The Plaintiff lord of the manor sought to restrain the improvement of the road and the erection of the bridge. Malins V.-C. refused the application saying (at p. 140):
"I mean [the Defendants] to have the fullest right of metalling the road and making it the best road they can to meet the circumstances."
• This court dismissed the Plaintiff's appeal. Sir George Jessel M.R. (with whom James L.J. agreed) said at pp. 143-4:
"Then it was said, admitting the owner of each house to have a right of way, still the grantees have no right to enter upon the allotments over which the right of way is granted for the purpose of laying down a metalled road. Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word "repair" in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the Defendants have a right to make an effective carriage-way going, as they are going, by the shortest route, and not interfering with the land to a greater extent in width that the width of the street pointed out by the deed itself."
• Unlike the judge, who appears to have derived from Newcomen the proposition that only the bare minimum could be done by the grantee of a right of way to make the way effective, I do not read the words of the Master of the Rolls as indicating some limit on the standard of "streeting out". There is no indication that this court disapproved what Malins V.-C. had said in the sentence which I have cited. The only restriction on what could be done was the prescribing of the maximum width of the way if "streeted out".

• In Mills v Silver [1991] Ch 271 this court considered what a prescriptive right of way entailed. Dillon L.J. (with whom Parker and Stocker L.JJ. agreed) thought it clear that grantees of such a right of way were entitled to repair, as opposed to improve, the road. But he went on to contrast that with the position if there had been an express grant of a right of way. He said, at pp. 286 - 7:
"In the second place if the first and second defendants or their predecessors had been expressly granted a right of way for all purposes with or without vehicles over the disputed track that would have entitled them not merely to repair the disputed track but to improve it to make it suitable for the accommodation of the dominant tenement even if the dominant tenement was to be used for some purpose not in contemplation at the time of the grant: see Newcomen v Coulson (1878) 7 Ch. D. 764. This is founded on the presumed intention of the grant. In the simplest case, if a general right of way is granted with or without vehicles, which is to be the principal access to a house, it is permissible for the grantee to improve it by making it up as a carriageway: see for instance Gerrard v Cooke (1806) 2 Bos. & Pul. 109"
(The reference given for Newcomen is an obvious error for (1877) 5 Ch. D. 133, being a reference to a report on another point in subsequent proceedings in the same action.)

missmakepeace
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Re: right of way

Post by missmakepeace » Tue Oct 22, 2019 11:29 am

Thank you so much for taking the time and trouble.
This is really useful.

missmakepeace
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Re: right of way

Post by missmakepeace » Tue Oct 29, 2019 9:20 pm

We have received a letter today from our neighbours paralegal stating that for the avoidance of doubt, the right of way ia not to be used by any builders vehicles. In relation to the repair and renovation of our barn which their clients are fully aware, is intended by us to be used as a holiday let. They state the repair and renovation of our barn therefore does not fall into the use of the access which is in relation to 'the use and enjoyment of the Property but not for any other purpose whatsoever.
In addition to this she states it is entirely inappropriate for us to add any application of aggregate to their clients land. They are stating the current track is acceptable. We can not get our 2 wheel drive vehicle across it. A 4 wheel drive vehicle struggles.

mr sheen
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Re: right of way

Post by mr sheen » Tue Oct 29, 2019 10:35 pm

This 'paralegal' seems to be trying it on IMO.

I would reply with enclosed items as follows....

I acknowledge receipt of your letter dated......

Our property, as identified on the enclosed plan edged in red, benefits from a right of way at all times with all types of vehicles. Our "property" comprises all the land edged in red on the enclosed plan. As you point out, the Grant entitled us to enjoyment of our "property" i.e. all the land outlined in red and anything attached to said land.

The right to pass and repass to the land outlined in red on the enclosed plan, applies to all invitees to our property including professionals engaged by us to work on any part of our property.

In relation to the surface, the Grant specifies vehicular use and hence we have the right to maintain the surface in order to have full enjoyment of the rights as granted.

