Dee v Skerritt

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Hewlett, J.
• Judgment Date: 22 April 1977
• Neutral Citation: MS 1977 HC 2
• Docket Number: No. 59 of 1975
• Date: 22 April 1977

West Indies Associated States Supreme Court. High Court

Hewlett, J.

No. 59 of 1975

Dee

and

Skerritt

Real property - Easement — Rights of way

Facts: The plaintiff claimed a five foot right of way over the defendant's land to his premises and an injunction restraining the defendant from interfering with the enjoyment of the said right of way and also damages for losses suffered. The plaintiff and defendant owned contiguous portions of land. The defendant's land formed the plaintiff's northern boundary and the dividing line was a stone wall. The issue was whether there existed an easement or right of way for the benefit of the plaintiff.

Held: The previous owner from whom the plaintiff claimed was entitled to a quasi-easement enjoyed within legal memory and which passed into an easement by implication in 1959. The quasi-servient tenement was sold to the defendant. The plaintiff's easement was also established and acquired in the principle of a presumed grant by prescription of common law. The plaintiff acquired a prescriptive title to the easement founded upon long enjoyment. Injunction and declaration granted.

Hewlett, J.

1 In this case, the plaintiff claims a five-foot right of way over the defendant's land to his premises at Davy Hill and an injunction restraining the defendant by herself her servants and agents from interfering with his enjoyment of the said right of way and also damages for losses suffered and costs. The defendant on the other hand denies that the plaintiff is entitled to the right of way where he claims it on her eastern boundary but avers that such a right of way exists and has existed beyond her western boundary, presumably on lands of her neighbour Abigail Greenaway, which the plaintiff is entitled to enjoy.

2 The plaintiff and the defendant own contiguous portions of land at Davy Hill. The defendant's land forms the plaintiff's northern boundary and the dividing line is a stonewall. The lands forming the defendant's western boundary are owned by Abigail Greenaway. All the land in that area admittedly belonged originally to the parents of one Priscilla Farrell. They have died and it appears that the lands became ultimately vested in Priscilla who was born in Tuitt, married Kirnon and on his demise married Thomas Farrell. Until her death in or about 1972, Priscilla occupied and lived on a portion of this land and her sister Dinah Tuitt also lived there and ran a shop until her death in 1927.

3 Over the years, as I find, from time immemorial, Priscilla made use of a certain track through her land to get to the public road on the north. This track was also used for many years by the inhabitants of that area, including the plaintiff himself, to go to and from Dinah's shop, but this right of the inhabitants to pass there I consider to be in the nature of a local customary right which must have expired when the shop ceased to operate after the death of Dinah in about 1927. The plaintiff's claim therefore, if it is to succeed cannot in my opinion be based on custom.

4 The question that comes to the fore is – was that track that Priscilla used the one which was barred by the defendant against the plaintiff giving rise to this action? The defendant's answer is in the negative. She contends that there exists no easement or right of way over her land on her eastern boundary but that such a right does exist beyond her land on her western boundary.

5 While considering that first question it will, I think also be necessary to determine if...