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Published: Fri, 12 Oct 2018
St. Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2)
 1 WLR 468;  1 All ER 772; 29 P & CR 336; 119 Sol Jo 220;  2 EGLR 115; 236 EG 343
EASEMENT, RIGHT OF WAY, RESERVATION TO VENDOR IN GRANT, CONVEYANCE, CONSTRUCTION OF CONVEYANCE,
OMNIA PRAESUMUNTUR CONTRA PROFERENTEM, VEHICULAR ACCESS
A property consisting of a former rectory and adjacent land was surrounded by a church and a churchyard. The property was conveyed to the defendant in 1945. The plan showed the property coloured in blue and the land around it was coloured in red. The plaintiff – a parochial church council, was expressly given a right of way to the church through the land coloured in red. In 1945, the condition of the land was poor and it was difficult to use vehicles on it. The plaintiff claimed that the church authorities had the right of way over the disputed land both on foot or by vehicles. The defendant contended that the church authorities only had the right of way on foot and thus, he erected concrete posts and a gate at the end of the strip of land where it abutted on the public highway to prevent the use of vehicles. The plaintiff sought an order to force the defendant to remove the posts and gate and an injunction to prevent him from erecting new obstructions for vehicles. The Chancery Division of the High Court ruled in favour of the defendant by virtue of s. 65(1) Law of Property Act 1925. The plaintiff appealed to the Court of Appeal.
Does the maxim omnia praesumuntur contra proferentem apply to the construction of a conveyance containing a reservation of a right of way?
The appeal was dismissed.
(1) The proper approach to the construction of a conveyance containing a reservation of a right of way, is to construe the document in conjunction with the surrounding circumstances.
(2) The maxim omnia praesumuntur contra proferentem only applies as an aid to construction if the court is unable to reach a conclusion on the proper construction from the wording of the document and the facts.
(3) In the case, maxim did not apply because it was clear from the facts surrounding the reservation the right of way applied to pedestrian use only. Thus, there was no right of way by vehicles.
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