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Thorpe v Brumfitt (1873) LR 8 Ch App 650; 37 JP 742

EASEMENT, RIGHT OF WAY, DISTURBANCE OF THE RIGHT OF WAY, NECESSITY, PRIVATE NUISANCE, RIGHT OF WAY IN GROSS

Facts

P was the owner of an inn, the yard of which was approached by a passage over the adjoining property, belonging to M.

P and M agreed to change their boundary and replace the old passage with a new one. In accordance with the agreement, in 1854, M conveyed to P a small strip of land reaching across the end of the new passage where it entered the yard and granted P and his heirs and assigns rights of way at all times and for all purposes along the passage running between the conveyed piece of land and the street.

P re-leased his rights of way over the old passage. The plaintiff was the lessee of P’s inn and yard. The defendants were M’s tenants, occupying the warehouses on his property.  They allowed carts and wagons to remain stationary in the passage while loading and unloading and obstructed the access to the plaintiff’s yard.

Issues

(1) Did the defendants have the right to occupy the passage by virtue necessity of their business?

(2) Was the right of way appurtenant to the property occupied by the plaintiff?

Held

(1) The necessity of the business of the defendants did not give them the right to occupy the passage by stationary obstructions when the other person having a right of way needed to pass.

(2) The right of way was not a right in gross, but appurtenant to the property, occupied by the plaintiff, so his lease gave him the right to its enjoyment.


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