Supreme Court
Action No. 293 of 1980
28th April, 1982
MOE, CJ.

Mr. P. Zuniga for the Plaintiff
Mr. M. Young for the Defendant

Injunction - Declaration - Trespass - Property devised is landlocked - Way of necessity created - Testator's intention to be discovered by language of will - Defendant entitled to limited right of way.

J U D G M E N T

In these proceedings the plaintiff claims (1) damages from her son the defendant for trespass to her premises at 86 Freetown Road, Belize City; (2) a declaration that he is not entitled to cross the said premises; and (3) an injunction restraining him from entering the said premises. The defendant claims a declaration that he is entitled to a right of way over the plaintiff's premises.

The matter arises in this way. Wilfred Card now deceased and formerly husband of the plaintiff owned the premises at 86 Freetown Road measuring approximately 75' by 150'. It is bounded on the North by Freetown Road, on the West by lands of one Bellizaire, and on the South by lands of one Noguera and on the East by lands of one Jones. On the premises until 1963 were two buildings a dwelling house and a shop with about 10' by 12' separating them. In 1963 with the permission of Wilfred Card, one of his sons Raymond erected a house on the premises to the South of the existing dwelling house. To get to that house erected to the South Raymond made entrance from Freetown Road through a gate about 3-4 feet wide and walked or sometimes road a bicycle along a path between the dwelling house and the shop. Raymond lived in that house for about 3 years. When he left, two other sons of Wilfred Card, with his permission lived in the house. They used the same route as Raymond to get to the house. In 1966, the defendant with his father's permission cleared the house erected by Raymond and erected a different house on the spot. The defendant and his family have lived in that house ever since and to get to it have used the same entrance and route used by Raymond and the other brothers.

Mr. Wilfred Card died on 27th April, 1972 having left a Will under which he disposed of the premises at 86 Freetown Road as follows:-

"I give and devise my property in which I reside in Freetown Road, Belize City, and Numbered 1386, and the other building where I have my shop numbered 84 in the same yard, together with a portion of the said lot numbered 1386 and measuring 75 feet by 75 feet, to my wife Florence Evelyn Muriel Card for life and after her death to our three daughters, namely, Rosita Ruby Violet Card, Anita Matilda Card, and Linda Louise Card as joint tenants." (hereinafter referred to in this judgment as Lot A) and : -

"I give and devise to my seven boys, namely, Herbert Wilfred Card, Raymond Harrison Card, Gerald Gilbert Card, Lionel Winston Card, Eugene Allison Card, Eric Bernard Card and Wilfred Archibald Card the back of the said Lot numbered 1386 measuring 75 feet by 75 feet as joint tenants." (hereinafter referred to as Lot B).

In July 1973 administration of the deceased's estate was granted to the plaintiff as executrix.

The defendant acquired a motor vehicle in 1975 and with the plaintiff's permission used to park it on the portion of the premises now Lot A. Another brother Lionel also used to park a vehicle on Lot A with the plaintiff's permission during an earlier period. About the month of May 1980, the defendant started to drive his motor vehicle over the same route earlier used as a footpath and for riding a bicycle, and park the vehicle on Lot B. The defendant said he did this because his vehicle used to get damaged when left parked on Lot A. It is however clear that the plaintiff requested him to stop parking the vehicle on Lot A. It is also clear that driving the vehicle over the route through Lot A was without the permission of the plaintiff who through an attorney-at-law informed him in May 1980 that he had no such permission but that to the East of Lot A an alley was provided through which he could pass to reach Lot B. The defendant continued to drive through Lot A using the same route as what was the footpath and on 14th July, 1980 the plaintiff erected a fence between Lot A and Lot B leaving a space in the fence of about 4 feet at the point where the alley to the east of Lot A was provided. On the said day the defendant removed a portion of the fence at the point where he drove his vehicle onto Lot B.

