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The Jersey Law Review – February 2006

SHORTER ARTICLES AND NOTES

A CAUSE OF SOME AGGRAVATION

David Benest

1       The case of Colesberg Hotel (1972) Ltd. v Alton Hotel Ltd.^[1] provides useful instruction for the student of conveyancing practice in Jersey, particularly at a time when the Island, restricted in its land mass, continues to grow in population and to develop its limited land resources.  The case is concerned with servitudes; property rights in favour of a dominant piece of land (tenement) over another servient tenement; rights of some relevance when land is developed and so changes its character.

2       In most jurisdictions in which easements or servitudes are recognised the holder of the dominant tenement is required to act within certain limitations as to (i) the purpose for which the servitude might be practised and (ii) the manner in which it might be exercised.  Different jurisdictions deal with these limitations in different ways.  In England, for example, these conditions are dealt with by use of the concept of “excessive user”.  In Jersey the law, as appears from a careful reading of the Colesberg case, may be said to focus, as does the law of Scotland,^[2] on three legally implied conditions enforceable by the holder of the servient tenement: a servitude (i) must be exercised only for the benefit of the dominant tenement; (ii) must be exercised civiliter, and (iii) be exercised so as to cause no increase in the acceptable burden on the servient tenement. 

3       The dispute, the subject of the action, was one between neighbours.  The defendant’s property had been, until the recent past, a hotel, but was the subject of development into 24 apartments, each with a parking space.  The only vehicular access to the property, and hence to the development, was via a private roadway to the rear of the neighbouring property belonging to the plaintiff.   The defendant’s property enjoyed an express right of way à toutes fois et quantes et à tous usages over the roadway. 

4       The plaintiff contended that the increase in vehicular traffic over the roadway which would result from the development of the defendant’s property amounted to an aggravation of the right of way, the effect of which would have been to restrict its use or, possibly, to extinguish the right.^[3]

5       The case ultimately raised the following issues for determination by the Court -

(a)     whether the change of use of the defendant's property or the purpose to which it was to be put, of itself extinguished or affected the express right of way;

(b)     if not, whether any increase or alteration in the manner of exercise of the servitude rendered its exercise objectionable.

6       The approach of the Royal Court and the Court of Appeal to each of these issues was, at least at first blush, different; although the practical result was the same.

7       Briefly, the Royal Court determined, in effect, that a servitude created in such general terms as that governing the present relationship between the dominant and servient tenements was incapable of aggravation by reason simply of a change in the use to which the dominant tenement was put. The Royal Court had found that in conveyancing practice there was “no more general nor wider terminology that [could] be employed”.  

8       Importantly, the Court nevertheless held that the right of way required to be exercised civiliter, “that is in a way which minimizes inconvenience to the servient land.”^[4]

9       The Court of Appeal rejected such seemingly robust reasoning, preferring to decide the matter by asking the question whether the now proposed use was in the contemplation of the parties at the time of the creation of the servitude – seemingly, on the facts,  however broadly - and then in considering whether any change from the original use to which the dominant tenement was put rendered the burden on the servient tenement more inconvenient or more onerous (not simply a different or increased) burden.  On the facts, it, like the Royal Court, determined that there had been no aggravation.

10     This reasoning bears more detailed consideration.

11     The route of investigation in both the Court of Appeal and the court below was the extent of the underlying servitude right.  That reflects both logic and authority.^[5]  In the incident case that was an express grant in clear words and so involved the construction of the deeds.  The right of way was one: “..toutes fois et quantes et à tous usages..”  Such situation is to be compared to the impliedly created servitude which was the subject of consideration in Le Feuvre v Matthew.^[6]

12     The Royal Court held that usage, although it embraced the manner of exercise, say as by foot or by vehicle, meant "use" or "purpose".  It was not restricted in its meaning.  The Court was, in the writer’s opinion, correct in determining that à tous usages meant that the right of way could be used "generally for any purpose reasonably incidental to the enjoyment of [the dominant tenement]".  “Purpose” denotes the activity within the dominant tenement which is facilitated by the servitude.  This should rightly be contrasted with the manner of exercise, which indicates the particular activity within the servient tenement carried out during the exercise of the servitude.  This is a distinction recognised by Dalloz^[7], where he distinguishes between l'usage d'un fonds  and le mode d'exercice de la servitude.

13     The Court of Appeal declined to decide the issue being, it seems, reluctant to determine something of such import to the practice of conveyancing in Jersey without further evidence as to practice.  Its judgment, although finding in fact no aggravation to have occurred, proceeded on the presumption that à tous usages meant no more than for all methods/means.  The purpose for which the right of way was to be practised was to be determined simply by what was in the contemplation of the parties at the time of the original grant, since on the Court of Appeal’s interpretation the grant in the incident case was silent as to purpose.

