Wood v Waddington [2015] EWCA Civ 538
Facts
Mr and Mrs Wood claimed rights of way over neighbouring land owned by Mr Waddington. They relied on wording in an earlier transfer and, alternatively, on section 62 of the Law of Property Act 1925. The disputed routes had been used in connection with the land before the relevant division of ownership. The transfer referred to advantages of a continuous nature, but did not expressly describe the claimed ways in the form contended for. The litigation therefore required separate consideration of what the document itself granted and what section 62 could convey through earlier use and the physical circumstances.
Legal Issue
Did the transfer wording expressly grant the claimed ways, or did section 62 create the rights through continuous and apparent use despite the absence of prior diversity of occupation?
Held
The Court of Appeal recognised the claimed rights under section 62. Lewison LJ rejected the proposed express construction because the reference to advantages of a continuous nature had a technical meaning which did not include a right requiring human activity merely because people used it regularly. The statutory analysis was different. Prior diversity of occupation was not indispensable where the relevant use was continuous and apparent in the required sense. On the evidence, section 62 operated to confer the ways. A limited express grant did not automatically exclude the section’s wider operation. It was therefore unnecessary to establish the same rights under the separate rule in Wheeldon v Burrows.
⭐ Legal Principle
Section 62 may confer easements without prior diversity of occupation where the requisite continuous and apparent use is established. The statutory inquiry is distinct from construing express words about continuous rights, and a limited express grant does not itself necessarily exclude section 62.
Significance
Wood requires precision about language and the route by which an easement is acquired. A right enjoyed without human action is not the same idea as a route regularly used in a way apparent on the land. The case also cautions against assuming that failure under Wheeldon v Burrows decides a section 62 claim. Students should examine the pre-conveyance use, the physical evidence and any effective exclusion of the section before reaching a conclusion.
Common exam questions about this case
Why did the express wording and section 62 produce different answers?
They involved different inquiries. The transfer’s reference to advantages of a continuous nature used a technical description which did not itself cover the claimed ways. Section 62 could nevertheless operate on the earlier enjoyment of the routes. Failure to establish an express grant did not exhaust the possible legal bases.
Was separate occupation before the transfer indispensable?
The Court of Appeal accepted that section 62 could operate without it where the use met the continuous-and-apparent requirements. That does not make prior arrangements irrelevant: the actual enjoyment and physical evidence still matter. Wood should not be reduced to a rule that every previously used route becomes an easement.
Does a limited express grant automatically exclude section 62?
No. The judgment distinguished the existence of a limited express right from an effective intention to exclude the statutory operation. The whole conveyance needs examination. A student must therefore ask what the document grants and whether it excludes section 62, rather than assuming that any express access provision answers both questions.