Neutral Citation Number: [1845] EWHC QB J68
(1845) 6 QB 904; 115 ER 341 

QUEEN'S BENCH

  Tuesday 4 February 1845 

B e f o r e :

Lord Denman C.J.
Patteson J.
Coleridge J.
Wightman J.
____________________

Between:
DUNCAN
v
LOUCH

____________________

Case. The first count stated that plaintiff, before, etc., was, and still is, lawfully possessed of a certain messuage, etc., and by reason thereof, during all the time aforesaid, ought to have had, and still of right ought to have, a certain way from and out of the said messuage, etc., unto, into through and over a certain street, etc., called Buckingham Street, and from and out of the said street, through a certain iron gate there, unto, into, through, over and along a certain close, situate, etc., called Terrace Walk, and from and out of the said last mentioned close unto and into a certain erection or building called the Water Gate, and so back again, from and out of the last mentioned erection, etc., unto and into the said close called the Terrace Walk as aforesaid; and from and out of the said last mentioned close, through the said iron gate, unto, into, through and over the said street called Buckingham Street as aforesaid, unto and into the said messuage, so in the possession of plaintiff, to go, return, pass and repass on foot, at all reasonable times of the day, at his free will and pleasure, as to the said messuage, etc., appertaining: yet defendant, well knowing, etc., but wrongfully contriving, etc., whilst plaintiff was so possessed, etc., to wit on, etc., and divers other days, etc., and at all reasonable times of the day, wrongfully, etc., caused and procured the said iron gate to be locked, chained and fastened, and kept and continued, etc., to wit from thence hitherto, and put up rails, etc., and kept and continued, etc.; and thereby during all the time aforesaid the said way was and still is greatly obstructed; and plaintiff by means thereof could not, during the time aforesaid, etc., nor can he now, have or enjoy his said way as he of right ought to have done, etc. 

The second count claimed the same right of way as in the first count, with the addition of a right of going through the Water Gate into and upon a certain public and navigable river there, to wit the river Thames, and back again. 

The third count claimed a similar right of way as in the first count, unto and into the western portion of the Water Gate. 

Fourth count. That plaintiff, before and at the time, etc., was, etc., and still is, possessed of another messuage, etc.; and by reason thereof plaintiff, during, etc., ought to have had and still of right ought to have the free liberty, etc., for him, his heirs, tenants or assigns, with others the inhabitants of certain premises called the York House and the grounds thereof, of passing and repassing on foot, at all reasonable times of the day, from and out of the last mentioned messuage, etc., unto and into Buckingham Street, and from and out of the last mentioned street unto and into a certain close called the Tarris Walke, and of walking there, and of passing and repassing into and upon a certain erection, etc., called the Water Gate, next the river of Thames, at his and their free will and pleasure, as to the said last mentioned messuage, etc. appertaining; yet defendant, etc., on, etc., wrongfully placed, etc., posts, etc., before and at the entrance of the Water Gate, and thereby prevented plaintiff from entering the same, and kept and continued, etc. 

Fifth, sixth and seventh counts. The fifth and seventh were similar to the first and third, but claimed the right of way from the messuage on to the Terrace Walk, without mentioning Buckingham Street: the sixth count was the same as the seventh, except that it claimed the right with respect to the eastern, instead of the western, portion of the Water Gate. 

First plea, to all but the third and sixth counts, not guilty. Issue thereon. 

Second plea, to the first count, traversing the right of way claimed in that count. Issue thereon. 

Third plea, to the first count, that plaintiff was not possessed of the messuage. Issue thereon. 

Fourth plea, to the second count, traversing the right of way claimed in that count. Issue thereon. 

Fifth plea, to the second count, that plaintiff was not possessed of the messuage. Issue thereon. 

Sixth plea, to the fourth count, traversing the liberty in that count alleged. Issue thereon. 

