Smith & Anor v Muller & Ors

Smith & Anor v Muller & Ors

The fencing obligation imposed by the 1804 Award did not prevent the creation of a right of way over the track appurtenant to Chancel Farm. The obligation was a private right capable of waiver or release, did not require a continuous fence, and could be satisfied by a gate. The right of way could be acquired by prescription or lost modern grant. The raising of new points on appeal was not permitted as they should have been raised at trial.

Parties
Appellant: Walter Smith; Appellant: Patricia Agnes Smith; Respondent: Ubbo Muller; Respondent: Eric Ian Brown Fowler; Respondent: Joan Sylvia Fowler; Respondent: Edward Marcus Ian Fowler; Respondent: Ambrose Fowler
Jurisdiction
England and Wales
Judgment Date
17 December 2008
Procedural Posture
Civil Appeal / Appeal From Chancery Division, Leeds District Registry
Outcome
Appeal dismissed
Legal Topics
Easements, Prescription, Inclosure Acts, Land Registration, Fencing Obligations
Property Law Land Law Easements Prescription Inclosure Acts Land Registration Fencing Obligations

Case Brief

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Parties

Walter Smith

Appellant

Patricia Agnes Smith

Appellant

Ubbo Muller

Respondent

Eric Ian Brown Fowler

Respondent

Joan Sylvia Fowler

Respondent

Edward Marcus Ian Fowler

Respondent

Ambrose Fowler

Respondent

Procedural Posture

Civil Appeal / Appeal From Chancery Division, Leeds District Registry

Legal Issues

  1. 1 Whether a right of way appurtenant to Chancel Farm over Priest Howes Farm could be acquired by prescription or lost modern grant given the fencing obligation imposed by the Messingham Inclosure Act 1798 and 1804 Award.
  2. 2 Whether the benefit of the fencing obligation was a public or private right and if it could be waived or released to permit the grant of an easement.
  3. 3 Whether the raising of new points of law and fact on appeal was permissible.

Ratio Decidendi

The fencing obligation imposed by the 1804 Award did not prevent the creation of a right of way over the track appurtenant to Chancel Farm. The obligation was a private right capable of waiver or release, did not require a continuous fence, and could be satisfied by a gate. The right of way could be acquired by prescription or lost modern grant. The raising of new points on appeal was not permitted as they should have been raised at trial.

Court Disposition

Appeal dismissed

Orders

  • Respondents' entitlement to a right of way over the track appurtenant to Chancel Farm upheld
  • No rectification of the register against Mr Muller