Court of Appeal

Published December 3, 2009

Bee and Another v Thompson

A right of way for agricultural purposes reserved only under a testamentary disposition of two properties by the testatrix, who had owned those two properties, did not impliedly reserve a right to increase the use for residential purposes without the agreement of all parties.

The Court of Appeal (Lord Justice Mummery, Lord Justice Etherton and Lord Justice Sullivan) so stated on November 20, 2009, allowing in part the appeal of the defendant, Stephen Thompson, from a declaration by Judge Roger Kay on January 16, 2009, sitting as Chancery Division judge in Newcastle upon Tyne District Registry, that the user of the right of way remained for agricultural purposes only and granting an injunction for the claimants, Jane Bee and Alan Bee, forbidding use of the right of way for non-agricultural purposes.

LORD JUSTICE MUMMERY said that in the case of a way of necessity, the purpose remained what had been necessary at the time when the right was implied. Without the agreement of the parties it could not be altered.

Although the court might assist the parties by working out for them some guidelines as to what would be a reasonable user rather than simply making a general injunction forbidding excessive use, in this case, however, the judge was never asked to engage in that exercise.

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