Seventh plea, to the fourth count, as to the placing one of the gates before the Water Gate: that the grievances were committed after the passing of an Act, 29 G. 2, c. 90, "to enable the proprietors and inhabitants of houses in York Buildings," etc., "to make and levy a rate on themselves, sufficient to answer the expense of rebuilding or repairing of the Terrace Walk and Water Gate," etc., "and for keeping the same in repair for the future:" that a committee (appointed as was stated in the plea) of inhabitants, etc., being trustees for executing the Act, set up the gate to prevent nuisances, etc.: and that an officer called the terrace keeper, appointed by the trustees, always had a key of the gate for the use of plaintiff, etc., as often as he or they have had occasion to pass, etc., and hath always unlocked, etc., as often as requested. Verification. Replication, traversing the nomination and appointment of the trustees. Issue thereon. 

Eighth plea, to the fourth count, that plaintiff was not possessed of the messuage. Issue thereon. 

Ninth and tenth pleas, to the fifth count, and eleventh and twelfth pleas, to the seventh count, respectively traversing the right of way and the plaintiff's possession of the messuage, etc. in those counts respectively mentioned. Issues thereon. 

On the trial, before Wightman J., at the Middlesex sittings after Hilary term, 1844, it appeared that the plaintiff was the owner of the house No. 15 Buckingham Street, Adelphi, abutting upon the Terrace Walk, and that he claimed the right of way set out in the declaration as appurtenant to the house, which he purchased in 1836. He proved a user of the way claimed ever since that time; he also proved that he was the representative, in respect of the said house, of one Philip Doughty, and put in a grant, dated March 1675, containing the following words. "Together with the free liberty, use, benefit and privilege, for him the said Philip Doughty, his heirs, tenants or assigns, with other the inhabitants of York House and grounds, of the Tarris Walke of the Water Gate next the river of Thames, he, they and every of them, from time to time, contributing and paying a rateable share and proportion towards repairing and amending the same, with others who shall have the benefit thereof," etc. It was not shewn that the plaintiff had ever been called on to contribute towards the repairs, or that any repairs had been required. In 1675, Buckingham Street was not built. The property in the Terrace Walk was, by stat. 29 G. 2, e. 90, vested in trustees for the purpose of raising a fund for keeping it in repair. No evidence was given in support of the seventh plea. It appeared that Buckingham Street had, for the last ten years, been used as a public highway; but there was no evidence of its having been so used at any earlier period, It was argued, for the defendant, that the right of way claimed by the plaintiff in the first, second and fourth counts was merged in the public way across Buckingham Street, and that those counts were therefore not supported. The learned Judge was of that opinion, and directed a verdict for the defendant upon the issues on the second, fourth and sixth pleas, reserving leave to the plaintiff to move to enter a verdict thereon. It was also objected that the right proved was not a right of way, but a right to use the walk for pleasure only, and was therefore improperly stated in the declaration; and, further, that the grant was conditional only upon the grantee's contributing to the repairs, and therefore that the plaintiff ought in his declaration to have averred performance of the condition. The learned Judge overruled these objections, but reserved leave to the defendant to move to enter a verdict upon the issues raised upon the ninth and eleventh pleas, on which, and also on the issues raised on the first, third, fifth, seventh, eighth, tenth and twelfth pleas, the verdict was for the plaintiff. 

In Easter term, 1844, Platt obtained a rule to shew cause why the verdict on the issues raised upon the fifth and seventh counts should not be entered for the defendant; and Sir W. W. Follett, Solicitor General, obtained a rule to shew cause why the verdict on the issues raised on the first, second and fourth counts should not be entered for the plaintiff. 

