Q&A: Trespass

Question

Where the dominant owner has an express right of way at all time for all purposes, can the dominant owner use a wider part of right of way to turn their vehicles by three point turn, i.e. is there an implied right to turn?

Answer

Nature and extent of rights of way

In the case of an express grant of a right of way, the extent of the right granted depends on the express terms of the grant. A court will construe the language of the deed in the light of the circumstances and the intention of the parties at the time of the grant.

If the scope of the words contained within the express easement do not expressly outline a right to turn, which appears to be the position from your question, then there will be no express right to turn. 

References:

Jones v Pritchard [1908] 1 Ch 630

The general rule is that a right of way may only be used for gaining access to the land identified as the dominant tenement in the grant. The grant of an easement includes the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment (Jones v Pritchard).

See Practice Note: Easements—nature and characteristics.

However, there may be an implied right to turn ancillary to the right of way.

Ancillary rights 

References:

Moncrieff v Jamieson [2007] UKHL 42

In Moncrieff v Jamieson, which concerned the grant of a right of access, it was held that the grant carried with it an ancillary right to turn a vehicle on the way. The right of way was of narrow width meaning it would have been impractical to turn a vehicle without going onto the servient tenement. In such circumstances, it was considered that the parties likely envisaged that the dominant owner would turn off the right of way, and onto the servient tenement. It was also noted that the parties might have considered the right to turn and that could have been in contemplation at the time of the grant, having regard to what the dominant proprietor might reasonably be expected to do in the exercise of their right to convenient and comfortable use of the property. However, the facts of this case have been described as ‘quite exceptional’.

In the case of VT Engineering Ltd v Richard Barland & Co [1968] 19 P & CR 890 (not reported by LexisNexis®), the court held that the question is whether the ancillary rights are reasonably necessary or were reasonably implied; ancillary rights cannot impose an unjustifiable burden on the grantor.

See Practice Note: Easements—interpreting the use and extent.

So, if it is necessary to be able to turn vehicles around in order to enjoy the dominant land and it is ancillary to the reasonable use of the easement, there is an argument that there is an implied right to turn, provided the width is sufficient.

In summary, a right to turn is capable of being implied into a right for vehicular access if reasonably necessary for the enjoyment of the dominant land, and such a right is considered to be ancillary to the reasonable use of the easement. It is not enough that the right is merely desirable.

This content was written by Emma Preece and was first published on the Lexis Nexis Ask Forum.