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Nickerson v Barraclough [1981] Ch 426, CA

Property law - Easement - Right of Way - Way of necessity

Facts:

Nickerson purchased a land locked field that had a lane running down the side of it for access to the main road. Barraclough owned the lane. Nickerson’s land had originally contained restrictions in the conveyance, including one that expressed that a right of way was not guaranteed. When the land was conveyed to her in the sale, the conveyance described the lane right of way as being available in as far as the vendor was able to convey it. Nickerson rebuilt a bridge that crossed over Barraclough’s land as an easy right of way to the main road. Barraclough tore it down. Nickerson issued a writ, claiming to be entitled to a right of way under s 62(1) of the Law of Property Act 1925 (the Act).

Issues:

Whether public policy would permit the grant of a way of necessity, implied by the deeds and whether that was enough to negative the original express deed.

Held:

The appeal by Barraclough was allowed. A way of necessity was found only to exists when it was required by necessity, or implication based on the circumstances, i.e. where land could not be accessed without it. It was said that public policy had no standing in this case and could only assist where the refusal to grant access was contrary to the interests of the public. Nickerson’s land was not landlocked as the path provided her with access to the road, so therefore the law of necessity was not available to be relied upon. Section 62 of the Act was not concerned with future rights, only with rights that were appertaining at the time of the conveyance.


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