14     It is submitted that the Court of Appeal was wrong to side step the issue in this way and to interfere with the finding of the Royal Court as to the construction of this commonly used term of art in Jersey conveyancing.  It was not necessary for the matter to be the subject of evidence as to practice because of the Royal Court’s peculiar role in the outworking of conveyancing transactions in Jersey and the experience of the Judges and Jurats of the Royal Court in conveyancing matters.  The Royal Court had made a finding of fact as to the practice of conveyancing, which, without more, it was wrong for the Court of Appeal to ignore.

15     The basis of the Royal Court's decision was that if a servitude had been created in such general terms that it appeared to have no limits, an expansion of its use or purpose would not be regarded as an aggravation.    This was not a case such as Le Feuvre v Matthew where a change in use might extinguish the servitude.  That case itself draws a clear distinction between the case where the grant of a right of way was in general terms or for general purposes, and a case where the express or implied terms of the grant was limited to a particular purpose.^[8]

16     The Royal Court's decision is based on an extract from Dalloz.  A servitude in such unrestricted terms is free from any negative contractual condition, such that its use is permitted for all present and future lawful purposes to which the dominant tenement might be put: “la convention fait les lois des parties" or as Dalloz says: “La Cour de cassation parait cependant admettre que si la servitude avait été concédée en termes si  généraux qu’elle ne paraît pas comporter de limites, son extension ne serait pas considérée comme une aggravation (Civ. 30 févr. 1884, D.P. 84. 1. 392)”^[9]

17     Whilst at first view there appears to be a contradiction in the Royal Court's judgment - that is that a servitude in such general terms cannot be aggravated, but statements elsewhere in the judgment which suggest that a grant in such terms must be used as contemplated by the contracting parties - such is reconcilable.

18     This reconciliation is possible on the basis that an unrestricted right is itself an express and unambiguous definition of the burden on the servient tenement which is acceptable to the contracting parties, who contract for themselves and their successors, and which renders otiose reference to extrinsic evidence to determine such intention.  Such a servitude permits the right of way to be exercised for all present and future lawful purposes, notwithstanding what can only be a perceived increase in burden above the original use.  In other words, a change in the use for which a servitude is exercised is not objectionable if such exercise is within the extent of the grant.  The principle of freedom in relation to servitudes is not breached, but is expressly rebutted by agreement between the parties.  As Dalloz writes: “La défense d’aggraver une servitude s’applique à toute servitude, même légale, en l’absence de titre.. en permettre l’aggravation.”^[10][emphasis added.]

19     Such an approach, where the wording of the grant allows, does not fossilise the extent of the grant to the actual use at the date of grant and thus permits the development of the dominant tenement.  It avoids the necessity to speculate as to what was in the contemplation of the parties at the time of grant (in the Colesberg case a grant which dated back to the 1870s). Otherwise the Court is involved in a somewhat unrealistic exercise - as it is submitted was the Court of Appeal in Colesberg - of seeking to guess what the parties may have contemplated as to the future use of the property for hundreds of years into the future.  The “living” approach is particularly important, it is submitted, where as in Jersey, a servitude cannot be obtained by prescriptive title; otherwise land would stagnate, set in the aspic of its original conveyance.

20     This may be compared with the position in England, where the nature and extent of a private right of way created by express grant will depend on the intention of the parties at the time it was granted, which might be ascertained from the words of the grant, read in the light of the surrounding circumstances, including the physical characteristics of the road way:  White and another v Richard.^[11]  One must look at the "the circumstances of the case, the situation of the land and the situation of the parties ….[to determine what].. could have been in the contemplation of the parties".   

21     If that is right, - and to the writer’s view this would be confined to circumstances where the grant was unclear - the fact that a right of way which is not in general terms, requires to be looked at at the time of grant, in light of the intention of the parties, must be tempered in some way.  It is submitted that the anticipated burden must be ascertained by reference not only to the state of the tenements, but also their foreseeable development potential. 

22     One way to deal with the situation is to conclude that in the absence of contrary indications in the deed of grant, a party granting a servitude must be regarded as foreseeing the development of the dominant tenement.  This would be an objective test.  Accordingly a granter must be presumed to have envisaged the exercise of a servitude of access by potentially many more persons where as in the Colesberg case it was granted on the edge of a town ripe for development rather,  perhaps, than where the same geographical size of site is located in the middle of the countryside.

23     The acceptable burden can certainly not be that which existed solely at the time of grant.

24     That, in fairness, appears to have been accepted by the Court of Appeal which took a very broad view of what was required to be in the contemplation of the parties at the time of grant; although, as said, the exercise appears a little artificial.

25     It would be wrong, however, to conclude that the Royal Court’s judgment meant that a servitude even in such wide and general terms was wholly incapable of aggravation.  What appears is that an unlawful use/aggravation of a servitude may consist either in (i) its use in an unauthorised way (unauthorised user) in excess of the purpose for which it was established or (ii) in excessive exercise of it in an authorised way (excessive user)/its use inciviliter such as would unreasonably increase the burden of the servient tenement.  On this aspect, save perhaps in terms of clarity and emphasis, there is little between the Royal Court and Court of Appeal.

