[1] Leslie Emanuel (Personal Representative of Leopold Allan Emanuel (Deceased)) [2] Lennard Emanuel Appellants v [1] ACE Engineering Ltd [2] Anthony Le Blanc Respondents

• Jurisdiction: Dominica
• Judge: Chong JA,Justice of Appeal [Ag.],Justice of Appeal,Davidson Kelvin Baptiste,Gertel Thom
• Judgment Date: 08 December 2015
• Judgment citation (vLex): [2015] ECSC J1208-1
• Date: 08 December 2015
• Court: Court of Appeal (Dominica)
• Docket Number: DOMHCVAP2013/0014

[2015] ECSC J1208-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde Gertel Thom Justice of Appeal

The Hon. Mr. Tyrone Chong QC Justice of Appeal [Ag.]

DOMHCVAP2013/0014

Between:

[1] Leslie Emanuel (Personal Representative of Leopold Allan Emanuel (deceased))

[2] Lennard Emanuel

Appellants

and

[1] ACE Engineering Limited

[2] Anthony Le Blanc

Respondents

Civil appeal — Requirement for express reservation of right of way or easement in memorandum of transfer of sale — Section 25 of Title by Registration Act (Dominica) — Absence of express reservation — Whether reservation can be implied — Circumstances where reservation can be implied — Common intention — Easement of necessity — Unjust enrichment — Subsequent discovery of excess land — Surveyor's error in original acreage reflected in certificate of title.

By memorandum of transfer of sale dated 8^th September 2006, the first-named respondent purchased from the deceased 'a portion of land, part of Wall House Estate, in the parish of St. George, containing 13.219 acres, being the remaining part of a larger portion of land…containing 13.950 acres', ("the Subject Land'). Upon the sale of the Subject Land, the estate road ("the Road") which divides the first-named respondent's land in two was not expressly reserved by the deceased as an easement road to access his adjoining lands to the east. It was later discovered by a subsequent surveyor that the overall size of the original parcel was 14.584 acres and not 13.950 acres. This was due to an acknowledged mistake in calculation of the size of the parcel by the previous surveyor. The actual remainder of the land, which is what the parties intended to be the subject of the agreement, was therefore 13.623 acres as opposed to 13.219 acres (a difference of approximately 0.404 acres). The central issue of whether the appellants were entitled to a right of way over the Road as a common access over the Subject Land to the remainder of the Wall House Estate to the east was what generated a claim in the High Court. The learned trial judge dismissed the appellants' claim and held that the appellants were not entitled to a right of way over the Road as a common access over the Subject Land to the remainder of the Wall House Estate to the east. The appellants, dissatisfied with the decision, appealed to the Court of Appeal.

Held: dismissing the appeal and upholding the judgment of the learned trial judge save for the items identified in paragraph 39(1)(a) and (b) and ordering that the appellants pay the respondents costs of the appeal in the sum of $2500.00 which represents one-third of the costs in the court below, that:

• 1. The duty to expressly reserve any easement or incorporeal right in or over land is a well-recognised and established legal principle. The general rule is that if a grantor intends to reserve any such right over the tenement granted, it is his duty to reserve it expressly in the grant. However, this general rule is subject to two exceptions, in which cases the law will imply the grant or reservation of such easement in the clear absence of an expressed reservation of a right of way. This implied reservation can only come about by way of an easement of necessity and/or to give effect to the common intention of the parties to a grant of real property. Notably, the threshold to imply a reservation of an easement is a high one as the courts are not quick to imply an easement not expressly reserved.

  Wheeldon v Burrows (1879) 12 Ch.D.31 applied; Pwllbach Colliery Co. Ltd. v Woodman [1915] AC 634 applied; Section 25 of Title by Registration Act (Dominica) applied; Stafford v Lee (1993) 65 P&CR 172 applied.

• 2. The onus of proving common intention is on the grantor to establish the facts to prove clearly that his case was an exception. Before the court can imply the reservation of an easement, it must be shown that the facts are not reasonably consistent with any explanation other than that such a reservation was intended. It does not suffice to show that the facts are simply consistent with the implication of the reservation of an easement. In this appeal, the appellants failed to discharge the onus of proof to show clearly and affirmatively that the common intention of the grantor and the grantee was to reserve a right of way over the Road. The evidence clearly shows a conflict and as such negates any intention that was common to the parties that an easement/ right of way over the Road should be reserved by implication.