Ogle now shewed cause against the defendant's rule. The grantee of a right of way, granted on condition that he keeps the way in repair, is not, in pleading the right of way against a wrong doer or mere stranger, bound to shew the condition, but may claim the right generally: and it appears from 1 Chit. Pleading, 395 (7th ed. 1844), that he may do so even in declaring against the owner of the soil. In practice the grantee never does set out such a condition in declaring against a stranger, though the obligation of keeping the way in repair, in the absence of express provision for repair, falls upon the grantee and not upon the grantor; as it is said in Pomfret v. Ricroft (1 Saund. 322): " As in the case where I grant a way over my land, I shall not be bound to repair it, but if I voluntarily stop it, an action lies against me for the misfeasance." And Mr. Serjt. Williams, in note (3) on this passage, after observing that the principle is recognized in Taylor v. Whitehead (2 Doug. 745, 748), proceeds, "For by the common law he who has the use of a thing, as in this case the grantee of a way, ought to repair it." [Coleridge J. That is not a condition incident by law to the grant of a right of way; it is not even an obligation to which the grantee is subject: it is no more than this, that, if he wants the way to be repaired, he must repair it himself.] There is nothing in the present case to shew that the plaintiff was liable to repair. That question never arose; for the defendants abandoned their special plea to the fourth count. That plea was founded on stat. 29 G. 2, c. 90; and no evidence was offered to support the affirmative of the issue taken on the traverse in the replication. As the case now stands, it does not appear that the way was out of repair, nor that the plaintiff had ever been called on to contribute to repairs. 

The defendant also contends that this is not a right of way at all, but a mere privilege for the plaintiff, like the other tenants, to walk on the terrace, contributing also, like them, to the repairs. What is the easement granted by the deed but a right of way? How otherwise could it be described in pleading? Besides, the evidence of user is such as entitles the plaintiff to a verdict independently of the deed. 

Peacock, contra. If this be a right of way, it is a right only of using the way for the purpose of passing from terminus to terminus, and not of walking for pleasure between the intermediate points. But the right is in fact one of a kind altogether different. It is like the privilege which the builder of a square, who reserves the centre for a garden common to all the houses, grants to the owners and tenants of the houses of walking about the garden, on condition of keeping it in order. If that be so, each inhabitant is entitled to repair the terrace walk; Pomfret v. Ricroft (1 Saund. 321). The privilege actually vested in the plaintiff, according to his case, does not extend to such a right of way as he has claimed: it is a right of a different kind. One who has a right of way over my land to close A may not use it as a way to close B. [Lord Denman C.J. The right as pleaded is unlimited, to walk, pass and repass at his and their free will and pleasure; there is nothing said about the particular occasions of walking: that is an exact description of the use which parties make of such a terrace. Wightman J. Does it not come to this, that he has a right of way over every part of the land in question?] 

Secondly, the grant of the right was conditional, and the condition ought to have been set forth in the declaration; the defendants might then have pleaded non-performance. Thus, in covenant against a lessee for not repairing, under a covenant by him to repair, the lessor allowing and assigning him timber for the repairs, the lessor must aver in his declaration that he was ready to allow and assign him timber sufficient for the purpose; Thomas v. Cadwallader (Willes, 496). The distinction taken in that case between mutual covenants and conditional grants is considered in Platt on Covenants, part i. ch. 2, sect. v. It is there said, p. 75, "Further, if a lessee for years covenants to repair, provided always, and it is agreed that the lessor shall find great timber, etc.; this makes a covenant on the part of the lessor to find great timber, by the word agreed; and it will not be a qualification of the covenant of the lessee. But if the lessee covenants to repair, provided always that the lessor shall find great timber, without the word agreed, this proviso shall not make any covenant on the part of the lessor, but it shall be only a qualification of the covenant of the lessee." Here there is not the word "agreed," nor any other word of covenant, so that, if this is not a condition, the trustees have no means of compelling the plaintiff to contribute to the repairs. Perhaps he ought; at all events he ought to have pleaded the right as belonging to himself and the other inhabitants, he and they contributing to the repairs. [Coleridge J. That raises the question whether this, if a condition, was a condition precedent: if it was, the declaration must shew performance or excuse non-performance. Suppose the defendant to traverse the allegation of performance, would not such an issue be immaterial, as between the grantee and a stranger? Patteson J. This is very different from a right of way with a qualification that the party shall pay a penny every time he uses the way: there he may not use the way till he pays the penny. Here he can have to contribute to repairs only when repairs are necessary; in the mean time he has a right to use the way without paying any thing. This, therefore, is a condition subsequent.] The trustees would have no means of enforcing contributions. [Wightman J. There is the word "paying"; would not that raise a covenant in law?] It is said in Platt on Covenants, p. 37, part i. ch. 2, sect. ii., that an action will not lie where there is a proviso only, and no express covenant. Here there is no covenant that would run with the land. [Wightman J. Why should it not run with the land and the easement?] The grantor could not have sued for nonrepair; and the trustees, who are strangers to the deed, have no means of enforcing contributions but by excluding the party till he contributes. 

