• In Nickerson v Barraclough [1981] it was held that the claimant did not have a right of way so as to build a bridge over the defendant’s land, because necessity could only exist in association with a grant of land where it was impossible to reach a parcel of that land.

Facts of the case:

  • C purchased a field which was landlocked, save for a parallel lane belonging to D, which had access to a road.
  • The original conveyance papers, in 1906, of the claimant’s land stated that “the vendor did not undertake to make any proposed new roads… nor did he give any rights of way over the same until the shame should be made”. Then in 1922, the conveyance of a strip of land on the north side of the field and adjoining it brought into line ownership the remaining part of what later became the C’s field.
  • The 1973 conveyance to the claimant stated that it included a right of way for all the purposes of the lane in question ‘insofar as the vendor has the power to convey it’.
  • C rebuilt a bridge over the lane, which was then demolished by the defendant. C then issued a writ to the defendant, stating that she was entitled to a right of way over the land by virtue of the 1922 conveyance, and s 62 (1) Law of Property Act 1925.
  • She also argued that the stipulations in the 1906 conveyance relating to the use of land had operated to confer a right to use the way over the bridge of necessity due to the land being landlocked.

Issues in Nickerson v Barraclough [1981]

  • The questions for the Court of Appeal in this case were on appeal by the defendant, and they were two fold:
  1. Whether public policy permitted the grant of a way of necessity, implied by the deeds, to be expunged by an express term in the grant of 1906
  2. Whether s 62 (1) LPA 1925 enabled the claimant to claim for a right of way under 1922 deeds.

The Court of Appeal held:

  1. With respect to the first issue, the CA firstly stated that public policy had no standing in this case. This was because public policy could only assist the court in frustrating a contract where the intention of the parties were contrary to public policy. Public policy could not determine the intention of the parties.
  • Instead on the first issue, the CA held that a way of necessity could only exist in an association with a grant of land and on the implication, that unless some way was implied, a parcel of land would be inaccessible. Their lordships stated that on a true construction of the 1906 conveyance, there was no intention for a right of way to be granted.
  • On the second issue, the CA stated that s62 LPA 1925  was only concerned with rights which were reputed to apply at the time of the conveyance, and was not concerned with ‘future’ rights. Therefore, the 1922 conveyance could not convey a right to access the land to reach a road.

Brightman L.J.

  • “ It therefore becomes necessary to decide what right, or rights, of way have to be read into the 1906 conveyance as a matter of necessary implication in order to give effect to the apparent purposes of the conveyance and the contemplated use to which the land might be put.” [436]
  • “that the conveyance negatives the grant of any right of way over the proposed new roads until they should be made, the obvious intention being, as I have said, to preserve for the Carrington Estates the ability to alter or abandon proposed roads” [438]
  • “I have therefore reached the conclusion that there ought not to be implied into the 1906 conveyance any right of way over Scouts Lane in face of the express terms of paragraph” [442]

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