26     Matters relating to land in Jersey, and indeed its contract law, are governed by Norman Customary Law, as it is interpreted in light of recent Jersey authority.  It is instructive, however, to review the position in England on a comparative basis.

27     The principal authority in point is that of Jelbert v Davis and another.^[12]  In that case the change of use was one from agricultural land to a caravan and camping site.  Lord Denning MR held as follows^[13]  -

“The change will mean no doubt that a different kind of vehicle will be used for different purposes: but the change is, by itself, quite permissible.  It is covered by the words of the grant “at all times and for all purposes”.  That is shown by White v The Grand Hotel, Eastbourne Ltd.  In that case the private dwelling house was turned into a hotel.  That meant a different user.  But it was held to be within the grant.  That case was applied in Robinson v Bailey.  In that case a plot of land, which was expected to be used as a private dwelling house, was turned into a place for storing building materials.  The different user was held to be within the right of way.  In view of those cases Counsel for the defendants conceded that he could not complain that the way was to be used for caravans instead of agricultural vehicles, such as carts or tractors.  He could not object, for instance, to a user in connection with ten caravans; but he did object he said to excessive user.”

There is little, frankly, between this concept in its practical effect and the exercise of a servitude civiliter.

28     The case put by the servient owner in Colesberg was, simply stated, thus -

(a)     there was a presumption of freedom in relation to the servient tenement;

(b)     aggravation occurred when a servitude was exercised in such a way as to “increase or alter the burden on the servient tenement”;

(c)     the proposed development amounted to such increase or alteration.

29     It was held by the Court of Appeal that that was not the correct test of aggravation.  When considering an aggravation, it was preferable to consider whether the change in use rendered the burden on the servient tenement more inconvenient or onerous and not merely whether the burden had increased. 

30     Basnage^[14] concludes that the test of aggravation is to the effect that the changed user must not be such as to render the burden on the servient tenement more inconvenient and more onerous (plus incommode et plus onereuse). 

31     A simple example suffices to demonstrate why it is not any change in the manner of exercise of a servitude that is objectionable.  For instance, say that a right of way benefits a tenement such as a single domestic house and that the dominant owner ceases to use his servitude by car and uses it merely on foot.  Such change in the means of exercise is not prima facie objectionable, but is an “alteration” in the burden on the servient tenement.

32     Nor, similarly, is an increase in volume, per se, objectionable; there should be some qualitative notion more than a simple quantitative one.  Suppose, for example, that the dominant tenement has on it a single domestic house which has a servitude right of way.  The dominant tenement is sold.  The seller may have been a single person with one car.  The new dominant proprietor may have three children and a spouse all with their own cars.  Such increase cannot properly be objectionable.  The question must properly be how it effects the amenity of the servient tenement.  There must be something prejudicial in the changed use.

33     Even the servitude granted “at all times and for all purposes",  should be used in the mode least disadvantageous to the servient tenement, consistent with the full enjoyment by the dominant tenement of its servitude right, but the burden on the servient tenement should not be prejudicially or unreasonably increased.

34     That is consistent with and no different from the maxim cited by Basnage. Where the right of way is express and in clear terms the issue is not a case of change to the servitude.  The question is whether the intended use is excessive.  Dalloz, cited in Le Feuvre,^[15] puts it this way -

“Mais l’aggravation de charge, que prohibe la loi, est uniquement celle qui est certaine, actuelle et de nature à porter préjudice au fonds servant.  Tant que la charge n’est pas plus onéreuse, une servitude concédée pour l’usage d’un fonds peut être utilisée pour tous les besoins de ce fonds, méme transformé et affecté à une destination nouvelle”.^[16]

35     One might also refer to Matthews & Nicolle, The Jersey Law of Property where the authors state –

“……… if the servitude is exercised beyond the limits of the need for which it was created, it is said to have suffered aggravation but, for a remedy to lie, the aggravation must have prejudiced the owners of the servient tenement.^[17]

This has nothing, per se, to do with numbers, but is a more qualitative judgment.

36     The question of aggravation turns on the facts and circumstances of the particular case.  The question with which the Court, in such a case, will have to grapple, is whether the proposed new user is so excessive as to be outside the reasonably foreseeable contemplation of the parties at the time that the grant was made and bearing in mind the nature and extent of the original grant and the breadth of its wording.  Is the intended use unreasonable having regard to the circumstances of the case and such a use as would cause a substantial interference with the servient owner’s residual rights?

David Benest is a barrister, an advocate of the Royal Court of Jersey and is a partner in the law firm Bailhache Labesse, 13-14 Esplanade, St Helier, Jersey, JE1 1BD.  The author appeared as Counsel for the defendant in the case under review.

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