  Re Webb ; Sandom v Webb [1951] 2 AER 131 applied; Stafford v Lee (1993) 65 P&CR 172 applied.

• 3. An easement of necessity is one without which the property retained cannot be used at all and not one merely necessary to the reasonable enjoyment of that property. Such easement will be implied if the remaining land is effectively landlocked. The right of way arises out of necessity, not convenience. It would be most dangerous to hold that where a deed is silent as to any reservation of a way, because it is more convenient to use that way than another, it must exist as a way of necessity. Further, once alternative access is available, even if it is by water rather than land, no matter how inconvenient, a right of necessity cannot arise, unless that other way is merely precarious. In this appeal, the appellants have a possible alternative access to all parts of the retained land and as such are not entitled to a right of way over the Road by virtue of an implied reservation based on necessity.

  Dodd v Burchell (1862) 1 H. & C. 113 applied; Boisson v Letrean TT 1989 HC 135 applied.

• 4. Unjust enrichment presupposes three things, first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff's expense; and thirdly that it would seem unjust to allow him to retain the benefit. In the present case, the first-named respondent is in possession of a benefit i.e. more land which it did not pay for. All three criteria have therefore been met and so to allow the first-named respondent to benefit from a difference in acreage miscalculated without compensation would result in the respondents being unjustly enriched to the detriment of the appellants. This is more so since the difference resulted from a mistake by the surveyor whose task was to calculate the size of the remainder for sale by the vendor to the purchaser. It is therefore only fair and just for the first-named respondent to disgorge that benefit by paying to the first-named appellant the value of the 0.404 acres of excess land.

1 Chong JA[AG.]: Central to the determination of this appeal (as at the trial) is whether the estate road which divides the first-named respondent's land in two and shown on the 1967 plan 2 Wall House Estate1 was reserved as an easement road by the vendor, Leopold Emanuel ("the Deceased") on the sale to the first-named respondent in memorandum of transfer of sale dated the 8^th September

2006 ("the Transfer") for accessing the Deceased's adjoining lands to the east ("the Road").

Chong JA

2 The making of this determination will effectively deal with the issue raised in grounds 1 – 5 of the appellants' grounds of appeal and for that matter the appeal itself.

3 The facts as they relate to the issues raised by this appeal are as follows:

• (i) By the Transfer the first-named respondent purchased from the Deceased 'a portion of land, part of Wall House Estate, in the parish of St. George, containing 13.219 acres, being the remaining part of a larger portion of land known as part of Wall House Estate in the parish of St. George, containing 13.950 acres' ("the Subject Land").

• (ii) Upon the sale of the Subject Land to the first-named respondent, the Deceased did not expressly retain any right of way over the Road or other easement.

4 The learned trial judge, in his judgment dated 1^st May 2013 dismissing the appellant's claim, held that the appellants were not entitled to a right of way over the Road as a common access over the Subject Land to the remainder of the Wall House Estate to the east. This essentially is what the appellants are dissatisfied with and say that this finding is not supported by the facts and wrong in law.

5 In deciding whether the learned trial judge was correct in holding as he did that the Road was not a common access over the Subject Land, this Court must direct its mind to the following:

• (i) In the absence of expressed reservation to reserve a right of way over the Road, under what circumstances would the law imply a reservation; and

• (ii) Based on the facts and circumstances of this case, can the Court imply such a reservation in favour of the appellants' right to use the Road over the Subject Land to access their lands to the east?

Expressed Reservation

6 The duty to expressly reserve any easement or incorporeal right in or over land is a well-recognised and established legal principle and dates back to the often cited case ofWheeldon v Burrows (1879) 12 Ch.D.312 (broadened in Pwllbach Colliery Co. Ltd. v Woodman [1915] AC 6343). The general principle governing cases of this kind was categorized by Thesiger, LJ as follows:

"The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I meanquasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those...