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Rights of way are the source of countless disputes between landowners each year. In the recent case of Browning v Jack  UKUT 307 (LC)] the Courts considered whether an easement was created in favour of a cottage and land over a farm track crossing neighbouring land.
In 1994, Mr and Mrs Browning’s (“Appellants”) predecessor in title, Gerald Pote, purchased land near Saltash in Cornwall (“Land”) by a conveyance (“1994 Conveyance”). The land comprised about 22 acres of pasture and was to the south of land belonging to June Jack and another (“Respondents”). It used to form part of the Respondents’ property.
In 1995, a property on the Land, known as “The Cottage”, was conveyed to Mr Pote by way of a Deed of Gift (“1995 Deed of Gift”). A track ran roughly north to south from the A38 on the southern border of the Appellants’ land to Bethany Road on the northern boundary of the Respondents’ land (“Brown Track”).
In 2006, Peter Browning purchased the Land and the Cottage. The Appellants were in the habit of using the Brown Track to cross the Respondents’ land to access Bethany Road.
The 1994 Conveyance contained a positive covenant obliging the Appellants to maintain and repair the boundary, hedges and fence along a marked line shown on an appended Plan. This line ran roughly west to east along the boundary of the Respondents’ and Appellants’ respective land. A further covenant required the Appellants to construct a stock proof hedge or fence across the Brown Track should this ever be requested by the Respondents.
This appeal was brought by the Appellants to contest a decision made by the First Tier Tribunal that (a) the wording of the covenant in the 1994 Conveyance was inconsistent with an implied right of way over the Brown Track and (b) that the tribunal was wrong to look outside the terms of the 1995 Deed of Gift to find evidence to disapply the grant of an easement under section 62 Law of Property Act 1925.
Under s62(1) a conveyance of land is deemed to include all easements enjoyed with the land at the time of the conveyance. However, this rule only applies if and as far as a contrary intention is not expressed in the conveyance (s62(4)).
The Upper Tribunal considered two legal issues on appeal:
Ground 1: Could the rule in the case of Wheeldon v Burrows act to create an implied easement over the Brown Track in favour of the Land?
Ground 2: Could the provisions in section 62 act to create an implied easement over the Brown Track in favour of the Cottage?
The Upper Tribunal allowed the appeal in part.
On Ground 1, the appeal was dismissed. There was detailed consideration as to whether a covenant to put up a fence could be satisfied through the construction of a gate. The Upper Tribunal decided that the wording was clearly phrased to allow the Respondents to cut off access along the track. Wheeldon v Burrow was therefore of no help to the Appellants in implying an easement in favour of the Land.
On Ground B, the story was different. The Tribunal decided that an easement was implied in favour of the Cottage by the exercise of section 62(1). The essential point here came down to what could be held to constitute an intention to disapply the effect of section 62. The 1995 Deed of Gift contained no express provisions disapplying the operation of section 62. The Respondents argued that surrounding circumstances could be taken into account (including the 1994 Conveyance) to demonstrate that section 62 was not to apply to the 1995 Deed of Gift. However, the Judge, determined that section 62(4) was clear in its requirement that express wording in the conveyance was required to disapply section 62. Surrounding circumstances could only be used as an aid to construing the words of a conveyance – circumstances were not in themselves enough to show a contrary intention in the absence of express wording.
The Judge determined that an easement over the Farm Track had been created for the use of the Cottage and that the Tribunal should give effect to the appellants’ application to register the easement.