It is common ground between the parties that due to the disposition of the premises by the deceased as set out above, the defendant as a devise of Lot B is entitled to a right of way over Lot A. The dispute between them is what is the way to be. The plaintiff maintains that the right of way to which the defendant is entitled is a way of necessity which she as executrix to the deceased's estate may select in the exercise of her powers of administration of the estate; the defendant on the other hand claims that the right of way to which he is entitled is the way used since 1963 by his brothers, himself and family. He contends that the law will imply that the deceased willed that route to himself and his brothers or that they are entitled to it as a way of necessity.

In a situation such as this the principles to the applied are as stated by Blackburn J. in Pearson v. Spencer (1861) 121 E.R. 827 "when as in the present case, property devised or granted is landlocked and there is no other way of getting at it without being a trespasser so that it cannot be enjoyed without a way of some sort over the lands of the testator or grantor it is clear that a way of necessity is created de Novo. It seems to us settled by modern authority that the ground on which the way of necessity is created is, that a convenient way is impliedly granted as a necessary incident." This principle was followed by Fraser J.A. in Lush v. Duprey 10 W.I.R. 388 in which he quoted with approval the position as put in Gale on Easements (14th Edn.) at p. 117. "A way of necessity arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible is entitled, as of necessity to a way over the other part. The principle applies where both parts are disposed of simultaneously by will."

The question now arises what way is the way to be or in their words what line is the way to take. In my view the answer depends on whether there is an existing way or line which can be said to have been impliedly devised or whether the devise is left to a way of necessity in the strict sense. That there is a distinction to be drawn rights of way arising as ways of necessity stricto sensu and rights of way otherwise impliedly created may be seen in the judgment of Lord Parker of Waddington in Pullback Collicry Co. Ltd. v. Woodman [11915] A.C. 634 at 646-647, the locus classicus on the implication of easements. In that statement of the law, Lord Parker first mentions implied grants of ways of necessity and what are called continuous and apparent easements. He then refers to easements which are implied because the right is necessary for the enjoyment of some right expressly granted thirdly deals with those cases where the implication depends not on the terms of the grant itself but on the circumstances under which it was made. In Union Lighterage Co. v. London Graving Dock [1902] 2 Ch. at page 572 and 573 Stirling L.J. had pointed out that a distinction is to be drawn between rights of way which are necessary to the reasonable enjoyment of the property granted and ways of necessity. This is also set out as the position in Halsbury, Laws of England, 3rd Edition Volume 12 paragraph 1245 as follows: - "Rights of way thus arising (i.e. rights arising by implication of Law) are either rights of way reasonably necessary for the comfortable occupation of the dominant tenement, which only arise upon a grant of the dominant tenement by virtue of an implied grant or words implied in the grant by statute or rights of way of necessity".

At this point therefore on the question what line the way is to take of little help are those authorities which show that where a way of necessity arises, the grantor or person who creates the way is entitled to choose the way to be used or the line the way is to take. For as Blackburn J. pointed out in Pearson v. Spencer ibid. "In the case of a devise as in the instant case it is impossible for the testator by whose act the way of necessity was created and who is now dead to do any subsequent act of selection; and if the line of the way depends on the testator's intention, it then must be discovered from the language of the will understood with reference to the state of the property". He went on to explain that in general especially when there was an occupation, there is usually an actual existing way by which the premises were used and enjoyed and one may be able to best effectuate the testator's intention by construing the implied devise of a way to be a devise of that way actually used at the time. Erle C.J. in the same case on appeal 122 E.R. 285 placed such an implied devise under that class of implied grants where there is no necessity for the right claimed but where the tenement is so constructed as that parts of it involve a necessary dependence, in order to its enjoyment in the state it is in when devised, upon the adjoining tenement. See also Hansford v. Jago [1921] 1 Ch. 322.