We will not tolerate any interference with our right of way. To ensure that the surface is fit for purpose ie vehicular use, in accordance with our rights we intend to make the surface suitable for vehicles to pass and repass.

We trust that you will advise your client of our rights so that this matter can be resolved amicably and without delay.

arborlad
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Re: right of way

Post by arborlad » Wed Oct 30, 2019 7:03 am

arborlad wrote:
Sat May 25, 2019 8:29 am
Any chance of a sketch or anonymised title plan which identifies different land ownerships and areas of easements.
arborlad

smile...it confuses people

arborlad
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Re: right of way

Post by arborlad » Wed Oct 30, 2019 7:36 am

missmakepeace wrote:
Tue Oct 29, 2019 9:20 pm
We have received a letter today from our neighbours paralegal stating that for the avoidance of doubt, the right of way ia not to be used by any builders vehicles.


Can you quote the exact wording please?
arborlad

smile...it confuses people

missmakepeace
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Re: right of way

Post by missmakepeace » Wed Oct 30, 2019 8:08 am

Thanks again for all the replies.
I will act upon them.
One thing I have not previously said as I have never challenged my neighbours on it. They often obstruct the right of way with tradesmen's vehicles attending their own property to carry our repairs. It is also obstructed when they have building materials delivered and is obstructed on a regular basis when they have a delivery of logs for fuel.
We have had this for the past five years and never complained, as we did not want to cause any animosity.

missmakepeace
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Re: right of way

Post by missmakepeace » Tue Nov 05, 2019 3:20 pm

Having written to my neighbours and informing them we will be putting gravel down to allow our vehicles to use the right of way, we received a letter from their solicitor. We replied to the said letter and today we put down some gravel. We have before and after photographs. My neighbours have told me today they are going to dig up the gravel tomorrow and put it on our land.
I really don't know where this will end?

pilman
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Re: right of way

Post by pilman » Tue Nov 05, 2019 3:30 pm

In court.

cleo5
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Re: right of way

Post by cleo5 » Wed Nov 06, 2019 12:20 am

Do you have legal fees insurance?

It seems that your neighbour is trying to block your proposed developement of the barn fearing it will cause him inconvenience .
He is stirring things up to try and deter you.
Will the row be the sole access to the holiday home when complete?

missmakepeace
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Re: right of way

Post by missmakepeace » Wed Nov 06, 2019 6:53 am

Hello
There is a public footpath running through my neighbours garden leading to our land and the barn. Guests could access the barn on foot. However our builders will need to bring materials in to repair the barn. We intend to hi ab most of the materials over another neighbours boundary hedge/fence, to prevent over use of the ROW. We have also agreed to remove all rubble via yet another neighbours land.

kind regards

mr sheen
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Re: right of way

Post by mr sheen » Wed Nov 06, 2019 7:14 am

Would like to see what you sent to the solicitors and what they replied with.

This seems to be heading to court.....I would be preparing for that eventuality.
I would keep replying to their solicitors in accordance with the civil procedure rules but you need to be careful what you say.

A threat to remove the hardcore would trigger a 'letter before action' from me in this situation...I would make it absolutely clear that I will be using my ROW as per the deed of grant ie with vehicles suitable for the full enjoyment of my property and the removal of the surface suitable for vehicles is a substantial interference with my rights.

arborlad
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Re: right of way

Post by arborlad » Wed Nov 06, 2019 7:22 am

arborlad wrote:
Wed Oct 30, 2019 7:03 am
arborlad wrote:
Sat May 25, 2019 8:29 am
Any chance of a sketch or anonymised title plan which identifies different land ownerships and areas of easements.
arborlad wrote:
Wed Oct 30, 2019 7:36 am
missmakepeace wrote:
Tue Oct 29, 2019 9:20 pm
We have received a letter today from our neighbours paralegal stating that for the avoidance of doubt, the right of way ia not to be used by any builders vehicles.


Can you quote the exact wording please?
arborlad

smile...it confuses people

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