Rebecca Galloway Appellant v Haulda Rogers Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: CECIL LEWIS C.J.(Ag.),ACTING CHIEF JUSTICE,N. PETERKIN
• Judgment Date: 09 December 1975
• Judgment citation (vLex): [1975] ECSC J1209-1
• Docket Number: CIVIL APPEAL NO.1 of 1972
• Date: 09 December 1975

[1975] ECSC J1209-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice E.L. St.Bernard

The Honourable Mr. Justice N. Peterkin

CIVIL APPEAL NO.1 of 1972

Between:

Rebecca Galloway

Appellant

and

Haulda Rogers

Respondent

C.E. Francis and K.M. Forde for appellant

J. Kelsick for respondent.

JEDGMENT

CECIL LEWIS C.J.(Ag.)

1 This is an appeal from an order of Louisy J. dismissing the plaintiff/appellant's claims for a declaration, an injunction and damages against the respondent.

2 The subject matter of this appeal is an alley which is said to connect George and Harney Streets in Plymouth in this island. A plan of the area in dispute was supplied to the Court at its request and thereon the alley is delineated in red. At the George Street entrance to the alley, the respondent's property is shown on the west of the alley. Directly opposite the respondent's property is the property of one R.E. Osborne. A wall which separates the respondent's property from the Osborne property runs parallel to the alley on its eastern side and joins up with another property at the back of the aforesaid R.E. Osborne's property. This property, marked on the plan "Mr. Osborne", was originally owned by R.E. Osborne. He conveyed the land in 1953 to the appellant but she bad apparently erected a house thereon between the years 1949 and 1950. This property is now owned by the appellant and it is in relation thereto that her claims have been made.

3 The appellant contends that the alley in question is either a public right of way o r alternatively that she has acquired an easement over the same to use the alley for the purpose of entering and leaving her premises. The respondent on the other hand contends that the alley is a part of her property and that no rights exist over it in favour either of members of the public or of the respondent.

4 The appellant's claims are set out in paragraphs 1, 2, 3, 4 and text of her statement of claim and are as reproduced hereunder:

"1. The plaintiff is and was at all material times the freehold owner in possession and beneficial enjoyment of her lands and premises situate at George Street in the town of Plymouth, in the Island of Montserrat, and the defendant is in occupation of a parcel of land situate west of the plaintiff's property in George Street aforesaid.

2. The said properties mentioned in paragraph 1 hereof are parts of a parcel of land which was formerly in the occupation of one George Irish and extended from Harney Street to Parliament Street situate between George Street and Harney Street.

3. Upwards of 70 years last past, the said lands were sub-divided by the said George Irish and a series of parallel alley ways or roads were made and, in due course, became dedicated to public use.

4. One of the said such alley ways or roads is situate between the properties owned by the plaintiff and the defendant and is of the extent of about 6 feet in width. The said alley way provides the ingress and egress from the plaintiff's property and her adjoining neighbours who live off George Street in the immediate vicinity of her said property.

6. Alternatively, the plaintiff contends that on the alienation of parts of the property by one original owner George Irish the said alley ways which then existed as quasi-easements ripened into full fledged easements and were appended or appurtenant to the plaintiff's said property and were so beneficially used and enjoyed without lawful interruption for upwards of 60 years last past by her and her predecessors in title."

5 It should be stated at once that there is not an iota of evidence that the appellant's and respondent's properties were originally part of a larger parcel of land formerly occupied by George Irish as pleaded. There is also no evidence that the said George Irish sub-divided this land and made parallel alleys, ways or roads over the same. It is however claimed that the alley in question "in due course became dedicated to public use". This was one of the questions which the trial judge had to decide and he found against the plaintiff on this issue and also on the alternative issue that the plaintiff had acquired an easement in the nature of a right of way over the said alley. In relation to the trial judge's second finding, it was stated in ground 2 of the reasons for appeal that he had "failed to deal with the issue of easement as pleaded by the plaintiff and having disposed of the issue of the road being a public highway he treated the issue as being at an end."

6 It is appropriate at this stage to deal with the allegation that the issue of easement was ignored by the trial judge. This statement is erroneous. The claim that the appellant had an easement in the nature of a right of way over the alley is based on paragraph 6 of war statement of claim which predicates the following (a) occupation by George Irish of an area of land which originally included the property respectively owned by the appellant and the respondent; (b) alienation by George Irish of the said area of land to divers persons including the predecessors in title of the appellant and respondent; (c) the existence of alleys as quasi-easements when the various alienations were made (d) the subsequent ripening of these quasi-easements into full fledged easements; (e) that as a result of the alienations the alley in question in this appeal become appendant and appurtenant to the appellant's property and was used by her and her predecessors in title without lawful interruption for 60 years and upwards. The trial judge rightly held that this claim was not substantiated He said at page 56 of the record as follows:

"The evidence does not support the allegations set out in paragraphs 2,3,4 and 6 of the statement of claim."

7 This finding in my opinion cannot be faulted for nowhere in the evidence is there any mention at all of occupation by George Irish of any land or any alienation by him to the predecessors in title of either the appellant or the respondent. Indeed, far from not considering this claim, as the appellant alleges, the trial judge was at pains to point out that it had no support in the evidence. It therefore failed for lack of evidence.

8 In so far as the first issue is concerned, namely, that the alley is a public way, the trial judge after marshalling the evidence made certain findings of fact with which I agree. He said at Pages 56 and 57 of the record

"What the evidence reveals however is that the property owned by the plaintiff formed part of the property bought by R.E.D. Osborne from John Joseph Eid on 27th June 1940. As far back as 1912 the western boundary of the property has been the Rogers' property. It was not until 1953 by Deed of Conveyance dated 7th May of part of this property that the western boundary is described as being a "public footpath".

As to the evidence on the footpath, I accept the evidence that there was a footpath which was used by Jame Mannix's yard, that it was used by persons going into the defendant's yard, used by persons who lived on the south side of Osborne's property and persons who wished to go from George Street to Cherry Village through Mannix's yard and later to Harney Street. That there was a small gate across the footpath in George Street kept closed at night but opened in the day. That the defendant and her mother on occasions stopped people using the footpath. That the footpath was about 2 feet wide. That although the boundary of the defendant's property to the east was Osborne's property, there was a fence erected about 2 feet away from Osborne's property stated above for 50 years or more.

The defendant's house was destroyed by fire in July 1966, she rebuilt it the same year and replaced a gate which she stated was in the George Street entrance, she also laid down a septic tank in the footpath and in 1969 built the southern wall which blocks the footpath at the south end.

On that evidence can it be said that there exists a public right of way and that the plaintiff is entitled as of right to have use, access and egress to her property over the footpath?

A public right of way is the right enjoyed by all members of the public at large to pass and repass along the way for the purpose of legitimate travel. It is not proprietary in nature. Unlike an easement, its existence is not dependent upon the ownership of dominant land, but upon whether or not the right has been validly created."

9 The trial judge then went on to consider the manner in which claims to a public right of way may be created and to make certain findings of fact on the evidence. He said at pages 57 et seq. of the record as follows:

"I refer to Halsbury's Laws of England 3rd Ed.19, page 43, paragraph 60, the relevant part is as follows:

"A claim to a public right of way may be based upon either dedication and acceptance, or upon statute." Clearly creation by statute is not applicable in the instant case and has not been pleaded.

In order to find that a public right of way has been...