Barry v Hasseldine

Barry v Hasseldine [1952] Ch 835; [1952] 2 All ER 317; [1952] 2 TLR 92; 159 EG 659;

EASEMENT, RIGHT OF WAY, NECESSITY, IMPLIED GRANT,

LANDLOCKED PARCEL, WAYS OF NECESSITY

Facts

The previous owner of the plaintiff’s parcel of land bought it from the defendant in 1947. It was conveyed to the plaintiff in 1949. The parcel was enclosed on all sides by land, belonging to either the defendant, or strangers, over which neither the defendant, nor the grantee had rights. At the time of the original conveyance, the access to the parcel was through a disused airfield, abutting to the highway by permission of the owner of the land on which the airfield had been constructed. Both the original grantee and the plaintiff used the airfield. It was subsequently closed in 1950. The plaintiff claimed to be entitled to a right of way over the defendant’s land to and from the highway on which the defendant’s land abutted.

Issues

Did the plaintiff have a right of way over the defendant’s land by virtue of necessity?

Decision/Outcome

The plaintiff’s action succeeded.

(1) If a grantee of land has no access to his property, which is sold or conveyed to him, except over the grantor’s land or over the land of some other persons, whom he cannot compel to give him a right of way, a way of necessity is implied and the grantee has a right of way over the grantor’s land.

(2) This implication is not rebutted by the fact that at the date of the grant, there was a permissive way to the land over the land of a stranger.