Q&A: Trespass

• Published date: 30 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate
• Law Firm: Charles Russell Speechlys LLP
• Author: Ms Emma Preece

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...