Peter Oxley Betty Oxley v Lorraine Thatcher (aka Lorraine Predgen)
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, JA |
| Judgment Date | 13 June 2019 |
| Neutral Citation | BS 2019 CA 174 |
| Date | 13 June 2019 |
| Docket Number | SCCivApp. No. 123 of 2018 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Sir Michael Barnett, JA
The Honourable Mr. Justice Evans, JA
SCCivApp. No. 123 of 2018
Mr. Charles Mackay, Counsel for the Appellants
Mr. Serfent Rolle, Counsel for the Respondent
Odey v Barber [2006] EWHC 3109 (Ch) considered
Swan v Sinclair [1925] A.C. 227 considered
Civil appeal — Easement — Ways an easement can be extinguished — Non-use of an easement — Easement extinguished by non-user
In 1962 a Certificate of Title was granted to Jolly Hall Limited. In 1985 the land was purchased by Herbert and Audrey Pregden who built a home on the property. However, the Pregdens were divorced and Mr. Pregden retained ownership of the property. He, thereafter, remarried the respondent but has since died and, by will, devised the property to the respondent.
By conveyance of a neighbouring plot of land dated 24 July 1964 Exuma Estates, the vendor, agreed to grant an easement to John and Kathleen Hilton, the purchasers. The appellants are successors in title to the Hiltons and the conveyance to them and their predecessors in title recite the easement.
The dispute involved the land over which the easement was granted. The trial judge found that an easement was in fact created over the property owned by the Pregdens and now owned by the respondent. That finding was not challenged on appeal. What was challenged was the finding that the easement which was created had been extinguished. Therefore, the sole issue in this appeal was whether the trial judge was wrong to hold that the non-user of the easement since it was created amounted to an extinguishment of the easement by abandonment.
Held: appeal dismissed; costs to the respondent, to be taxed if not agreed.
Whether an easement has been abandoned is not a subjective question; it is a question of fact to be ascertained from the surrounding circumstances. Abandonment depends on the intention of the person alleged to be abandoning the right of way. The conduct must make clear a firm intention that neither the dominant owner nor any successor in title should make use of the easement. Abandonment ought not to be lightly be inferred and non-user by in and of itself is not conclusive evidence that a private right of easement is abandoned. The non-user must be considered with, and may be explained by, the surrounding circumstances.
In the present case the appellants and their predecessors in title had not used the easement between 1964 when it was created until the appellant attempted to use it in 2001 — a period of 37 years. Further, the respondent's predecessor in title had constructed a home on the property in 1985 and a home has been on that property ever since. Its existence interfered with the easement and the appellant's predecessors in title never challenged the construction of the home as being in breach of any easement they may have had over the property. The appellants were aware of the existence of the home on the property at the time they purchased the property in 2001.
On the evidence, at no time did the appellants' predecessors in title ever use the easement nor did they complain about the respondent or her predecessor in title interfering with that easement by constructing a home over the property. In addition, there was no evidence that any persons who were successors in title to the property owned by Exuma Estates Ltd who would have enjoyed the benefit of the easement ever utilize or seek to utilize the easement over the respondent's property.
In the circumstances of this case and on the evidence lead the judge was entitled to find that the easement in favour of the appellant had been extinguished.
This was an appeal by the appellant against a judgment by Bain J that an easement giving a right of way over the respondent's land has been extinguished by non-use over a period of time. The property involved is situate in Hoopers Bay, Exuma.
By a conveyance dated 24 July 1964 from Exuma Estates Limited to John Hilton and Kathleen Hilton the vendor agreed “to grant the easement hereafter appearing” in the conveyance. The easement was described as:
“TOGETHER with full and free right and liberty for the Purchasers their respective heirs personal representatives and assigns and their tenants servants or invitees and licensees (in common with all others who have or may hereafter have the like right) to the parcel of land coloured yellow on the plan attached for the purposes of sunbathing, picnicking, bathing in the sea therefrom and embanking on and disembarking from any boat or vessel therefrom and for other similar purposes.”
The conveyance also contained a right of way as follows:
“TOGETHER with a right of way for the Purchasers their respective heirs personal representatives and assigns and their tenants servants agents invitees and licencees in common with all other having the like right at all times by day or by night for all lawful purpose connected with the use and enjoyment of the said hereditaments over along and upon that piece parcel or slip of land coloured brown on the diagram or plan annexed thereto.”
A Plan was attached to the conveyance showing the easement coloured yellow and the right of way coloured brown.
The appellants are successors in title to the Hiltons and the conveyance to them and their predecessors in title recite the easement and rights of way. This dispute involved the plot of land coloured “yellow” over which the easement was granted.
In 1985 Herbert and Audrey Pregden purchased their property from Jolly Hall Limited, who had obtained a Certificate of Title in 1962, which was before the conveyance from Exuma Estates to the Hiltons. The root of title was supposed to be the Certificate of Title. At the trial, it was held that the property coloured yellow was not part of the land granted to Jolly Hall by the Certificate of Title.
The Pregdens built a home on the property in 1985 but they were divorced and Mr. Pregden retained ownership of the property. He remarried and the respondent is his second wife. Mr. Pregden has since died and, by will, devised the property to the respondent.
The judge found that an easement was in fact created over the property owned by the Pregdens and now owned by the respondent. That finding was not challenged on this appeal; of course it was not challenged by the appellant and there was no cross appeal against that finding by the respondent.
The challenge on this appeal was the finding by the judge that the easement which was created had been extinguished. The judge made certain findings which should be noted.
In her judgment Bain J held that:
“(123) While the court finds that the easement existed, there is no evidence that the easement was ever used by any of the Purchasers who derived title from John Sumner Hilton and Kathleen Helen Hilton. Herbert Predgen and Audrey Predgen was in occupation of the Predgen property from 1985. Herbert Predgen died in 1999. The Plaintiffs did not acquire the right to the easement until 2001 and tried to enforce the easement against the Second Defendant.
(124) There is no evidence that the easement...
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