I turn now to consider whether a devised to the defendant of the way used since 1963 may be implied. At the time of the devise Mr. Card had unity of possession of the whole set of premises at No. 86. By his Will he divided it into two portions. There is nothing in the Will showing a devise of any right of way to the devisees of Lot B. The Will was executed on the 21st November, 1969 and the testator died in April 1972. From 1963 up to the time of the devise a path was used over a portion of the premises, Lot A to get to the other portion, Lot B. The path was used as a footpath and sometimes a bicycle was ridden over it. The pathway created by such use was 3 feet wide. (The width is found on defendant's evidence only. There is also in evidence that a path can be clearly seen now. That sand has been put on it and vehicle tracks have been made but there is no evidence that that was the position at the time of the devise). I concluded that the defendant's evidence of width, not challenged, was based on a clear defined path that was in existence. To get from Freetown Road to that path, entry was made through a gate about 3 feet wide. In my judgment Wilfred Card by his will sought to perpetuate what he had already put in practice from 1963. That his sons would have been able to live if they so desired on a portion of the premises at No. 86, that he allowed 4 of them to do so starting in 1963 and for them to get to that portion a certain entrance and route was allowed.

It seems to me that Lot B is so situated that it necessarily depends on Lot A in order to be enjoyed in the state in which it was in when it was devised I accordingly hold that in the circumstances the devise of Lot B carried with it or implied a devise of the way then used to it. The way impliedly devised is entrance through the 3 foot gate and a path of 3 foot width over Lot A to Lot B.

There is evidence which I accept that the defendant has cut limbs of a fruit tree growing of Lot A, cut another fruit tree and removed a clothes line in order to easier drive his motor vehicle across Lot A to get to Lot B. In addition the defendant uses the route over Lot A to take in an out materials and furniture in connection with the operation of a furniture shop. Further the route is used by the members of the congregation of a church which he sometimes conducts at his premises on Lot B. On the basis of this evidence, I find that there is an excess in the user by the defendant of the right of way to which he is entitled. There is much authority to be found in decided cases for the principle that a right of way cannot be properly exercised by the dominant tenement so as to increase the burden originally cast on the wervient tenement and to the detriment of the latter. Vide for example Milner's Safe Co. Limited v. Great Northern & City Railway Co. [1907] 1 Ch. 208. It must be made clear therefore that the right of way to which the defendant and other devisees of Lot B are entitled is limited to a right of way over 3 foot of path and to its user as a footpath in order to get to a residence as was the position existing at the time of the devise.

Having found that there was an implied devise of a three foot way to the defendant and his brothers limited to its use as a footpath, I must hold that on the 14th July, 1980 the defendant had no right to drive his motor vehicle across Lot A. On that day he drove his vehicle across Lot A without the permission of the persons entitled to possession and by so doing was guilty of trespass. However the defendant's right to use a three-foot path over Lot A to Lot B was obstructed by a fence erected by the plaintiff and he was entitled to remove the obstruction to that path. I found that the defendant removed two lengths of board, a top and bottom portion of the fence albeit longer than three feet, but I hold it reasonable to remove a length of board to clear your path and leave the owner of the board with his length than to cut or saw out a space of 3 feet on the length of board. The evidence is that the defendant also uprooted two posts which evidently held the lengths of boards and were so placed as to make it difficult to drive through a motor vehicle. In my view in uprooting the two posts the defendant was not then clearing an obstruction to a three-foot path and was not in exercise of his right. By that act he again committed trespass. However there is no evidence that he damaged the posts merely that he uprooted them.

The result is (1) that the defendant will have a declaration that he is entitled to a right of way over the premises devised to the plaintiff along a path of three feet width through a three-foot gate and to be used as a footpath in order to get to his residence on the premises devised to him. The plaintiff's claim for a declaration is dismissed. (2) judgment will be entered for the plaintiff for damages for trespass by the defendant in the nominal sum of $25.00. (3) the plaintiff to have an injunction restraining the defendant by himself, servants, agents, workmen or otherwise from entering on her premises otherwise than in the exercise of his limited right of way.

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