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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Clements & Ors v Goodacre  EWCA Civ 1406 (11 October 2004)
Cite as:  EWCA Civ 1406,  1 All ER 833
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HHJ KENNEDY QC)
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE GAGE
|(1)EDWARD JOHN CLEMENTS & BARBARA CLEMENTS|
|(2) JOHN KENDALL BUSH & CATRIONA MARY BUSH||Claimants/Respondents|
|BRIAN VINCENT GOODACRE||Defendant/Appellant|
Smith Bernal Wordwave Limited
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MR R CAMP (instructed by Messrs Buss Murton) appeared on behalf of the 1st Respondent
MR E PETERS (instructed by Messrs DMH) appeared on behalf of the 2nd Respondent
Crown Copyright ©
The disputed 'wedge'
"Mr Witherden, who was the surveyor to the claimants... told me that the source of the postulated boundary markings on this plan was what was on the Ordnance Survey plans, what was on the registered titles and all the physical features they could see on the land. If I may say so, that is a perfectly understandable approach. Putting all of those together, it would be... quite surprising if he and Mr Zara, then instructed for Mr Goodacre, had not come to the conclusion that it looked as if the true boundary between the Clements' land and the Bushes' Land was anything other than the blue line A to C which roughly represents the line of the field boundaries on all the Ordnance Survey plans and all the Land Registry documents."
The hearing below
"The trial judged erred in that he failed to consider the effects of issue estoppel (on account of the principles of res judicata) on the ability of the claimants [in the 1990 actions] which would thus restrict their right to bring the actions".
"If a grantor grants a plot of land in such circumstances as to cut himself off completely from some other part of his own land (eg if a plot retained in the middle is completely surrounded by the part granted) there is implied in favour of the part retained a way of necessity over the part granted, for otherwise there would be no means of access to the land retained."
"Nor will there be a way of necessity if the other way is merely inconvenient, as where the land abuts on a highway in a cutting 20 feet below; for the principle is that an easement of necessity is one 'without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property'."
ORDER: appeal dismissed; the costs of the first respondents to be paid by appellant summarily assessed in the sum of £13,000; costs of second respondents to be paid by appellant summarily assessed in the sum £7,500, both figures inclusive of VAT.