Lord Denman C.J. I think there is no doubt in this case. Taking the right, as Mr. Peacock suggests, to be like the right of the inhabitants of a square to walk in the square for their pleasure, they paying the necessary rates for keeping it in order, I cannot doubt that, if a stranger were to put a padlock on the gate and exclude one of the inhabitants, he might complain of the obstruction, and a stranger would not be permitted to say that the plaintiff's right was only conditional. Such a question might arise under other circumstances, but not under the circumstances now before us. 

Patteson J. I do not understand the distinction that has been contended for between a right to walk, pass and repass forwards and backwards over every part of a close, and a right of way from one part of the close to another. What is a right of way but a right to go forwards and backwards from one place to another? As to the other point, I cannot see any thing in this grant at all resembling a condition precedent. If repairs were to become necessary, and the grantee, being called upon to contribute, refused, I do not know whether that would or would not effect a forfeiture; but the liability is not such a qualification as need be alleged in this declaration. 

Coleridge J. The defendants have relied on two objections. First, that the plaintiff in his declaration has incorrectly described his right as a right of way, whereas, in fact, it is a larger easement. There would be a good objection on the ground of variance if the easement claimed were inconsistent with, or different from, the easement proved; but, if, as in the present case, the thing granted is only larger than the thing claimed, and is not different in kind, it is well known that the allegation may be less than the proof, if the matter alleged be included in the matter proved. The other objection is, that the right claimed is imperfectly described in the declaration, inasmuch as it is claimed generally, whereas it is, in fact, conditional. That would be true only if the condition were precedent: but, if the condition here was precedent, the plaintiff must not only have set it forth in his declaration, he must also have pleaded performance or something rendering the allegation of performance unnecessary. Here the necessity for repairs may never have arisen. I think the obligation relied upon was not a condition precedent: whether it is a condition at all it is not necessary to determine. 

Wightman J. I also am of opinion that this rule must be discharged. The right proved in evidence is a right of passage backwards and forwards over every part of the close: the right claimed is less than this, but is included in it, being a right of way from one part of the close to another. That is not objectionable on the ground of variance. As to that which is called a condition, is it an obligation in the nature of a condition precedent or of a condition subsequent? Clearly not of a condition precedent, for the reasons stated by my brother Coleridge. And, if it be in the nature of a condition subsequent, it is not necessary to aver it; Gray's case (5 Rep. 78 b.). And "upon a trial, Newcastle Summer Assizes, 1827, Bayley J. left it to the jury, whether the payment of Id. for horngeld was a condition precedent or subsequent to the enjoyment of the right, being of opinion that if it were the former it ought to be alleged;" Anon., note (m) to 3 Stark. Ev. 909 (3d ed. 1842). 

Rule discharged. 

Peacock then shewed cause against the rule for entering a verdict for the plaintiff on the issues arising on the first, second and fourth counts. The way is claimed as a private way; but the evidence is that in part of its extent it is a public way: that is a misdescription. There was no evidence of the private right having existed before the public right; that point was not even put to the jury. The declaration ought to have stated the right to be a right of way from the plaintiff's house to and over the public street, and from thence into the Terrace Walk. 

Ogle, contra. It was clear, from the description in the deed, that, in 1675, Buckingham Street was not a public street: and the only evidence of its having ever become a public street was the statement, by some of the plaintiff's witnesses, that for the last ten or twelve years the public had used the privilege of walking up and down the street: the defendant then said that, the street having become a public street, the private right of way was merged: but it was never suggested that the private right of way had not existed previously to the public right of way. 

Lord Denman C.J. The private way was granted in 1675: there was no evidence of a public way but for a very short period. We have no difficulty now in saying that, where a private way becomes public in part of its course, it is not thereby rendered necessary in pleading the private way to state that part of it has become public. 

Patteson, Coleridge, and Wightman Js. concurred. 

Rule absolute.